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Human Rights, Individual Freedoms and Democracy in Ghana- The Preventive Detention Act and After - The Role of the Judiciary

The Role of the Judiciary

For good governance we need Judges who are not afraid to make pronouncements on the law as they see it. This is why Judges have their tenure guaranteed by our present Constitution. Very often the Judge is an arbiter between the citizen and the government. The citizen expects the Judge to hold the scales evenly between him and the all-powerful State. If the powerful State and the powerful organs of State power are not constrained within constitutional bounds, tyrannical rule, and not good governance, develops. That is why the Judge must be prepared to declare the rights of the citizen, even if such a judgment is distasteful to the Executive arm of government. A timid Judge is an embarrassment to the profession. The courts must enforce the law, no matter whose ox is gored. Justice must be done, even if the heavens fall. And justice must be seen to be done.

The role of the Judiciary in this process will continue to be crucial. A good constitution still needs an independent and vibrant judiciary to enforce the provisions of the constitution. One of responsibilities, therefore, must be to support the judiciary to be an effective bulwark against any attempts at the erosion of our freedoms. This responsibility rests on all Ghanaians. People in positions of power today must expand the frontiers of our freedoms and guarantee the independence of our judges. History shows that when persons who were once in power cede power to others, the only protection for their lives and liberty will emanate from the judiciary. It is, therefore, in nobody’s interest to emasculate the judiciary for expediencies of the moment.

The present Constitution guarantees our freedoms. Article 3(1) of the Constitution provides that “Parliament shall have no power to enact a law establishing a one-party state.” Article 3(2) expatiates on this provision with the declaration that any activity which seeks to suppress the lawful political activity of any other person is unlawful. Furthermore, Article 21(3) reinforces this right with the provision that “All citizens shall have the right and freedom to form or join political parties and participate in political activities…” Article 21(1) also guarantees the freedom of speech of Ghanaians. Nkrumah must be turning in his grave, as his legacies have been shattered by Ghanaians. These provisions bind also the government of the day and its officials.

It is, therefore, unlikely that we can return to the Nkrumah days of legalised suppression of opposing political views and the creation of a one-party state. This demolishes and ensures the burial of the “great” achievement of “Osagyefo” which was the one-party sate. Even if Nkrumah were to be resurrected from his grave today, he cannot re-impose a one-party state. The Nkrumaists may be very unhappy with this guarantee of our freedoms; but the majority of Ghanaians have embraced it. Nkrumah has died and our freedoms survive.

Unlike the days of Nkrumah, Article 14(1) of the 1992 Constitution provides in very clear terms that "Every person shall be entitled to his personal liberty.” Under this provision, detention without trial, such as under the Preventive Detention Act, has been forbidden. Now a person can only be deprived of his liberty in execution of an order of a competent court. except for the special cases of infectious or contagious diseases.

Article 14 (3) also provides that a person arrested, restricted or detained for the suspicion of a crime “shall be brought before a court within forty-eight hours after the arrest.” Any law which would have the effect of derogating from this provision would be void for unconstitutionality. Therefore, there cannot now be enacted a Preventive Detention Act which Kwame Nkrumah imposed upon this country and which presumably those advocating Nkrumaism would welcome back.



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