RED MONDAY: UPROOTING A SYSTEM OF TYRANNY AND INJUSTICE By Jojo Konki Sapara Bentsi-Enchill

It is no news that the current state of legal education in Ghana is massively flawed. Out of the 1,820 students who sat for the 2019 entrance exams into the Ghana School of Law, only 128 of these students were deemed qualified to advance to the next step in their legal career. What happens to the remaining 93% who were failed by an oppressive system?- well, Her Ladyship Justice Sophia Akuffo, Chief Justice of the Republic of Ghana, says they can go on the internet if they want to do their law practice.

On the 7th of October 2019, dubbed “Red Monday”, aggrieved law students along with members of the public, in exercise of their constitutional rights, embarked on a peaceful demonstration to deliver a petition to the President of Ghana, His Excellency Nana Akuffo-Addo and make known their concerns and demands, only to have their rights trampled and crushed under the heavy boots of the government.

The constitution of a country is said to be the fundamental law of the land, as expressed in Article 1(2) of the 1992 Constitution of Ghana. It is also said to mirror the history of a nation and contains the aspirations of the citizens. Article 21(1) (d) of the 1992 Constitution clearly states that “All persons shall have the right to freedom of assembly including the freedom to take part in processions and demonstrations.” This fundamental human right was brilliantly highlighted in the celebrated case of NEW PATRIOTIC PARTY v INSPECTOR-GENERAL OF POLICE [1993-94] 2 GLR 459—509. The facts of this landmark case and its relevance to Red Monday are explained briefly in subsequent paragraphs.

According to Section 7 of the Public Order Decree, 1972 (NRCD 68), the Minister of Interior had the power to prohibit the holding of public meetings or processions for a period in a specified area. Section 8 of the above stated Act provided that, prior to the holding of any public meeting or procession, permission had to be obtained from the police. Holding of such meetings without this permit was an offence under Section 13 of NRCD 68, and Section 12 of the said Act, granted power to a superior police officer to stop or disperse any such meeting. The plaintiff, a registered political party, the NPP, obtained a police permit on the 3rd of February 1993 to hold a rally. The police subsequently withdrew this permit. On 16th February 1993, the plaintiff, along with other political parties, embarked on a peaceful demonstration to protest against the 1993 Government budget. The demonstration was broken up by the Police. Some demonstrators were arrested and arraigned before the court. On 17th February 1993, the plaintiff obtained another permit to hold a rally to commemorate the 28th anniversary of the death of Dr J.B. Danquah. Yet again, this rally was dispersed by the police after having withdrawn the permit initially granted.

The plaintiff instituted an action in the Supreme Court for a declaration that the above-mentioned sections of NRCD 68 were inconsistent with and a contravention of article 21(d) of the 1992 Constitution of Ghana, and was therefore null, void and unenforceable. The court held that the freedom of assembly granted to the citizen under Article 21(1)(d) of the Constitution, encompassed the right of the citizens to come together to petition for redress of their grievances or take part in processions and demonstrations in support of or in opposition to a cause, policy or event. However, the consent or permit requirements under NRCD 68 sought to demand leave of the Minister for the Interior for the exercise of those rights. This created the implication that contrary to the provision of Article 21(1)(d) of the Constitution, meetings, processions and demonstrations were prohibited by law unless sanctioned by the minister or anyone authorised by him. That proposition was a clear violation of the enshrined provision of article 21(1) (d) because by vesting the minister or any other authority with unrestricted discretion to refuse his consent or permit, NRCD 68 placed the citizen’s constitutional rights of assembly, procession and demonstration at the mercy of the authorities. Since, the generality of NRCD 68 was to create a prior restraint and a clog on the rights of the citizen under Article 21(1)(d) of the Constitution and thereby denied him those freedoms to which he was entitled, it was inconsistent with the letter and spirit of Article 21(1)(d) of the Constitution and accordingly unconstitutional. It was 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, and were therefore unconstitutional.

