A REVISIT TO THE RIGHT TO DEMONSTRATE ON ACCOUNT OF THE ENSUING EVENTS OF THE DEMONSTRATION OF LAW STUDENTS FROM THE STANDPOINT OF THE PUBLIC ORDER CASE By Frederick Agaaya Adongo

Arguably, the notion of human rights constitutes the foundation stone on which rests all other Constitutional Law concepts. Throughout the ages, from the medieval times, through the renaissance, to our contemporary times, the concept of human rights has gained an elemental status in the works of great scholars of the law. In fact, it is not out of context for Justice J.N.K Taylor to assert in his work  THE SCOPE OF HUMAN RIGHTS IN GHANA [1993-95] VOL XIX RGL 84—104  that “the notion of the rights of man and the dimension of the practices which have come to be regarded as the scope and focus of these rights have been largely embedded in customary understandings which human societies have considered to be the bedrock and the fundamentals of their culture. The history of the development of these rights is also the history of the development of the notion of the rule of law.  It parallels the concept of government as it had been coloured and sustained in political organisations throughout the tortuous history of the human race.”

Without the guaranteeing of rights in our legal systems, our human existence would be foiled with chaos, anarchy and disorderliness. In this connection, it is not surprising that a full chapter (chapter 5) in the 1992 Constitution of Ghana has been devoted to human rights, which are described therein as fundamental and insulated from executive and legislative control and manipulation, and the courts given the unequivocal power to enforce same. This, it has been argued, marks a fundamental retreat from the prevailing situation in the days of the infamous Re Akoto Case, where the courts virtually succeeded in reducing human rights to mere privileges accorded to citizens and residents at the behest of the President.

As a matter of fact, one can argue convincingly, albeit with some degree of carefulness, that the provisions of Chapter 6 of the Constitution which focus on the Directive Principles of State Policy are also rights which the courts may, – and should in the interest of justice – enforce. There is a quantum of legal literature on which one can base to make such an assertion. Notable among them are the opinion of Adade JSC in the case of New Patriotic Party (NPP) v. Attorney-General (The 31st December Case), the opinion of Bamford Addo JSC in the case of New Patriotic Party v. Attorney-General (The CIBA Case) and that of Date-Bah JSC in the National Lottery Case on the justiciability of the Directive Principles of State Policy. The author does not intend to expend time discussing these cases in detail, as they are familiar friends of every student of our country’s Constitutional Law.

In fact, the argument has been proffered by authors such as Kofi Abotsi that article 33(5) of the constitution expounds the scope of human rights virtually ad infinitum by providing that the provisions of the constitution on human rights are not exhaustive of all rights enforceable by our courts. The said article provides that “the rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man.” The provision clearly indicates the high threshold of importance that the framers of the constitution attached to the notion of human rights, perhaps driven by our chequered political history, coupled with the dictatorial regimes that we had experienced as a country in our recent past. There is a legion of cases which stress the importance of this provision and the readiness of the courts to enforce the rights contemplated thereunder, provided they satisfy the requirements in article 33(5). For instance, Francois JSC indicated quite clearly in the 31st December Case that, “another example of the all-pervasive and embracing spirit to which there is a mandatory call to obeisance, is article 33(5) of the Constitution, 1992. All are enjoined to go beyond the written provisions enshrining human rights, and to extend the concept to areas not specifically or directly mentioned but which are ‘inherent in a democracy and intended to secure the freedom and dignity of man.’” Specifically, Francois JSC again, speaking in the case of New Patriotic Party (NPP) v. Ghana Broadcasting Corporation (GBC) noted that “the Constitution, 1992 demands that a broad and liberal spirit of democratic pluralism should prevail in this country. It in effect accepts previous failures in the constitutional experiment and consequently attempts an all-embracing liberal framework that would include all possible shades of freedom not specifically or expressly mentioned, but which are essential cogs to enhance the driving capacity of a truly free-wheeling democracy.” On this point, Sophia Akuffo JSC poignantly opined in the case of Adjei Ampofo v. Attorney General that “the reference to ‘others’ referred to in Article 33 (5) could only apply to those rights and freedoms that have crystallised into widely or generally accepted rights, duties, declarations and guarantees through treaties, conventions, international or regional accords, norms and usages.” This makes it highly possible for an individual to assert diverse plethora of rights not specifically stated in the human rights provisions of the constitution.

