The editors wish to thank the Danish Ministry of Foreign Affairs/Danida for financial support of the publications.
CONTENTS
| Preface | page 5 |
| Introduction | page 7 |
| Ghana | page 9 |
| Summary of the Examination of the State Report of Ghana | page 10 |
| Examination of the State Report of Ghana | page 15 |
| Subject Index | page 44 |
| Appendix I: Periodic Report of Ghana | page i |
The African Commission on Human and Peoples' Rights was established in November 1987 to promote human and people's rights and to ensure their protection in Africa. One of the most important tools at the disposal of the Commission in the endeavour to reach these objectives is the state reporting procedure.
State reports submitted according to Article 62 of the African Charter on Human and Peoples' Rights are examined at public sessions of the Commission. However, the effects of the examinations are limited if records of the discussions are not available to a wider audience.
It was therefore gratifying that the Commission at its 16th Session in October 1994 was able to authorize the Danish Centre for Human Rights to publish, in the name of the Commission, the transcripts of the examinations of state reports which had taken place so far. Although the examination procedure is still evolving, the transcripts demonstrate the will of the Commission to reach its objectives and it is a vital step towards greater effectiveness in the protection of human rights in Africa.
The progress of human rights is a great collective project, and the Danish Centre for Human Rights has shown its dedication to this project. By undertaking this substantial and important piece of work, the Danish Centre for Human Rights has set an example to the advancement of human rights in Africa which we hope will be followed by others. I would like to take this opportunity to express the deep gratitude of the Commission to the Danish Centre for Human Rights for its dedication in helping the Commission fulfill its mandate, striving towards a better life for all on the African continent.
Banjul, August 1995
Mr. Isaac Nguema
Chairman of the African Commission on Human and Peoples' Rights
Under Article 62 of the African Charter on Human and Peoples' Rights, the states parties must submit a report every two years on their domestic human rights situtation. After a report has been submitted, states are invited to send representatives to a session of the African Commission to present the report in person. These reports are to include national constitutions and other legislation affecting human rights, such as the criminal code, and to discuss the status of the African Charter in domestic law. They furnish a unique source of information on law and human rights in Africa.
The history of this procedure is quite brief. The African Commission was established in 1987 and the first reports were examined in 1991. To date, only 15 states have submitted their initial reports, two states their second reports, and out of these, 14 have been examined. There have been long delays before state representatives appear before the Commission, and no official record of these examinations has yet been published.
In the interest of disseminating information on the work of the African Commission and the situation of human rights in Africa, the Danish Centre for Human Rights proposed to publish the state reports as well as transcripts of the examinations before the Commission. Authorization for this was given by the African Commission at its 16th session in October 1994, and the present volumes are the fruit of this undertaking.
The first volume contains the reports and discussions of Libya, Rwanda and Tunisia which were examined at the 9th Session in March 1991. No state reports were presented at the 10th Session, thus Volume II. covers Egypt and Tanzania, discussed at the 11th Session in March 1992. Volume III. contains The Gambia, Senegal and Zimbabwe, from the 12th Session in October 1992, and Volume IV. Nigeria and Togo examined at the 13th Session in April 1993. Finaly Volume V. covers the report of Ghana, discussed at the 14th Session in December 1993.1The reports of Benin and Cape Verde as well as the second reports of The Gambia, all examined at the 16th Session are not included. Where it has been possible, the discussions on procedural questions have been put in separate chapters. However, at the 14th Session the general remarks were integrated in the discussion of Ghana.
The state reports vary widely in their quality and content, and the character of the discussions likewise. The Commission began its first examinations with no clear procedure. Throughout the past several years, a modus operandi has evolved, but each examination has a distinct character, influenced by the framework set out by the report, the background and preparation of the state representatives, and the attitude of the Commissioners. A careful reader will find plenty of interest both in the text and between the lines.
Examinations begin with the state representative delivering an overview of the report. One Commissioner, the Special Rapporteur, is assigned to study the report in depth and prepare questions which are then put to the representative to open the discussion. After the questions of the Special Rapporteur, the floor is open to all Commissioners to ask questions. The state representative answers as many of these as possible, whereafter the Special Rapporteur is supposed to summarize and conclude.
The examinations have often been fora for wide-reaching discussions that give valuable indications of how the Commission interprets certain provisions of the African Charter. Subjects such as peoples' rights, traditional cultural practices, and the implementation of economic, social and cultural rights have been taken up.
The publication of these transcripts would not have been possible without the combined efforts of many people. The Danish Centre for Human Rights must recognize the work of Astrid Danielsen, who conceived this project and administered it throughout, and Julia Harrington, who compiled the index and summaries.
The Danish Centre would like to thank the Commissioners of the African Commission for having entrusted this important project to the Centre.
Copenhagen, August 1995
Mr. Morten Kjaerum
Director of the Danish Centre for Human Rights
SUMMARY OF THE EXAMINATION OF THE STATE REPORT OF GHANA
Chairman Nguema began the examination of Ghana's report by recalling that the goal of the examination process was to enable the Commission to appreciate how the Charter, in all its facets, was being implemented in African countries. The Commission should not be thought of as a jury judging the state, but as an organ trying to understand the reality of human rights in Africa. He thanked the representative of Ghana for coming to the session, and the Government of Ghana for submitting its report. He noted that since this was the initial report of Ghana, the Commission expected to learn about the fundamental structures of Government in Ghana.
Ambassador Wudu gave an overview of the content of the report. He explained that the 4th Republican Constitution had come into force in July 1993 after having been approved by referendum, and that it contained many new provisions. He stressed that what is most important in terems of human rights is not just the provisions of the Constitition, but whether they are conscientiously applied. He mentioned that six times since the Constitution came into force, the Supreme Court of Ghana had been called upon to exercise its constitutional jurisdiction, that it had ruled against the Government in certain instances, and that the Government had abided by the rulings of the court.
He admitted that although the report spelt out the legislation intended to ensure the observance of the African Charter, little was included by way of commentary or observations on the actual practice.
Commissioner Umozurike, the Special Rapporteur for the report, expressed the opinion that the high rank of the representative sent to present the report, indicated the respect with which Ghana held its obligations under the Charter. He noted, however, that the report was two years late, and thus he would not restrict his questions to focus on the structure of Government and act as is expected in connection with the initial report, but he would also try to cover events of the past two years which would ordinarily be dealt with in the first Periodic Report.
He noted that only extracts of the Constitution and lists of legislative texts had been submitted with the report, but that the Commission expected to receive the full texts. He asked what effect ratification of the Charter had had on Ghana's statutes, and if the Charter was directly justiciable in the courts of Ghana. He inquired if there were certain minimum standards by which it interpreted the provisions of the Charter which included clawback clauses.
Commissioner Umozurike asked about the implementation of economic and social rights, especially the right to work, in the light of the retrenchments mandated under the IMF and the World Bank structural adjustment programme. Noting that Ghana under Nkrumah had a very high standard of education, he asked how this situation was being upheld by the present Government. He asked if health care was widely available.
Turning to another issue. He asked if peoples' rights were fully implemented in Ghana, especially the provision that no people shall be dominated by another. With regard to women, he noted that according to a traditional practice in Ghana, young girls are sometimes given into virtual slavery, and he wanted to know how such a practice could continue, as it is in contravention to the Charter and the Ghanaian Constitution.
He asked for a description of the efforts of the Government to promote knowledge of the Charter, through the educational system and observance of the African Day of Human and People's Rights.
He noted the absence in the report of documentation relating to the organization of the courts. In the light of the serious attacks on the judiciary in the recent past, he inquired how the judiciary was being protected. He asked for details about the transition to multi-partyism, and he said that any problems Ghana might have encountered in implementing the Charter might prove to be useful to the Commission and to other African nations. Finally, he asked how the duty to promote African unity was being enforced.
Commissioner Badawi described the evolution of international human rights law since World War II, and the uniqueness of the African Charter in its guarantees of social, economic and cultural rights, which African countries should try hard to implement.
He explained that the representative of Ghana would not be expected to answer all the questions put to him on the spot, but that he could respond to some later on in writing. He noted that although the report was brief, as was normal for an initial report, it contained valuable information on the constitutional order in Ghana.
He remarked on the existence of a national committee to develop Ghana's traditional values within the framework of respect for humanity. He stressed his confidence that the values promoted by this committee did not conflict with any international human rights standards, and the importance of such a body to reach the majority of the population residing in rural areas. He pointed out that human rights education is closely linked with literacy.
He also remarked on the committee set up in the Constitution to deal with human rights and administrative justice. He asked for additional details on the formation of this committee.
He inquired if the act on the formation of political parties contained any restrictions on party formation, and on the state of relations between the Government and non-governmental organizations.
The method by which the report had been prepared was also of interest to Commissioner Badawi. He asked whether ministries had collaborated in drawing up the report, and noted that non-legislative information relating to for instance public events could be valuable in order to get a complete picture of the human rights situation in a country.
Commissioner Kisanga asked about the incorporation of the Charter into the Constitution. He also wanted to know if decisions of the human rights committee could be appealed to the regular courts. He asked for more information on the special tribunals which used to operate in Ghana, and if judges were appointed in a manner so the independence of the judiciary was safeguarded.
Commissioner Badawi pointed out that the report was not available in French or Arabic, and that translation was essential to assure not only the full participation of all the Commissioners, but also to make the procedure relevant to those living in the villages. He opined that it was unfair to expect the representative of Ghana to answer all the questions immediately. The proper procedure should be for the Commission to prepare and send questions to the representative in advance, and also give the representative the opportunity to decide when he wanted to answer the oral questions asked.
Commissioner Ben Salem said that the government representative could respond generally to whatever questions he could, that and the Government could then submit written answers later.
Commissioner Janneh emphasized that it was important that the Special Rapporteur for each state report prepared questions in advance and sent them to the state.
Ambassador Wudu admitted he would be unable to respond to all the questions put to him, but that he would answer as many as he could. He said that at the time of preparation of the report, the Constitution was not yet complete, but that he would see to it that a copy was sent to the Commission.
Regarding clawback clauses of the Charter, he used freedom of expression as an example. He said it was protected so long as it did not amount to libel, and that many of the newspapers operating in Ghana expressed the opinions of all citizens.
With regard to the right to work, he said that the basic principle was that if one was qualified, employment should not be denied on the basis of sex, religion or any other characteristic. He then discussed the rights of workers as they were affected by the retrenchment taking place under the structural adjustment programme. Decentralization of the Government had lead to certain workers being laid off, and the Government had instituted an Economic Recovery Plan, and a Programme of Action to Mitigate the Social Costs of Adjustment to provide assistance to the workers affected.
He described how the Government was doing all it could to promote the right to education, and that new universities had recently been opened to provide better access for all.
Maternity health care and maternity leave are provided for in the Constitution. Women are entitled to six months' maternity leave with full salaries, and then furthermore entitled to work part time for another six months.
The Ambassador declared that there was no domination of any ethnic group by another in Ghana.
Measures in the Constitution which prohibited traditional practices harmful to women, especially with regard to widowhood, were also described by Ambassador Wudu. He noted there are also institutions working to promote the welfare of women. Similar provisions in the Constitution exist to protect the rights of children and the disabled, and government agency has been set up to promote the welfare of children.
