A Comparative Study of Article 16(1)(2)(3) of the 1992 Ghana’s Constitution & “A Communal Labour– another technique of acquisition of manpower required for administrative tasks in Cameroon?” (Published in Verfassung und Recht in Übersee (VRÜ) 40 (2007)) By Professor E.H. Ngwa Nfobin, Lecturer, Faculty of Law and Political Science, University of Dschang/Cameroon?

ABSTRACT

The Ghana’s Sanitation Day Directive aims at addressing the country’s decades of poor sanitation and its related health hazards. It is unclear however, whether this is an interim measure or can be reasonably interpreted as a state of emergency or calamity. Article 16(2) of the 1992 Ghana Constitution provides that: “No person shall be required *to perform forced labour; (3) For the purposes of this article, "forced labour" does not include.- (a) any labour required as a result of a sentence or (b) any labour required of a member of a disciplined force or service as his duties or, in the case of a person who has conscientious objections to a service as a member of the Armed Forces of Ghana, any labour which that person is required by law to perform in place of such service (c) any labor required during any period when Ghana *is at war or in the event of an *emergency or *calamity that threatens the life and well-being of the community, to the extent that the requirement of such labour is *reasonably justifiable in the *circumstances of any situation arising or existing during that period for the purposes of dealing with the situation; or (d) *any labour reasonably required as part of normal communal or other civic obligations.”

INTRODUCTION

It is said that authority is granted to rulers or anyone in power by those over whom power is to be exercised. Neil McNaughton (2012, p6) writes that without authority, power becomes mere force. “Put simply, when we say a teacher exercises authority, for example, what is meant is that he or she has been granted power over the pupils by the head teacher and, more indirectly, by the parents and the wider community. Thus, the source of the authority allows the teacher to exercise power. In pure democracies all political authority has its source in the people…” We foresee Local Government Minister Julius Debrah’s National Sanitation Directive as genuine or a benign attempt to solve the country’s chronic sanitation problems. But Hon. Emmanuel Agyarko [2] - the MP for Ayawaso West Wuogon Constituency is doubtful: “Every month or every other month can never solve this sanitation problem?”

INFORMATION & ADVOCACY

St. Augustine- the Bishop of Hippo (354-430 CE), once observed that the non-Christian Romans blamed the abandonment of the worship of ancient Roman gods and the ascendance of Christianity for this calamity. Against their indictment of Christianity, Saint Augustine pointed out: “Rome had already been destroyed twice in the past when the Roman gods were actively worshipped so Christianity could not be responsible for the sack of Rome.” So Chris Joe Quaicoe [2] could not have captured Hon. Agyarko with this headline: “National Sanitation Day Was A "Useless" Declaration”. “…It is unnecessary for government to set aside a day for sanitation. The fact that it has been declared shows that we failed somewhere.” Yes, we have failed because the OmanGhana continues to starve its Schools of Hygiene.

Yet, there could be some truth in Hon. Agyarko’s position. The withdrawal of the state from priority areas due to the severe economic crisis is well articulated in Professor Nfobin’s [3] assessment of the legal base for the state-minted communal labour in Cameroun. “The deterioration of the road infrastructure, hygiene and sanitation and the general appearance of our cities and villages are unquestionably the results of one of the severest socio-economic crisis the nation ever experienced since independence. After holding out for a long time, the country finally welcome assistance from the International Monetary fund in the 1990s with a draconian structural adjustment programme in its train. To meet the challenge and put up with servicing its phenomenal national debt, the state had to withdraw from its traditional priority functions. In 1999, Béatrice Hibou spoke of “the flourish of arguments on the ‘withdrawal’, the ‘helplessness’ or the ‘collapse’ of the state” in the African countries in general.”

Professor Nfobin submitted at the time that the sorry state of Cameroonian townships and villages was simply one of the expressions of this “withdrawal” of the state and that in a leading report in the Paris-based magazine- Jeune Afrique Economie, Gilbert Tchoumba who entitles it Le scandale Douala (Douala the scandal), painted what was described as a stupefying portrait of the economic capital, Douala – disgracefully unmaintained roads, poor disposal of sewage, poor drainage, random disposal of household and industrial waste, widespread littering and excretal pollution etc. “An incumbent mayor is quoted to have likened the city to a war zone. He remarks that the same evidence of neglect is perceptible in the country’s other leading cities and warns of the possibility of outbreak of epidemics. The State earlier resorted to the privatisation of the basic services where this was possible. It equally gave its blessing to communal initiative where there need was immediate and the citizenry ready to act.” In the words of Prof Nfobin, the legal basis for this is sections 362-R370 of the Cameroon penal code.