With this background, it is relevant to consider, albeit briefly the constitutional right to freedom of assembly and to demonstrate. The locus classicus of our discussion on this fundamental right is article 21(1)(d) of the 1992 Constitution. It provides in unequivocal terms as follows: “all persons shall have the right to freedom of assembly including freedom to take part in processions and demonstrations.” This right to demonstrate is, without doubt, a very crucial and convenient means whereby a group of people can easily express their displeasure about a particular development. Credit therefore ought to be given to the framers of the 1992 constitution for their inclusion therein of provisions which give effect to this fundamental right. Thus, however vexatious the exercise of the right to demonstrate may appear to other people, unless the activities of the protesting groups necessarily disrupt greatly the normal day-to-day activities of the members of society, it is best that they tolerate such acts as far as practicable, in furtherance of our quest to develop a democratic society where opposing views are considered in the decision-making process without unnecessary resentments.

In his seminal article, THE CONSTITUTIONAL RIGHT TO FREEDOM OF ASSEMBLY AND PROCESSION IN GHANA IN THE LIGHT OF THE DECISION IN THE PUBLIC ORDER CASE AND THE PUBLIC ORDER ACT,  UGLJ 1—25, Prof. Edward Kofi Quashigah puts the point succinctly thus:  “it is a small price for the bigger benefits of democracy that the rest of us should tolerate the little inconveniences that come with occasional exercise of the right to  freedom of peaceful assembly, procession and demonstration by some others. It is in the free exercise of these and other rights that society faces its shortcomings and re-directs them for the benefit of us all.”

The local case which has discussed at great length the extent of the exercisability of the right to demonstrate, and of course the principal focus of our discussion, is the famous case of New Patriotic Party (NPP) v. Inspector General of Police (IGP), hereinafter referred to as The Public Order Case. The facts of that case were simply as follows.

Section 7 of the Public Order Decree, 1972 (NRCD 68) gave the Minister for the Interior the power to prohibit the holding of public meetings or processions for a period in a specified area; section 8 of NRCD 68 provided that the holding of all public processions and meetings and the public celebration of any traditional custom should be subject to the obtention of prior police permission; section 12 of NRCD 68 gave to a superior police officer the power to stop or disperse such a procession or meeting; and section 13 of NRCD 68 made it an offence to hold such processions, meetings and public celebrations without such permission.

The plaintiff, a registered political party, sought and was granted a police permit on 3 February 1993 to hold a rally at Sekondi on 6 February 1993. The permit was, however, subsequently withdrawn by the police (just a day to the rally). On 16 February 1993, the plaintiff in conjunction with other political parties embarked on a peaceful demonstration in Accra to protest against the 1993 budget of the government but the demonstration was broken up by the police and some of the demonstrators were arrested and arraigned before the circuit court on charges of demonstrating without a permit and failing to disperse contrary to sections 8, 12(c) and 13 of NRCD 68.

Again, on 17 February the same year, the plaintiff was granted a permit by the police to hold a rally at Kyebi to commemorate the 28th anniversary of the death of Dr J B Danquah but the permit was withdrawn and the rally prohibited by the police on the day of the rally.

Aggrieved by those decisions and actions of the police, the plaintiff brought an action before the Supreme Court for a declaration that (i) sections 7, 8, 12(a) and 13 of NRCD 68 were inconsistent with and a contravention of the Constitution, 1992, especially article 21(1)(d) thereof, and were therefore null, void and unenforceable; and (ii) under the Constitution, 1992 no permission was required of the police or any other authority for holding of a rally or demonstration or procession or the public celebration of any traditional custom by any person, group or organisation. In support of the claims, counsel for the plaintiff submitted that

(a) sections 7 and 8 of NRCD 68 derogated from the fundamental human rights and freedoms, especially the right of citizens to freedom of assembly, including freedom to take part in processions and demonstrations as provided under article 21(1)(d) of the Constitution, 1992; and

(b) any provision of a statute that sought to give power to a person to refuse a rally being held in derogation of the right of the individual granted by the Constitution, 1992 was unconstitutional since any restriction contained in article 21(4)(c) of the Constitution, 1992 should not be taken as giving a right to any authority or person to refuse such a rally.

Counsel further argued that in the circumstances, the police should never be given the right to issue a permit authorising a meeting, procession or celebration. Although the defendant admitted the facts of the plaintiff’s case, it was contended in his defence that the right of freedom of assembly contained in article 21(1)(d) of the Constitution, 1992 was not absolute but was subject to the restrictions contained in article 21 (4) of the Constitution, 1992 and therefore sections 7, 8 12(c)  of NRCD 68 were in conformity with the letter and spirit of the Constitution, 1992.

