CHRAJ to police: Responses to protesters have been disproportionate over the years

The Commission on Human Rights and Administrative Justice (CHRAJ) has stated in an advisory letter to the Inspector General of Police, George Akuffo-Dampare, that police responses to protesters over the years have been disproportionate.

The Commission says the five-page advisory, signed by the CHRAJ commissioner, Joseph Whittal, was made necessary by recent events involving the police and “Democracy Hub” protesters.

“On the 21 September, 2023 it was widely reported in the media that protesters who had gathered around 37 bus station to exercise their constitutional right to demonstrate were arrested, manhandled and subsequently detained at various police stations within Accra by the police,” the letter says.

“It was also reported that protesters, at some point, were denied access to their lawyers. The reason for the police response was that court processes to place an injunction on the protest had been served on lawyers of the leadership of protestors and therefore deemed such assembly as unlawful,” the introductory paragraphs of the advisory say.

Legal frameworks

The CHRAJ advisory to the police service notes that: “The freedom of assembly is guaranteed under chapter 5, specifically by Article 21(1) (d) of the 1992 constitution of the Republic of Ghana, which states that ‘all persons shall have the right to … (d) freedom of assembly including freedom to take part in a procession and demonstration’.”

The Commission further notes: “The International Covenant on Civil and Political Rights (ICCPR), which Ghana has ratified, also provides for the right to peaceful assembly under Article 21.”

Explanatory notes

CHRAJ explains in its letter that it is the Commission’s understanding that the leaders of the protestors had given notice to the police many days earlier to facilitate discussions on the date and possible routes for the march, in order to ensure a problem-free protest.

The basis for the police action against the protesters on 21 September 2023, as the Commission understands it, was that it had served court processes on lawyers to the leaders of the protest, and therefore considered any attempt to undertake the protests as unlawful – hence the arrests and detention of protesters.

“The Commission sadly notes that police response over the years against protestors have been disproportionate and leaves much to be desired. It is in this context that the Commission deems it appropriate as the National Human Rights Institution (NHRI) with the mandate to promote and protect human rights under the Constitution and CHRAJ Act 1993 (Act 456) and its obligations under the Paris Principles to issue an advisory to relevant state actors on matters of human right concern,” CHRAJ states in its advisory.

“Whilst the right to demonstrate is recognised by the state as constitutionally guaranteed, the contention is in relation to how the right should be exercised against other competing legitimate interests such as public safety, national security, public health, the running of essential services often cited by law enforcement officials to justify restriction of the right.

“It is important to indicate that the right in issue is a human and constitutional right and therefore any limitation placed on the right must satisfy the threshold stipulated under human rights law,” CHRAJ further states in the letter to the Ghana Police Service.

“In the context of the recent happenings, the Commission said it understands that the approach adopted by the police was hugely informed by lack of consensus between the Police and demonstrators.

“Granted that was the reason, that did not permit the police to weaponise the Public Order Act on the eve of the demonstration to restrict demonstrators from exercising their constitutional right.

“When that approach failed the police resorted to the arrest and detention of protestors. These developments, in the considered view of the Commission, are disturbing, considering the nature of obligations imposed on the state in relation to the right as well as the importance of the right to the democratic order.

“It is not in dispute that the freedom of peaceful assembly just like any non-derogable right is not absolute. It is subject to limitations necessary in a free and democratic society for the purposes of ensuring public safety, public health, defence, running of essential services and other legitimate considerations.

“But these limitations have to be carefully considered or weighed against the protected right. In the Ghanaian context, the Commission observes that misinterpretation and misapplication of the Public Order Act 1994 (Act 471) and other justifications have had a chilling effect on the protected right to demonstrate. That is problematic,” the CHRAJ commissioner says.

Conclusion

In conclusion, CHRAJ notes that “the freedom to assembly is a right recognised under the 1992 constitution and a plethora of international human rights instruments to which Ghana is a state party. The right imposes a serious obligation on the Ghanaian state to respect and ensure its realisation without unjustifiable restrictions.

“In light of the historical and political significance of this right to citizens, it therefore places a very high burden on the state actors namely law enforcement officials to ensure its manifestation, of course, with restrictions as circumstances may demand and [may be] extremely necessary in a democratic society.

“It is the hope of the Commission that this advisory would provide some useful guidance to relevant state actors on their obligations relative to this protected right whilst executing their constitutional and statutory duties,” the advisory signed by Joseph Whittal says.

Recommendation

Beyond its conclusion, CHRAJ makes six points of recommendation to the Ghana Police Service. First, CHRAJ says, “The Ministry of Interior, Inspector General of Police and National Security must be mindful of Ghana’s human rights obligations towards its citizens. The appreciation of this obligation will inform decisions in striking a good balance between all legitimate competing interests.”

Second, it recommends “developing guidelines (where none exist) for managing protests which incorporate human rights standards for use by law-enforcement officials, particularly the police”.

Third, “refresher courses on human rights law and other relevant UN and AU standards governing the operations of law-enforcement agencies”.

Fourth, it argues: “In situations of deadlock between law enforcement and protesters, the decision to resort to the court to injunct the exercise of the right must be done in a manner which affords protesters the opportunity to challenge the decision in the court of law.”

Fifth, “Police and other law-enforcement officials must endeavour to build rapport between them and protesters as citizens and not as troublemakers to achieve an incident-free protest.

Lastly, it recommends: “Law-enforcement agencies in all their considerations must facilitate the realisation of the freedom of assembly and other protected rights unless restrictions are reasonably necessary in a democratic society.”

Reporting by Wilberforce Asare in Accra

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