The recent confrontation between the Alliance for Accountable Governance (AFAG) and the police over a demonstration that that group intended to embark on brings to the fore again the attitude of the police and our courts towards their duty to respect and protect fundamental human rights particularly the “freedom of assembly including [the] freedom to take part in processions and demonstrations.”
Over the years, what the police have almost always done when a group plans to embark on a demonstration is to give the excuse, that they do not have the facilities or the men to give protection to the demonstrators or simply, that they are overstretched because they have to prepare for an important event some of which have included the visits of foreign heads of states and other dignitaries. In the worst cases when the demonstrators have proved adamant, what they have usually done is to run to the courts with affidavits, usually, less than 24 hours before the demonstration to procure injunction to stop the planned demonstration. But what are the constitutional provisions on the right to freely assemble and demonstrate? And what is the interpretation the Supreme Court has given to those provisions? Is the attitude of the police (sometimes with the assistance of the courts) in preventing organized groups from freely assembling to exercise their fundamental and constitutional right to demonstrate consistent with the letter and spirit of the 1992 Constitution, and the Supreme Court’s interpretation of the freedom of assembly? These are the issues I wish to engage your attention on in this piece.
Ghana’s political history has been a chequered one; a history interspersed with dictatorships and widespread human right violations. The Preventive Detention Act, 1958 (PDA) for instance, was an instrument with which several persons during Nkrumah’s era who were accused of engaging in acts prejudicial to the security of the state were detained without trial. Some of such persons like Dr. J. B Danquah died in detention. When the then Supreme Court was presented with the opportunity to declare that law unconstitutional in the case of In Re Akoto [1961] GLR (Pt II) 523, it declined the invitation to do so on grounds that the First Republican Constitution, 1960 did not contain “a Bill of Rights in the sense in which the expression is understood under the Constitution of the United States of America”. Learning from that experience, no Constitution adopted in this country subsequent to the 1960 Constitution has failed to expressly provide for a chapter dedicated to fundamental human rights and freedoms with the usual injunction to all arms and agencies of government, and where applicable to them all natural and juristic persons, to respect and uphold these rights. The 1992 Constitution has not been an exception in this regard. Indeed in article 12(1) of the Constituion,1992 it is provided that “the fundamental human rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, Legislature, and Judiciary and all other organs of government and agencies and, where applicable to them by all natural and legal persons.”
The enjoyment of these rights, are however subjected to some limitations and it is important we recognize that. The exercise or enjoyment of any right is supposed to be in due acknowledgement of “the respect for the rights and freedoms of others and for the public interest.” That the freedom of assembly, which includes the right to process and demonstrate subject to some reasonable limitations is beyond dispute and any contestation. But the critical question which has always bothered the minds of adherents of the principles of rule of law and fundamental human rights is whether those who enforce these limitations have on those occasions when they have sought to do so operated within the ambits of the Constitution.
In New Patriotic Party v. Inspector General of Police[1993-94] 2 GLR 459, the Supreme Court was presented with opportunity to interpret and enforce the freedom of assembly and demonstration as provided for in article 21(1)(d). Indeed the Court acquitted itself of that task creditably setting out a clear blueprint for the police and all other arms and agencies of government, as to how their attitude should be towards respecting and upholding that fundamental right. This case was precipitated by some rallies and demonstrations the NPP and other opposition parties attempted to embark on in February 1993.They obtained permits from the police as required under the law in force at the time, namely the then Public Order Decree, 1972 (NRCD 68) to hold two rallies, one in Sekondi-Takoradi and another in Kyebi which was to commemorate “the 28th anniversary of the tragic death of Dr J.B. Danquah.” But hours before those rallies, the police withdrew the permits and prohibited the Party from the holding those events. Again while on a peaceful demonstration in Accra in protest against the 1993 budget statement of the then NDC government, its members and the other participants were violently assaulted by the police and some of them were arrested and charged with the offence of demonstrating without a permit.
It was for these reasons that the NPP petitioned the Supreme Court praying for a declaration that the provisions of the Public Order Decree which made it a requirement to obtain police permit as a condition precedent to exercise of the fundamental right to freely assemble and demonstrate were unconstitutional. The court agreed with the NPP and without any equivocation stated emphatically, that the exercise and enjoyment of the right to freely assemble and demonstrate is not made conditional to obtaining permission or permit. The Court reasoned that to hold otherwise will be to subject the exercise of that constitutional right to the unfettered discretion of one person who would determine who should exercise that right and when. “Thus a senior police officer may out of prejudice, bias or even political preference refuse a permit on flippant and untenable grounds,” the Court observed. There were counter arguments, that to totally take away the discretion of the police to determine which demonstrations to allow and when will be tantamount to creating huge obligations which the police may not have the capacity to meet. This was rejected. Joyce Bamford-Addo JSC (as she then was) noted and rightly so that: “That may be so but this is the price we have to pay for democracy and constitutional order. The police like any other organ of government are required to operate within the four walls of the Constitution…”
So what exactly was the Supreme Court saying? Was it saying that the freedom of assembly and procession was not subject to any limitation? Of course not, because as already indicated the Constitution provides a general limitation which is that all rights enshrined in the Constitution must be exercised subject to respect for the rights of others and for the public interest. But according to the Court, the above limitation provided for in article 12(2) does not by any means extend to vesting unfettered discretion in the police to sort of screen planned demonstrations and determine which ones should be approved of and which ones should not. Following it’s earlier decision in Republic v. Kambey [1991] 1 GLR 235, the Supreme Court explained that “such an assembly to be unlawful must be for purpose forbidden by law or with intent to carry out their common purpose in such a manner as to endanger public peace.”