The highest court of the land, constituted by a panel of seven justices unanimously decided that;

Sections 7, 8, 12(a) and 13(a) of the Public Order Decree, 1972 (NRCD 68) were inconsistent with article 21 (1)(d) of the Constitution, 1992 and were therefore unconstitutional, void and unenforceable. Categorically, Charles Hayfron-Benjamin JSC indicated that “in construing article 21(1)(d) and (4) of the Constitution, 1992 therefore, it is clear that (1) the concept of consent or permit as prerequisites for the enjoyment of the fundamental human right to assemble, process or demonstrate is outside their purview. Sections 7 and 8 of NRCD 68 are consequently patently inconsistent with the letter and spirit of the provisions of article 21(d) of the Constitution, 1992 and are unconstitutional, void and unenforceable; and (2) some restrictions as are provided for by article 21(4) of the Constitution, 1992 may be necessary from time to time and upon proper occasion. But the right to assemble, process or demonstrate cannot be denied.” Similarly, Amua-Sekyi JSC expressed the view that “it was self-evident that the continued enjoyment by any community of fundamental human rights was incompatible with any requirement that a permit or licence has power to refuse it.” Thus, to the extent that the impugned provisions of NRCD 68 invested the minister or other authority with unfettered discretion to refuse his consent or permit, and consequently placing the assertion by the individual of his constitutional rights of assembly, procession and demonstration at the mercy of the authorities, is null and void and of no effect.

The Court further held that the provision of section 12(a) of NRCD 68 which conferred on a police officer or an authorised public officer unfettered, absolute, administrative powers to stop and cause to be dispersed any meetings or processions in any public place, without ascribing any reasons for it, abridged the fundamental human rights of the citizen under article 21(1)(d) of the Constitution, 1992 and was therefore unconstitutional.

Interestingly, not long after this decision, the legislature responded positively to this judgement by enacting the Public Order Act, 1994 (Act 491), which gave legislative effect to the ruling in the Public Order Case and also repealed the Public Order Decree (NRCD 68). Under this Act, there is no more any requirement of police permit before embarking on any peaceful demonstration. The legislature indeed took affirmative cognizance of the fact, as Archer CJ puts it in the Public Order Case, that “permits are colonial relics and have no place in Ghana” in our contemporary times. However, as section 1(1) of the Act stipulates, any person who desires to hold any special event within the meaning of the Act (including demonstrations) in any public place shall notify the police of his intention not less than five (5) days before the date of the special event. This Act has been subjected to criticism by scholars of the law, notably Prof. Edward Kofi Quashigah who argues that “the Public Order Act is clearly an invidious piece of legislation, crafted to confuse the public and ostensibly designed by stateists to frustrate the monumental human rights strides made by the Supreme Court in the protection of the right to peaceful assembly, procession and demonstration in the Public Order Act. The Public Order Act represents a reversal of the gradual and painful march towards the inculcation of the culture of respect for human rights into the psyche of the law enforcement agencies in this country.” Be that as it may, to the extent that no prior police permit is required for demonstration under the new Act, Parliament should be commended in that regard.

Proceeding therefrom, it is imperative to consider the facts of the law students’ demonstration in contradistinction with those of the Public Order Case for purposes of our analysis herein.

Indeed, the very events that culminated in the arrest of some of the law student demonstrators is a sad reflection on our democracy, the very bedrock of our peaceful human existence, and therefore call for public decrial. The facts as are germane for the purpose of this discussion are simply as follows.

On the 7th of October 2019, students of the Ghana School of Law, some Law Faculties and many well-meaning sympathizers converged at the forecourt of the Ghana School of Law and marched in protest of the poor handling of legal education by the General Legal Council in Ghana. Prior to this peaceful protest, a notification was sent to the Greater Accra Regional Police Command on 27th September, 2019, in compliance with Section 1 of the Public Order Act.  As communicated to the police in the letter, the protestors marched from the Ghana School of Law to the High Court Complex; through to the Attorney General’s Department where they presented their petition. The Deputy Attorney General, Godfred Yeboah Dame, upon receipt of the petition addressed them. They thereafter proceeded to the office of the Ghana Bar Association (GBA) where the President of GBA, Mr. Tony Forson upon receipt of the petition also addressed them. From the GBA office, the demonstrators headed to the Jubilee House with the intention of presenting a petition to the President.