The representative explained the mission of the National Commission for Human Rights and the Administration of Justice, which is to investigate complaints against organs of state which have failed to give equal access or provide their services fairly. Its mission is not to investigate any cases pending before the courts.
As for the practice of trikosis, the representative said that usually it took place in an informal way, but that wherever it came to the attention of the Government, measures would be taken against it. He then described the system for disciplining judges and protecting them from political pressure.
All citizens of Ghana have the right to join political parties, but political parties may not be formed on the basis of religion or ethnicity. Although a few political parties boycotted the parliamentary elections, the representative said that these parties were now engaged in a dialogue with the Government and he was confident of the future of multipartyism.
He said that Ghana was fulfilling its obligations to promote African unity through its strong support of the Economic Community of West African States and the OAU.
He said that great care was being taken to assure that cultural rights did not conflict with international human rights standards. He reiterated that the Government was committed to abolishing traditional cultural practices that conflicted with human rights.
The representative assured the Commission that many non-governmental organizations were functioning in Ghana and that human rights non-governmental organizations were especially encouraged. He noted that there were several very active non-governmental organizations relating to women's rights.
He said that the preparation of the Ghana's report had been a collaboration between the Ministry of Foreign Affairs and the Ministry of Justice. Although it is the duty of the Supreme Court to interpret the Constitution, courts at all levels have jurisdiction over certain cases and play a role in enforcing human rights.
Commissioner Duarte asked for further clarification on the traditional practices regarding widowhood, and asked if judges could be members of political parties.
The Ambassador responded that in spite of legislation, traditional widowhood practices did continue to exist since they took place mainly in villages with the acquiescence of all concerned. If for any reason these practices were reported to the Government, however, the perpetrators would be prosecuted. He said that people had been prosecuted for being in possession of human body parts which were used in traditional rites.
Judges in their private capacity may have sympathies with any political party, but they are not allowed to be founding members of political parties.
Commissioner Amega described the difficulty in eradicating certain cultural practices due to the mentality of the people. He also congratulated Ghana on having brought the total number of universities to five. He then inquired if there was any legal aid programme in the country.
The representative of Ghana thanked Commissioner Amega for acknowledging the difficulty faced by the Government in combatting traditional practices. He went on to say that there was a legal aid programme in Ghana, but that he was not familiar with the details and thus unable to describe it, adequately.
Commissioner Kisanga asked again about the special tribunals which used to operate in Ghana. The representative said they existed before the coming into force of the Constitution and that they had all ceased to exist.
Chairman Nguema asked about the remedies available to those who were detained by the police without being charged or brought to trial within a reasonable time. The Ambassador said that if these cases came before the courts, the person would be ordered released. Chairman Nguema asked if there were any remedy for the prejudice they had suffered if they had been held for too long before their trial but were ultimately convicted. The Ambassador said that, as he had no legal training, he was unable to provide a satisfactory answer to the question.
The Chair thanked the representative of Ghana and said the examination of reports promoted human rights in Africa. The Ambassador asked if he was to be personally responsible for fulfilling all the Commission's requests for copies of legislation and answers to all questions, or if the Commission would take it up with the Government of Ghana. The Chair said that the Ambassador could act as a liaison between the Commission and the Government and could convey the wishes of the Commission. He reiterated the Commission's desire to have a written text of the answers to the questions asked.
Commissioner Umozurike noted that the general guidelines for writing state reports should have been sent to the Government of Ghana and these guidelines included many of the questions asked by the Commissioners. It was necessary to provide the Ambassador with a copy of these general guidelines or send one to the Government.
EXAMINATION OF THE STATE REPORT OF GHANA
Chairing: Chairman Issac NGUEMA
NGUEMA:
On va maintenant passer à notre exercice, c'est l'examen du rapport périodique du Ghana. Vous savez que, au terme de la Charte, les états doivent présenter des rapports périodiques qui permettent à la Commission d'apprécier la manière dont les dispositions de la Charte sont mises en oeuvre dans les différents états. Les états se sont donc engagés, et il est donc souhaitable que de temps en temps, ces états présentent devant la Commission qui a reçu mandat de les entendre, les réalisations qui ont été faites, les projets, les difficultés rencontrées, de telle sorte qu'il y ait entre la Commission et le représentant des états, un dialogue constructif qui puisse bénéficier non seulement à l'état concerné, mais également à l'ensemble de l'Afrique. C'est essentiellement l'objectif de cet exercice. En conséquence, il n'est pas souhaitable que les représentants des états vont devoir se présenter devant un juré d'examen, la Commission n'est pas du tout un juré, nous n'avons pas à décider des notes, nous n'avons pas à donner des satisfecits aux représentants qui viennent devant la Commission. a Commission, non plus, n'est pas composée de policiers soucieux de dénicher absolument les puces qui se cachent dans les cheveux ou dans les habits de tel ou tel état. C'est donc, je pense, à quelque chose de positif qui doit avoir lieu ici, cet exercice ne doit pas nous conduire à cacher les réalités de nos différents pays, cet exercice ne doit pas nous permettre, ne doit pas nous conduire à mettre le gouvernment au pilori. Bien entendu, nous attendons des représentants des états, une discussion franche, honnête, loyale qui soit au bénéfice de l'ensemble de l'Afrique.
Je voudrais d'abord remercier, le représentant du Ghana, M. l'Ambassadeur à Addis Abeba, si j'ai bonne mémoire. M. l'Ambassadeur est suffisamment occupé par le poids de charge d'ambassadeur à Addis Abeba. Il a accepté bien entendu à la demande de son gouvernement de venir présenter le rapport devant la Commission. Nous nous excusons naturellement du retard avec lequel il va nous présenter ce rapport. Nous devions entendre ce rapport à partir de 10 heures, mais comme vient de le dire mon collegue, d'autres préoccupations ont retenues notre attention. M. l'Ambassadeur, veuillez nous en excuser.
Je voudrais également remercier le gouvernement du Ghana, puisque c'est un des rares gouvernements à nous envoyer un rapport à la Commission. Nous avons déjà reçu, je crois qu'il s'agit du premier rapport ou du rapport initial. Il s'agit du rapport initial et à ce sujet, je voudrais attirer l'attention des uns et des autres, sur le fait que nous faisons au sein de la Commission une distinction entre les rapports initiaux et les rapports périodiques. Nous avions envoyé aux différents états des lettres pour leur préciser qu'avant de nous lancer dans la rédaction des rapports proprement dit, avant de voir si les dispositions de la Charte sont effectivement en vigueur dans le pays, nous souhaiterions avoir nos canevas de l'organisation des pouvoirs publics dans le pays, car comme vous le savez en Afrique, vous avez naturellement mais ce n'est plus le cas, des pays qui n'ont pas de constitutions ou les militaires qui constituent la base, de ce qu'on doit faire et ce que l'on ne doit pas faire, qu'il y a des pays qui, de façon coutumière, n'ont pas l'habitude d'avoir des constitutions, il y a des pays ou les magistrats sont nommés par les pouvoirs publiques, il y a des pays où certains avocats n'ont pas le droit à l'indépendance. C'est donc, dans un premier temps, un souci qui a arrêté la Commission, de savoir si l'état en question possède au moins les structures générales, les différents aspects fondamentaux qui doivent permettre le fonctionnement d'un état. C'est ce que nous appellons le rapport initial. Nous n'avons pas spécialement à examiner dans ce rapport, si tel article de la charte a reçu telle application. Nous voulons d'abord saisir de façon globale la structure de l'état, qu'on nous dise si les conditions minimums qui doivent permettre le fonctionnement d'un état démocratique, sont réunies. Voilà ce que nous entendons par rapport initial. Des gouvernements ont été saisis par des lettres, venant de la Commission et nous pensons que ces gouvernements s'acquittent normalement de la tache qui leur a été demandé.
C'est en renouvelant les remerciements de la Commission que je vais me permettre d'inviter M. l'Ambassadeur du Ghana à présenter le rapport de son gouvernement. Vous avez la parole M. l'Ambassadeur.
WUDU:
I thank you, Mr. Chairman, but before I would like to express my gratitude to the member of the Commission who came to my aid by calling attention to the fact that I was initially called to appear before this Commission to present the initial report of Ghana at 10 am. I also have to add, Mr. Chairman, that there was no direct connection between the Secretariat and the Embassy which would have enabled me to - if you may permit me to say, adequately prepare to meet this Commission at 10 today. Originally, I was asked to present our report to the Commission on Saturday the 4, that is tomorrow, when the time was changed to Friday 3rd, we didn't know about this but only through unofficial methods. I thought, Mr. Chairman, I should make this clear. Thank you.
Mr. Chairman, I have the honour to present to the 14th Ordinary Session of this august body, the initial report of Ghana in accordance with Article 62 of the African Charter on Human and Peoples' Rights. The report which I trust has been widely circulated, catalogues a number of constitutional measures which the Government of Ghana has taken to give effect legislatively to the African Charter on Human and Peoples' Rights. These legislative measures include those for the advancement of the rights and welfare of women, for the general welfare and development of children and in particular the provision of the necessities of health unreasonably for children. The report furthermore provides the provisions and legislation against forced labour as well as other basic human rights such as admission to educational institutions irrespective of one's religion, nationality, race or language.
Mr. Chairman, permit me on this day to refer to the 4th Republican Constitution which came into force on 7 July 1993 after Ghanaians overwhelmingly approved it in a referendum on 28 April 1992. As the report before you rightly indicates, the Constitution contains elaborate provisions in the area of fundamental human rights. It is perhaps unnecessary to report the many provisions that have been spelled out in Chapter 5 of the new Constitution since, as I have already stated, the report is before the distinguished Commissioners. What is important in our view is whether the Constitution, which is the supreme law of the land, can stand the test. Whether the elected representatives as well as those who, by virtue of their appointments or positions, have a major role to play in protecting the Constitution, in acting as the custodians of the human rights provisions in the Constitution, will be able and willing to uphold and defend this sacred document. I wish to submit that evidence so far available indicates that their resolve to defend and uphold the Constitution is on course. Certain institutions of state such as the National Commission on Civic Education and the Commission on Human Rights and Administration of Justice have already been established and appointments have been made to these commissions.
Mr. Chairman, in the less than one year since the coming into force of the Constitution, the Supreme Court has been called upon on not less than six occasions to exercise its constitutional jurisdiction. The court has, among others, ruled that all registered political parties should have equal access to the state media, and that people should have the right to hold demonstrations without first going for police permits. It is evident that the Government did assert these rulings in good faith. Indeed the President of the Ghana Bar Association is on record as having stated, and I quote: "The manner in which the courts have done so - provided major rulings - is an important feature of the growing confidence that broad sections of our society are beginning to have in the reality a security of constitutional confidence in the courts. Some of the commissioners here assembled, I'm confident, will recall that in the political history of Ghana, some constitutionally elected governments threw out of the window judgements made by the country's Supreme Courts. What has happened now in Ghana therefore sharply contrasts with the situations in the past.
