Epistolary Jurisdiction of the Indian Courts and Fundamental Human Rights in Ghana’s 1992 Constitution: Some Jurisprudential Lessons
Dr. Ben Kunbor
Member of Parliament Ghana
This is a refereed article published on: 14 December 2001
Citation: Kunbor B, ‘Epistolary Jurisdiction of the Indian Courts and Fundamental Human Rights in Ghana’s 1992 Constitution: Some Jurisprudential Lessons’, Refereed article, Law, Social Justice & Global Development (LGD), 2001 (2)
This article aims to demonstrate how the choices made by the Indian judiciary has yielded some payoffs in advancing the rights of vulnerable segments of the Indian society. However, such choices are not necessarily a panacea to all human rights evils. It is a choice that has its fair share of internal and external contradictions. Certainly, no easy victories or even difficult ones are expected in such choices but it is a positive and confident first step to which many more can follow. It will then look into Ghana’s Constitution of 1992 and the human rights protected therein.
Human Rights discourses have happened to the world and in a big way too. The new millennium should therefore begin with a new discursive emplacement. The previous millennium was characterised by the proliferation of human rights enunciations and many possibilities for human rights. It was also one in which we discerned a convergence of human rights discourses. The hitherto polemics between Civil and Political Rights (CPRs) with Economic, Social and Cultural Rights (ESCRs) was beginning to be less merciless; the gap between non-justiceable and justiceable rights was beginning to narrow (though still present); and the difference between the politics of human rights and the politics for human rights (Baxi, 1999, p.131) was beginning to dawn on wider segments of society. We can agree with Santos that we are in the frontier of human rights thought and actions. Whether this would be a last or a lost frontier, would very much be conditioned by the political and socio-economic contingencies of individual national human rights spaces as they are informed by the global human rights space. Like all frontiers it would be characterised by:
Very selective and instrumental use of the traditions brought to the frontier by the emigrants; invention of new forms of sociability; weak hierarchies; fluidity of social relations; prosmicuity of strangers and intimates [and] mixes of heritages and inventions (De Sousa Santos, 1995, p.491).
The outcome of this frontier experience will further depend very much on the lessons humanity (in a generic sense) has learnt from human rights violations in the previous millennium. As a last human rights frontier we will not allow the inhuman violation of human rights over the past century to be a lost memory and as a lost frontier we will re-invent the wheel of human rights debates with no clear practical agenda for their realisation. In the case of the latter, the ghosts of the unhelpful binaries in human rights discourses will continue to rule our thoughts and actions from their graves. As Santos notes, the frontier experience is one of subjectivity in which one is in a better position to understand the oppression that the centre (from which human experience seeks to escape) reproduces and hides by means of hegemonic strategies (De Sousa Santos, 1995, p.497).
The saying goes that human calamity often forecasts their shadows. As we sit in this frontier we can look back to the future of human rights realisation in its contradictions; of progressive trends as well retrogressive attitudes arising from epistemological inertia. In the former, human rights jurisprudence shows bold steps either as judicial activism, public interest or social actionlitigation or epistolary jurisdiction. In the latter, human rights knowing have not transcended the epistemic boundary between human rights law and human rights subjectivity in some jurisdictions. Thus, human rights issues will continue to be tucked in with market conditions and as the privilege of only lawpersons and the self-acclaimed human rights activists.
Ghana’s human rights provisions in her 1992 Constitution are a radical departure in its constitutional history. However, its praxis since the coming in to force of the Constitution (January 7, 1993) require some reflexivity in terms of how such legal norms translate in the human rights lives of vulnerable groups of the society. As we will argue in this article, the presence of the normative expression of ESCRs as against CPRs in human rights actions and judicial processes is one of absence. An explanation for such imbalance as we will argue, lies in yet another of Santos’s frontier metaphor- coasting1; a situation of experiencing limits without suffering it. In coastingas indicated by Santos, the further away the limits the greater the opportunity for autonomy but an extra step making the limits invisible might turn the exhilarating autonomy in to destructive chaos (De Sousa Santos, 1995, p.497).
Human rights actions in Ghana continue to be guided by its nostalgic past, regardless of the darkness of that past. Though the innovative provisions of the 1992 are noted, human rights actions and thought remain uncertain as to how to appropriate its emancipatory potential. It is in the light of this latent tension between the normative expression and practical realisation of human rights in Ghana that this article seeks to draw some lessons from India on how this can be brought about.
While our discussion will focus on judicial activity in Ghana we do not consider it to be the only path to the realisation of human rights. The advocacy work of civil society organisations, informal dispute resolution mechanisms by other institutions and more significantly the various forms of defiance and resistance of excluded groups to oppressive conduct of the wielders of public or private concentration of power are equally significant. However, the paradox of human rights actions in Ghana lies in the fact that the courts of law are it’s final official arbiters. As to whether human rights actions in other institutional settings can be sustained depends very much on the jurisprudential orientation of the courts.
Our argument will be that the universality of human rights as basic or inalienable rights do not lie in their attachment to the human person very much as his/her limbs or arms, and he/she cannot loose them without loosing his person; but that what is basic, universal and inalienable about human rights is the right to be human and to remain human (Baxi, 1989a, pp.152-3).
We will argue that the right to be human is premised on the materiality of social relations that affects the human condition. More often than not the human condition is hardly an issue in normative expressions of rights language. Such language sees only atomistic individual bearers of rights in which their material conditions are taken as a given or considered to be external to legal questions.
In this article we will draw firstly on some political, social, economic and ethical questions that have sufficiently moved the judges of the Indian courts towards new forms of human rights actions and thought; now understood popularly as epistolary jurisdiction. Secondly, we will indicate the salient features of the human rights provisions in Ghana’s 1992 Constitution and how they illuminate or darken such new trends. We will illustrate with some decided cases by the Ghanaian courts and the Ghana Commission for Human Rights and Administrative Justice (CHRAJ) the trajectory of human rights discourse in Ghana. Thirdly, we will draw some lessons from the new approaches to judicial actions and thought in human rights law in India and their relevance to the Ghanaian context.
This article adopts an interdisciplinary approach to analysing legal issues and as such it might be cold comfort for the epistemological legal purists. As we will show in this article, human rights in its normative form address the concerns of the life chances of People in society. Therefore, without an appreciation of the social milieu within which the human rights norms are posited they will remain abstract concepts to the victims of violations.