Justice delayed is justice denied

The idea that unreasonable delays in obtaining a fair hearing may cause irreparable harm is centuries old. The Magna Carta of 1215, one of the oldest pieces of legislation in the world, declared on behalf of all English people that for all time “To no one will we sell, to no one will we refuse or delay right or justice”. Far too often we seem to be more interested in the first part of that declaration, the “sale” of justice, most recently demonstrated by the accusations of corruption in the judiciary. However the second part, to “delay right or justice”, although perhaps not as sensational for the media, is just as fundamental a problem if not more so.

Delay brings serious consequences for those caught up in the system. It is not only a suspect that has a real and direct interest in the expedition of a trial, the public interest demands it.  In Ghana, the right to be brought before a court within 48 hours of arrest, enshrined in the 1992 Constitution, is an example of this right in action. The Constitution similarly guarantees the right of suspects to a trial in a “reasonable amount of time”. This imposes a positive duty on government to sufficiently equip and manage an effective criminal justice system to deliver these rights.

Judges and the court service must put the right to a fair trial at the core of everything they do. It is occasionally difficult to see evidence of this. I illustrate by example. In the Human Rights Court a few days ago a man was due to have a hearing on his writ of habeas corpus, an ancient legal mechanism that allows a person to apply for release from unlawful detention. The right to liberty is fundamental and habeas corpus is therefore among the most urgent petitions a court can be asked to deal with.  The man in question has apparently been in police custody for nearly four years. It is not clear that there is any evidence to support the accusations against him and, in any event, he has not been formally charged with a crime. From a lawyer’s perspective it is hard to think of a more straight-forward case for habeas corpus than this.

Perhaps the Court would have agreed. But in fact, despite waiting weeks for a hearing date, the Human Rights Court could not find a judge to hear the case. The judge due to hear the case was out of town, although no parties had been notified in advance. There was apparently no deputy high court judge to hear the day’s list and the case was not added to the list of another judge. Instead, the man returned to his overcrowded police cell to spend yet another month of his life waiting for his hearing.

The police and criminal courts have already let down this man. Now the system, this time in the form of the Human Rights Court of all institutions, has let him down again. The fact that this man’s fundamental liberty is at stake mattered not; all cases that day were adjourned for weeks, without any regard to urgency or severity. Sadly, those involved in the court process will know that this is far from being an isolated incident.   

Ghanaians have the right to be treated as innocent until proven guilty by a court. In the 21st century, it is cruel and unfair to allow suspects, whatever they are accused of, to be subjected to excessive periods of time in police custody and on remand in prison waiting for trial. It is an affront to the dignity to which they are entitled as a human. Frankly, it is also a waste of taxpayers’ money. The system must do and be better than that.

It is not just in the criminal area that the justice system needs to work efficiently. Just as significant for Ghana as it marches towards middle-income country status is the system for dealing with civil and family disputes. For every small business which is owed a debt and goes bust whilst waiting years for a court order, the system has let that business down and must do better. For every person who has suffered an injury at the hands of another and needs compensation, but stays at home unable to work for years while seeking relief, we must do better. For the family which finds its land occupied by trespassers and waits weeks or months for an eviction order, we must do better than that.

An effective justice system is not a luxury which only developed countries can afford; it is a fundamental human right. It must be a legal and moral imperative for the state, including the judiciary, to do everything it can to ensure that fair trials for suspects or civil plaintiffs are held as soon as is possible in the circumstances. Unreasonable delay inevitably leads to injustice.

Chris Lane, Access to Justice, CHRI Africa

African Commonwealth Human Rights Weekly Update (04/06 - 10/06/2011)

Cameroon

09/06/2011 – NGO’s campaign for Mdbede’s release

NGO’s have joined together to demand the release of Jean-Claude Roger Mdbede, sentenced to three years imprisonment for homosexuality.

Entrapment is regularly used by the police in Cameroon to target and arrest gay men under anti-homosexual laws allowing imprisonment for up to five years. In Mbede’s case, he was sent text messages by an ‘acquaintance’ and was arrested by waiting police officers upon meeting him.