Mr. Chairman, it is clearly observed that the report which would cover the period 1990 to 1992 essentially spells out the various legislations, bills, legislative arrangements in place to ensure the observance of the provisions of the African Charter. It is very obvious that not too much was included by way of commentary or, if you like, by way of specific observance of these laws and practices. But I believe that the new world order places considerable emphasis on good governance and constitutional order, and the Government of the 4th Republic of Ghana has so far been faithful to these principles, as well as to the fundamental principles of human rights contained in the Constitution of the 4th Republic. With these initial remarks, Mr. Chairman, I would like to indicate that I have, as far as I can, presented the report, the initial report of Ghana for the period of 1990 to 1992. I thank your, Mr. Chairman.
NGUEMA:
Je remercie M. l'Ambassadeur du Ghana, pour la présentation du rapport initial de son gouvernement. Nous avons pris bonne note des grandes lignes de ce rapport, je pense qu'il correspond à ce que nous attendions, mais je crois qu'il est souhaitable que nous puissions laisser la parole aux membres de la Commission pour recevoir leur, non pas appréciation, mais leurs observations. Et je voudrais à cet égard laisser la parole à M. le Professeur Umozurike qui est à ma gauche, le premier à gauche.
UMOZURIKE:
Thank you very much, Mr. Chairman. I wish to welcome you again for coming yourself to present your country's report. The fact that a serving officer of your calibre came himself, rather than some other, junior officer, shows the importance and the respect that your country pays to the African Charter and to this Commission. I cannot help but begin by recalling the happy memories I had in your country when I came on promotional activities. I am glad to note again that the last visit was pretty clearly successful and I had the support of your officials in the Government particularly the attorney general. And the activity of the non-governmental organization that was formed then is evidence of the opportunities that that organization is going to carry out its functions as an NGO.
However, you would expect me to say more than mere niceties. Your country ratified the Charter in 1989 which meant that your initial report should have come in 1991. We should at this time really be expecting a periodic report, the report after the initial one. I don't think it to be fair that we restrict ourselves only to the situation as it would have been in 1991, I think our questions should cover the situation right up to now. That is to say not only the basic documents, the outlines of the infrastructure implementing this Charter, but rather the extent, the efforts you are putting in to actually implement the Charter and ensure that the activities of the Government are compatible with the responsibilities undertaken under the Charter. My questions, therefore, cover these areas and I hope you won't mind that.
You have given us a list of ten legislations and the Constitution of Ghana, or rather a report, an extract, from the Constitution of Ghana. Indeed, the expectation was that you would send us initial documents, the Constitution itself and copies of the basic documents, the statutes that you consider important and vital, those documents should have been send to us. Even at the initial stage, even starting with initial reporting, it should have gone much further than you have done. So we should have a copy of the Constitution. I know in 1991 you perhaps wouldn't have this document, that is to say, the Constitution of Ghana, because of the political situation, but we could have had the basic statutes on which the administration of Ghana is based. So if you consider these statutes you've mentioned, then we should have exact copies of them. You have given us a list without in any way stating how they actually function. It is true you have a Constitution, but how is the Constitution functioning? It is true that you have a chapter on fundamental human rights but how far, to what extent, are these observed? To what extent are the citizens of Ghana enjoying these provisions?
Your Excellency, the ratification of the African Charter means that your country had agreed since 1989 to observe certain minimum standards relating to human rights. It would be interesting to know therefore how the African Charter, what it has done in Ghana, what effect it has had? Has it had an influence at all on the statutes? When you enter a human rights treaty, what do you regard it to be in your country? What approach do you adopt? Is the African Charter automatically applicable to Ghana? Can it be cited in the courts? Or has the African Charter got to be specifically incorporated before it becomes effective in Ghana. As you know there are different systems, the continental countries proclaim that the Charter, the treaty would automatically apply, but I think as a country belonging to the common law system you apply treaties specifically; although international customary law is regarded as being part of the law, and although much of the conventional law could be part of customary law. Yet, we would like to know what effect, what system you adopt in carrying into effect the obligations you have undertaken at the international level. In any case, Article one of the Charter, the very first Article, provides-- requires-- that the signatory states carry into effect through legislative and other actions the obligations of the Charter into its domestic law. Your Excellency, we would like to know how this is being done and what you have done about this in Ghana.
It would be interesting to know, your Excellency, how you have tackled what to some people could appear to be the problem areas, the problem areas in that the Charter provides for rights and yet goes on to say that those rights may be reduced or derogated from by law. In other words, freedom of speech is not just absolute freedom, there are limitations. Now, we would like to know how Ghana imposes limits subject to laws? Do these laws conform to certain minimum standards? What are the standards of laws that may detract or that may derogate from the laws or the rights guaranteed in the African Charter. It would be interesting to know how this is done.
Your Excellency, there may be no difficulty in interpreting the civil and political rights, I'm sure these will form part of the law of your country, but with the group of rights that might be described as economic, social and cultural rights, which are made mandatory provided for by the Charter, one would like to know how your country is coping with that obligation, for instance you have agreed to respect the right to work. Does this mean that all Ghanaians are guaranteed work, or if they don't work they are paid some allowance? How do you respect the right to work in Ghana? It is well-known, your Excellency, that your country is one of those cited IMF and World Bank prescriptions, and we know that there have been retrenchments imposed on you by the World Bank and IMF. How do you reconcile those retrenchments with the right to work? It would be interesting to know what is done for workers who are retrenched from work.
In at least two areas, how far is the right to education being respected. One knows that Ghana has been one of the earliest countries of the continent that implemented free education under Nkrumah, which seems to be in conformity with what the Charter provides for. How far is this right being respected, now that we have a Charter guaranteeing the right to education? Has your Government been able to carry on the good work started by its predecessor?
It would be interesting to know, your Excellency, what is being done to guarantee the right to health. Is there an automatic right to go to the hospitals and be treated? What is being done about maternity health care? What is the health situation in your country, considered under the provisions of the African Charter?
And if we may be fair to the third group of rights, your Excellency, one of the interesting Articles says "no people shall be dominated by another people". How far is that provision implemented in Ghana, it would be interesting to know. And the Charter also affords special protection for women, children and disabled. I know there is a Commission under the Constitution, the Commission for Human Rights and Administration. I think it will be necessary to spell out a little bit more the functions of that Commission. And also more about the protection, special protection for women, children and disabled in Ghana.
With regard to women, your Excellency, one knows about Women's Commission in Ghana, how can that Commission, or how can the protection given to women, how can it, what is its attitude to the practice that is know in Ghana, the practice whereby--called, I think, trocoton [trikosis?], could you explain a little more about that practice of giving out young girls to virtual servitude? Has there been any impact on the practice as the result of the Charter taking effect? Reading your Constitution, one would think on reading the provisions of human rights in the Constitution, one would have thought that a practice like trocoton would not exist, but it seems from the facts reaching us that there is such a practice. How do you defend it, your Excellency, and what is your Government doing to eradicate it?
We - only this morning the Commission was talking about human rights promotion. As you know Articles 25 and 26 of the Charter obligates the signatory states to promote knowledge of the Charter, promote human rights education. It is necessary to know, your Excellency, how seriously your Government takes this obligation. Indeed, a few years ago the African Commission resolved that 21 October should be celebrated as African Day on Human and Peoples' Rights. We have not gotten feedback if this practice has been observed or is being observed in Ghana--a day which the Government would set aside to celebrate in a way, in order to popularize and promote human rights in the country, much like 10 December for the Universal Declaration on Human Rights.
There is no document or legislation throwing any light on the situation of the courts. Indeed, the sections of the Constitution that you cited do not seem to refer to the judiciary. As you know and seem to agree the judiciary one of the three main branches of the Government of Ghana is important to me. It will be necessary to know how the independence of the courts is protected, guaranteed in Ghana. Particularly in the view of the sad experience that the judiciary and the legal profession had a few years ago when some members of this judiciary, some high court judges, including a woman--three members of the higher bench were abducted and executed. It would be reassuring to know what steps have been taken to see that justice is done as this would give some indication as to how the judiciary today is being protected in Ghana.
Your Excellency, you haven't gone into the party system of Ghana, but I think this is so general and so important that it would be a good idea to indicate how you are faring on implementing multi-partism after such a long period of military government. We are happy that you are back to democracy. Your report should also indicate how this democracy is now linked up with human rights, and the ways that these rights are protected would to a great extend depend on the system of the country. It would be a good idea if this is indicated in your report. I would, as I have said earlier on that I have not restricted myself to what should have been presented in the initial report because you have by now had two periods of reporting, the first one and the second one. I have tended to go over the two areas.
Finally, your Excellency, the problems that you have in implementing the Charter, we would like to know if you have any problems as this could help the Commission in advising others how to get about observing or implementing the obligations of the Charter. Just one more area, your Excellency: the Charter has a provision on African unity, there are duties on individuals-- how do you ensure that these duties are respected? In particular the duty that talks about promoting African unity? I'm asking this because everyone knows Ghana played a special role some years back with regard to African unity. It almost seems as if the former President had turned up that this provision was inserted in the Charter. How could you or how are you ensuring that this duty is respected? I think it could be of help, as a country that originated that concept, if I may say, of African unity, as a country that played such a premier role, it would be interesting to know what your Government is doing to ensure that this obligation is carried out.
Your Excellency, I wish to thank you for coming, you haven't done so badly - Ghana hasn't done so badly with regard to the reports as compared to some other countries, although you could have done better. We are sure that your readiness and the fact that you have come yourself is evidence of the fact that Ghana is very willing to cooperate with the African Charter, carry out its obligations, and I have just one more request before I end, namely I hope that you would give the NGOs in your country every force to play their part. As you know the Government may be suspicious, but the Government alone, left to itself, may not in fact carry out its human rights obligations. It is in the interest of the Government and of the people that the NGOs are allowed to operate, if only because some day it may be the human rights of the members of Government, that are involved and you may find human rights organizations also pleading for them, so it is in the enlightened self-interest, that we give NGOs the opportunity to operate.
I thank you and my colleagues would ask you further questions and make further comments.
NGUEMA:
Je remercie le professeur UMOZURIKE pour les observations faites sur ce rapport du Ghana, je crois que d'autres veulent sûrement intervenir, le rapport du Ghana étant des plus intéressant. Je voudrais à cet égard laisser la parole à Monsieur Badawi.
BADAWI [Statement No. 14, Translation from Arabic, Ghana]:
We are presenting today the initial report of Ghana. Despite the short notice, H.E. the Ambassador has kindly attended at the specified date. I would also like to thank the Ghanaian Government for submitting this report, bearing in mind that many African countries have not submitted theirs. Therefore the mere submission of this report confirms the will of the Ghanaian Government to co-operate with the African Commission and to honour its commitment in accordance with the African Charter. However, in reality we should not forget the background of these African countries and their struggle for independence and African unity which consist the essential human rights factors in Africa. In their struggle the Ghanaian people paid a hefty price, which only proves that the respect of human rights is innate in their consciousness. Therefore, while discussing this report we have to take into consideration this background, as well as the difficulties that Ghana faced together with the rest of the African countries after gaining independence, in order to establish a balanced and fair view which is the matter that I have always stressed in the role of the African Commission and the African Charter. We should not forget that the international standards of human rights were set after the end of World War II and were reflected in the Universal Declaration of Human Rights and in the UN Charter, as well as other conventions which were in turn reflected in the African Charters including that of human rights. We should not forget that these charters were partly set with an African contribution. However, these charters had better chances of the application in advanced countries that lived along the development of such standards and enjoyed their adoption, while on the other hand our African countries were suffering from the burden of colonization and racism. Yet when Africa gained its independence, it was expected to conform with these standards.
