Embedding human rights

The aftermath of the Second World War witnessed the emergence and subsequent promulgation of many human rights treaties. 

The period also witnessed the creation of international human rights protection mechanisms, whose main objectives were to ensure that massive human rights violations which happened during the war would never happen again.

Whilst there have been great strides in the promotion and enforcement of human rights, manifested in the establishment of regional human rights bodies — the European Court of Human Rights, the Inter-American Court of Human Rights, the African Court of Human Rights etc - human rights abuses are still a feature of human existence.

The above is a personal view of the global situation and is by no means an objective assessment of the reach of human rights across the globe. The focus of this article, however, is closer to home and, as such, will evaluate the purview of human rights law within the borders of Ghana. 

Question

An enduring and abiding question posed to academics, practising lawyers and activists alike is: how effective has human rights law been in fostering an atmosphere where promotion and respect for human rights reigns supreme?

I personally have been asked the following questions: how can human rights law help when it is needed here and now and not in five, 10, 15 years?

How can the promise of the primacy of human rights be realised? Even though many will answer the above questions negatively, I am highly optimistic that the aspirational ideals of a society where human rights are promoted and respected is  within reach but only if some factors are prevalent.

The most important variable, in my estimation, in fostering in a country the conditions for human rights to flourish, is the existence of a pro-human rights Bench, who are fearless in interpreting laws with a human rights bias.

Judges are crucial because they can promote human rights by way of judicial review whereby administrative actions and the powers of government, public authorities are nullified. Also, Judges are responsible for interpreting human rights legislation.

Duty

In Ghana, as in all modern democracies, the Judiciary is responsible for the adjudication of citizens’ grievances on various human rights issues. Our courts have the duty to enforce the constitutionally guaranteed rights of citizens and it is my fervent hope and desire that they ruthlessly interpret these constitutional rights with a human rights slant.

One way of showing how Judges can help promote human rights in the country is to situate the argument within the workings of the criminal justice system. If you take, for example, the rights of people on arrest, it could be seen that a lot of human rights abuses occur at the police station, at least anecdotally.

There are numerous instances where arrested persons have been kept in custody beyond the prescribed 48 hours before they are arraigned in court. If our Judges, as in another jurisdiction, declare such arrests as illegal, I believe that such an abhorrent practice would be a thing of the past.

Also, in the context of bail applications, if our Judges construe these two constitutional rights — presumption of 

innocence and the right of liberty - teleologically (expensively) as human rights jurisprudence dictates, a lot of arrested persons would be granted bail.

Use

Again, in the course of trial, one issue which has become vexed and contentious is the sanctity of caution statements (statements of accused persons at the police station after charge).

In the majority of cases where I have been involved, the accused persons, almost without exception, challenge the authenticity and veracity of their statements. Defence lawyers argue against the admissibility of such caution statements because of one or all the following factors:

a) Statement taken without the police properly explaining the import of the caution;

b) In cases where the arrested persons cannot write his/her statement, the written statement is properly read over to them before endorsement;

c) That the caution statements were taken by the police without according the accused persons their constitutional right, which is stated clearly in the caution recital, of legal representation.

Again, trial Judges are urged to anxiously scrutinise the police witnesses’ evidence in relation to the above scenarios before admitting them into evidence as it would go a long way in safeguarding the admission of “confession” statements.

These are but a few instances where the true import of these human rights constitutional guarantees can be felt and would ensure a sound bedrock for further development into other areas of the law.

The writer is a lawyer.
E-mail: georgebshaw1@gmail.com