Why I respectfully disagree with the Supreme Court on Covid-19 restrictions

The Supreme Court of Ghana has ruled that the Imposition of Restrictions Act, passed by Parliament in 2020, which granted the government the power to impose restrictions in the interest of public health and safety during the pandemic as unconstitutional (see: Supreme Court declares law that enabled the government to impose Covid-19 restrictions as unconstitutional, ghanaweb.com, 31/05/2023).

We should not lose sight of the fact that states of emergency are regulated strictly under the international human rights law, specifically, the International Covenant on Civil and Political Rights, in which the authorities are obliged to justify such restrictions upon rights.

“The situation presented by the COVID-19 pandemic requires many countries worldwide to take extraordinary measures to protect the health and well-being of the population.

“Even in a public emergency, these steps need to be based on the rule of law.

“Emergency powers should be used within the parameters provided by international human rights law, particularly the International Covenant on Civil and Political Rights (ICCPR), which acknowledges that States may need additional powers to address exceptional situations.

“Such powers should be time-bound and only exercised on a temporary basis with the aim to restore a state of normalcy as soon as possible.

“Even without formally declaring states of emergency, States can adopt exceptional measures to protect public health that may restrict certain human rights. These restrictions must meet the requirements of legality, necessity and proportionality, and be non-discriminatory.

“The suspension or derogation of certain civil and political rights is only allowed under specific situations of emergency that “threaten the life of the nation” ( OHCHR Emergency Measures and Covid-19: Guidance ,2000).

It is however worth noting that a growing body of extant human rights literature attributes the emergence of the United Nations human rights regime to the past human rights violations (Waltz 2001; Kabasakal, 2006;Wotipka and Tsutsui 2008).

And so in its efforts to protect the civil and political rights of the human race, the United Nations duly adopted a multilateral treaty, the International Covenant on Civil and Political Rights(ICCPR) in 1966.

On 7^th September 2000, Ghana graciously signed and ratified the International Covenant on Civil and Political Rights and its two Optional Protocols.

More significantly, Ratification, acceptance, approval and accession mean in each case a State affirms its consent to be bound by a treaty (UN 1969).

Needless to emphasise that Ghana has since transposed some relevant articles of the ICCPR and given meaning in the 1992 constitution.

Interestingly, Article 4 of the International Covenant on Civil and Political Rights(ICCPR) directs that in the event of public emergency which may threaten the existence of a nation, such sovereign state may take measures derogating its obligations, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

However, derogation is not permitted under any circumstances on Articles 6, 7, 8 (paragraphs I and II), 11, 15, 16 and 18 (UN 1966).

This is because the rights encapsulated in the preceding articles are non-derogable(cannot be suspended), which include the right to life, free from torture, free from slavery, unlawful arrest and detention, equal recognition everywhere before the law, and right to freedom of thought, conscience and religion (UN 1966).

More so, Article 17.1 provides that no member of the human family ‘shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation’.

Thus, Article 17.2 stresses that every member of the human family ‘has the right to the protection of the law against such interference or attacks’.

Besides, Article 19.1 emphasises that every member of the human family ‘shall have the right to hold opinions without interference’. While Article 19.2 notes that every member of the human family ‘shall have the right to freedom of expression, including freedom to seek, receive and impart information and ideas’.

Interestingly, however, the exercise of the rights encapsulated in paragraph 19.2 comes with ‘special duties and responsibilities.

Suffice it to stress that such rights may be subject to some restrictions, but these shall only be such as are provided by law and are necessary’.

Moreover, Article 21 stresses that ‘the right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety’.

Whereas Article 22.1 emphasises that every member of the human family ‘shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests’.

Article 22.2 stresses that ‘no restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety’ (UN 1966).

Based on the preceding provisions, we can draw an adverse inference that human rights are not absolute; there is permitted abridgement.

What are Human Rights?
Rene Cassin, one of the principal drafters of the universal declaration of Human Rights, adopted by the General Assembly in 1948, subsumed the main tenets of human rights by juxtaposing them with the portico of a temple.

Drawing on the battle cry of the French revolution, Cassin identified the four pillars of the declaration as: ‘dignity, liberty, equality, and brotherhood’ (Ishay 2004).

The 27 articles of the declaration were divided among these four pillars. The pillar underpinned the roof of the portico (articles 28–30), which stipulated the conditions in which the rights of individuals could be realized within society and the state.

The first pillar covered in the first two articles of the declaration stands for human dignity shared by all individuals regardless of their religion, creed, ethnicity, religion, or sex. The second, specified in articles 3–19 of the declaration, invokes the first generation of civil liberties and other liberal rights fought for during the Enlightenment. The third, detailed in articles 20–26, addresses the second generation of rights, i.e. those related to political, social and economic equity and championed during the industrial revolution. The fourth (articles 27–28) focuses on the third generation of rights associated with communal and national solidarity, as advocated during the late 19th century and early 20th century and throughout the postcolonial era (Ishay 2004).

Based on the preceding signification, we can draw an adverse inference that human rights are the basic rights and freedoms that belong to every person in the world, from birth until death.

It is also worth stressing that human rights apply regardless of where you are from, what you believe or how you choose to live your life.

Interestingly, basic human rights are based on values like dignity, fairness, equality, respect and independence.

That being said, some rights, such as freedom of movement, freedom of expression or freedom of peaceful assembly may be subject to restrictions for public health reasons, even in the absence of a state of emergency (ICCPR 1966).

The said restrictions, however, must meet the following requirements: Legality: The restriction must be “provided by law”. This means that the limitation must be contained in a national law of general application, which is in force at the time the limitation is applied.

The law must not be arbitrary or unreasonable, and it must be clear and accessible to the public.

The restriction must be necessary for the protection of one of the permissible grounds stated in the ICCPR, which include public health, and must respond to a pressing social need.

The restriction must be proportionate to the interest at stake, i.e. it must be appropriate to achieve its protective function; and it must be the least intrusive option among those that might achieve the desired result.

No restriction shall discriminate contrary to the provisions of international human rights law (OHCHR 2000).

Let me humbly submit that given the pernicious and ecumenical effect of Covid-19, the authorities might well have justified the restrictions upon rights on that occasion.

K. Badu, UK.
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