People Must be Informed!

The struggle for the return to constitutional rule had at its centre amongst others a craving for the unfettered rights of every individual especially the Ghanaian, access to information as when the need arises.

Democracy in its true sense of the word has come to be defined as the participation of the people in the process of governance.

 However, if practical meaning can ever be given to democracy, it must certainly involve the unreserved right of every citizen to information which would in the final analysis widen the scope of his knowledge so he can contribute effectively towards nation building.

For countless number of years, many people have been gripped by the fear of the unknown as the world keeps changing by the minute before their very eyes.

Social commentators and political activists like Kwesi Pratt Jnr. have hit the roof about the poverty of our people.

In their argument, the inability of our government to harness our resources towards addressing the social and economic difficulties which has plagued the people, the reason we have a situation where people continue to sleep on the streets of Mallam Atta market.

Nonetheless, information on how much revenue is accrued to the state as a result of our share holdings in the various mining companies is never made available or accessible to the public!

It is a healthy development that the bill for right to information has received some attention on the floor of parliament.

However, we need to accentuate that if the underlying principle for the passage of the Bill is to ensure that the public, citizens and non-citizens had access to information then Act 54 section (1) of the constitution which empowers the Attorney General with the ministerial responsibility for the implementation of that act, must be amended.

Although the Attorney General would have to hold information in trust for the people; the bill when passed into law would definitely suffer some restrictions and the right to information might be curtailed.

The argument advanced in support of this position is that, given the constitutional provision which mandates the Attorney-General to also serve as the Minister of Justice, how would he release information which borders on criminality especially when the state is involved?

How would the Attorney-General release information which might eventually require him to prosecute the state or prominent citizens of the government under which he or she might be serving?

It is for these and other reasons that it has been advocated the need for an independent body or entity to be charged with the responsibility for the effective implementation of the bill for the Right to Information if it is ever passed into law.

The right to information must be enjoyed without hindrances and all measures must be put in place to ensure that the thinking and planning that went into the drafting of that bill is never wasted.

Clara Sarpomaa Sabeng

Clara was a former intern with CHRI and is currently a student at the Institue of Journalism in Accra

Innocent Until Proven Guilty: The Case of the Pre-Trial Detainee

It is often said that one can measure the civilisation of a society by the way it treats its prisoners; however, not all those imprisoned have ever been found guilty of committing a crime.

In 2009, 28% of all people detained in Ghana were being in held by what is known as pre-trial detention. This means that the police have arrested the detainee but he or she has not yet appeared before a court. As with any democracy, the firm belief that a person is innocent until proven guilty is essential in the prevention of corruption and abuse of executive power.

The police service is neither a judge nor a jury. It cannot, and does not, decide whether a person is guilty or innocent. Under Ghana’s police code the police may arrest somebody if they have reasonable suspicion that the person has committed a crime; but suspicion, of course, is not the same as guilt.

Unfortunately there is widespread belief in the common idiom of “no smoke without fire.” The problem with this view regards the fact that that an accusation, which could be true but might also be false, is generally directed at the individual. Unless that individual is you or a trusted friend or family member, it is it is all too easy to believe the accused person is simply guilty as charged. If we stop and think for a minute; however, things are not as clear cut as they may first appear.

We have all read the stories about police corruption, yet for some reason we do not equate this with the possibility of unlawful arrest. We acknowledge the current weaknesses of the police service but deem a person charged by the same police service as being guilty of a criminal offence. This does not add up. If a police officer is willing to take a bribe to forget about a traffic offence, it follows that he or she would likely accept a bribe to arrest an innocent person for a crime they did not commit.

Neighbourly disputes over land rights are frequently resolved by such methods. Here there is no come back against the police as the neighbour’s accusation provides evidence of the police officer’s ‘reasonable belief’ in the arrested person’s guilt. It is technically possible for the innocent neighbour to sue the accusing neighbour under civil law for ‘malicious prosecution’ but the practicalities of time and legal costs have meant that, in Ghana at least, this option has never, as yet, been pursued.

