RE: EXECUTIVE FAUX PAS WITH THE IMPOSITION OF RESTRICTIONS BILL, 2020 by Nana Kweku Bosompem

This rejoinder concerns itself with the arguments put forth by Prof. Kwadwo Atua in a recent article in support of his analysis on the limitation of human rights in relation to the passing of IMPOSITION OF RESTRICTIONS ACT, 2020. However, before delving into the substantive issues regarding limitations on human rights, it is important to note certain characteristics of human rights.

Ironically, most human rights instruments, including the African Charter on Human and People’s Rights (ACHPR), to which Ghana is a state party, do not in express terms define what human rights are. The Black’s Law dictionary provides a seemingly acceptable working definition which highlights probably the most essential feature of human rights. It defines them as ‘the freedoms, immunities, and benefits that all human beings should be able to claim as a matter of right in the society in which they live’. Thus, from this definition it can be gleaned that human rights are inherent. That is, they arise from the inherent nature of the human person. The International Convention on Civil and Political Rights (ICCPR) expresses this position in its preamble which provides that rights “derive from the inherent dignity of the human person.” The Vienna Declaration on Human Rights also describes human rights as “the birthright of all human beings.” Thus, every person is entitled to enjoy these rights simply because they are human.

The second characteristic, which is quite relevant to this discourse, is the relationship between the various human rights. Human rights do not operate in isolation; rather they are interdependent. Freedom of movement, for example, cannot be enjoyed without the right to life. Similarly, freedom of assembly cannot be enjoyed without freedom of movement. This position was expressed by the UN in its Declaration on the Right to Development where it stated that: ‘All human rights and fundamental freedoms are indivisible and interdependent…’

It is also important to note that human rights as a general rule are not absolute and may in some instances be limited by law. Thus article 12 (2) of the 1992 Constitution of Ghana, which operates as a general limitation clause provides as follows: ‘Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest’.

The President of Ghana relied on Article 21 (4) (c) and (d) which is a limitation on the freedom of movement to have the Imposition of Restrictions Act, 2020 passed to deal with the COVID-19 epidemic. Article 21(4) (c) and (d) provide as follows:

4) “Nothing in or done under the authority of, a law shall be held to be inconsistent with, or in contravention of, this article to the extent that the law in question makes provision-

(c) for the imposition of restrictions that are reasonably required in the interest of defence, public safety, public health or the running of essential services, on the movement or residence within Ghana of any person or persons generally, or any class of persons; or

(d) for the imposition of restrictions on the freedom of entry into Ghana, or of movement in Ghana, if a person who is not a citizen of Ghana; or …”

In Prof Atua’s opinion, the areas of limitations or restrictions in article 21 (4)(c) and (d), as noted above, cover limitations to the enjoyment of freedom of movement only. Yet, the act seeks to impose broad restrictions that cover many other rights like the right to education (closure of schools) and freedom of religion (suspension of services in churches and mosques). To him, it is not palpably clear how a limitation on movement of freedom can be extended to cover these other rights.

In the preceding paragraph, it was established that human rights are interdependent. Think of this proposition as a car that needs to move. A car obviously needs wheels to move (probably except the flying car from Harry Potter).The wheels, however, need support from other parts like the engine to function. There exists a symbiotic relationship between the parts such that without one the objective of motion cannot be realized. From this, it can be gleaned that the enjoyment of one right is dependent on the existence of another. Conversely, a limitation placed on the enjoyment of one right will most likely affect the enjoyment of another. Justice Bamford Addo in the seminal case of NEW PATRIOTIC PARTY v ATTORNEY-GENERAL (31st December case) made reference to the Committee of Experts’ Report on the Proposals for a Draft Constitution of Ghana. The experts in their report stated at paragraph 136 that: ‘Despite the division of human rights into the above categories, a close inspection will reveal the interdependence of all human rights…’.It is my submission, therefore, that the right to freedom of movement is so broad that it influences almost every other right because in truth, if we cannot move about freely, how can we attend lectures or worship with our brothers in faith at the mosque or church. As such, if there is a constitutional basis for the limitation of the right to freedom of movement, it is not out of place for such a limitation to extend to cover other rights that have a close relationship with right of freedom of movement.This is because there is no practical way of isolating a restriction on the freedom of movement such that it does not affect other closely related rights and freedoms.

There is, therefore, valid constitutional ground for the limitations of the rights that have been provided for in the Act.