The events we witnessed on Red Monday constitutes a clear breach and violation of the principles highlighted in NPP v IGP, and to that extent, a clear breach of the 1992 Constitution. It has been established that one does not need a permit before deciding to hold a rally or demonstration since that would be an infringement of their rights. However, the Public Order Act requires that 5 days clear notice must be given to the police of an intention to demonstrate. The National Association of Law Students made their intentions known by giving the police more than a 5-day notice. When asked for escorts and personnel to coordinate the demonstration, the police expressed the view that they could not provide such personnel because they had none to spare. This was a clear attempt to snuff out the demonstration before it had even begun. The Association, seeing this ploy for what it was, informed the police that they would be carrying on with the demonstration regardless, having abided by all legal requirements. In NPP v IGP, the Deputy Attorney General appearing for the defendants expressed concern that a decision in favour of the plaintiff would make the work of the police more difficult. The court agreed that that may be so but also explained that this is the price we have to pay for democracy and constitutional order. The police like any other organ of government is required to operate within the four walls of the Constitution. However, the events of Red Monday showed that the police paid no regard to their constitutional limitations in their operations. As law students took to the streets to protest peacefully against the injustice of an oppressive system, the police sought to make this an impossible exercise. These students, armed with nothing but courage, determination and wooden placards, were met with heavy resistance by the police. Canisters of tear gas were launched, gallons of hot water was sprayed and clips of rubber bullets were fired, all in an illegal and unconstitutional effort to preserve the injustice of the system. Various leaders of the demonstration were arrested and other members had to seek refuge at the High Commission of Canada to escape from police brutality. Members of the demonstration were violently treated and lashed with canes. As a result, some sustained various degrees of injuries. The same police force, which claimed they did not have enough personnel to help to coordinate the demonstration, suddenly had an entire army at their disposal to wipe out innocent protesters ready to challenge the inadequacy of the system. This is the extent to which the government went in an effort to silence those who stood up to fight for their rights.

The 1992 Constitution guarantees to all persons the fundamental human rights and freedoms set out in Chapter 5 of the Constitution of Ghana. Article 12 provides that:

“The fundamental human 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 by the Courts as provided for in this Constitution.”

The importance of human rights as stated in the Committee of Experts’ Report on the Proposals for a Draft Constitution of Ghana at p 62, para 128 is as follows:

“The National Commission for Democracy Report leaves no doubt that Ghanaians attach great importance to human rights. Human rights are universally regarded as inalienable and constitute the birthright of the individual as a human being. Therefore, no person may be deprived of his or her human rights.”

This means that fundamental human rights are inalienable and can neither be derogated from or taken away by anyone or authority whatsoever. Indeed, as stated in article 12(1) of the Constitution, the fundamental human rights and freedoms must be respected by the executive, legislature and judiciary and all other organs of government and its agencies and shall be enforceable by the courts.

Perhaps the government has forgotten that not so long ago, it was in this same position, fighting to ensure their rights were not interfered with. Yet today, they cast the same injustice on innocent protesters. We have a President who made NPP v IGP possible. We have a President with a unique background in Constitutional Law. We have a President who is an expert in Human Rights. As such, it is disheartening to see the poor reaction of the Executive arm of Government towards these happenings, which watched on as the Ghana Police Service disregarded a fundamental human right of Ghanaian citizens. What then do we say about the ruling in NPP v IGP? As law students, we are trained to defend and stand up for the rights of others. Amid crisis, we are forced to stand up for our rights and protect our interests. It may not be you today, but ask yourself if you know what it feels like to be unsafe in your own country? Do you know what it feels like to see your future breaking apart before you have even got there? Legal education in Ghana needs a total change and the facts speak for themselves. Something must be done to promote change. Evidently, the only way forward is to #OpenUpLegalEducation and #ReformLegalEducationNow.