Last year a joint report by four human rights organisations said homosexual people in Cameroon face arbitrary detention, scant regard for due process and sentencing without evidence. The report documented abuses in detention, both pre-trial and in prison, by police and prison personnel, including beatings, torture and verbal abuse.

CHRI has covered the legal status of homosexuality in Cameroon here.

Kenya

10/06/2011 – Government makes financial commitment to police reform

The government has budgeted KSh78 billion for the implementation of police reforms over the next three years.

Internal Security permanent secretary Francis Kimemia, speaking during the launch of the Police Reforms Programme Document in Nairobi, stated that the money was to be used in the implementation of the various projects like provision of transport, housing, communication gadgets, and for re-training, capacity building and institutional support programmes for the two police services.

You can find out more about the work CHRI has done on policing in East Africa here.

Swaziland

08/06/2011 – Campaign launched to free president of NUS

A campaign has been launched to free Maxwell Dlamini, the president of Swaziland's NUS (SNUS). Dlamini was arrested, along with political activist Musa Mgudeni, on the eve of the pro-Democracy protests on April 12, and charged with possession of illegal ammunition, although he denies this charge.

His supporters say that the Swazi government is trying to smear Dlamini following the many battles with the government on behalf of the students since he took office.

Dlamini was voted in as president of the NUS late last year. In office he has led campaigns against increased tuition fees and proposed cuts to scholarships. He has also urged the Swazi government to honour its constitutional commitment to introduce free primary school education.

LGBT Situation in Ghana

Two days ago, the Director of Public Prosecutions in Ghana, Ms Gertrude Aikins, indicated that persons caught engaging in homosexual activities could be liable for prosecution.

As part of our weekly look at the LGBT situation in African here is the situation in Ghana, the home of CHRI Africa. It is interesting to note that in Ghana sexual relations between men is illegal whilst sex between two women is permitted.

If you would like to know anymore about the research that is being carried out by CHRI on the LGBT situation contact the London office at chri@sas.ac.uk or the CHRI Africa blog administrator (henry@humanrightsinitiative.org).

Ghana

Law that Criminalises Homosexuality Acts of Ghana, First Republic, Criminal Code, 1960 (Act 29)[1] Section 104 criminalises unnatural carnal knowledge of any person of the age of sixteen years or over without his consent, with liability upon conviction to  imprisonment for a term of not less than five years and not more than twenty-five years.  With his consent, this is classed as a misdemeanour. Unnatural carnal knowledge is defined as sexual intercourse with a person in an unnatural manner or with an animal. Under Section 98 rape is defined as carnal knowledge of a female of sixteen years or above without her consent, with a liability upon conviction to imprisonment for a term of not less than five years and not more than twenty five years. Under Section 101 defilement is described as the unnatural or natural carnal knowledge of any child under the age of sixteen years.  Whoever commits this felony is liable to imprisonment for a term of not less than seven years and not more than twenty-five years. Same sex sexual activity between females is legal.

Practical Consequences of the law Gay Ghana – is an open platform for gays in Ghana. http://www.gayghana.org/

Constitutional Clause on Equality or Right to Privacy Constitution of the Republic of Ghana[2] Chapter Five – Fundamental Human Rights and Freedoms Under Article 12. (2) Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender is entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest. This right can be limited for public interest reasons. Article 17 affirms that all persons are equal before the law and shall not be discriminated against on the basis of gender, race, colour, ethnic origin, religion, creed or social or economic status. Article 18 guarantees the right to privacy of the home, property and correspondence, except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of the rights or freedoms of others. This right can be limited for public safety reasons.

African Commonwealth Human Rights Weekly Update (28/06 - 03/06/2011)

Kenya

31/06/2011 – Kenya plans to appeal ICC decision

Kenya has declared its intention to appeal the decision of the International Criminal Court which rejected their request that trials of six men accused of crimes against humanity be held in Kenya’s national court.

