Ever-expanding scope of right to life
As previously stated in our discourse, rights are conferred on individuals by reason of their humanity.
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The whole human rights project seeks to promote the dignity of humans, since it is generally accepted that we are inviolable. Having established the role of human rights law in protecting and advancing human dignity, earlier this year I discussed at length the right to life, which sits at the apex of the pyramid of human rights and freedoms.
This is because the right to life is a prerequisite to the enjoyment of all other rights. It is indeed the mother of all rights as to be able to enjoy any of the guaranteed rights, one needs to be alive.
The right to life is underpinned by the general acceptance in international law that every human being has a right to exist and, should not be killed by another entity.
Following on from this pivotal role, the right to life features prominently in all the major United Nations treaties as well as the regional ones, including our own African Charter on Human and People’s Rights – Article 4.
The right to life enjoins the state not only to refrain from the intentional and unlawful taking of life but also to take appropriate measures to safeguard the lives of everyone within the jurisdiction.
This can extend in appropriate circumstances to a positive obligation on the state to take preventative measures to protect individuals whose lives are at risk.
In Ghana there is a general right to life as guaranteed by Article 13 of the 1992 Constitution which states that the right ought to be protected by the state.
The UN General Comment 36 emphasises the preciousness of this right which inheres in every human being because its effective protection is a prerequisite for the enjoyment of all other rights.
Whilst the traditional view of the ambit of the right to life has been on the states obligation to protect life and the unlawfulness of any arbitrary denial of life, there is developing a new trend in its interpretation which has seen an inexorable expansion of the frontiers of the right.
Case
This process of expansive interpretation gathered momentum in the case of State v Makwanyane. Previously, a deprivation of law by due process was tolerated so that punishment by death (death penalty) following a conviction did not breach the right to life.
However, the Constitutional Court of South Africa, in a landmark decision ― State v Makwanyane ― basically ruled that the death penalty infringed on the right to life and accordingly abolished the death penalty in South Africa.
In Olga Tellis v Bombay Municipal Corporation, the Indian Supreme Court recognised the right to livelihood as an integral part of the right to life.
There are other landmark cases that have been gradually expanding the boundaries of the right to life in other jurisdictions which cannot be detailed here due to constraints of space but a recent decision of the Supreme Court of India, which bucks the trend, is worth mentioning.
Earlier this year, the court in M. K. Ranjtsinh v Union of India declared the right to be free from adverse effects of climate change to be a fundamental human right derived from the right to life and equality as enshrined in the Indian Constitution.
The court said the right to life could not be fully realised without a clean environment that was stable and unaffected by climate change.
What makes the case remarkable is that climate change was a secondary issue as the main issue for adjudication was focused on the protection of an endangered bird ― the Indian Bustard.
Ramifications
The ramifications of this expansive interpretation of the right to life can be brought home to bear on some of the problems we are facing in Ghana.
It is trite that Commonwealth decisions are of persuasive effect in Ghana and practitioners can, in my opinion, rely on it while litigating environmental issues.
The menace of illegal mining (galamsey) in destroying our fertile lands and water bodies immediately comes to mind.
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Inhabitants of these areas whose livelihoods are compromised by the wanton destruction of their farm lands and water bodies can bring actions against the government, relying on their right to life.
Clearly, these are exciting times for human rights activists, practitioners and communities whose very existence is being threatened by environmental issues.
Law is dynamic and it’s time to test the law.
The writer is a lawyer.
E-mail: georgebshaw1@gmail.com