AN EXAMINATION OF THE UNEMPLOYED AND ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN GHANA by Samuel Asante

The unemployed which comprises most of the youth in Ghana are deemed ‘entitled’. This assertion stems from the demand of the unemployed for jobs from the government. This demand has been interpreted as a conscious effort by the unemployed to rely on the government instead of using their agency, education and entrepreneurial skills to create jobs for themselves. Entitled is defined by the Cambridge Dictionary as “a feeling that you have the right to do or have what you want without having to work for it or deserve it, just because of who you are.” This work is an attempt to answer the question: is the unemployed really entitled?

The word ‘entitled’ has some legal connotations and it is prudent to look to the Constitution of Ghana, 1992- the embodiment of rights, privileges, and duties of every citizen of Ghana- for guidance. Entitlement of this nature refers to Human rights in general and Economic, Social and Cultural (ESC) rights in particular. Human rights are entitlements due to human beings by virtue of their humanity. These rights are safeguarded with the law and the Courts of a country are expected to enforce these laws. ESC rights, on the other hand, are the freedoms, privileges, and entitlements that individuals and communities require to live a life of dignity.

Now to the main issue of this work, are the unemployed entitled to demand for employment opportunities from the government? The 1992 Constitution makes it clear under Article 36(1) that, “The State shall take all necessary action to ensure that the national economy is managed in such a manner as to maximize the rate of economic development and …..provide adequate means of livelihood and suitable employment and public assistance to the needy.”

The clarity of this provision cannot be denied, but it has been hindered by the issue of justiciability. Article 36 is under Chapter Six of the Constitution, Directive Principles of State Policy, which is deemed to be mere guidelines hence not justiciable by the Court. In New Patriotic Party v Attorney General (31st December Case) [1993-94] GLR 35 the Court held that the whole constitution is justiciable. Again, in Ghana Lotto Operators Association v National Lottery Authority [2007-2008] SCGLR 1089, the Court held that ESC rights are justiciable on its own divorced from Fundamental Human Rights under Chapter Five of the 1992 Constitution, a stance that was previously held by the Court in New Patriotic Party v Attorney General 1 GLR 378 [1997-98] (the CIBA case). This means that the Court can declare legislation null and of no effect if such legislation contravenes ESC rights, in this case, the right to employment opportunities.

Now that it has been ascertained that ESC rights are justiciable, can the Court compel the government to provide employment opportunities? The propriety of this question is best understood within a political context. Political parties make campaign promises to create jobs and engender conditions that foster job creation and employment opportunities. But can the unemployed seek redress from the Courts if a government renegades its campaign promises, the same promises which the unemployed relied on to vote for the government?

This question has been addressed in other jurisdictions and has been put to rest. In Bromley London Borough Council v Greater London Council [1981] UKHL 7 the Court held that decision-makers should not be uncompromisingly bound to campaign promises which are mostly propaganda to the neglect of political and socio-economic realities. The remedy for the politician’s breach of promise is not a Court order or an award of damages but the risk of not been re-elected and those elected must not ‘treat themselves as irrevocably bound to carry out pre-announced policies contained in election manifestos.’ The pith of this decision underscores the fact that a government is not beholden to promises made during electioneering periods. Although the unemployed may have a legitimate expectation that the government shall implement its manifesto when it comes into power, legitimate expectation concerns itself with “procedural matters” more than it deals with the substance of a decision. That is, a public servant or in this case, a government should not depart from the expectation of the electorates – especially the unemployed – without good reason. In spite of this reality, the unemployed can use any legitimate means to express their demands from a government to implement their campaign promises.

In conclusion, the assertion that the unemployed are entitled, it seems, has some legal basis according to the posture of the laws of Ghana. It is an undeniable fact that the government ought to secure the socio-economic wellbeing of every citizen in Ghana, the unemployed included. To this end, the government has implemented policies and programs such as the Nation Builder’s Corps (NABCO) and the unemployed has also made petitions to the government via non-violent demonstrations and protests. These actions are admirable but there is more room for improvement.