The ICC ruled that the application did not contain sufficient evidence that the government could deliver justice locally, stating that it ‘did not provide concrete evidence of ongoing proceedings before national judges, against the same persons suspected of committing crimes falling under the ICC's jurisdiction.’

Kenya had earlier challenged the jurisdiction of the ICC, saying its own authorities would investigate and prosecute the cases on Kenyan soil.

Mozambique

01/06/2011 - Free weekly newspaper marks its third year

@Verdade, (truth, in Portuguese) is an extraordinary newspaper. With an aim of increasing access to information, it is distributed free of charge in Maputo and four other towns to people who could otherwise not afford to buy a newspaper.

‘@Verdade was designed and set out to be a tool for development,' says Erik Charas, the papers founder and developer. ‘The development of the citizen, the human being who is entitled to be an active participant of their country's economy simply by being informed. By being able to take or make informed decisions. By being able to speak and be heard. By being allowed to dream, to want and to do. And to change things.’

And three years on, signs show that the newspaper is working as an agent for change in a country that continues on its road to recovery following a sixteen year civil war. A study by Paul Collier, Jenny C Aker and Pedro C Vicente about the 2009 national elections found that access to @Verdade had increased political participation by 10%.

Nigeria

02/06/2011 – Nigerian police raid ‘baby farm’

An alleged ‘baby farm’ in the southern city of Aba was raided by Nigeria police this week. Thirty two pregnant girls, mostly of school age, were found locked up at the Cross Foundation clinic. Their babies were to be sold for illegal adoption or for use in ritual witchcraft.

Human trafficking is the third most common crime in Nigeria after financial fraud and drug trafficking. The UN estimates that at least ten children a day are sold across the country. Traffickers are seldom caught.

The police carried out similar raids on such clinics in neighbouring Enugu state in 2008.

Rwanda

02/06/2011 – Rwanda disputes claims of repressing free speech

This week saw the publication of an Amnesty International report stating that the genocide ideology and sectarianism laws enacted in Rwanda following the 1994 genocide have been used to stifle free speech and political opposition. The report stated that the policies are overly vague, broad and are being used by the government to punish journalists, human rights workers and political opposition.

Justice Minister Tharcisse Karugarama stated that Rwanda is already in the process of reviewing the policies. The government has labelled the report ‘inaccurate’ and ‘highly partisan’.

LGBT Situation in Cameroon

As we mentioned a couple of weeks ago homosexual acts are illegal in seventeen of the nineteen African members of The Commonwealth. Week by week we will continue to give you a rundown of the LGBT situation in each of these states.

This week is the turn of Cameroon which was criticised by a number of human rights organisations in March for imprisoning Roger Jean-Claude Mbede because he was gay.

Cameroon

Law that Criminalises Homosexuality Penal Code (Law No. 65-LF-24 of 12 November 1965 and Law No. 67-LF-1 of 12 June 1967  Article 347 makes it an offence for any person to have sexual relations with a person of the same gender, with the liability of imprisonment from 6 months to five years and a fine up to 200 000 CFA francs.

Practical Consequences of the law In February 2006 a court in Cameroon jailed two men for a year after they confessed to having gay sex.[1]. On June 14, 2006 seven men who have been on trial for homosexuality in the African nation have been sentenced to a 10-month jail term.    Four women are awaiting trial on the same charges.[2] Association for the Defence of Homosexuals http://www.alicenkom.com/  is a local group which seeks to advocate greater recognition of LGBT rights in Cameroon.

Constitutional Clause on Equality or Right to Privacy The General Assembly proclaims that  The Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to propose respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.  Article 1 affirms that all human beings are born free and equal in dignity and rights.  Under Article 2 all the rights and freedoms set out in the declaration are guaranteed to everyone without distinctions, including: race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.   Article 7 guarantees equality before the law and freedom from discrimination.