Since then, our African Charter adopted such standards, but what is currently needed, is the implementation of these standards taking into consideration the unequal economic and social backgrounds of our African countries and other countries that enjoyed better circumstances. I am not implying that we should not commit ourselves to international standards or to the standards of the African Charter, but we should - as an African Commission - take this fact into consideration especially with regards to the guarantee of the economic, social and cultural rights. These are general comments, Mr. President, that I wished to mention.
I shall now move on to procedural comments so that H.E. the Ambassador, representative of the Republic of Ghana could have an idea of the ongoing dialogue. As he may know, one of the Commissioners in charge of studying the report usually presents some queries or comments. However, this does not mean that other members cannot present some additional comments, in order to avoid duplication. I also believe that it is appropriate for the representative of the Ghanaian Government to know that he is not expected to answer in full 100% of all these comments or queries. He only replies to the best of his knowledge, while the rest of the comments can be replied to later on, either in writing or verbally, according to the committees decision. The most important point, Mr. President, as you have mentioned at the beginning of the discussion of Ghana's report, is stressing the importance of establishing a dialogue. The encouragement of the implementation of the African Charter can only take place through a dialogue between the Commission and the African member countries, with the aim of laying the basic principles that guarantee total respect of human rights. This is the aim of discussing this report and the philosophy of its system. I hereby end my procedural comments.
I shall move on, Mr. President, to some comments on Ghana's report.
First it is noted that the report is brief, which is a natural matter as it is an initial report. We expect that when time is due for the presentation of the 2nd periodical report, and based on today's discussion the form and contents of this report will change to reflect some of the guidelines set by the African committee for the preparation of such reports.
The second observation, Mr. President, is that despite the fact that this is a brief preliminary report, we have no doubt benefitted from the presentation of the representative of the Ghanaian Government who is also its Ambassador in Addis Ababa. The report provides us with additional information especially with regards to the implementation of the new Constitution in Ghana as well as concerning some court judgements and the Government's compliance to them. It also refers to the right of appeal especially in connection with the execution sentences. This certainly highlights the importance of the attendance of the country's representative since he in a way compliments the report and provides further details in the light of the discussion of this report.
The third observation, Mr. President, pertains to my special appreciation to what occurred in this report about two committees. The first, a national committee, is formed by a law issued in 1990. Its duties are to encourage implement and develop Ghana's traditional values and customs within the framework of the customary respect of humanity prevailing in Ghana. The committee has a code of conduct for the purpose of addressing behaviours to comply with the African traditions and values. This is a point to which we have to give our whole attention, otherwise all our efforts will be in vain. It is insufficient to have a few intellectual and cultured people discussing human rights and its violations in their offices and meetings since they do not reach nor touch the majority of the population residing in the rural areas. It is important to reach these people as their traditions and values are closely linked to illiteracy. I therefore find this reference of utmost importance not only to Ghana but to the rest of the African countries.
The objective of this Commission, its reports and discussions, is to exchange successful as well as non-successful experiences among African countries. Therefore, Mr. President, the factor of time should not become an obstacle to the members or representatives' right to speak, otherwise the reports and discussions would be meaningless. I am mentioning this point for the O.A.U. to know that the discussions would be incomplete without sufficient time to carry them out. For example, we are supposed to discuss four reports today and up to my knowledge, Ghana is the only country that sent a representative. Can you imagine if all four representatives have attended or even ten what would it be like? Please excuse me for this side issue. Although I highly value the reference to the committee's code of conduct I am sure that these traditions and values do not contradict international human rights standards and that the African Charter takes into consideration the special African situation and confirms the universality of human rights and the close connections with the international human rights law, simultaneously.
The second committee, Mr. President, is more important than the cultural committee because it is referred to in the 1993 Constitution. This is a committee that deals with human rights and administrative justice. According to what was mentioned in page 6, part of the committee's duties will be to investigate any special complaints about human rights violation, aiming at eliminating these violations, as well as to increase the awareness of human rights. According to my understanding of the report, I believe, Mr. President, that this committee was set within the framework of the Constitution. Therefore I urge the Ghanaian representative to provide us, either now or later, with additional details of the formation of this committee, its duties and the relation between this committee, and the judiciary bodies. I believe this information will be of great benefit to a number of African governments and organizations as it will enable them of studying the experience of this Government in forming national human rights associations the importance of which I have always stressed.
The following observation, Mr. President, is the reference of the Ghanaian report to the law of political parties formation for the year 1992. Have I correctly understood what was mentioned therein, whereby it referred to the unlimited right to form and engage in a political party? Are there some limitations even administrative restrictions with regards to party formation? I believe that the Ghanaian representative can provide us with such data.
The next observation, Mr. President, is a query that I would like to satisfy, whether now or later, which is the relation between the Ghanaian Government and non-governmental organizations whether Ghanaian or organizations outside Ghana. We are all aware of the experience of the international human rights conference which reminds us not to underestimate the importance of the role of non-governmental organizations. Are there any non-governmental organizations in Ghana, and what is the nature of the relation? If these organizations operate outside Ghana and publish information related to it, regardless of its accuracy, What is the procedure followed in dealing with these organizations?
The final point, Mr. President, concerns the manner in which a report is prepared, an issue which is of crucial importance. We have only two months ago held an African Commission seminar in Harare. Naturally, we do not hold seminars, participate in them, reach results and recommendations then fail to discuss them here or in their relevant context. One of the important points raised in the seminar is the manner in which reports are prepared. Do governments prepare their reports through Foreign Ministries, Justice Ministries or through national committees? How can you ensure that such reports contain information from non-legislative sources, since many countries including Ghana, have numerous services being provided in the educational and health fields, as well as actual practices being exercised in the student and union fields. So how can information from non-legislative sources be included in this and other similar reports? This is an important point perhaps not for the time being but for the future. Another issue connected to the preparation of the report is the necessity of having a point of contact between African governments and African Commission as we previously stressed in one of our main recommendations. It was mentioned not only in the seminar, but also in the resolution of the last African Summit. This is also a recommendation to the African governments to establish points of contact between themselves and the Commission to ensure that our observations and recommendations will be followed-up and that the Commission will receive a reply. It is needless to mention that reports are one of the main aspects of contact and I would hereby like to stress the importance of this issue to bring its importance to the notice of the relevant authorities.
Mr. Chairman, I would like to end with a personal observation concerning something I myself saw in Ghana. This observation is not intended to contradict any criticism or comments. I am merely describing an experience that I had witnessed. There was a program on the Ghanaian TV-broadcasting an open debate between parliamentarians, students and academics. It was during a period when the country was, I believe, going through a difficult time with demonstrations and confrontations, but this did not deter them from holding an open discussion on TV.
Another event that I witnessed, was a visit that the President made to some rural areas. These are some, not all of the positive signs that I know of Ghana, but I do not want to elaborate on this subject due to lack of time. However, I urge the Ghanaian Government and all the other governments to consider the probability of including such information in its reports presented to the Commission. There are always positive and non-positive aspects in Africa, with no exception, as we are all going through circumstances similar to Ghana's. The report should reflect the difficulties faced by these governments and their efforts to deal with them. I am sure, Mr. President, that in many instances if the opportunity and time were available and the guiding principles laid down by the committee were closely followed, we would find in this report much additional information that may assist the Commission in its discussions.
Please excuse me Mr. President for taking your time, but I am sure that what I briefly mentioned was the least I could say, not only as a contribution to the discussion of the Ghanaian report, but also to the other reports in general. I would like to end by thanking the Ghanaian Government and its representative for submitting this report.
NGUEMA:
Je remercie M. Badawi pour son intervention, je voudrais laisser la parole maintenant à Monsieur Kisanga, en lui demandant d'être suffisamment conscis,de telle sorte que nous ayons le temps d'écouter les réponses qui seront données par son excellence M. l'Ambassadeur.
KISANGA:
Thank you, Mr. Chairman. I shall be very brief indeed. First of all I would like to join you, Mr. Chairman, and the other colleagues in thanking his Excellency the Ambassador of Ghana for taking time to come and present his report here and sharing the data with us on the matter. Secondly, Mr. Chairman, I would like to congratulate the Government of Ghana in submitting its initial report. Our colleague, the special rapporteur, Professors Umozurike, has remarked, that they have not done so badly, but I should think that that remark is quite apt indeed, because considering that Ghana ratified the Charter only in 1989, it should be, it needs to be really congratulated for having submitted its initial report as early as last year, in - 1992.
Having said that, Mr. Chairman, I would like to very briefly refer to the report and my intervention will consist of asking only a few specific questions. The report, Mr. Chairman, at page 4 says that the Constitution, the 1992 Constitution of Ghana has complied with all the requirements of the African Charter. Has the Constitution incorporated all the provisions of the Charter or does it pick and choose certain provisions? And if it has left out certain provisions - which have been left out? My second point, Mr. Chairman, is the relation to the Human Rights Commission - the importance of the establishment of the Human Rights Commission - I would like to know, Mr. Chairman, the composition of this Commission. I would like to know the jurisdiction, whether it has jurisdiction with the courts or whether its decisions are appealable to the ordinary courts. As far as regards the regular courts, Mr. Chairman, I would like to know which courts exercise jurisdiction over human rights. In certain jurisdictions, human rights are justiciable only at a certain level in the judicial hierarchy. In some jurisdictions, human rights complaints are entertainable only at the level of the high court, that is, the intermediate court but not in the lower courts. I would like to know what the position is in Ghana. Whether they are justiciable at all levels of the judicial hierarchy or whether at certain levels only.
Then, Mr. Chairman, there is the issue of tribunals. In the report at page 3, at page 3 talks of measures under the Ghanian Constitution. This report was made before the Constitution came into operation, the Constitution came into force earlier this year. Now at the time this report was prepared, certain special miliary tribunals were functioning. I would like to know whether these tribunals continue to function, to operate after the coming into operation of the new Ghanian Constitution. If they do, I would like to know whether the ordinary, the regular courts have any control over them, by way of entertaining appeals from them or by way of review of their adjudications.
And on the question of the independence of the judiciary, the Special Rapporteur has raised the question of methods of ensuring the independence of the judiciary and the protection of judges. ..
[Gap]..
I would like to know the methods of appointment. Does the President appoint them?
[Gap]
.. These are my questions, Mr. Chairman.
NGUEMA:
Je remercie M. Kisanga, je pense que l'on a fait les observations nécessaires, je voudrais simplement exprimer un regret que ce rapport n'ait pu être traduit en francais, comme vous pouvez le constater, il n'y a que les membres de langues anglaise qui ont eu à intervenir. ..
[Gap]
Je voudrais seulement vous faire une suggestion. Je pense que les questions qui ont été posées à M. l'Ambassadeur me semblent assez nombreuses, elles sont importantes et nous n'avons pas le droit de parler du travail (rendu). C'est la raison pour laquelle je souhaiterais, chers collègues, que nous interrompions pour 10 ou 15 minutes le cours de nos travaux. Nous allons faire une pause-café ce qui permettra à M. l'Ambassadeur de réunir ses idées, pour que dans 15 minutes, nous puissions reprendre la scéance pour entendre les réponses de M. l'Ambassadeur. M. Badawi.
