Why are human rights justiciable but duties not justiciable?
Citizenship entails a reciprocal relationship between rights and duties.
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While citizens have rights to freedoms and protections, they also bear duties such as obeying laws, paying taxes, and participating in civic activities.
This balance fosters a responsible and engaged citizenry, crucial for the functioning of a democratic society. Ghana’s 1992 Constitution exists to safeguard the rights and freedoms of people, as well as outline what their duties should entail.
Even though rights give birth to specific duties and obligations, it appears that in Ghana while many citizens may be aware of some basic Fundamental Human Rights (FHR), most people are completely unaware of their duties, as a constitutional provision.
Notwithstanding, the 1992 Constitution in safeguarding the rights and freedoms of people gives power to the Judicial arm of government to enforce human rights breaches, but this is not the case when it comes to duties of citizens. Therefore, as the writer ponders over this, he raises a few questions which, in his view, should engage the minds of readers.
(a) What is the relationship between rights and duties?
(b) Why are human rights justiciable but their correspondence duties not justiciable?
(c) What is the essence of having a constitutional provision outlining the duties of citizens when those duties are not justiciable?
(d) Should Article 41 be considered to join the human rights provisions in Chapter 5 of the 1992 Constitution of Ghana?
(e) What would happen if the duties of citizens become equally justiciable as their human rights?
Observation
The 1992 Constitution of Ghana outlines, protects and firmly guarantees the fundamental human rights of citizens, however, the duties imposed on citizens in Article 41 lack a clear mechanism for enforcement, potentially leading to a gap in accountability. Again, how can a society promote civic responsibility and avoid legal intrusion? Would that not pose a challenge to governance and overall legal systems?
Fundamental human rights
In 1959, the International Commission of Jurists found that there can be no rule of law in a country when individuals do not have a full guarantee and enjoyment of their fundamental human rights.
The commission then concluded that any explanation and observation of the rule of law must include the enjoyment of these rights by citizens. Human rights, therefore, play a crucial role in society by promoting dignity, equality and justice.
They provide a foundation for fair treatment, individual freedoms, and social harmony, and a society that upholds human rights tends to experience greater stability, progress and a more ethical government system. Dennis Dominic Adjei observes that Fundamental human rights are inalienable and perceived to derive their very source from nature.
Adjei acknowledges the importance of Human Rights when he suggests that these rights must be jealously guarded to protect the rights of individuals and human beings. It is the writer’s case that perhaps, except for prohibited immigrants, Ghana’s 1992 Constitution enjoins the arms of government to respect and safeguard the rights of every person in Ghana. Article 12(1) reads:
The fundamental 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 its agencies, and where applicable to them, by all natural and legal persons in Ghana and shall be enforceable at the Courts as provided for in this Constitution. Again, to safeguard the Fundamental human rights and principles, the 1992 Constitution adopts an entrenched position in Chapter 5, making them more resistant to amendment.
Thus, Article 290(2)(3)(4)(5)(6) provides cogent guidelines for amending any of the entrenched provisions outlined in Article 290 (1). In view of this, one can say that the crucial role of the 1992 Constitution in promoting and safeguarding the rights and freedoms of citizens cannot be underestimated. However, also worthy to ask is, what is the relationship between rights and duties, and how do rights give birth to duties?
Rights and duties
Article 41 of the 1992 Constitution outlines the duties of citizens and further acknowledges that the exercise of rights and freedoms is inseparable from the performance of duties.
The question then is, why then does the framers of the 1992 Constitution seem to separate Rights from Duties, in terms of its place and effect in the Constitution? The German philosopher and jurist, Samuel Von Pufendorf, in his work, “On the Duty of Man and Citizen According to Natural Law”, discusses the interplay between individual rights and duties.
According to Pufendorf, while individuals have natural rights, they also have duties to others, and these duties contribute to the overall moral fabric of society. Pufendorf believes that individuals have a duty to act in ways that promote the welfare of the community and that the pursuit of the common good aligns with natural law.
Pufendorf, therefore, explores the intricate relationship between natural law, individual duties, and the establishment of a just and orderly society and postulates that the relationship between rights and duties is, therefore, reciprocal.