Sometimes the crime in question is not even a crime at all. People are often arrested, for example, for not being able to pay a debt and subsequently being charged with theft. A crucial component of the crime of theft is dishonesty, but where is the dishonesty here? Of course, if a person borrows with no intention ever to pay the money back then this can be termed theft as the borrower is clearly dishonest, but if a man loses his job and is forced to default on what he owes, he never had any intention of committing a crime as so cannot be termed dishonest. This colonial relic of locking up debtors has no place in a 20th century legal system let alone a 21^st century one such as ours.

Of course, a false accusation or incorrect charge leading to an arrest should simply be a stressful but ultimately minor inconvenience. If there is not sufficient evidence to alter the presumption of innocence then a court can simply dismiss the case. If the prosecution needs time to attempt to make a case then, so long as the accusation is not of an extremely serious nature (murder, for instance), the court will grant bail to the accused until the next court date. The Constitution states that an arrested person is to be brought before a court within 48 hours thus the options of bail or dismissal become available. The reality; however, is very different.

Spending just 48 hours in a filthy and overcrowded prison cell would be harsh enough for any person, let alone one who has been wrongly arrested. The writer visited one such police station in the Accra area and found over thirty people detained in a small police cell. The temperature was unbearable, the sewage pipe from the toilet was leaking all over the floor, and there was a serious cockroach infestation. Food, water, and healthcare are not provided by the police authorities as the government lacks the will to provide funding in this area. This lack of will stems from a lack of public support for those who are deemed criminals before they are even tried before a court of law.

The constitutionally protected 48 hour time limit is almost never met. A lack of police resources, judicial commitment, legal aid, and political will to change has led to the continuation of an unjust and immoral status quo. In the one police station I visited, I met persons who had been detained for several months without any sort of court hearing. There are many other cases where this unlawful imprisonment can be measured in years, not months, and certainly not in hours.

The criminal justice system exists to protect the innocent as much as to punish the guilty. We must remember that guilt must be proven, and not simply presumed.

Luke Blindell, CHRI Africa

This Article was also published in The Chronicle on the 14/07/2011

LGBT Situation in Mozambique

Mozambique is one of the few members of the Commonwealth without a direct link to the former British Empire.

The country has bounced back well from decades of Civil war and series of deadly floods in the first decade of the 21^st century. The economy is growing well whilst infrastructure is being rebuilt by South African and Chinese finance. Today it is generally to be viewed as an “African success” story.

However the country has recently hit the headlines for a series of violent protests against high prices and subsequent police clamp downs.

Here is a look at its LGBT record...

Law that Criminalises Homosexuality Codigo Penal[1] ARTIGO 71º (Aplicação de medidas de seguranças) (Application of Security Measures) São aplicáveis medidas de segurança: (Applying security measures to:) 4°. – Aos que se entreguem habitualmente à pratica de vícios contra a natureza; 4°. – Those that deliver themselves habitually to practice vices against nature.

Practical Consequences of the law One of the few members of the Commonwealth whose laws is not informed by colonial era British laws. (Mozambique is a former Portuguese colony) Conflicts with... African Charter on Human and People’s Rights (?) ICCPR (21 Jul 1993)

Constitutional Clause on Equality or Right to Privacy Constitution of Mozambique (Approved and enacted in November 1990.)[2] Under Article 6 the fundamental aims of the Republic of Mozambique are the defence and promotion of human rights and the equality of citizens before the law; the affirmation of the Mozambican character, its traditions and other social and cultural values. Under Article 56 it is required that the family and the State ensure that children receive a comprehensive education, bringing them up in the values of national unity, love for their country, human equality, social respect and solidarity. Under Article 81 all citizens may contest acts that violate their rights recognized under the Constitution and other laws. Under Article 82 all citizens shall have the right of recourse to the courts against any act which violates their rights recognized by the Constitution and the law. Under Article 96 individual rights and freedoms are guaranteed by the State and may only be limited where the public order or individual rights, freedoms and guarantees are endangered, or where force is used or threatened.

