... In defence of the right to demonstrate

NPP v. IGP [1993-94] 2 GLR 459 at 467-477

JUDGEMENT OF AMUA-SEKYI JSC

Amua-Sekyi JSC.

It is an axiom of British Parliamentary democracy that Parliament is supreme. This means that Parliament may pass any laws that it considers ought to be made.

If it takes a mistaken view of the public interest and passes laws that are inimical to the welfare of he community, or a section thereof, it?s error must be corrected by itself, and not by any outside body such as the courts. In this system of government, much faith is placed in the good sense of those who, for the time being, wield power.

It works best in a society where tolerance of divergent views is regarded as necessary for the well being of the community. But where those who hold differing views are looked upon as subversive, it breaks down completely and becomes tyrannical.

In the immediate post-independence period, our courts took the view that in the Ghana (Constitution) Order-in-Council, 1957 our former rulers had left us the kind of democratic government that they knew, that is one in which Parliament had unlimited power to make laws.

On this basis, our courts upheld the validity of the Deportation Act, 1957, under which aliens who were believed to be sympathetic to the political parties opposed to the government were deported from the country; the Deportation (Othman Larden and Amadu Baba) Act, 1957 which brought court proceedings challenging deportation orders to an abrupt end: see Lardan v. Attorney-General (1957) 3 WALR 114; the Deportation (Indemnity) Act, 1958 which barred the courts from punishing the Minister of the Interior and the Acting Commissioner of Police for their contempt in carrying out a deportation order at a time when there were proceedings in court challenging its validity: see Balogun v. Edusei (1957) 3 WALR 547; the Preventive Detention Act, 1958 under which a large number of persons opposed to the government were arrested and placed in custody without trial: see In re Okine [1959] GLR 1; Amponsah v. Minister of Defence [1960] GLR 140, CA; In re Dumoga [1961] GLR 44; Re Akoto [1961] GLR (Pt II) 523, SC and the Kumasi Municipal Council (Validation of Powers) Act, 1959 by which an action for damages for the demolition of the premises of a political opponent was again brought to an end: see Tsiboe v. Kumasi Municipal Council [1959] GLR 253.

During this period of our history, the courts said that they were prevented by British constitutional conventions from making a stand for the observance of human rights norms. Commenting on section 31 (1) of the Order-in-Council which stated that ?it shall be lawful for Parliament to make laws for the peace, order and good government of Ghana,? Smith, J, an expatriate judge, said in Lardan (supra) at 122-123.

?It is the same position in the case of South Africa, where the Constitution provides that Parliament shall have ?full powers to make laws for the peace, order and good government of the Union.? It has been held in the case of Ndlwana v. Hofmeyer N. O. (1937) A.D. 229:

?Parliament?s will therefore, as expressed in an Act of Parliament, cannot now in this country, as it cannot in England, be questioned by court of law whose function it is to enforce that will, not to question it.?

In conclusion, there are two passages I will quote. One is from May?s Parliamentary Practice, and the other from Lord Wright?s speech in Liversidge V. Anderson [1942] A.C. 206, which I think are appropriate. The former is that: ?The Constitution has assigned no limits to the authority of Parliament over all matters and questions within its jurisdiction. A law may be unjust and contrary to the principles of sound government. But Parliament is not controlled in its discretion, and when it errs its errors can be corrected by itself.?

The second quotation from Liversidge v. Anderson, is:

?All the courts today, and not least this House, are as jealous as they have ever been in upholding the liberty of the subject?In the constitution of this country there are no guaranteed or absolute rights. The safeguard of British liberty is in the good sense of the people and in the system of the representation and responsible government which has been evolved.?

In England it is not open to the court to invalidate a law on the ground that it seeks to deprive a person of his life or liberty contrary to the court?s notions of justice and, so far as the Ghana (Constitution) Order in Council, s. 31(1), is concerned, that is the position in which I find myself ?

Our indigenous judges agreed. When in In re Dumoga (supra) Dr. Danquah, counsel for the detainees, pointed out that Liversidge v Anderson [1942] AC 206, HL dealt with war-time regulations for the arrest and detention of persons suspected of being sympathisers of the enemy, Adumua-Bossman J (as he then was) said at 55-56.

?We are not at war, it is true; but a fully sovereign parliament composed of representatives of the people duly elected by universal adult suffrage, of which learned counsel for the applicants in his political activities was one of the staunchest sponsors, has after due deliberation decided that conditions exist as to make it necessary for this rather drastic power to be conferred on the chief executive officer of the state to be by him exercised in his discretion, and has accordingly made provision for it.

In these circumstances there can surely be little or no point in resorting to the court; and surely the course open to men of realistic outlook is to adopt and pursue a policy of constant approach and appeal to influential humanitarian parliamentarians to use their influence and good offices to procure possibly a reduction in the period of detention in some cases, or perhaps reconsideration from time to time of the question of the termination of the operation of the enabling Act.?