Although Ghana’s measure cannot be described as forced labour due to its current necessities and patronage, the definition of forced labour ought to be considered in passing. According to Britannica.com [4], forced labour, also called Slave Labour, is a labour performed involuntarily and under duress, usually by relatively large groups of people. It is differentiated from slavery in that it involves not the ownership of one person by another but rather merely the forced exploitation of that person’s labour. The ILO Conventions of 1930 and 1957 outlaw resort to it. The 1930 convention N°9, defined forced or compulsory labour as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”. It excluded however, “minor communal services” and work in the case of force majeure. “Force majeure” relates to work exacted “in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests and in general any circumstances that would endanger the existence or well-being of the whole or part of the population”.

We are yet to have the opportunity to reading the policy guidelines so we might not be sounding derailing or inconsistent with the International Labour Organisation’s adopted resolution. But consider yourself, for example, as a factory worker with the Komenda or Asutuare Sugar Factory returning from a night shift only to have the first Saturday in the month starring at your yawning face. What to do with your community, if, you were to be bereaved on the said national sanitation day? In the UK [5] the law relating to forced labour is absolute. But it does not apply to work that you have to do as part of a prison sentence or a community sentence. Nor does it apply to work the government requires you to do in a state of emergency. It does not for example; also cover normal civic obligations such as maintaining a building if you are a landlord or deducting taxes from your employees’ wages if you are an employer.

The preamble to the Cameroon Constitution states: “No one may be compelled to do what the law does not prescribe. No person may be prosecuted, arrested or detained except in the cases and according to the manner determined by law”. Professor Nfobin informs that those that support and enforce community labour invoke both the (A) texts and (B) context to back up the measure where it runs into difficulties of implementation. “Without the texts, the clean-up campaigns would probably never have existed to say the least as a State endeavour…They may be of (i) national or (ii) international enactment. When we approached the Divisional Officer for Bamenda Central [the HQ of the anglophone North West Province] for the basis of the clean-up campaigns in that locality, he had only a circular letter signed by the Minister of Territorial administration on 4 April 2000 as the text on which the measure is predicated (a) If he showed a lot of reluctance to give us copies of the various orders declaring the second Thursday of the month clean-up days, we managed to obtain them elsewhere (b).”

What is the legal basis for Ghana’s Directive? In Bamenda “As the day approaches, the administrative authorities make it a point of duty to have reminders broadcast on local radio stations that “clean-up campaign” or “keep Bamenda clean” day is closing in. On the day itself, all commercial traffic by car or motorbike is interrupted from 8 a.m. to 12 p.m. All business premises are closed including the municipal market. All city dwellers are supposed to be cleaning around their homes… There is martial calm and order throughout Bamenda. The police is on patrol. Too bad for anyone caught with his business open, a township taxi at work. This business is closed and the car or motorbike impounded. The fine may go up to sixty thousand (60.000) francs CFA. The person may be arraigned for breaching a prefectoral order, which may fetch up to ten days imprisonment according to the penal code.” [3]

As a Ghanaian or a settled foreign tradesperson or professional- auto-mechanic, hairdresser, mason, carpenter, a nurse, private health practitioner, a lawyer or a “religious activist” working from home, what economic benefit could you make out from example, some 14 million people working for a minimum wage of say Gh6.00 per hour (2014) over three hours in every first Saturday in a month and over how many years? The some 14 million is taken from the 2012 Electoral Commission’s eligible registered voters’ register and if we were to be accurate the total amount for communal labour under consideration could be worked as follows: 3 hours volunteering cleaning, multiply by Gh6.00 (basic wage) x the 14 million Saturday volunteers, assuming that everybody shall participate, equals: Gh252 million (two hundred and fifty-two million Cedis- thus, 3hrs x Gh6.00 x 14million eligible voters). No empirical research had been made to ascertain the economic [in]efficacy this measure might be to, for example, thousands of seamstresses, tro-tro/taxi drivers and of course, those on high street businesses.

According to Prof Nfobin, in Cameroon inequality in the treatment of social categories and the suspicion hovering around the substance of targeted groups- the “benskin men”, transporters (if the inter-urban transport companies are excluded), seems to be the part of what can be referred to as the modest earners in the cities. “Transportation is an activity of high visibility and that is what makes them differ from the other members of their class. A standstill in all township activity even if it lasts only till noon affects them most, for they live from hand to mouth so to speak and some of them even work only in shifts and are paid accordingly. The temptation to violate the clean-up campaign therefore beckons more insistently to them. This is the first cause of a reservation towards the clean-up campaigns. The second one stems from the feeling that they are singled out because they are easy targets with their usually modest intellectual firepower. This ensures that the measure adversely affecting them will scarcely wind up in a court of law. [So] the administration is more careful when it comes to dealing with the motoring élite who would probably not exercise patience with the harassments of the operation for a long time…”