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[1] http://www.portaldogoverno.gov.mz/Legisla/legisSectores/judiciaria/codigo_penal.pdf

[2] http://confinder.richmond.edu/admin/docs/moz.pdf

An Arresting Dilema: Paying the Price of Responsibility

Nelson Mandela once famously proclaimed that “no-one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones”.

Most of us cannot even begin to comprehend what it would be like to spend a day and night locked up in a jail; still less an overcrowded cell which lacks basic sanitation and the amenities necessary for sleeping and eating. The US State Department has described the conditions in Ghana’s prisons as “harsh and often life threatening”. Police stations are often no better.

Twenty-four hours in such conditions would be bad enough, let alone over thirteen years. This was how long a man, never charged with nor convicted of an offence, spent in a cell until CHRI intervened to secure his release. To this day “Eric” (not his real name) claims his innocence. He says he was not, as was originally alleged, a perpetrator of a violence, but rather the victim of an attack who had been forced to act to defend himself.  There were no witnesses and he had originally handed himself into the police. The Police Service has lost the case docket so there is no evidence either way. To compound matters the investigating officer has long since been transferred. It appears that in his thirteen years of detention, he was never formally charged (let alone tried) and often missed court appearances due to lack of vehicles or simple disinterestedness on the part of the Police. Indeed, on a number of the occasions when he actually made it to court, his case was not even called.

Eric went into police custody a young gainfully employed member of society with dependents. Upon his release he is a broken middle-aged man, bitter about his treatment and unable to work due to illness.

In a criminal case such as Eric’s there must be a formal charge, trial by jury and verdict and sentencing. The Constitution (Article 14(3)) guarantees that a person who is arrested or detained must either be released or brought before the court within forty-eight hours. Suspects formally charged in court must face trial by a court within a “reasonable amount of time” in accordance with Article 14(4).

As few ordinary people imagine that they will ever end up in a police or prison cell, there is little political or public interest, let alone sympathy, for the plight of those held in custody or on remand. Many question whether such formal processes actually matter. The person was arrested: surely there can there be no smoke without fire?

But due process does matter; the right to a fair trial is a fundamental human right. Those accused of crimes are not sub-human. It is unlawful and against the public interest to take away someone’s liberty for long periods without observing the proper police and court processes. To do so discredits the justice system and has a profound, detrimental economic impact on the individual, his family, community and the state, not least due to the direct costs of keeping a person in jail.

If a person does not have the reason for his arrest and his rights explained to him, that arrest may constitute an unlawful arrest. Similarly, if a person spends more than forty-eight hours in a cell without having been charged or waits for years in jail on remand for his trial to start, this may also be unlawful detention. This is important because under Article 14(5) of the Constitution, a person who is unlawfully arrested or detained has an “enforceable right to compensation”. However, despite a plethora of candidates, there are no reported, successful claims to the Constitutionally-mandated compensation.

There are two reasons why claiming compensation is important. First, and foremost, lengthy incarceration can dramatically change the financial fortunes of a person. In the worst cases, like Eric’s, it can leave someone unemployable, either as a result of physical or psychological illness or due to the cloud of humiliation and suspicion that may forever float above him. Secondly, if former detainees came forward and successfully sought compensation from the state, the Government may be provoked to reform the law and policing practices, improve accountability and invest properly in the criminal justice system to make it more effective and efficient.

The Constitution is clear. If the state violates the rights of its citizens, whether they are suspected criminals or otherwise, it must pay compensation. The central thrust of this argument is not that it is desirable for precious resources to be diverted from Ghana’s social and economic priorities to fund compensation windfalls for those accused of crimes. It is an argument for the Government not violating those rights in the first place.

CHRIS LANE , CHRI, Africa Office

Commonwealth Human Rights weekly update (09/07 - 15/07/2011)

Kenya

Wednesday 13/07: Row over Refugee Camp: Kenya's Assistant Internal Security Minister Orwah Ojodeh said he was against opening a new section to the Dadaab refugee camp. It is claimed that it would encourage more Somalis to cross the border.