BADAWI:
Thank you very much, Mr. Chairman. Mr. Chairman, I speak in English for my short interventions, but when I speak in Arabic I take a longer time, I must give time to the interpreter, otherwise I will not be interpreted. But having said this Mr. Chairman, I would like to add to what you have said, that this report was not available in French, but it was also not available, Mr. Chairman, in Arabic, and since the 13th Session, we keep reminding ourselves that this Commission, if it is to reach to all segments of the population in Africa, has to respect its rules and these rules say Arabic, English, French. So it not only applies to the French, it also applies to the Arabic. It is not a question of the members of the Commission who can communicate in two languages, its a matter of the people in the village who will need to read this and know something about it. So I am making the point again, Mr. Chairman, on this occasion, loudly and strongly. Indeed Mr. Chairman if you can note this protest in the report of the session I would be grateful. I'm sorry, Mr. Chairman, but I really think that I have to make this point.
The second point I would like to make, Mr. Chairman - personally I do not think it would be fair for the representative for the Government of Ghana, or for that matter, any other government, to come here and complement the report of his state and to listen to 15 or 20 or 30 questions. 20 of them should have been advanced to him and his government, in writing, a few days before the representative coming to his hall - this is what we have agreed to - and then expect the representative to respond in the best possible way. I am making this point on two grounds - one, that in the next round, the next session of the Commission, the list of the questions has to be made available to the representative of the Government long time ahead of the discussion and on this point, Mr. Chairman, there is a list which came to my knowledge and I do not know what is the source of this list, and I am under the impression that the Ambassador has got this list and this list does not belong to the Rapporteur of the Commission of the report that the Ambassador, in this regard, regard it as non-existent and only respond to the points and the questions which have been made in this morning. My second comment, Mr. Chairman, I would suggest that you confer with the Ambassador to see what his preference, if he shall reply this afternoon or tomorrow morning even if he so wishes. I think this would be fair that the representative of the Government be consulted in the time which he needs to prepare as much of the comments he would like to make to the comments and the observations of the members of the Commission. I thank you sir.
NGUEMA:
Je vous remercie M. Badawi pour vos observations, la parole est à M. Ben Salem.
BEN SALEM:
Merci Monsieur le Président. Depuis que je suis dans cette Commission, j'ai assisté à plusieurs reprises à la discussion des rapports périodiques, et j'avais constaté que, à chaque fois, il y avait énormément de questions posées et cela ne voulait pas dire du tout, que le représentant du gouvernement soit à même de répondre à toutes les questions, ceci est hors de question. L'habitude, en tous cas, c'est ce que j'ai constaté, c'est que le représentant du Gouvernement donne son appréciation générale répond aux questions sur lesquelles il est prêt à répondre et pour le reste qu'on lui laisse le temps que le gouvernement réponde par écrit, ce qui a été fait plusieurs fois. Donc, je ne vois pas pourquoi, d'abord on ne travaille pas cet après-midi première chose, seconde chose, demain nous devons commencer les scéances de huis clos et nous avons énormément de travail qui nous attend.
NGUEMA:
Monsieur le Professeur Umozurike à la parole.
UMOZURIKE:
Mr. Chairman, I do not think I want to discuss our internal matters now - we still have to pass a judgement on the report rendered by his Excellency, when he is ready. I hope the lunch break is coming soon. But what I wanted to say now, to repeat a decision we arrived at last time, namely, as we agreed last time, that we should appeal to states, if they can, to give us the reports in the different languages -if they can.
NGUEMA:
Je vais laisser la parole à M. Ndiaye.
NDIAYE:
Je vous remercie M. le Président. J'hésite à prendre la parole, mais je voudrais qu'on traite les faits et pour aller dans le même sens que finalement le Vice Président Ben Salem.
[Gap]
..d'un manière très très juste les différents scéances, les différents domaines dans le public ou le privé, il faut que nous essayons de voir les choses, cette présentation d'un rapport périodique par le représentant des états, est un exercice qui obéit à certaines règles, on ne peut pas pendant 2 heures de temps, examiner le rapport périodique d'un pays, si nous ne donnons pas aux représentants le temps et bien ces questions trouveront réponses une prochaine fois, mais je pense que c'est l'image de notre Commission qui est en jeu et il ne faut pas torturer le représentant du pays qui écoute des discussions qui n'en finissent pas. Merci Monsieur le Président.
NGUEMA:
Il s'agit surtout d'une Commission des Droits de l'homme qui doit prendre en considération. Monsieur l'Ambassadeur, je vais vous donner la parole tout à l'heure. Je crois qu'il faut d'abord mettre un de nos collègues dans l'état qui convient. Je dois dire que le Président est un peu surpris parce que, quand nous avons programmé ces travaux, c'était avec l'accord de tout un chacun. Personne n'a suggéré que les réponses données par tel ou tel représentant d'un état puissent venir un jour après, ou deux jours après, comme ça se fait aux Nations Unies, au comité des droits de l'homme. Au comité des droits de l'homme, une fois que les questions ont été posées, l'Ambassadeur ou le représentant a au moins une demie journée ou même un jour, il va préparer ses réponses chez lui. Et c'est seulement après qu'il revient devant le comité pour répondre. C'est parce que on ne veut pas de réponses assez rapides, ni des réponses très peu étudiées. C'est la raison pour laquelle, on souhaite que les représentants soient composés de gens suffisamment spécialisés et donc suffisamment influents auprès de leur gouvernement, qui puissent contribuer à la modification des législations, dans le sens indiqué par le Comité. C'est donc dire que je pense, comme le dit notre ami Ndiaye, si nous demandons à notre ambassadeur de répondre maintenant, je crains que vraiment ce ne soit fait à la va-vite, et les réponses données à la-vite, je sais qu'elles sont toujours spontanées mais est ce que spontanéité rime avec vérité?
J'étais en train de vous suggérer de voir dans quelles mesures nous ne pourrions pas laisser non plus un quart d'heure de pause-café à l'ambassadeur, mais un temps qui lui permet quand même de réfléchir en profondeur sur ces questions qui ont été faites. Je suis tenté de vous suggérer, si vous ne voyez pas d'inconvénient et si le principe peut être acquis, je suis tenté de suggérer que nous puissions prendre ce travail sur notre propre temps, c'est à dire celui consacré à huis clos, et que demain nous puissions écouter M. l'Ambassadeur dès la première heure. Une heure au maximum. Ce qui nous laissera le temps à tout le monde d'examiner les plaintes à huis clos. C'est une suggestion étant donné que, comme vous le savez, aujourd'hui nous avons une double préoccupation. Nous sommes invités par le Secrétaire Général de l'OUA à l'occasion d'un déjeuner qu'il offre à la Commission, d'un autre coté, nous avons des préoccupations de culte pour certains. Alors, c'est la raison pour laquelle je pense que, chers collègues, nous sommes, je vous demande de trancher. Madame Duarte.
DUARTE:
Merci Monsieur le Président. Moi je suis complètement d'accord qu'on accorde du temps à M. l'Ambassadeur, pour qu'il puisse nous donner des réponses refléchies sur les questions qui ont été posées. De toute façon, je crois que le mieux que l'on peut faire, c'est de le demander à lui même, si ça c'est possible ou pas. Peut être demain il ne peut pas ou il peut vouloir répondre tout de suite. Je crois que la Commission doit être, moi je serais d'accord pour attendre demain pour des réponses mais il faut lui demander d'abord. Merci.
NGUEMA:
Autres observations sur la suggestion?
Oui, ça a été enregistré. Oui M. Kisanga.
KISANGA:
Thank you, Mr. Chairman. I think you have said that we'll break for coffee. The break will give the Ambassador time to consider how he will go about it and when we resume he can give us the answer.
NGUEMA:
M. Umozurike.
UMOZURIKE:
Mr. Chairman, let us take a few scones, and the Ambassador can have teabreak and then he will be ready.
NGUEMA:
M. Janneh.
JANNEH:
Mr. Chairman, since we are talking about procedure, I want to touch on this briefly and in general. I think that it is for the special rapporteur to write the questions and send the questions beforehand to the country which report we are to examine. Once that is done, when we have the representative, it is for the special rapporteur to introduce the questions, then we'll listen to the state representative. It is only after that that supplementary questions should be allowed. Unless we resolve to this kind of procedure we will find that in the future we will never have time with the representatives of the state. Now, the situation, as far as I can see, is that we have taken, we as Commissioners, have taken one hour - sixty minutes - and we expect this Ambassador to speak for ten minutes. Now I say ten minutes because, I stand to be corrected, but according to our working hours it would appear that we should work on Friday from 9 to noon and I think we have only ten minutes and we have to have regard to the practice. We have to prepare ourselves in order to attend this lunch on time. And it is not only a question of food because we all know that there are many questions to be dealt with, so it is not practical to even ask Mr. Ambassador whether he can talk to us now. What we should ask him is when it would be convenient for him to come and address us. If he can't do it on Monday then we should do it at another session. Thank you.
NGUEMA:
Je pense que nous n'allons pas continuer à discuter sur ce point. Les problèmes ont été résolus par la Commission au moment où le programme a été établi, mais nous ne pouvons pas oublier de soulever le problème, et que la Commission ne puisse pas fonctionner, ce n'est pas normal. Cela dit, avec tout le respect que je vous dois, je vous suggère la chose à faire. Je vais demander à M. L'Ambassadeur, quel est le temps qui peut lui convenir en dehors de cette journée qui pour nous est déjà écartée. M. Umozurike.
UMOZURIKE:
A brief point, Mr. Chairman. I don't know anything about the questions. I think they have managed it from the Secretariat. Thank you.
NGUEMA:
Je voudrais arrêter là les interventions, j'en étais à vous dire Monsieur l'Ambassadeur de savoir, quel jour éventuellement pourrait lui convenir, pour répondre aux questions. Je lui laisse cette initiative, je n'aurais pas dû, étant Président de Commission demander à d'autres le soin de fixer le programme
[Gap]
... A quel moment pouvez vous venir faire vos réponses?
WUDU:
Thank you, Mr. Chairman, for giving me the right to indicate the time when it would be convenient for me to come, this is consistent with the orientation this august body is supposed to have before the Commission of human rights. Mr. Chairman, I've listened to the various interventions of the Commissioners-- and first I would like to say that it can not be this afternoon. I can be available tomorrow morning, that is if the Commission is willing to listen to me. But beyond that, Mr. Chairman, I will be travelling out of the country Sunday. We can prepare the answers to these questions and what that means is that someone else who appear here on Monday or Tuesday to provide the various answers. I expect to come back on Thursday it is possible if you want the same person who introduced the report to answer to these various queries, but then I say you have to consider the condition of these tribunals the best we can. Otherwise, Mr. Chairman, I will be out of the country on Sunday and I expect to come back on Wednesday. I will most probably be tired when I come I will not be able to give intelligent answers to your queries. Having said that, Mr. Chairman, I must say I do not know the procedures of this Commission. I expected after the presentation various questions and remarks would be made, I tried to prepare with as many documents as I could so I could provide answers as best I could. I have faced the Committee on the Abolition of All Forms of Racial Discrimination before and that is how it went, I appeared before members of the Committee composed of experts and after my presentation they asked questions. I tried to answer them as best I could, but I respect this august body. I tell you, Mr. Chairman, I am in your hands. Either you allow me to come here tomorrow morning, which of course will give me the opportunity to prepare better answers to these questions or sometime next week. This will be submitted by a colleague Monday or Tuesday or if you wish, Thursday.
