11 Aug Respect For Fundamental Human Rights In Relation To Unlawful Arrest: Article 14(2) Of The 1992 Constitution In Review, The Case Of Asante V. The Republic In Retrospect.
“There is no happiness without liberty, no liberty without self-government, no self-government without constitutionalism, no constitutionalism without morality–and none of these great goods without stability and order.” ~ Clinton Rossiter.[1]
The relationship between citizens and the state is characterized by the performance of duties and obligations of citizens in return for rights and privileges provided for by the state. By this, citizens of a country are able to exercise their social, cultural, political, and religious rights in exchange for a formalized and structured society where there is law and order which ultimately affords security to the citizenry.
RIGHT TO PERSONAL LIBERTIES
The respect for the fundamental rights and freedoms of citizens is adequately captured by the supreme law of the land; the 1992 Constitution of the Republic of Ghana (“the Constitution”). Indeed, an entire Chapter of the Constitution is dedicated to same. Chapter 5 of the 1992 Constitution (“Chapter 5”) (though not exhaustive), lays down the rights and freedoms recognized in Ghana The Chapter also lists the various limitations that may exist in the exercise of those rights and the means of enforcing such rights in the event of a breach. The fundamental human rights and freedoms enshrined in Chapter 5 are respected and upheld by the three arms of government, their corresponding agencies, and where applicable, by corporate entities.[2]
Chapter 5 stipulates the rights both citizens and non-citizens in Ghana can enjoy. The right to personal liberty guarantees a person the right not to be subjected to an unlawful arrest or detention. This right is inherent in so far as every citizen of Ghana is automatically entitled to enjoy such rights. Furthermore, these rights have been provided for in various international human rights treaties and conventions to which Ghana is a signatory.
Article 14 of the Constitution, 1992 makes provision for the right to personal liberty. However, like most rights, the right to personal liberty is not without exceptions or cannot be said to be absolute. One such exception to the right to personal liberty is lawful arrest.
LAWFUL & UNLAWFUL ARREST
An arrest is said to be lawful where it follows due process and unlawful if it is made without following due process. It is important for an arrest to be made in compliance with the law in circumstances where one’s fundamental right to liberty is to be suspended.
Article 14(2) of the 1992 Constitution, states that a person who is arrested, restricted or detained must be immediately informed, in a language that he understands, the reasons for his arrest, restriction or detention and of his right to a lawyer of his choice. This provision is clear as it relates to the lawful manner in which an arrest must at all material times be made. For emphasis, a person arrested, restricted or detained has certain rights protected by the Constitution:
- To be immediately informed (‘on the spot’) at the time of arrest, of the reason for the arrest.
- The arrest must be done in the language the accused person understands. This is essential as it relates to ensuring that the accused has a fair knowledge of the said offence alleged to have been committed. Therefore, it will, for example, be improper for a police officer to effect an arrest in English when the accused clearly is illiterate and fluent in Twi
- The accused must be informed that he has a fundamental right to legal representation.
A person arrested can exercise his right not to speak or write down a statement in the absence of his lawyer. This is known as the Miranda right and not even the police can compel an accused to make a statement against his wishes. In fact, the police must inform the accused of his right to be silent as any self-incriminating statement made by the accused can be used against him.
The case of Asante v. The Republic[3], although decided in 1972 and not under the 1992 Constitution provides an interesting perspective on the need for persons mandated to effect arrests to do so within the remit of the law. At best, one can argue that Article 21 (2) of the 1979 Constitution on lawful arrest is a reflection of the 1972 decision, with a subsequent reenactment of the same under Article 14 (2) of the 1992 Constitution.
In Asante v. The Republic, a complaint was made to the police against Asante, the Appellant (a taxi driver), on the grounds that he had assaulted the complainant. An escort police officer was assigned to go with the complainant to invite the Appellant to the police station. The police officer upon arriving at the location of the Appellant disclosed his identity and invited the Appellant to the police station. There was no evidence that the police officer had at any time informed the Appellant of the reason for the invitation. The Appellant refused to honour the invitation extended to him by the police. This infuriated the police officer who then proceeded to seize the car keys of the Appellant. In the attempt to retrieve his keys, the Appellant knocked the police officer down, kicked him multiple times, and in the process, tore the uniform of the police officer. The Appellant was convicted on two charges; namely, an assault of a police officer and causing damage to the property of the police officer. On appeal, counsel for the Appellant submitted to the court amongst others that, having regard to the evidence on record, the arrest was unlawful and consequently, the Appellant was justified in repelling the unlawful assault on him with corresponding force in self-defense.
The Court, in allowing the appeal, held amongst others, that the police are indeed clothed with powers to arrest, whether or not with a warrant, even when the basis for arrest is premised on a suspicion[4]. However, in the performance of their duties, the police must be guided by the law.
The Court thus held that the purported arrest was unlawful because the reason for the said arrest was not disclosed to the Appellant at the material time of the arrest. This rendered the arrest null and justified the Appellant’s actions in resisting the arrest, including physically confronting the police officer and damaging his uniform.
The decision of the court in the above case clearly demonstrates the profound commitment of the courts to safeguard and guarantee the fundamental human rights of citizens, even to the detriment of state institutions or actors.
The enjoyment of fundamental human rights and freedoms is non-negotiable – citizens must not fret about seeking protection of their rights at all times as the courts will be ready and willing to enforce them. This is the bane of constitutionalism and rule of law.
CONCLUSION
There is a saying that we are but a summation of our past experiences. The gallant and persevering efforts of the founding fathers who historically contributed to the liberation of our country from the shackles of colonization have culminated in today’s judiciary, which jealously guards and protects the fundamental human rights of citizens. As a people, it is our collective duty to safeguard the feats we have chalked for ourselves in our constitutional democracy, lest it be said that our predecessors fought for nothing and that we, as a people, are incapable of managing our own affairs.
A caveat however is that in as much as the Constitution guarantees rights, it also lays down the duties of the citizenry. As we enjoy our rights, so must we perform our duties. I therefore, hasten to add that this write-up is not to spur on members of the public to unreasonably challenge state agencies even when they believe they are justified. Exercising one’s rights under such circumstances must be done with decorum.
Author:
Benny Ato Sam
GSL Summer Legal Intern 2023
[1] Clinton Rossiter Quotes, available at https://www.azquotes.com/author/47712-Clinton_Rossiter Last Accessed 02.08.2023
[2] The 1992 Constitution, Article 12.
[3] Asante v. The Republic [1972] 2 GLR 177-197
[4] The Criminal Procedure Act, 1960 (Act 30) section 10 (a).