Living in fear of forced evictions

This week saw Amnesty International celebrate its 50^th birthday.  Events across the world marked the contribution that the organisation, supported by its three million members, has made to the human rights agenda across the world.

The Amnesty Ghana birthday celebrations saw the launch of the report ‘When we sleep, we don’t sleep’, covering the thousands of people living in informal slums in Ghana who are at risk of forced evictions.

A forced eviction occurs when people are removed from their homes without the following safeguards being in place:

·         genuine consultation with those at risk of eviction

·         adequate and reasonable notice of eviction

·         provision of adequate alternative housing and compensation for losses

·         access to legal remedies.

Forced evictions are, regrettably, a common occurrence both in Ghana and throughout our African Commonwealth neighbours.  In 2009, hundreds of people were  displaced by the demolition of structures along the Graphic Road in Abuja. The same year saw the progression of the Kenyan government’s campaign to forcibly evict an estimated 20,000 people from the Mau Forest Complex. In Nigeria more than two million people have been forcibly evicted from their homes since 2000.

All three countries have made international commitments to respect, protect and fulfil the right to adequate housing, and to prevent and refrain from carrying out forced evictions. However their governments are yet to implement national laws to ensure the realisation of the right to adequate housing.  A pledge by the Kenyan government in 2006 to develop guidance on forced evictions is yet to materialise, and forced evictions in Nairobi continue to this day.

In Ghana, the absence of constitutional or legal provisions that would give effect to its international legal obligations in relation to the right to adequate housing and the prohibition of forced evictions provide an avenue for officials to deny that they have any responsibility towards residents in slums, claiming that they are there illegally. This lack of legal protection was confirmed in the 2002 case brought to the High Court by the residents of Old Fadama, the biggest informal settlement in Accra. The judgment stated that the Accra Metropolitan Authority, who were carrying out the evictions, were ‘under no obligation to resettle or relocate or compensate the plaintiffs in any way before evicting them from their illegal occupations.. the mere eviction of plaintiffs who are trespassers, from the land they have trespassed onto, does not in any way amount to an infringement of their rights as human beings.’

Today, 80,000 people living in Old Fadama continue to face the threat of forced eviction. 

Forced evictions frequently occur as a result of a governments desire to use the land in question for development projects.  Examples include the recent building of the Northern Bypass in Nairobi, which saw 3000 people forcibly evicted from the village of Githogoro, and the current redevelopment of the little-used railway line in Accra. Such projects are designed to increase prosperity by attracting investment, creating jobs, and improving infrastructure. These are welcome initiatives, but through the forced evictions that occur as part of the process, the very governments that claim to strive for improving living standards for the people instead force them deeper into poverty. The failure to provide an adequate alternative simply escalates levels of poverty as people either remain in the ruins of their homes or move to another slum. Forced evictions create problems, they do not solve them.

The governments of Ghana, Kenya and Nigeria must be held to account for their failures to comply with the ICESCR, which provides people with the right to a minimum degree of security of tenancy, whether they own their homes, rent property, or live in informal settlements.  An enforceable ban on forced evictions must be legislated for, and guidelines developed to ensure those who will potentially be at risk of forced eviction as a result of government initiatives are afforded a genuine opportunity to participate in the process.

Alison Picton, Human Rights Advocacy, CHRI Africa

Nigeria passes the Freedom of Information Act

Great news! Yesterday Nigeria passed the Freedom of Information Act!

Ironically this was just one day after Chris Lane had commented, in his excellent article on lessons learnt from the UK’s Freedom of Information Act, that Nigeria was “digging in its heels”!!!

Nigeria joins the small list of other countries in Africa in that have passed freedom of information (FOI) legislation. Liberia, South Africa, Zimbabwe and Uganda all have FOI bills. Freedominfo.org provide a good insight into the situation in Africa.

Under Nigeria’ new legislation, whistleblowers who report malpractice by their employers will be protected from reprisals whilst all institutions spending public funds will have to be provide information about their operations and expenditure.

 For further on the Nigerian act have a look at allafrica.com. Click here