NGUEMA:
M. l'Ambassadeur, nous vous remercions pour cette compréhension. Je pense que vous nous aviez donné des éléments de réponse depuis longtemps, je pense que nous n'aurons pas d'autres discussions engagées. Nous fixons notre prochain rendez-vous pour demain matin à 9 heures, de telle sorte que nous puissions terminer avec l'examen de ce rapport ce qui nous permettra de continuer avec le huis clos par la suite. Si vous ne voyez pas d'inconvénient, nous allons lever l'audience et notre rendez-vous est fixé pour demain, je vous remercie pour votre attention.
[Break]
NGUEMA:
... Il s'agit tout simplement d'un d\ialogue constructif qui doit s'établir entre la Commission et le pays, ce qui signifie que le dialogue doit être franc, sincère et loyal. Ce qui signifie que nous sommes ici essentiellement pour chercher à améliorer la situation des droits de l'homme dans nos différents pays en Afrique donc, c'est dans notre propre intérêt. Nous ne le faisons pas dans l'intérêt d'autres personnes. Donc la Commission doit s'attacher essentiellement à aider les états, au cas où ces états éprouveraient des difficultés. La Commission doit chercher essentiellement à faire en sorte que nos rapports soient des plus harmonieux. Et naturellement, ces rapports ne peuvent être des plus harmonieux que si, en face, nous avons à faire à des états qui sont vraiment déterminés à mettre en oeuvre, en Afrique, la politique des droits de l'homme que les chefs d'Etat eux-mêmes ont décidé.
C'est donc dire que c'est quelque chose de simple, de sincère, d'honnête, de loyal et je voudrais à cette occasion, attirer l'attention des ONG et notamment des ONG africaines que nous sommes encore au niveau de la Commission au stade d'apprentissage des méthodes à mettre en oeuvre dans l'exercice de nos différentes missions. Les ONG, qui doivent naturellement fournir à la Commission des renseignements concernant les rapports qui sont soumis à cette Commission. Cela suppose naturellement que les ONG doivent prendre connaissance des rapports périodiques qui sont envoyés à la Commission provenant des Etats. Ce sont les ONG des états concernés qui doivent s'attacher à fournir ces renseignements, ils peuvent éventuellement, non pas faire les contre-rapports, mais apporter des éclaircissements et une interprétation correcte du contenu du rapport qui sera à présenter. C'est la raison pour laquelle je les invite spécialement, j'ai comme l'impression que je parle devant une salle vide .... Il y a des rapports qui sont déjà envoyés à la Commission et qui sont déjà disponibles, nous avons le rapport du Bénin, du Cap Vert, du Mozambique. Donc, si des ONG provenant de ces pays se trouvent au sein de cette Commission, ils ont intérêt de prendre une copie de ces rapports parce que je me plais à la répéter, la mise en oeuvre de la politique des droits de l'homme en Afrique n'est pas la seule affaire de la Commission. C'est l'affaire, et des ONG, et de la Commission. Nous ne pouvons pas faire de frontières entre la Commission et les ONG. Si donc, nous n'avons pas de répondant, écouter des ONG, cela risque un peu de peser sur le travail effectué au sein de la Commission, et à cet égard, je voudrais à l'attention des ONG, signaler que le rapport du Bénin sera confié à M. Ndiaye pour son examen. Donc, s'il y a des observations à livrer ou des éclaircissements à fournir, naturellement les ONG sont invitées à envoyer des observations au secrétariat, mais ils peuvent également entrer directement en contact avec les membres de la Commission qui sont chargé spécialement de l'examen de ces rapports.
Donc le rapport du Bénin, j'ai demandé à ce qu'il soit confié à M. Ndiaye, le rapport du Cap Vert, je le souhaiterais à M. Ben Salem et que le rapport du Mozambique soit confié à Monsieur Badawi. Ce sont des rapports qui seront examinés à notre prochaine session. Mais d'hors et déjà, je pense que les observations doivent être à l'attention de tout le monde.
Je m'excuse M. l'Ambassadeur d'avoir retardé le début de cette sceance, je crois que hier nous nous sommes séparés en bon terme, dans le mode africain nous nous sommes charmaillés comme d'habitude, mais vous savez qu'en Afrique le bruit, les odeurs, la diversité, c'est ça qui fait la vie. Chez nous, ce n'est pas le silence des morts que l'on observe dans les églises et les cimetières en Europe, ce n'est pas l'uniformité mortelle, c'est surtout cette vie là que nous nous préférons en Afrique, c'est pour cela que la scéance d'hier m'a paru excessivement intéressante. Sur le bénéfice de ces observations, j'ai l'honneur d'inviter son excellence M. l'Ambassadeur du Ghana à prendre la parole.
WUDU:
Thank you, Mr. Chairman. First of all Mr. Chairman, I would like to express my appreciation and gratitude to the members of the Commission who yesterday took the floor after I had made a presentation of the initial report of Ghana to this Commission. They did in all fairness express their ideas, their opinions both on the report as well the presentation that I made, and I want to express my gratitude particularly to those who made interventions after my presentation.
Mr. Chairman, I will endeavour to go through as fast as I can the various issues in particular the questions or the queries that were raised by the distinguished members of the Commission in the course of their intervention. In spite of the fact, Mr. Chairman, that we have had some time between yesterday when I made the presentation and now, I am not able to respond fully to all the issues raised, but I will endeavour to do the best I can to answer the various questions and queries that were raised by the distinguished members of this Commission.
First of all, Mr. Chairman, there was a question or a request that copies of all documents related to the work of the Commission, human rights in particular the Constitution of the 4th Republic should have been sent to the Commission. I do fully accept that this is an important requirement. It was not done before this meeting because at the time the report was submitted to the Commission in Banjul, the documents of the Constitution was not yet ready. That is why the Commission does not, I believe, officially have a copy of the document, and I will take full note of this and make sure that copies are sent to the Commission.
There was also a question, Mr. Chairman, about the way the Constitution functions, and to what extent citizens enjoy its provisions. I did mention in my introduction to my presentation that chapter 5 in particular of the Constitution lays out, brings out clearly, in a very wide reaching manner, the various human rights provisions under the Constitution. Of course I will admit that to be an issue for argument, it is one issue just making provisions in a document and another completely different issue ensuring their application, their particular application, but I would still want to say that in the 4th Republican Constitution makes adequate, ample provisions for the enjoyment of citizens' their basic human rights.
Mr. Chairman, there was another question relating to any problem areas of the Constitution with regard to freedom of speech - the question in particular was whether there are any limitations to freedom of speech. To the extent possible, citizens have the right to make utterances the way they like, but of course these utterances should not infringe on the rights of others, in other words defamatory or to be of libellous nature - these are the courts are there to adjudicate and determine which actions are reasonable and which actions are not, but obviously to a very great extent there is freedom of speech. We all know that at the moment there are a lot of newspapers, independent newspapers, which function in Ghana and they are able to express the opinions of all citizens.
There was also a question of whether there is a right to work, the right to take employment for all citizens. This is provided but naturally it should relate to the availability of work. The basic principle is that if one is entitled to take up employment, on the assumption that he or she satisfies the basic requirements, there is no reason why this person would be denied this employment on the basis of her sex, religion, whatever - there should be no restrictions as far as these are concerned.
Another very important question, Mr. Chairman, I believe relates to the issue of retrenchment - the issue of laying off of workers. As is very well known, Mr. Chairman, we have embarked on a structural adjustment programme that's going on, for that matter, in a number of African countries. In our case, we started this programme in April 1983 and one of the major plans of this programme, we call this the ERP, the Economic Recovery Programme, is to really review the way a whole lot of things in the functioning, the way the Government is operated, and this included a movement away from the central government control of major services. Government control is removed from this mode of control to private orientated economy. This naturally did affect so many areas and retrenchment is one of the parts of this programme. Government realized very early the effects this aspect of the programme would have on the people. That is why it adopted PAMSCOT, that means the Programme of Action to Mitigate the Social Costs of Adjustment. This was realized as far back as 1986 or 87. The whole idea was to try to address the social problems especially those who were going to be more seriously affected by these aspects of the recovery programme. A lot of initiatives were introduced by the Government - certain community initiated development projects were initiated and certain people who were affected by the retrenchment programme were given loans to start various projects, in particular in agriculture, in rural communities. And then also assistance was provided especially in the area of health for those who were going to be seriously affected by this retrenchment programme. Thirdly, of course there was no question about merely laying off these workers without paying any appropriate benefit. There may have been some cases in which the benefits were not paid exactly on time, but that was all part of the package, but the most important aspect in our view was to ensure that these laid-off workers especially those most seriously affected by the exercise were not simply left to their fate in society. That's why I said earlier on that PAMSCOT was introduced.
Mr. Chairman, there was also a question about education and how far the right to education for children is ensured in the present system. The distinguished Commissioner did mention the educational programme started by the first President which I agree quite are to be most highly commended. I must say that this right to education is being still greatly enforced, being promoted. At the moment we have five universities, instead of three, which were established a short time ago, the whole idea being to spread out, making sure that people have access to education to as high a level as possible and of course within their individual capabilities. We also have under the new educational system what you often call the junior secondary school system, the whole idea being to ensure that as many children as possible, who probably would not have the ability to take to the literary arts, are enabled to pursue some form of education which is based on technical subject. The whole idea being that as many children as possible should be enabled to have education.
There was a question about the right to health and maternity health care - this relates to women. There are clearly provisions in the 4th Republican Constitution, Mr. Chairman, Article 27 of the Constitution lays out certain maternity health care for mothers, and sometimes for as long as six months, the three months before delivery and three months after. These mothers entitled to maternity leave were fully paid emoluments or salaries. In some jurisdictions even after they have resumed work they are enabled to do only half-day for as long as six months, just to be able to take care of the newly born in the afternoons, that is to stay away from work in the afternoons.
Mr. Chairman, there was a question about whether there was a domination of one people against another. I believe this will have to do with the domination of one ethnic group by another, within the context of ethnicity. Well, I must say the answer, obvious answer in the case of Ghana is no. There is no domination of one people, one ethnic group against the other. That is quite obvious.