Upon arrival at the Ako Adjei interchange, officers of the Ghana Police Service armed to the teeth blocked the road leading to the Jubilee House with their armored cars and water cannons like an army set in battle array. One of the leaders of the demonstration approached the Greater Accra Police Commander, DCOP Frederick Adu Anim and his officers to enquire the reasons for the blockage of the road. The police indicated that they wanted the demonstrators to move to one side of the road. The leaders of the demonstration calmed down the demonstrators and tried to negotiate with the Regional Commander to allow the leaders to go to the Jubilee House and present their petition to the Presidency.

This request was met with resistance, as the Greater Accra Regional Police Commander, DCOP Frederick Adu Anim refused and ordered his men to shoot into the crowd and disperse them with water cannons, tear gas and canes. The officers complied with his order. The police used brutal force; spraying students with water from their water cannons, shooting students with rubber bullets, among other things. Students had no recourse but to bolt for their lives. Some students sustained various degrees of injuries from the rubber bullets and canes used by the police. Some students also had to be rushed to the hospital for medical treatment. The use of tear gas by the police also triggered one female student’s asthmatic attack. The reports of the incident included that some journalists were also injured in the process.

In addition to that, nine (9) leaders of the demonstration including the SRC President of the Ghana School of Law, Mr. Jonathan Abotiwine Alua were arrested by the police and detained for several hours without any formal charges proffered against them. The Deputy Chief of Staff to the President, Mr. Abu Jinapor who was on his way to the Jubilee House witnessed this unlawful use of force by the police. He entreated the police to allow them to go to the Jubilee House and present their petition but the police turned a deaf ear to his plea and continued with their nasty acts. Students had to run to the Canadian High Commission to seek protection from the police brutality. The police chased them with their water cannons, sprayed students with water even when students had converged peacefully in front of the Canadian High Commission.

These acts of brutality displayed by the police are undoubtedly contrary to the well-established norms of our legal system as far as the right to demonstrate, as unequivocally enunciated in the Public Order Case, is concerned. It is quite surprising that in this age, despite the notoriety of the ruling in the Public Order Case, and the consequent enactment of the Public Order Act, the police who are supposedly enforcers of the law would engage in such acts of brutality against poor law students who were merely expressing their displeasure about the current trend of legal education in the country.

As Amua-Sekyi JSC notoriously noted in Public Order Case, it was to rescue us from such an abyss of despair that on three successive occasions, in 1969, 1979 and 1992, elaborate provisions on fundamental human rights have been set out in our Constitutions and the courts given clear and unequivocal power to enforce them.

Therefore, the fundamental question that one may ask is; were the police justified in law for their actions? Certainly not! Section 2(1)(b) of the Public Order Act provides that it shall be the responsibility of every police officer to take all such steps as are reasonably necessary in any public place to disperse crowds at any special event where he has reasonable grounds to believe that a breach of the peace is likely to occur or if any breach of the peace has occurred or is occurring in order to prevent violence, restore order and preserve the peace. One is also entitled to enquire further whether the police can seek shelter under this provision? To my mind, that will not enure to the benefit of the police. This is on account of the fact that it cannot be sufficiently proven that any of the acts engaged in by the protestors would be construed by any reasonable man to be acts which were likely to occasion a breach of the peace, neither did the protestors occasion any breach of the peace in fact.

Here, there is the need for us to take cognizance of the fact that, in the Public Order Case, the court had indicated in unambiguous terms that when citizens meet or process in a place in pursuance of their constitutional right to hold meetings and form processions they are only subject to the criminal law which for the present is contained in our Criminal Code, 1960 (Act 29).  Thus, the court opined in effect that people are at liberty to demonstrate, insofar as their acts in the process of protesting do not constitute criminal offences under our law. I am yet to identify any provision of the Criminal and other Offences Act that was breached by the demonstrators to warrant such brutal and ungodly treatment from the police. Perhaps, the police engaged in such acts to satisfy their own whims and caprices, which must therefore be bemoaned by all well-meaning Ghanaians.

No wonder that the acts of the police have been subjected to several criticisms by well-meaning members of the public. In order to ensure that there is no repetition of such acts in subsequent days, there is the need for the matter to be investigated urgently and the perpetrators of those evil acts identified and made to face the full rigours of the law. More so, the police ought to be educated seriously as to the extent and limitations of their policing powers. Perhaps they so acted for lack of knowledge that they had no power to do so. But as we may all be well aware, it is a cardinal principle of our law that ignorance of the law is not a valid defence in our country’s criminal jurisprudence. In effect, the police must be given their just desert for the unlawful acts they perpetrated.