And when in In re Akoto (supra) the matter finally reached the Supreme Court, Korsah CJ, writing on behalf of himself, van Lare and Akiwumi JJSC said at 535: ?We do not accept the view that Parliament is competent to pass a Preventive Detention Act in war time only and not in time of peace. The authority of Parliament to pass laws is derived from the same source, the Constitution, and if by it, Parliament can pass laws to detain persons in war time there is not reason why the same Parliament cannot exercise the same powers to enact laws to prevent any person from acting in a manner prejudicial to the security of the State in peace time. It is not only in Ghana that Detention Acts have been passed in peace time.?

With this pronouncement, all resistance to oppression came to an end. We had rammed down our throats, a constitutional tyranny which those who professed to believe in it called a ?one-party? state. Dr. Danquah was arrested, detained and died in prison; the Minister for the Interior and the chief of police who had taken refuge behind an Act of Indemnity to flout the authority of the courts were arrested and detained; the Minister for Foreign Affairs and two protagonists of the new order were arrested and charged with treason. Acquitted in proceedings intituled State v Otchere [1963] 2 GLR 463, SC the verdicts were set aside by executive order: see Special Criminal Division Instrument, 1963 (E. I. 161). Put back on trial before a more pliant bench, the executive had the satisfaction of seeing them convicted and sentenced to death. Mercifully, the sentences were not carried out: but a grave precedent had been set. The judges were not spared; Korsah CJ was removed from office, and a constitutional amendment cleared the way for the dismissal of Adumua-Bossman J (as he then was) and other judges whose loyalty to the absolutist State was now called in question.

It was to rescue us from such an abyss of despair that on three successive occasions, in 1969, 1979 and 1992, elaborate provisions on fundamental human rights have been set out in our Constitutions and the courts given clear and unequivocal power to enforce them. The Constitution, 1992 is now the supreme law of the land, and any enactment or executive order inconsistent with it is null and void.

Thus, except for the periods of dictatorship when these fundamental human rights were suspended, our courts have since 1969 had power to protect the people from the abuse of legislative and executive power. Unfortunately, we have had too little experience of true democracy since independence. Like a bird kept in a cage for years, we have come to think of the cage as home rather than a prison. The door has been flung wide open, yet we huddle in a corner and refuse to leave.

In countries which practice true democracy, supporters and opponents of every conceivable cause are given freedom to associate and express their opinions. In the end, some have succeeded and their unpopular demands have eventually become majority wishes and have been recognised. Examples are the anti-slavery groups in eighteenth century England and nineteenth century America, and the suffragettes of both countries at the beginning of this century. Today, in these countries, those who favour and those who oppose abortion may assemble and hold demonstrations and processions in support of their cause while, in the less tolerant societies, one would be permitted and the other banned. In this country, it would be unthinkable for any police officer to grant homosexuals a permit to hold a demonstration in support of so-called gay rights; but, I ask, if in nineteenth century England the opponents of child labour had been prevented from stating their case, would it?s evil consequences have ever been recognised? In this day and age, it is necessary for us to begin to see that consent, not force, is the basis of the just society, and that it is not for the government or our neighbour to tell us what to think, or feel or do.

Most of the restrictions on our liberty which, after years of repression, we have come to accept, are inconsistent with democratic norms. Except in a time of war, or when a state of emergency has been declared, it cannot be right for any agency of the executive to suppress the free expression of any opinion, however unpopular that opinion many be. The believer in absolutism and the anarchist, those who support and those who are opposed to abortion, those who favour and those who oppose equal rights for women ? yes, lesbians and homosexuals too ? are all entitled to the free expression of their views, and the right to assemble and demonstrate in support of those views and to propagate those views. Once the state takes for itself the power to licence associations, assemblies and processions it resorts to support of the status quo, and the only way of changing the prevailing state of affairs is by the use of force.

I would have thought that it was self-evident that the continued enjoyment by any community of fundamental human rights was incompatible with any requirement that a permit or licence be first obtained. Whoever has the power to grant a permit or licence has power to refuse it. No one would regard a law which required that workers should seek the prior permission of their employers before organising themselves in trade unions as a reasonable restriction on their right to freedom of association. Any such restriction on the right to freedom of assembly would make it meaningless and a sham. Based as they are on a requirement that permission be sought of the executive or one of its agencies before the right of freedom of assembly is exercised, sections 7, 8, 12(a) and 13 of NRCD 68 are clearly inconsistent with article 21(1)(d) of the Constitution 1992.

Our own experience and that of other countries which have gone down the slippery road to dictatorship teach us to bear in mind Lord Acton?s well-known aphorism, ?Power tends to corrupt, and absolute power corrupts absolutely.? The lessons of history are there for all to see; we ignore them at our peril. It was for these reasons that I concurred in the orders declaring sections 7, 8, 12(a) and 13 of NRCD 68 void.