Historical context and international backgrounds
2025 marks 59 years since the General Assembly adopted in 1966 the international covenant on economic social and cultural rights, the most comprehensive international treaty protecting economic social and cultural rights. The widespread acceptance by major African countries, the question of its realization remains a deep public concern. Ghana became party to the convention in 2000 and has yet to fully domesticate its obligations in Ghana. In 2008, the United Nations General Assembly where Ghana was represented, unanimously adopted the optional protocol to the international convention on economic, social and cultural rights. This historic move had marked Ghana’s significant move in human rights concerns acceding to its justiciability. However the question of the justiciability of these rights affirmed by the country at the international level have not received domestic blessings.
Legal Debate on Justiciabilty
Justiciabilty is a situation where a right can be invoked and protected by the judicial orders. A thorough examination of the directive principles of state policy under chapter 6 of the 1992 constitution highlights the realization of the economic and social rights of citizens in the country.[1] This means that citizens can legitimately enforce such rights and privileges granted in the law courts. The Committee of Experts who spearheaded the draft proposal of the constitution chaired by the indefatigable and eminent Dr. S.K.B Asante found the idea of making some constitutional provisions justiciable as politically ambitious. As time passed, the need to consider justiciabilty of such portions of the constitution becomes a core mandate in our constitution evolution.
The legal and scholarly arguments on the state of chapter 6 of the 1992 constitution is anything but conclusive. From the inception of the Fourth Republic, Ghana’s courts have offered varying interpretations. The court in New Patriotic Party v Attorney general (CIBA)[2] when the Supreme Court was called upon to address this concern, the court held that the directive principles of state policy were not justiciable. While the decision of the court in the CIBA case appeared to have settled such a concern, the court however, took a shift in approach in Ghana Lotto Operators v National Lottery Authority[3] that the constitution is sovereign and can decide for itself the interpretation of which should consider for the progress of the country concluding that chapter 6 of the 1992 constitution be presumed justiciable. The court speaking through the legal luminary Date bah JSC opined that interpretation should also consider the progress of the country since the provisions are to ensure the progress of the country. The court had placed significant appreciation for the directive principles when it indicated it was an anchor to national development. With several judicial decisions like Child Rights International v Attorney General,[4]Okudzeto v Jake Obetsebi Lamptey[5] all gave philosophical underpinnings to what the directive principles entails. What appears to be a promising stance on this matter of justiciabilty was witnessed in Ezuame Mannan V Attorney General[6] and the Speaker where the court indicated that there has been a general evolution from the concept of non jusiciabilty to prima facie justiciabilty of the directive principles of state policy. But for how long will these decisions hold especially when the judiciary can deviate from its past decisions, it is settling that a rigid stance be taken on the truest form and legal connotation of the directive principles of state policy.
Legal Reasoning for Justiciability
State sovereignty resides in the people. Article 1 and Art 35(1) re-maintains this as it provides, for instance, Article 35(1):"Ghana shall be a democratic state dedicated to the realisation of freedom and justice and accordingly, sovereignty resides in the people from whom the Government derives all its powers and authority through this Constitution."
What is also significant in addressing this position is the reasoning of the Court in Asare v Attorney General (Rec's Case)[7] where the Court noted that:
"... Sovereignty resides in the people, and… the Constitution does not give absolute power to any of the arms of government … the people have been recognised as the source of all power..."
It is clear from the list of authorities that the people hold the government accountable. Since power originates from the people, they must be clothed with authority to question the state. The Directive Principles of State Policy should be made justiciable on this count.
An enforcement mechanism will strengthen Constitutional obligations in human rights. Ghana is signatory to many human rights treaties that emphasize the importance of socio-economic rights. Ghana has set its a part to the International Covenant on Economic Social and Cultural Rights (ICESCR) which requires that nations should take steps to progressively realize economic, social and cultural rights [8] By failing to make the Directive Principles of state policy justiciable, Ghana fails to provide legal avenues for its citizens to measure and challenge violations of those rights.
Article 33 of the constitution also provides that
"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"
We note this constitutional provision simply highlights that despite the requirement under Article 75 that the state domesticates treaties and conventions, international instruments on human rights are also enforceable in Ghana despite being a non-party. By the provision of the Constitution 1992, it follows that the International Bill of Rights including the International Covenant on Economic, Social and Cultural Rights have received enforcement blessings and mechanisms are constitutionally embedded.
In New Patriotic Party v. Inspector of Police [9], the court speaking through Hayfron Benjamin, posited that
“Article 33(5) of the constitution 1992 extends the scope of human rights enjoyment when it says the rights mentioned in Chapter 5 _ _ _ shall not be regarded as excluding others _ _ _ I have no doubt that in my mind that the framers of the constitution intended that citizens of this country should enjoy the fullest measure of enforceable human and civil rights _ _ _’’
It is therefore worrying that Ghana as a signatory to the optional protocol of the ICESCR, subjecting itself to international standards has not provided a strict regime in enforcing these rights for its citizens whose welfare the state should safeguard.
The Importance of Enforcing Directive Principles
The proper enforcement of the directive principles of state policy will result in the protection of marginalized groups in the state. During the last several years civil wars have been fought in many African Countries including Liberia, Sierra Leone, South Sudan, Central African Republic, and several countries. All these confrontations can be traced to the failure of post-independence governance processes and institutional arrangements to fully protect the fundamental human rights of some groups and provide all citizens with equal opportunities for self-actualization, regardless of their ethnic or religious affiliation.[10] .The continued exclusion and non-participatory constitutional design has been cited such that rights integral of state institutions to guarantee these rights are not embedded. The way forward for these Countries and for Ghana should be to create legitimate, robust governance such that all the countries’ stakeholder groups can bring effective checks and minimize on the government.