The proposed new section would have room for up to 40,000 people and would ease the over-crowding. Currently 370,000 people are crammed into an area set up for 90,000 people.

Kenyan Immigration Minister Otieno Kajwang said he was embarrassed that the government was refusing open a new refugee facility.

Malawi

Thursday 14/07: Malawi’s Aid Cut: The UK's Department for International Development (DFID) released a statement stating Malawi's government was suppressing demonstrations. It says it will be cutting budgetary support to the Malawian government.

The statement is the latest stage in a diplomatic spat between Britain and Malawi. Early on this year Malawi expelled Britian’s high commissioner after he was quoted criticising Malawi’s human rights record,

However, the UK is continuing to give Malawi aid through non government channels. This is targeted at £90 million over the next year.

Namibia

Wednesday 13/07: Country Running out of Condoms: According to The Namibian, one of Namibia’s national papers, The Ministry of Health is running out of free condoms after it terminated its agreement with Namibia’s sole producer of condoms, Commodity Exchange (ComEx).

The paper reports that the Ministry of Health stopped buying condoms from ComEx Last year after claiming that there condom’s were too expensive. The Ministry has instead opted to source them from abroad.

Sexual health is part of the wider “Right to Health” contained within the International Covenant on Economic, Social and Cultural Rights.

LGBT Situation in Mauritius

Mauritius lies to the east of Madagascar in the Indian Ocean. It is a populous island of just under 1.3 million people. In recent decades it has become a popular tourist destination for South African and European holiday makers.

Homosexuality is still illegal in Mauritius. Its laws are still informed by old colonial sodomy laws. Here is a summary of the LGBT situation on the island.

Law that Criminalises Homosexuality Criminal Code Cap 195 – 29 December 1838 Amended 25/01; 30/01; 5/02; 12/03; 22/03; 30/03; 34/05; 24/06[1] Section 249 criminalises rape, attempt upon chastity and illegal sexual intercourse.  Any person who is guilty of the crime of rape, shall be liable to penal servitude for a term which shall not be less than 5 years.  And any person, who commits an indecent act [‘attentat à la pudeur’] by force or without consent upon a person of either sex, shall be liable to penal servitude for a term not exceeding 5 years. Section 250 criminalises sodomy and bestiality, finding that any person who is guilty of the crime shall be liable to penal servitude for a term not exceeding 5 years.

Practical Consequences of the law Popular tourist destination for western holiday makers- cultural clashes.

Constitutional Clause on Equality or Right to Privacy Constitution of Mauritius 1968[2] Article 3 guarantees fundamental freedoms without discrimination by reason of race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest.  Rights protected include  the right of the individual to life, liberty, security of the person and the protection of the law; freedom of conscience, expression, of assembly and association; and freedom to establish schools; protection for the privacy of the home and other property Article 9 reaffirms the right to the privacy of the home and right not to be searched on his premises, subject to interests of defence, public safety, public order and public morality.

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Commonwealth Human Rights weekly update (02/07 - 08/07/2011)

Horn, East and Central Africa

Monday 04/07: Aid agencies launch multi-million pound appeals to address food crisis

Aid agencies launched huge appeals this week in order to tackle the impending humanitarian emergency in east Africa, where severe drought and high food prices have left 10 million people needing help.

The drought in some pastoralist regions of Kenya, Somalia, Ethiopia, Djibouti and Uganda comes as a result of the second failed rainy season in the last year. The drought has destroyed livestock, which at a time where cereal prices are soaring has caused hunger levels to increase sharply.

Almost a thousand Somalis refugees per day continue to cross across the Kenyan border to Dadaab, already the largest refugee settlement in the world, as covered in a previous post.  The greatest proportion of people in need are located in Kenya’s northern regions, where cereal prices have risen sharply in recent times. This is partly due to an increase in the global price, however a shortage of the maize has also been attributed to poor planning by the government, who claimed to have a surplus earlier in the year, before declaring a national disaster in May. There have also been allegations that politically connected Kenyans have sold maize meant for domestic consumption to neighbouring countries.

