Constitutional and Individual Rights: An Introduction
Introduction:
This note discusses how constitutional provisions on rights regulate criminal procedure. In doing so, the note will briefly discuss the meaning and scope of rights, the connection between rights and criminal procedure, and key areas of constitutional and individual rights to be discussed in subsequent notes.
Meaning of Rights:
In Black’s Law Dictionary, 9 th ed., rights are severally conceptualised as follows:
From the above, it may be summarily said that rights are legally enforceable claims, powers, privileges, or interests due to a person by just claim, legal guarantee, or moral principle, recognised and protected by law, the violation of which constitutes a wrong.
While there can be various variations of rights, such as animal rights, our discussion of rights is limited to human rights. In the case of Kpebu v. Attorney General [2019] GHASC 90 (18 December 2019), this class of rights was characterised as
Rights which are fundamental and inherent in the very fact of being human; they are not granted by any political or royal act, they are universal and adhere to every human being, wherever he/she is, and of whatever gender, religion or social status. Included in these inherent rights are the right to life, the right to personal liberty, the right to hold opinions and religious beliefs of one’s choice, etc.
The fact that human rights are not granted by any political or royal act is reflected in Article 33(5) of the 1992 Constitution of Ghana, which provides that the fact that some rights have been specifically mentioned in Chapter Five of the 1992 Constitution does not mean those rights not specifically mentioned are excluded from the bundle of human rights. The article reads:
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.
Nonetheless, the express mention of human rights in legal documents, particularly in constitutions, helps to enshrine these rights as fundamental principles, providing a framework for their protection, promotion, and enforcement within a legal system.
Scope of Rights:
Although there is consensus that humans have rights and those rights are inherent, there is also another recognition that human rights are not absolute. By this, it is meant that there are limits to the enjoyment and exercise of human rights.
In the case of Kpebu v. Attorney General (supra) , the Supreme Court of Ghana, after acknowledging the inherency of rights and their universal recognition, quickly added that:
All such rights are subject to respect for the rights of others, and to laws that are necessary for assurance of a just and peaceful society in which rights may be enjoyed equitably.
Also, in the case of Raphael Cubagee v. Asare and Others [2018] GHASC 14 (28 February 2018) , the Supreme Court of Ghana similarly stated that:
Enforcement of human rights is not a one-way street since no human right is absolute. There are other policy considerations that have to be taken into account when a court in the course of proceedings is called upon to enforce human rights…
Similarly, in the case of Mensima and Others v. Attorney-General and Others [1997-98] 1 GLR 159 , the Supreme Court of Ghana submitted that:
The fundamental human rights and freedoms including that of association enshrined in Chapter 5 of the Constitution, 1992 can certainly not be absolute, otherwise, society will be in chaos, as each individual will strive to assert his full right. For as Aristotle stated in The Politics: "Man, when perfected is, the best of animals, but if he be isolated from law and justice, he is the worst of all." To secure these rights and freedoms therefore, it is essential that there must be some machinery or safeguard to prevent the exercise of these rights degenerating into licence, and also to organise the relations between one individual and another without which the life of the individual becomes "solitary, poor, nasty, brutish and short." Thus, Article 12(2) of the Constitution, 1992 provides that these rights and freedoms are "subject to respect for the rights and freedoms of others and for the public interest.
Also, see the case of Tyron Iras Marhguy (Suing by the Next Friend and Father Tereo Kwame Marhguy) v. Board of Governors Achimota Senior High School & The Attorney-General (2021) JELR 107192 (HC) .
These judicial pronouncements on the non-absoluteness of human rights mainly have their basis in Article 12(2) of the 1992 Constitution, which provides that:
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 . [emphasis is ours]
In addition to this provision, several other provisions on human rights provide exceptions that reflect the non-absoluteness of those rights. These rights and their exceptions will be discussed in subsequent notes.
The Connection between Constitutional and Individual Rights and Criminal Procedure:
The primary source of law in criminal procedure is the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) .
The main connection between constitutional rights and criminal procedure is that any provision in Act 30 that is inconsistent with any constitutional or individual right will be null and void to the extent of the inconsistency (per Article 1(2) of the 1992 Constitution ).
In the case of Gorman v. The Republic [2003–2004] 2 SCGLR 784 , the Supreme Court of Ghana, speaking through Modibo Ocran JSC, expressly advanced that:
Counsel for the 1st Accused/Appellant is right in asserting that the Criminal Procedure Code of 1960, as amended, continues to be valid only in so far as it is consistent with the 1992 Constitution . The continued validity of all norms predating the Constitution, including the Criminal Procedure Code, can be established only if one can demonstrate that they were, in a legal-formalist sense, "re-created", "continued in effect", "adopted", or "saved" expressly or impliedly by the 1992 Constitution. In any event, they must all be consistent with that Constitution. [emphasis is ours]
Given that constitutional rights are provisions in the constitution, any provision in Act 30 that is inconsistent with the enjoyment of a constitutional right shall be void to the extent of the inconsistency, as seen in the case of Kpebu v. Attorney General No. J1/13/2015 (Kpebu No. 2), where Section 96(7) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) was declared null and void for being inconsistent with Article 19(2)(c) of the Constitution .
Key Areas of Constitutional and Individual Rights
In subsequent notes, we will discuss the following constitutional and individual rights:
Conclusion:
This note characterised rights as legally enforceable claims, powers, privileges, or interests due to a person by just claim, legal guarantee, or moral principle, recognised and protected by law, the violation of which constitutes a wrong. The note pointed out that human rights, as a category of rights, are inherent, but that there is utility in their recognition by the constitution. Further, the note pointed out that human rights are not absolute and are subject to other considerations such as the rights of others and the public interest, among others. Finally, the note discussed the connection between constitutional rights and criminal procedure by explaining that provisions in Act 30 that undermine the enjoyment of constitutional rights are null and void.