Then the protection of women, measures with regard to women, children and the disabled. There are quite a number of provisions in the Constitution relating to the protection of women. I already cited one, regarding the right to maternity leave for women, and at the same time I have to cite Article 22 in the Constitution which relates to the distribution of property to a spouse after the death of his or her spouse. Measures have been taken to assure that the women who are in this case not unreasonably denied property, a reasonable share of the property of the spouse, the man. And Article 22 spells out that as a spouse you will obtain a reasonable provision of the rest of the other spouse whether or not he made a will before he died or whether or not she made a will before she died. We agree that of course the spirit of this Article is to protect the women folk. And then also there are customary practices which in the past the woman folk has had to go through, widowhood rites. I believe in some countries women who lose their husbands are made to stay in mourning for a period of 3 years or go through these inhumane practices I must say. Mr. Chairman, the 4th Republican Constitution in Article 26 expressly states that some of these customary practices, which tend to dehumanize the widow should be abolished, they are specifically abolished. This is clearly stated in the Constitution. Of course we also have national institutions which promote the interest of women - we have the National Council of Women and Development - I believe the distinguished Commissioner did make mention of that, the 31st December Women's Movement and others, and the major agenda for these institutions is to promote the welfare and the well-being of women.
Similar Articles exist, as well as similar institutions for children and for the disabled - Article 28 spells out clearly the right of children to education, to basic motherly care etc. And we do have a national commission on children, a government agency, to promote the welfare of children. These also apply to the disabled. Of course there are Articles in the Constitutions which really spell out the measures for protecting the disabled.
There was a question asked about the Commission on Human Rights and Administrative Justice - this I believe was the question which was asked by all three distinguished Commissioners who made interventions yesterday after my presentation. I must say, Mr. Chairman, that this Commission has been established, is very much in place. As a matter of fact under the 4th Republican Constitution, the Commission and certain other important organs of state were by law to be established within the first six months of the coming into force of the Constitution and I am happy to announce that in fact it has been constituted, with a private legal practitioner of long standing as the chairman. The functions of the Commission, if I may quickly run through, is to include the power to investigate complaints of violations of fundamental rights and freedoms injustice, corruption, abuse of power, unfair treatment of any person by public officers in the exercise of his duties. To investigate complaints concerning the function of the public services commission and other organs of state in so far as complaints relate to failure to achieve a balanced structuring of those services or equal access by all to the recruitment of those services or fair administration in relation to these services. If I may quote some special powers of investigation: "The Commission shall, the powers of the Commission include powers to issue subpoenas, require the attendance of any person before the Commission, and the production of any document or record relevant to any investigation by the Commission, to cause any person in contempt an order or subpoena to be prosecuted." Now, I know the Commissioner did ask of the relationship between the Commission and the courts - the Constitution clearly states in the relevant Article 2 that the Commission shall not investigate a matter which is pending before a court or a judicial tribunal, or any matter relating to dealings between the Government and any other government which is before any other international organization. Clearly this is a very important Commission like I said, every Commissioner here did enquire about the function of this Commission, but it is very much like what used to be in place, the ombudsman, and the Constitution has clearly spelt out the independence of this Commission. As far as appointments are concerned, the members are appointed by the President acting in consultation with the Council of State, which is an advisory body. I know that they were put in place by a number of independent practitioners who in their own right, perceive their own business interests - who certainly will add their august opinions to the functioning of this Commission of Human Rights and Administrative Justice.
Mr. Chairman, the issue of the practice of trikosis, that is, giving out of young girls to what may be described as slavery - at a very early age. A question was, what measures Government was taking to combat or eradicate this practice. I must say of course that in our country there are a lot of these anti-social practices going on. And normally of course government attention has to be drawn to them before actual action is taken - in many cases of course these are done in a private, informal way and it does not come to the formal notice of Government, but I can assure you that in the same way that Government has taken, and the Constitution has stated clearly measures against dehumanizing practices, whether they apply to women or not, will not be countenanced. I believe that Government will take measures, where such practices come to its notice, to combat them. I don't believe that many still believe in such practices. We have gone from the age where such practices had some justification. I certainly believe that we have gone from that. We have progressed from that age.
Then there was a question which ran through the interventions of all Commissioners, about the judiciary - the independence of the judges, particularly judges of the superior courts. Mr. Chairman, the Constitution spells out clearly that there is security of tenure for these judges. Should they for any reason, if any action is brought for their removal, there should be specific grounds for this removal and the point here simply is that judges cannot be dismissed very easily. But where an action is brought for the removal of a judge, the Constitution clearly states that a committee of enquiry should be set comprised either of at least six or eight, at least six people, which shall thoroughly investigate the specific charges. The misbehaviour, misdemeanour or incompetence must be clearly stated and this committee will summon these charges, then submit their views. The Parliament or the Council of state will have to come in and examine the findings of this committee before any further action will be taken. In short, it is not very easy simply to decide to remove a judge because he or she has passed a judgment which is not considered favourably. The Constitution is very specific on this issue.
Then the question was asked whether citizens have the right to form or belong to a political party. The answer is yes, positively, however, there are some limited restrictions, but these relate only to the concern to have legitimate political activities of a national character. In other words, no party will be registered if it is determined that it is formed on the basis of race or religion, in other words every party should have a national character. Once this basic criterion is satisfied, a party could be registered.
Multi-partism - there was a question asked of whether this was being implemented, in what way. We all do know, I believe, that during the last parliamentary elections, a number of parties decided to boycott the elections, but in spite of that elections went ahead. But I must say that at the moment both the Government party and the opposition are engaged in dialogue, committees have been set up on both sides and there have been meetings very recently for them to discuss the question of Government, the question of governance, and information which is received indicate that there is a positive development in that regard, at least the two sides have agreed to sit down and discuss issues of Government so that democracy will survive. Multi-partism is alive in spite of the fact that a number of the parties did not participate in the parliamentary elections and for that reason they are not in Parliament. There is - ways are being found to ensure that democracy thrives in spite of the absence of these parties in Parliament.
A question was asked on the provision in the African Charter which requests member states to promote African unity. Ghana certainly is doing this, right from the outset, this has been a cornerstone of its policy, foreign policy, to promote African unity and we are very much active in regional, economic integration as well, which is connected surely continental unity. For instance, the African Economic Charter which will soon be coming into force, does clearly spell out that regional economic communities should be the building blocks, the pillars for the African economic community, and Ghana belongs to ECOWAS, is very much active, is a founding member of ECOWAS, is very much active in the workings of ECOWAS and we believe that through the medium of ECOWAS, for instance, we promote what should be the eventual goals of African Unity. Ghana is of course also actively participates in the activities of the Organization of African Unity, so I believe that in a very positive manner we contribute to the promotion of African Unity, which is also spelt out in the Charter.
Mr. Chairman, there was a question about cultural rights how these are perceived. Particularly there was also the concern whether in the pursuit of these cultural rights there is no inconsistency with internationally known human rights norms. Though the Constitution spells out clearly in Article 39 the need to promote cultural rights in the community, we believe that care is always taken to ensure that these are as far as possible not inconsistent with internationally known practices on human rights. I did say earlier on that the Constitution was very explicit about taking measures to abolish some of the traditional cultural rites and some of the traditional cultural practices which are dehumanizing, especially to our women folk, I did talk about it. And much of these have long time been cultural practices, now there is the realisation that these are nevertheless inconsistent with civilized behaviour, and measures are being taken to do away with such practices. So in as much as cultural rights are being promoted, care is taken to ensure that they do not conflict with internationally known practices of human rights etc.
Mr. Chairman, yet another important issue that was raised relates to the function of NGOs in Ghana. I must assure the Commission that the NGOs especially in this area, the area of concern to the Commission, that is human rights NGOs, are very much encouraged in the country. In fact we are aware that a number of NGOs are currently being registered. Of course there are procedures--in order for an organization to function, as an organization in a society there should be organized procedure of behaviour and procedure to register the relevant organizations to function as an NGO in whatever area. But we know that there are already quite a number of these NGOs functioning in the area of human rights first we have FILA - that is Federation of International Women Lawyers. In Ghana it has been very much active, it gives a lot of advice, legal advice to women. We know that the law faculty of the university of Ghana has a human rights activity programme within its functions. We know there are some organizations coming out with publications on human rights activities in Ghana and several of them; there is the Ghana committee on Human Rights. We believe that these organizations are enabled fully to function within the limitations of law, the limitations set out in the Constitution. But we know and we observe, Mr. Chairman, that organizations, NGOs in the area of human rights are functioning quite effectively in Ghana within the 4th Republic. I cannot simply mention all the organizations but I have mentioned one or two which I know are functioning in the system.
There was also a question about the progression of the country report and which ministry prepared the initial report - the Ministry of Foreign Affairs or the Ministry of Justice? It is a collective effort, Mr. Chairman, of the two ministries because it might be that the Ministry of Justice has the expertise, has the judicial arm of Government to come out with the preparation as much as they readily know about what elements should go into the preparation. It may also be appreciated that there should be certain political underpinnings to all such exercises, all such undertakings and that is why the Ministry of Foreign Affairs also comes in, but I agree with the suggestion made by the distinguished Commissioner that there should be a focal point where the Commission should know that one particular organizational arm of government or organ should be responsible for the preparation of and for the interaction with the Commission, this is something I will agree with to make for easier coordination, interaction, between the Commission on the one hand and a particular government organ concerned.
There was also a question, Mr. Chairman, on which courts exercise jurisdiction over human rights. I believe that all the courts at various levels will have a role to play in exercising jurisdiction. As far as interpretation is concerned, the Supreme Court--I did say in my presentation yesterday that, since the coming into force of the Constitution, the Supreme Court has been called on a number of occasions to provide interpretation of the Constitution so far as human rights issues are concerned. But the high courts and other inferior courts down the line are at one time or another required to provide interpretation or to decide their jurisdiction as far as human rights issues are concerned.
I believe, Mr. Chairman, I have taken, as far as I can, quite a number of the issues that were raised by distinguished Commissioners. As I did say at the beginning, I do not think, in spite of the time given me provide answers, to prepare for the question and remarks and queries given, in spite of the time given I was not able to answer all the queries and probably not in a manner that will completely satisfy the members of the Commission, in particular those who intervened. But I have endeavoured as best I could to provide answers to some of the issues that were raised. I thank you, Mr. Chairman.
NGUEMA:
Je remercie, au nom de la Commission, l'ambassadeur du Ghana qui vient de donner des réponses, du moins une partie, aux questions qui ont été posées hier, sous réserve naturellement de ce qu'il vient de dire. Est ce que les membres de la Commission ont des choses à ajouter par rapport à ce qu'ils ont posé comme question. Hier c'était le rapporteur spécial, c'était Monsieur le Professeur Umozurike et naturellement aussi Monsieur Badawi qui est intervenu, mais je voudrais d'abord laisser la parole à Madame Duarte qui a deux questions.
DUARTE:
Merci Monsieur le Président, j'ai deux petites questions que je voudrais poser à son excellence l'ambassadeur du Ghana. On vous a déjà écouté avec beaucoup d'attention, vous avez donné des réponses très claires aussi aux questions posées, mais je veux si possible que vous m'éclaircissiez un peu sur ces questions. L'une, c'est les pratiques inhumaines des veuves "arination", à son mari, si ces pratiques sont déjà supprimées ou si elles sont en train d'être supprimées. Et l'autre, si les juges dans votre pays, s'ils puissent être membres des partis politiques ou si cela est défendu par la loi. C'est tout, merci Monsieur le Président.
