According to John Rawls, a right to demonstrate is said to be one of the fundamental liberties in free and democratic States. Quashigah (1999) has also described the right to demonstrate as “a small price for the bigger benefits of democracy that the rest of us should tolerate the little inconveniences that come with occasional exercise of the right to freedom of peaceful assembly, procession and demonstration by some others. The free exercise of these and other rights that society faces its shortcomings and re-directs them for the benefit of us all”.
In Ghana, efforts have been made since the commencement of the Fourth Republic to eliminate some fetters to the exercise of this right. Article 21(1)(d) of the 1992 Constitution entrenches the right to demonstrate. In furtherance of this right, the Public Order Act, 1994 (Act 491) was enacted to align with the constitutional order and to allow for full exercise of the right to demonstrate.
In recent times, however, the haggling between citizens and the Police in the quest of the former to exercise their constitutional right has resulted in several arrests and disturbances. These unfortunate events have exposed some flaws in the Act 491 which must be cured to improve the regime for the exercise of their constitutional right to demonstrate.
In this article, the writers seek to highlight some of the provisions of Act 491 which undermines the right to demonstrate and make recommendations to address them.
- The right to demonstrate
The right to demonstrate is recognised in Article 20(1) of the Universal Declaration of Human Rights, 1948 as “Everyone has the right to freedom of peaceful assembly and association”. This right is further reflected in Article 19 of the Declaration which states that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.
In Ghana, the right to demonstrate is entrenched in Article 21(1)(d) of the 1992 Constitution which states that “All persons shall have the right to freedom of assembly including freedom to take part in processions and demonstrations.” Just like other freedoms, the 1992 Constitution restricts the right to demonstrate in some respects including Article 21(4)(a) and (c) thereof.
This provision states that “Nothing in, or done under the authority of, a law shall be held to be inconsistent with, or in contravention of, this article to the extent that the law in question makes provision for the imposition of restrictions that are reasonably required in the interest of defence, public safety, public health or the running of essential services, on the movement or residence within Ghana of any person or persons generally, or any class of persons.”
In line with the above constitutional clawback, the Public Order Act, 1994 (Act 491) was passed. Act 491 repealed the Public Order Decree, 1972 (NRCD 68) and abolished the requirement to obtain a permit or licence before one could demonstrate. This abolishment appeared to have been directed by the pronouncement of the Supreme Court in the case of NPP v IGP [1993-94] 2 GLR 459) that “it was self-evident that the continued enjoyment by any community of fundamental human rights was incompatible with any requirement that a permit or license be first obtained.”
- Restrictions imposed by Act 491
As noted earlier, one important change introduced by Act 491 was the repeal of the requirement to obtain a permit from the Police before embarking on demonstration. Despite this positive legislative review, Act 491 contains certain offences which, in effect, operate to negate the rationale for removing the permit requirement. These offences are contained in Section 9 of Act 491 are as follows:
- failure to notify the Police before embarking on demonstration;
- failure to inform the police of unwillingness to comply with a request made by the Police to change aspects of an intended demonstration; and
- Taking part in a demonstration knowing that no notification has been given to the Police;
The punishment for each of the offences is a fine of not exceeding ¢2 million or a term of imprisonment not exceeding one year or to both.
Further to the above, Section 1(6) of Act 491 empowers the Police to apply to Court to restrain demonstrators if the organisers refuse to comply with request of the Police. It is suggested that the provisions in sections 1 to 3 of the Public Order Act, 1994 (Act 491) are constitutional as being in line with article 21(4) (a) as endorsed by the Supreme Court in New Patriotic Party v Inspector-General of Police.
As can be seen from the above, the law fell short in specifying that the application by the Police should be on notice to the intending demonstrators. It only conferred the right to the Police to apply to Court under a specified circumstance. In view of this, it became the notorious practice of the Police to run to court at last minute by an ex parte application.
This unfortunate practice drew judicial condemnation in the case of The Republic Vs. Circuit Court Accra, Ex Parte: Gifty Oware-aboagye & The Inspector General of Police Service & The Attorney General (Let My Vote Count Case) (Unreported 30 November 2015) Adjei J A sitting as additional High Court Judge held that “it is unlawful, crude and a breach of natural justice to initiate an action ex parte under the Public Order Act; 1994 (Act 491). Any action therefrom should be on notice.
The Police may file an application to prohibit the holding of the special event once the law does not say such an application should be ex-parte, it should be on notice to the people who have written to go on demonstration as any decision taken by the court would affect them.”
Another challenge connected with the application of injunctive order by the Police is the lack of timelines within which the Police must initiate the application. This has also become a weapon in the hands of the Police to pull surprise on demonstrators at last minute of a demonstration.
The writers contend that Act 491 contains sufficient safeguards to protect national interest as well as the rights of others. Aside of the right of the police to apply to Court to restrain will-be demonstrators, Section 3 of the Act imposes liability on organisers and other persons for causing damage to public property.
Recommendations
Based on the above weaknesses, the writers recommend that the right conferred on the Police to apply for injunction should be further regulated in two respects. The first is that the law should be reviewed to specify that the application by the Police for an injunction should be on notice as an ex parte application is unlawful and a breach of the rules of natural justice (The Republic v Circuit Court Accra, Ex Parte: Gifty Oware-Aboagye, Inspector General of Police Service & Attorney General).
The second is that the law must be reviewed to set the timelines within which the Police can initiate the injunction application to be a week prior to the proposed date of the demonstration.
The writers further recommend that Section 9 of Act 491 be repealed. It is the considered view of the writers that Section 9 of Act 491 has the same effect as the permit requirement under the repealed NRCD 68. The Act should be amended to give a reasonable timeline that the police can apply to Court to restrain persons intending to demonstrate.
Conclusion
Freedom of demonstration is a constitutional right recognised in both international instruments and our 1992 Constitution. It is equally noted that this right is not absolute but must be well balanced with the need to preserve national security, protection of State property and respect for the right of others.
Despite the above, the writers contend that we should not put unnecessary restraints in the way of persons who intend to exercise a constitutional right. It is even more objectionable to criminalise a conduct which constitutes the exercise of a constitutional right to demonstrate as currently pertains under Section 9 of Act 491. It is the contention of the writers that Act 491 in its current form operates as a major fetter on the right to demonstrate in the same way that the repealed permit regime did, and must be repealed.
>>>Benjamin Tachie Antiedu is a Legal Practitioner & Author. He can be reached via [email protected] & Goodnuff Appiah Larbi is a Legal Researcher. He can be reached via [email protected]