Sub-saharan Africa

Thursday 07/07/2011: Sub-saharan Africa on route to achieve MDG2

Sub-saharan Africa has been recognised as having up the best record for improvement in primary school enrolment, according the UN's annual report card of regional progress towards the eight MDGs.

The report highlighted that the world is far from achieving universal primary education. However Burundi, Madagascar, Rwanda, Samoa, São Tomé and Principe, Togo and Tanzania are among the countries that have achieved, or are nearing the goal of universal primary education. The abolition of school fees has contributed to progress in many of these countries, the UN said.

To achieve universal primary education, children must complete a full cycle of primary schooling. Currently, 87 out of 100 children in poor countries complete primary education.

Swaziland

Monday 04/07: Aid agencies launch multi-million pound appeals to address food crisis

The Commonwealth Secretariat is continuing to help Swaziland in advance of the country’s first Universal Periodic Review (UPR) human rights evaluation through a series of workshops for civil society organisations.

The UPR is a four yearly review of the human rights records of all 192 member states of the Commonwealth.  Swaziland is due to present its report to the Human Rights Council this month, and answer questions on it in October.

Karen McKenzie, Human rights adviser with HRU stated ‘engagement was contructive around a number of the burning human rights issues confronting government currently – some of these issues have been pending for a while.’ CHRI has covered Swaziland’s human rights record in previous posts and official statements.

LGBT Situation in Malawi

Malawi recently had its aid from Britain suspended due to its poor human rights record. Here is the CHRI take on its homosexual human rights track record.

Law that Criminalises Homosexuality Penal Code Cap. 7:01 Laws of Malawi Section 153 defines unnatural offences as carnal knowledge of any person against the order of nature or permitting a male person to have carnal knowledge of [a male or female person] against the order of nature.  Whoever commits this felony is liable to up to fourteen years imprisonment, with or without corporal punishment. Section 156 criminalises Gross indecency of one male person with another male person in public or private and carries a liability of up to five years imprisonment.[1] Under Malawi’s current law, rape is non-consensual sex with a member of the opposite sex who is not one’s spouse. Forcible sex with one’s spouse is not illegal.[2]

Practical Consequences of the law December 30, 2009 -Tiwonge Chimbalanga and Steven Monjeza: were arrested after holding a traditional engagement ceremony, and charged with public indecency. February 3, 2010 -Peter Sawali: arrested for putting up posters that stated ‘gay rights are human rights’; charged with causing a ‘breach of the peace’. May 20, 2010 - Tiwonge Chimbalanga and Steven Monjeza were convicted and sentenced to the maximum sentence allowed by law, of 14 years with hard Labour for engaging in acts of sodomy and acts of indecency. May 29, 2010 – Tiwonge Chimbalanga and Steven Monjeza: Presidential pardon on ‘humanitarian grounds’. February 9, 2010 – Peter Sawali: sentenced to community service, to clean the premises of Blantyre Magistrates Court for 60 days.

Constitutional Clause on Equality or Right to Privacy Republic of Malawi (Constitution) Act 1994[3] Under Article 20 Discrimination of persons in any form is prohibited and all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth or other status.  Further, legislation may be passed addressing inequalities in society and prohibiting discriminatory practices and the propagation of such practices and may render such practices criminally punishable by the courts. Article 21 guarantees, to every person the right to personal privacy, including protection against searches of his or her person, home or property; the seizure of private possessions; or interference with private communications, including mail and all forms of telecommunications.

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[1] http://www.gaylawnet.com/ezine/crime/ILGA_2008.pdf

[2] http://www.equityfeminism.com/articles/2002/bill-to-criminalize-marital-rape-creates-controversy-in-malawi/

[3] http://www.sdnp.org.mw/constitut/dtlindx.html