The creation of enforceable rights under chapter 6 will mitigate poverty: the non-justiciability of the Directive Principles contributed heavily to the persistence and deepening of poverty. In African countries, substantial portion of the population is engulfed in poverty, the absence of enforceable economic and social rights including government accountability worsens their plight. One of the key factors promoting poverty in Africa are the economic policies that fail to prioritize the needs of the most vulnerable citizens of an African nation.[11] A closer deeper appreciation of the likely effect of continued unenforceable directive principles will forever intensify the gap between the democratically elite and democratically marginalized. If truly government aims to secure decent livelihood for its people, as in the case of democracies, it is high Ghana a beacon in democracy, is not immune from these problems and it is worrying that the situation much be far worse should we fail to make our aspirations under chapter 6 a questionable reality.
Legal guarantee of chapter 6 of the constitution will prevent an erosion of trust in governments. Prevent futuristic civil unrests. Improving relationship between the state and its citizens is crucial to prolonged peace and social cohesion in sub Saharan Africa. Sub Saharan Africa suffers persistently security challenges due to protracted conflict and humanitarian crises. Research reveals that there is a discontent with state institutions among marginalized groups which is the key driver in the unrest in the region, owing to institutional failures to provide resources that may be available to other segments of the population.[12] Ghana as a country could suffer similar political unrest should it fail to legitimately guarantee the rights and privileges of its citizens. Over the past few years many African countries have witnessed sudden change in governments through unconscionable means owing to the nature of governments towards advancing essential human rights concerns especially in the field of socio economic rights and developments.
Ghana has a constitutional and an international obligation to respect all manner of rights. The constitution provides that the fundamental human rights and freedoms specifically mentioned in chapter 5 of the constitution shall not be regarded as excluding others but are considered inherent in democratic dispensation aimed at securing the dignity of man. It naturally follows that the embodiment of international human rights law is catered for under the constitution. The court in New Patriotic Party v Attorney General [13] posited that international instruments relating to fundamental human rights are enforceable under the constitution by Article 33(5).
These human instruments envisaged by the committee of experts and on modern trends captures the international bill of rights which includes, The Universal Declaration of Human Rights, The International Covenant on Civil and Political Rights, The International Convention on Economic, Social and Cultural Rights 1966 and their Optional Protocols.
Though Ghana has not since 2000 fully domesticated the international convention on economic, social and cultural rights and its optional protocol by virtue of Article 75 of the constitution, the instruments have received constitutional blessings under Article 33(5) of the 1992 constitution. Put clearly, Ghana has acceded to the human rights obligations necessary for a functioning democratic society.
A mechanism for accountability and meticulous control of national resources. Clothing citizens with the right to seek redress in the law courts for the failure of the state to provide basic necessities to realize these contested rights and the General Directive Principles Of State Policy, will serve as a check on the effectiveness or otherwise of the state and related institutions on the realization of such significant rights. The constitution embodies the wishes and aspirations of the people of Ghana, containing the summation of futuristic, historic and political aspirations of citizens towards the realization of an ideal democratic society. One of those numerous aspiration id the constitutional framework provided under chapter 6 of the 1992 constitution. What rather seems intriguing is the states readiness to protect civil and political rights yet remain adamant to the realization of significant foundational rights such as economic, social and cultural rights
The Path Towards A just And Ideal Society
From the ongoing, it is significant that actual justiciability of the directives principles of state policy will build trust in governments in the effective allocation of resources and respect for the rule of law
The realization of this revolutionary feat of justiciability will also be a testament to the country’s preparedness to mitigate the existing alarming poverty levels and safeguard marginalized groups in our society
A significant yield from the bold constitutional evolution of justiciable directive policies and socio economic rights will align our progress as a nation towards international standards and obligations in the international space.
With governments that have demonstrated insensitivity in the most brutal way to the plight of citizens with regards to such rights, judicial declarations, while informative, are not sufficient. Leaving the fate of Chapter 6 to judicial philosophy breeds uncertainty and undermines the democratic aspirations of Ghanaians. A bold, evolutionary approach is necessary one that recognizes the enforceability of these rights to achieve a just and ideal society, in line with Ghana’s constitutional vision and international obligations.
Parliament must secure and transform these aspirational principles under the constitution to legally enforceable ones. In the light of the constitution review season in our country, that time is now.
References
1. Bilson v Apaloo (1981) GLR 15-24.
2. New Patriotic Party v Attorney General [1993–1994] 2 GLR 459 at 545 (SC).
3. Ghana Lotto Operators v National Lottery Authority [2012] DLSC 2682.
4. Child Rights International v Attorney General [2022] DLSC 11608.
5. Okudzeto v Jake Obetsebi Lamptey [1997–98] 1 GLR 378-461 (SC).
6. Ezuame Mannan v Attorney General [2024] GHASC 6.
7. Asare v Attorney General (Rec’s Case) [2008] DLSC 2458.
8. New Patriotic Party v Inspector of Police [1993] DLSC 2481.
9. International Covenant on Economic, Social and Cultural Rights, Article 2(1).
10. Oxford International, ‘Poverty in Africa – Real Life Consequences and Sustainable Solutions’ (September 2023).
11.Ibid
12.Ibid
Asaanah Ronald Akunai
LLB Candidate
SDD UBIDS
[email protected]
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