What this means is that freedom of assembly could be limited, but only where the intended purpose for the said rally or gathering is to carry out an activity which is prohibited by law or that even though the purpose of the assembly in itself is not illegal, the manner in which that purpose is going to be achieved will amount to a breach of the peace. Therefore in a situation where a group organizes a rally or a gathering with the intent to carry out a common illegal purpose, the police have a right to stop that by arresting such persons or go to court to secure an order to stop the said gathering. Also where a group assembles for a lawful purpose but in order to achieve that purpose they resort to illegal means such as the use of force and violence, then the police may legitimately disperse such gathering. Absent these scenarios, the implication of the Supreme Court’s decision is that no authority can arrogate to itself the power to determine whether a particular demonstration or procession should go ahead or not.
At this stage the critical question I wish to address is whether the attitude of the police in giving the excuse that they are unable to provide security for demonstrators and therefore they have to cancel or postpone their planned demonstrations is consistent with the letter and spirit of the constitution. It is my opinion that such excuses simpliciter, without more, are unreasonable and unconstitutional. What the police must be made to understand is that neither the Constitution nor the Public Order Act 1993, makes inability to provide police protection one of the grounds on which the right to freely assemble and demonstrate could be limited. Indeed if that were allowed then we would be returning to the days of the Public Order Decree which the Supreme Court has thankfully given a decent burial. To allow the police to cite the excuse of inability to provide protection for a group to embark on demonstration will be subjecting the enjoying of the right to when the police feel convenient to allow it. If the police were allowed to have such discretion do we honestly think that a group of persons who for instance want to stage a demonstration against the police for corruption or police brutalities would ever have the chance? The Public Order Act only requires organizers of demonstrations to notify the police; it does not subject the holding of such events to the condition the police must be capable and willing to provide protection for such events. It must be noted that people organize demonstrations at particular places and at particular times in order to send out particular messages. Therefore if they are disallowed from holding the event at that particular time and place by mere reason that the police cannot provide protection, then that is indirectly a curtailment of the right. This is because holding the event at later date or location may not serve the purpose and effect the event was intended to achieve.
Assuming there is going to be another AU Summit in Accra at which Yahaya Jammeh will be in attendance, what purpose will be achieved if a group of people who want to hold a procession in protest of the Gambian killings are told that they can’t do so until after the Summit by which time Jammeh would have sneaked out? In any case we must we always restrict the right of the citizenry in order to meet the inefficiencies of the police? Indeed I do not see why the Police cannot establish a special unit within the Service to handle processions and demonstrations as they have done with other areas like motor and transport, criminal investigation and domestic violence. It appears that people’s right to freely assemble and demonstrate is not one of their priorities. That could only be the explanation for why they have always been quick to say that they can’t provide protection for demonstrators and sometimes rush to the courts to procure prohibitory injunctions.
But must our courts be quick to always grant the request of the police for injunctions to prohibit demonstrations? Maybe they shouldn’t. Personally, I have sometimes found some of the circumstances under which the police have gone to court to procure injunctions very suspicious. On most occasions the police have gone to court only a few hours before the planned demonstration, and also on ex parte applications. This is quite mischievous, because by adopting this tactic, they take the demonstrators unawares and afford them no opportunity to oppose their applications. Considering that such proceedings often result in the possible curtailment of the rights of the citizen the proper procedure, I think, should be that the applications should be made on notice so that the demonstrators may have the chance to oppose the affidavit of the police in satisfaction of the cardinal principle of justice, audi alteram partem.
Again should the mere allegation by the police that they are unable to provide protection be enough ground to grant an injunction? With respect, I do not think so. Under the Public Order Act the Court may (not “shall”) grant orders it deems fit after the police have satisfied the Court, that there are “reasonable grounds to believe that the special event if held may lead to violence or endanger public defence, public order, public safety, public health or the running of essential services or violate the rights and freedoms of other persons…” My humble understanding of this provision is that, based on the facts presented to it by the police, the Court may only grant order where the nature and character of the proposed demonstration is such as to endanger public security or by reason of the manner in which the said demonstration is going to be held the rights and safety of others could be endangered, and not that because the police may not be present public safety is likely to be endangered. The test also requires that those grounds provided by the police must be reasonable. It seems to be therefore that mere speculation by the police that their absence is likely to endanger public safety should not be reasonable grounds for the grant of an injunction. Indeed if the demonstrators can take care of their own security arrangements I see no reason why they shouldn’t be able to go ahead. And I should mention here that attitude of the police in citing their preparations for some special events and operations as excuse for their inability to provide protection is unreasonable and worthy of all condemnation, and should not be countenanced by our courts.
It seems to me therefore that the question which should be answered in such cases is whether or not the circumstances are such that even if the police were around there is the possibility that they may not be able to contain the situation and therefore their absence will further aggravate the security risks. Never should injunctions be granted to prohibit demonstrations merely on police allegations without further inquiry to test the veracity of claims that they are unable to provide protection.
In concluding this piece I wish to end with the sentiments of Lord Atkin as he expressed them in the case of Liversidge v. Anderson. He declared: “I view with apprehension the attitude of judges who on a mere question of construction, when face to face with claims involving the liberty of the subject show themselves more executive-minded than the executive.” Our Courts must indeed be cautious not to be too security-minded than the security forces themselves when it come to matters bordering on fundamental human rights particularly the right to freely assemble and demonstrate. For far too long and too often, the rights of the citizen have been sacrificed on the nebulous grounds of national security; our courts must be careful not to be co-conspirators in that scheme.
Credit:
Christopher Yaw Nyinevi
Faculty of Law, KNUST
chrislynk05@yahoo.com
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