Joseph Whittal — CHRAJ Commissioner
Joseph Whittal — CHRAJ Commissioner

Realisation of freedoms... under Constitution

On September 21, 2023 it was  widely reported  that  protestors who had gathered around  the 37 Bus  station to exercise their  constitutional right to demonstrate were  arrested, manhandled and  subsequently detained at various police  stations  within  Accra  by the Police.  

It was also reported that protestors  at some point were denied access to  their lawyers. 

The  reason for the Police response was that court processes to place  an injunction  on the protest  had been served  on  lawyers  of  the  leadership of protestors,   and  therefore,   deemed   such assembly  unlawful.

Freedom of assembly (otherwise known as right to protest or right to demonstrate) is a basic right  vital  to an individual's  personal  development and political consciousness and enhances participation   in the conduct  of public  affairs in his  country.  

The right by its nature also provides citizens with  the tool to express their concerns and demand  accountability from  the government.

The  right enables individuals to express themselves collectively and  to  participate in shaping their societies.  

The right is of keen historic  significance  and this was duly recognised  by Amua-Sekyi JSC in New Patriotic  Party v. Inspector  General  of Police [1993-94]  2 GLR 459-509.

The  freedom  of assembly   is guaranteed   under  chapter  5 specifically of the 1992 Constitution.

Additionally, article   11  of  the  African Charter on Human and  People's Rights similarly indicates that "every individual shall  have the right to freely  assemble  with others ..... "

The Commission   learns  that the  leadership  of the protestors  had given  notice  to the Police  several  days back to facilitate  discussions  on the date, possible  routes to use in order to ensure  a problem-free   protest.  

The basis for the Police  action  as the  Commission   understands   was  that  it had  served  some  court  process  on the lawyers  of the leadership  of the protestors  and therefore  considered  any attempt to undertake  the protests  as unlawful  hence  giving rise to arrests and detention  of protestors.

The Commission sadly notes that Police   response over   the   years   against protestors  have been disproportionate   and leaves  much  to be desired.

It is in this context  that the Commission  deems  it appropriate  as the National Human  Rights Institution (NHRl)  with the mandate to promote and protect  human  rights  under the Constitution and CHRAJ  Act,  1993 (Act  456)  and its obligations under  the Paris Principles to issue an advisory  to relevant  state actors on matters  of  human rights concern.

While  the  right  to  demonstrate is recognised by  the  state  as  constitutionally guaranteed, the  contention is  in relation to how  the  right should  be exercised against other   competing    legitimate   interests, such as,  public safety, national security, public health, the running  of  essential  services often cited  by law enforcement officials  to justify  restriction  of the right.  

It is important  to indicate that the right  in issue  is a human and constitutional right  and therefore any limitation  placed  on the right  must  satisfy  the threshold  stipulated  under  human rights  law.

Issued by CHRAJ, on September 27, 2023.

Old Parliament House.

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