These élites, we are told, are more aware of the difference between legality and illegality and know where to complain and that they have won lawsuits against the administration; obtained payments for damages incurred and even the removal of officials that trespassed against them by petitioning the superiors. “The measure has developed a feeling that the principles governing it respect [all] persons…It is therefore neither lawful nor reasonable to exclude from this favour (1) certain social categories and (2) certain regions that do not need the exercise less than the others.” Professor George Vedel had made the following remarks about French administrative law regarding the legality of Cameroon’s National Sanitation Directive or circular letter: “The reality is that circular letters or service instructions are purely “internal” documents, restricted to the relation between the superior and his subordinate [3]….It can neither be invoked to back up an administrative decision nor be contested before the administrative bench of the Supreme Court which is the judge administratif or administrative court in Cameroon. It is a “non decision”, so to speak. As a dependable text on which our clean-up campaigns are based, it fails…”

Thus in Cameroon, “No text spells out “the usual measures” that have become a regular fixture in the “announcement” and that two major illegalities- (A) inequalities and (B) the absence of rules concerning administrative liability, might have flawed the implementation of the operation.” So it remains a challenge to the rule of law and a source of grievance to many city dwellers despite its positive effects. “By the old common law of England, every parish had to perform street services. The vestrymen of the parish appointed a surveyor of highways every year, whose duty it was to see that everyman in the parish either helped to repair the roads or paid a find for not helping.” Today, “to repair” the streets has come to mean “a little more than pushing some earth, stones and household refuse into the deeper potholes in a road. “In bigger towns, the pathways of cobblestones which ran down the middle of some streets were often repaired with stones stolen from a ruined church, castle or town hall…[the historical context is:] Let‘s not perish because the regime would not come to our aid, the reasoning seems to run.”

Thus community labour is not a Ghana’s flagship. In Nigeria it is/was called Sanitation Day. “It used to be Cleaning Day in Sierra Leone and Community Labour in Liberia just to limit ourselves to these few. In France, the law of 3 March 1822 and the decree of 4 January 1896 empower sanitation officials to requisition citizens in an emergency.” In Cameroon, Prof Nfobin doubts the legality of the practice. “A volunteer has no status in law and that if the state encourages… [it], the aim of it all is to save our meager public funds. [2] So can Ghana escape the legal pitfalls on the subject? “While we do not have any records of claims related to communal labour and brought before the courts, French case-law suggests citizens involved in it may be treated as administrative volunteers (les collaborateurs bénévoles del’administration) (1) or (2) labour conscripts (les requis). A volunteer in military law is one who freely and voluntarily offers himself for service in the army or navy as distinguished from one who is compelled to serve by draft or conscription, and also from one entered by enlistment in the standing army.”[3] So JusticeGhana might be right to interrogate the legal efficacy of Ghana’s Sanitation Day?

Professor Nfobin argues that the job of a jurist obligates us to verify the legality of this procedure of getting public work done. “It would be neither too much nor the first time to question the lawfulness of an activity which unquestionably benefits the society in which it is undertaken. We resented and questioned the legality of colonial forced labour though it indisputably improved our lot. It is forced labour even when it is enacted by our own appointed or elected public authorities.” Apart from the said 14 million hypothetical labourers and the Gh6.00 hourly wage, in this information and advocacy, we have neither been concerned with the cost-benefit analysis of the directive nor the outcome of the sanitation days in Nigeria, Liberia or Sierra Leone. Indeed Ghana’s sanitation dilemma is not Prez Mahama-made. Prime Minister Kofi Abrefa Busia identified it and factored it into Progress Party’s urban-rural sewage development plan. But in Cameroon we are told that the difficulty in mobilising volunteers to maintain the roads, hygiene and sanitation in the cities and villages is not as successful as in the other domains like security because of widespread perception of corruption among public officials and the withdrawal of the state from priority areas due to the prevalent severe economic crisis? [3]

ADVOCACY

In law; as far as employment relationship is concerned, there are differences of status of independent contractor and an employee. So as a privately or self-employed person responsible for your future pension, what if; you were to sustain personal injury or to be incapacitated in the course of any of the state’s directed communal labours? This could be yes, some of the legal hurdles that our slow-and-overbearing rubber-stamping Parliament is considering. So, we advocate for the exploitation of Art 210(2)(3) of the Constitution to create sanitation units/brigades within our exiting armed forces if but for excavators and cranes, our hoes and brooms could not guarantee us ecological and environmental justice?

Asante Fordjour authored this Information & Advocacy for and on behalf of ShelterGhana Group Project

JusticeGhana

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References See: http://justiceghana.com/blog/shelterghana-group-projects/the-legality-of-ghanas-sanitation-day/