While individuals have rights that entitle them to certain freedoms and protections, they also have corresponding duties to respect the rights of others and contribute to the well-being of society and individuals must fulfil reciprocal duties in enforcing their natural rights. Article 41(d) is instructive:
it shall be the duty of every citizen to respect the rights, freedoms and legitimate interests of others, and generally to refrain from doing acts detrimental to the welfare of other persons. Clearly, Duties and Rights are inseparable.
Justiciability
As already indicated, human rights issues are of extreme importance to modern democratic societies. The preamble of the United Nations Charter (UNC) stresses the importance of fundamental human rights, the African Charter on Human and Peoples’ Rights (ACHPR) also known as Banjul Carter is a binding Human Rights instrument on member countries on the continent are signatories to it.
The Economic Community Court of Justice (ECCJ) also exercise Human Rights jurisdiction under the United Nations Declaration of Human Rights (UNDHR). In Ghana, the 1992 Constitution does not only guarantee the Rights and Freedoms of people, the Constitution goes on to cloth the Judiciary some exclusive powers in enforcing these Rights and Freedoms.
Article 140 (2) is illuminating; The High Court shall have jurisdiction to enforce the Fundamental Human Rights and Freedoms guaranteed by this Constitution. Over the years, Human rights cases have been determined by the High Court and other Quasi-judicial bodies in Ghana and some of them include Republic v Commission on Human Rights and Administrative Justice Exparte Richard Anana, Raymond T Osanyogmor vs Commission on Human Rights and Administrative Justice, Ahumah Ocansey Vs the Electoral Commission and Centre for Human Rights Civil Liberties Vs the Attorney General Anor, Agnes Yarboi Vs Commission on Human Rights and Administrative Justice.
However, whereas Ghana’s 1992 Constitution makes room for the court to enforce human rights breaches, it is not so with their corresponding duties. The Duties of citizens enshrined in Article 41 shockingly come under the Directive Principle of State Policy (DPSP) in Chapter 6 of the 1992 Constitution.
On the justiciability of the DPSP, Reginald Nii Odoi makes reference to the case of NPP v IGP, and indicates that the experts who collated the report on the National Commission on Democracy (NCD) recognised that the DPSP was not justiciable—in order words—the provisions cannot be enforced by judicial or quasi-judicial organ.
Again, in the CIBA case, the Supreme Court through Bamford-Addo JSC held that: “…until the PDSP are read and applied in conjunction with any substantive guaranteed Human Rights and Freedoms set out in Chapter 5, the PDSP remain guidelines only and are not enforceable rights by themselves.
Based on these positions, the legal scholar, Nii-Odoi is of the view that “it is not clear from the text of the Constitution whether the DPSP are justiciable or not.” But could this lack of clarity and certainty hinder the resolution of disputes and limit the accountability of government entities or individuals for failing to fulfil their constitutional duties? What would become of a society unable to enforce specific duties imposed on citizens?
Socioeconomic implications
The non-justiciability of duties could have significant socioeconomic implications, as it limits legal avenues to enforce certain obligations imposed on citizens. Anecdotal evidence suggests that this could result in a lack of accountability for entities or individuals, potentially leading to economic disparities, exploitation and social injustice.
The absence of legal recourse may undermine efforts to address issues such as labour rights, environmental protection, and corporate responsibility, impacting the overall well-being of society.
Again, if duties are not justiciable, they may exacerbate existing socioeconomic inequalities allowing those in power to disregard their responsibilities without consequences. Thus, the absence of legal enforcement for duties may erode social cohesion and trust, as individuals and entities may act without accountability, leading to a breakdown in societal relations.
When duties are not enforced, certain cultural practices or values may persist, even if they conflict with broader societal expectations or ethical standards. Finally, a lack of legal mechanisms for enforcing duties may undermine the effectiveness of governance structures, affecting the rule of law and the overall stability of society.
In conclusion, Article 41 placed under the PDSP in Chapter 6 of the 1992 Constitution makes the duties of citizens non-justiciable, which could continue to pose significant challenges to socioeconomic and cultural activities.
To resolve this challenge and make citizens accountable, it is my recommendation that as part of a clarion call to reform Ghana’s 1992 Constitution, experts should consider enjoining Article 41 to the fundamental human rights enshrined in Chapter 5 of the 1992 Constitution. This will make citizens more aware of their civic duties as a constitutional provision, in addition to making them more responsible and accountable.
The writer is with the Formed Police Unit Headquarters, Accra
Wisconsin International University,
Faculty of Law, Level 200U
