Ghana - Amnesty International

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4GHANA: END IMPUNITY THROUGH UNIVERSAL JURISDICTIONNo Safe Haven Series No. 102. THE LEGAL FRAMEWORKVery basic information about the country. Ghana is a West African state that became independent ofthe United Kingdom on 6 March 1957. It was ruled by several military governments until 1992,when an elected government took over. Approaching its twentieth year of uninterrupted democraticrule, it is a member of the Commonwealth, the African Union and the Economic Community of WestAfrican States (ECOWAS).2.1. TYPE OF LEGAL SYSTEMGhana has a common law legal system modelled in part on the English legal system. The 1992Constitution is the supreme law of the land. It states that the laws of Ghana include the provisions ofthe Constitution, enactments made by or under the authority of the Parliament established by theConstitution, any Orders, Rules and Regulations made by any person or authority under a powerconferred by the Constitution, the existing law (preceding the 1992 Constitution) and the commonlaw (which includes English common law , including doctrines of equity, and Ghanaian customarylaw). 4 It has both a civilian and a military justice system (see Section 2.3.2 below).As reflected in the discussions in 2008 during the Human Rights Council’s Universal PeriodicReview of Ghana, human right experts have stated that there are certain constraints in the Ghanaianlegal system that may hinder access to and the speedy administration of justice if universaljurisdiction is exercised. Challenges within the judicial system include delayed trial procedures,reported corruption among law enforcement officers and court personnel and – in some cases wheresuspects are released without prejudice as a resolution of their prolonged pre-trial detention – andthe court has failed to take effective steps to protect victims and witnesses of gender-based crimesand crimes of sexual violence. 5 In addition, many of Ghana’s prisons do not meet internationalstandards for detainees, such as the 1955 UN Standard Minimum Rules for the Treatment ofPrisoners, with overcrowding, unsanitary conditions, and prolonged detention being primary4The Constitution of the Republic of Ghana, 1992 (Act 282) (1992 Constitution), Ch. I, art. 1(2) & Ch. IV, art.11 (1); See also Victor Essien, Researching Ghanaian Law, Globalex(http://www.nyulawglobal.org/globalex/Ghana1.htm).5Human Rights Council Working Group on the Universal Periodic Review, Summary Prepared by the Office of theHigh Commissioner for Human Rights in accordance with paragraph 15 (b) of the annex to Human RightsCouncil resolution 5/1: Ghana, 2 April 2008, A/HRC/WG.6/2/GHA/3 (2008 UPR Summary), paras. 20 - 21.Information provided to Amnesty International by the Commonwealth Human Rights Initiative. Article 14 (4) ofthe Constitution provides:“Where a person arrested, restricted or detained under paragraph (a) or (b) of clause (3) of this articleis not tried within a reasonable time, then, without prejudice to any further proceedings that may bebrought against him, he shall be released wither unconditionally or upon reasonable conditions, includingin particular, conditions reasonably necessary to ensure that he appears at a later date for trial or forproceedings preliminary to trial.”Amnesty International November 2012 Index: AFR 28/004/2012
GHANA: END IMPUNITY THROUGH UNIVERSAL JURISDICTIONNo Safe Haven Series No. 105concerns. 6 It has also been reported that cases of sexual and gender-based violence are oftenprotracted and difficult to prosecute. 7 While on the death penalty has not been carried out since1993, and Ghana is classified as abolitionist in practice, the death penalty remains statutory lawand death sentences are still issued. 82.2. STATUS OF INTERNATIONAL LAWThere is no provision in the 1992 Constitution of Ghana that spells out a hierarchy between nationallaw and international conventional and customary law, but Article 75 of the 1992 Ghana providesthat treaties must be ratified by Parliament. 9Ghana is a dualist country in relation to international law, so traditionally international treaties canbe enforced domestically only after they have been directly incorporated into national legislation. 10However, it is possible that international law principles not directly incorporated into nationallegislation can be persuasive in Ghana. Article 33 of the Constitution, which provides for judicialprotection of human rights, states that “[t]he rights, duties, declarations and guarantees relating tothe fundamental human rights and freedoms specifically mentioned in this Chapter shall not beregarded as excluding others not specifically mentioned which are considered to be inherent in ademocracy and intended to secure the freedom and dignity of man”. 11 In addition, the Government62008 UPR National Report, at para. 64; 2008 UPR Summary, at para. 11. See also Amnesty International,‘Prisoners are Bottom of the Pile’: The Human Rights of Inmates in Ghana, Index: AFR 28/002/2012, April2012 (http://www.amnesty.org/en/library/info/AFR28/002/2012/en); Amnesty International, Ghana: What’sHappening in the Prisons?, Index: AFR 28/002/2008, May 2008(http://www.amnesty.org/en/library/asset/AFR28/002/2008/en/66f0e6ea-1835-11dd-92b4-6b0c2ef9d02f/afr280022008eng.pdf).72008 UPR Summary, para. 21.82008 UPR Summary, para. 9. See Amnesty International, Abolitionist and retentionist countries(http://www.amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries). In 2012, the governmentadopted a recommendation by the Constitutional Review Commission formally to abolish the death penalty (seeSection 2.6 below).91992 Constitution, Ch. VIII, art. 75 (2).10See New Patriotic Party v. Attorney General (CIBA Case), 1 GLR 378, 412 (1997-98), which holds that“[i]nternational laws, including intra African enactments, are not binding on Ghana until such laws have beenadopted or ratified by municipal laws”). See also Kwadwo Appiagyei-Atua, ‘Ghana at 50: The Place ofInternational Human Rights Norms in the Courts’, Ghana Law Since Independence: History, Development andProspects, H. Mensa-Bonsu, C. Dowuona-Hammond, K. Appiagyei-Atua, N. Josiah-Aryeh & A. Hammond (eds.),Accra: Black Mask, 2007, pp. 179, 182 - 186. According to the dualist approach, international and national laware two completely separate legal systems. International law would apply within a state only to the extent that ithas been adopted by that state’s own national law, not as international law. According to the monist approach,international and national law are part of a single legal system and international law can be directly applied bynational courts. See generally, Robert Jennings and Arthur Watts, Oppenheim’s International Law, London andNew York: Longman, 1992, pp. 53 - 54.111992 Constitution, Ch. VI, art. 33 (5).Index: AFR 28/004/2012 Amnesty International November 2012
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