NGUEMA:
Je crois, Monsieur l'Ambassadeur, que vous pouvez répondre directement, je voudrais simplement ajouter à sa première question, j'ai cru comprendre effectivement que ces pratiques de veuvages sont supprimés par la Constitution et ce que je voulais dans le sens de ce qui vient d'être demandé, je voulais souhaiter si nous avons des exemples de condamnation dans ce domaine, c'est à dire des personnes qui ont été poursuivies pour avoir pratiqué ces rites, on n'en pratique plus maintenant dans la plupart de nos pays. Je vous remercie. Vous pouvez répondre Monsieur l'Ambassadeur.
WUDU:
Thank you, Mr. Chairman.
[Gap]
... know whether, as a matter of fact, in spite of this legislation these practices go on. I am afraid that of course as long as there is legislation to that effect, when these unlawful practices are reported to the government agencies, naturally those responsible for such acts will be arrested and prosecuted, because there is provisions for adequate protection for these women. I must say, however, that most of these practices as of now do take place in the remote areas, in the rural areas, villages, and in such situations you find the people around more or less acquiescing in this type of arrangement because these are practices that have been going on for a very long time and you must admit that if these are not reported to government agencies, they cannot take action because they would not be known. But if for any reason these are reported, action is quickly taken to arrest those that are guilty and they are brought before a court. With regard to the issue as to whether there are specific cases of arrest, those who are engaged in inhumane practices. There have been cases, and these have appeared, there have been cases where citizens have been brought before court for engaging in some of these practices. For example I believe that in order to have certain powers to pursue one's business interests one has to provide the part of a human body, so that this would be used to, as I said, to promote a business interest. There have been cases where people have been arrested for being in possession of a parts, human parts, which ostensibly were meant to be used to further their business interest, promote a business interest. So these people are being prosecuted and sentenced various forms of imprisonment. I'm sorry with regard to the specific issue of women, that is the various motions, various indignities they go through particularly when they lose their husbands, I'm not really able to cite any specific instances, but what is very clear is that in the spirit of Article 27 which I quoted, 26 or 27 I cannot quite remember, if anyone is found out taking widows through these outdated practices it spells out clearly in the Constitution that action shall be taken against such perpetrators. Thank you.
NGUEMA:
Madame Duarte a posé un deuxième question, est-ce que les juges puissent être membres des partis politiques?
WUDU:
Mr. Chairman, judges in their individual positions, judges can have sympathies with a certain political party, but in the political parties law you have to have a certain number of recognized founding members. Judges are not permitted to be founding members of political parties but they can have their sympathies with any party of their choice.
NGUEMA:
Autre question? Monsieur Amega.
AMEGA:
Monsieur le Président, Messieurs, Je remercie avant tout l'Ambassadeur du Ghana qui nous a exposé de manière claire la situation juridique et constitutionnelle de son pays. J'aimerais non pas poser des questions, peut être un peu venir à son secours, parce que nous sommes tous les deux, lui et moi-même, devant le pays limitrophe et très voisins, très frères et nous pratiquons presque les mêmes cultures, coutumes. Les pratiques que nous semblons condamner, les pratiques inhumaines, ces pratiques nous les trouvons également, non seulement dans mon pays le Togo, mais également dans plusieurs pays d'Afrique au Sud du Sahara. Les mutilations que ce soit pour excision que ce soit des mutilations pour désenvoutement, et la sorcellerie elle-même, tout cela sont des pratiques qui relèvent de notre tradition du tréfond de l'Afrique .
NGUEMA:
C'est pour ca que l'on veut les supprimer.
AMEGA:
Nous voulons les supprimer, mais vous ne pourrez pas M. le Président.
NGUEMA:
Le problème n'est pas de vouloir ou de ne pas vouloir. Nous avons la charte qui doit être appliquée.
AMEGA:
Nous ne pourrons pas les supprimer sur coup de plume, la plume peut la supprimer, il s'agit de le supprimer dans l'esprit, dans la mentalité du peuple, Monsieur le Président, vous êtes vous-même professeur d'enthropologie jurididique, vous savez ce qu'est la face de l'enthropologie sur l'esprit.
NGUEMA:
Alors maintenant, ce sont les membres de la Commission qui défendent les pratiques.
AMEGA:
Non non non, je ne les défends pas. Je veux essayer d'expliquer, et que nous devons venir à leur suppression, mais d'une manière progressive par l'éducation, justement. C'est pourquoi, je félicite le Ghana qui a mis sur pied un système éducationnel très progressif pour avoir un petit pays comme le Ghana avoir 5 universités, c'est à féliciter.
D'autre part Monsieur le Président, j'aimerais savoir, quel est le système d'assistance judiciaire dans son pays, c'est à dire l'assistance aux pauvres qui ne peuvent pas faire face à la justice. La justice, il est vrai est gratuite, mais les moyens pour y arriver ne sont pas gratuits. Voilà la question que je voulais poser Monsieur le Président. Merci Monsieur.
NGUEMA:
Mr l'Ambassadeur vous avez la parole.
WUDU:
Mr. Chairman, first of all I would like to thank the Commissioner for commending, for appreciating these practices cultural, traditional practices which we have had in our midst for a long time, but at the same time accepting the need to eradicate these practices since they are dehumanizing. I also want to thank him for admiring the efforts we are making in our educational system.
Now with regard to judicial assistance, legal assistance, we do have a legal aid system in Ghana, and those who are unable to afford the fees, the fees that are charged by lawyers, have access to this legal aid system. I must admit that I am not very sure to what extent it is able to assist such categories of persons, but positively, a legal aid system does exist and those who are unable to afford the normal fees can have recourse to this. Perhaps we do have a Commissioner who might be in a position to maybe shed some light or provide some more information on this matter. But we certainly have the assistance of a legal aid scheme in Ghana. Thank you.
DANKWA:
There is a legal aid scheme....
NGUEMA:
Je m'excuse, l'Ambassadeur ne peut pas donner la parole à la Commission, non. Et vous ne pouvez pas prendre la parole sur l'invitation de Monsieur l'Ambassadeur. Je crois que Monsieur l'Ambassadeur a la parole pour répondre aux questions qui ont été posées maintenant. Quant à savoir si nous devons recueillir d'autres informations ailleurs, c'est un autre problème. Monsieur l'Ambassadeur vous pouvez continuer.
WUDU:
Mr. Chairman, I am sorry with all due respect to you and to the Commission, I did not intend, in the present scheme of things, to request or to instruct the Commissioner from Ghana to take the floor. If I did give that impression I'm sorry, Mr. Chairman.
NGUEMA:
Il n'y a pas de problème. Monsieur Kisanga, vous avez la parole.
KISANGA:
Thank you, Mr. Chairman, it is a short question regarding the special tribunals which used to operate in Ghana before the coming into operation of the Constitution. Yesterday, I raised the question whether these tribunals are still operating after the Constitution has come into being. And if they are - what is their constitution, how are they manned, what jurisdiction do they have vis-à-vis the regular courts, are their decisions subject to review by the superior courts in the regular court system?
NGUEMA:
Vous pouvez répondre M. l'Ambassadeur.
WUDU:
Thank you, Mr. Chairman. The tribunal system as it existed before the coming into force of the Constitution - I agree it was mentioned yesterday, I'm sorry I did not cover it, the distinguished Commissioner is quite correct. The system of public tribunals as it existed before the coming into force of the Constitution, did cease six months after the coming into force of the Constitution. What happen was at the time of January 7 when the Constitution came into force these tribunals indeed were still in existence and there were a number of cases which were pending before them. A decision was taken that the tribunals would continue to adjudicate on these cases for a six months' period, after which those which still remained would be transferred to the ordinary courts. This has indeed taken place and the tribunals as they were known before the coming into force of the Constitution no longer exist. The issues or the cases pending have now been taken over by the other courts. For that reason, Mr. Chairman, I wonder whether it would be useful for me to try and establish the relationship between these courts and the ordinary courts as well as the possibility of appeal by these ordinary courts with respect of decisions taken by the public tribunal. But I can assure, Mr. Chairman, they no longer exist. Thank you.
NGUEMA:
Je pense qu'il n'y a plus d'autres questions à poser à Monsieur l'Ambassadeur. Avant d'avoir l'honneur de l'inviter à se libérer, j'aurais simplement une toute petite question. En matière de protection des droits de l'homme, supposons une violation intervenue malheureusement qui est découverte par une procédure judiciaire une décision qui est rendue, supposons quelqu'un qui était arrêté et qui a été gardé par la police éventuellement au-delà du délai qui est prescrit comme garde à vue. Finalement, cette personne est traduite devant les tribunaux qui ont fait état de cette situation, on s'aperçoit finalement qu'on doit relaxer la personne. Au lieu de la mettre en prison, elle est libérée, naturellement elle est bien contente d'être dehors généralement dans la plupart de nos pays, les choses s'arrêtent là. Bon, elle ne fait pas appel et finalement cette décision est devenue définitive. Mais le fait est que cette personne a passé quand même un certain temps au-delà de ce qui était prévu. Est ce que cette personne a la possibilité de se présenter devant une juridiction pour demander éventuellement une indemnité en raison du préjudice qui lui a été infligé. Parce qu'il y a eu quand même arrestation au-delà du délai.
WUDU:
Thank you, Mr. Chairman, as you rightly observed there is a minimum period within which citizens can be held in custody if no charges are brought before him within that period, that citizen would have to be released. In the situation which you have cited, where the citizen is kept in custody beyond that prescribed period, I believe that he has every right to go to court to seek compensation for detention beyond that period. I know for instance with the coming into force of this new Constitution that the police perhaps knowingly or unknowingly, detained someone beyond the minimum period and this was brought to the attention of the police. They immediately had to release this person and the person was released. The issue you are posing, I believe relates to a situation where the citizen believes that, since he has been detained over and above the minimum period, he should want to seek redress in the courts to obtain compensation of cost for the unlawful detention as it were. Personally, I believe that since there would have been an infraction, nothing really stops you from doing so. In this particular case that I cited the police was called upon to release a person because he had stayed beyond the limited period, and they immediately did that, they immediately released the person, and this has actually taken place.
NGUEMA:
Permettez moi de préciser. Prenons le cas d'une personne, disons qui a tué une autre personne. La personne est gardée à vue. Finalement compte tenu de la procédure, on s'apercoit que les faits sont exacts et que cette personne doit être condamnée. Cette personne est donc condamnée en première instance et ensuite il y a éventuellement appel. La décision est confirmée en appel et ensuite on va même au niveau de la cour de cassation. J'ignore l'organisation judiciaire au Ghana, et la décision est confirmée à ce niveau, donc toutes les voies de recours sont épuisées. Cette personne a belle et bien été condamnée. Seulement, elle a été gardée à vue dès le départ au-delà du délai, est-ce que dans ce cas cette personne dispose d'un moyen, parce qu'on risque de lui dire, après tout, la décision est devenue définitive. Elle a acquis force de chose jugée. On ne peut plus revenir là dessus. C'est un peu ce cas là qui retient mon attention.
WUDU:
Mr. Chairman, I regret that I am unable to respond positively to this specific question of yours which, if my layman's knowledge of law tells me involved a conflict of law should not happen, but unfortunately law is not my field and I regret I'm unable to provide a satisfactory answer to your question, sir.
NGUEMA:
Bien, je vous remercie Monsieur l'Ambassadeur. Je crois que, s'agissant des autres questions et même de cette question là, il serait peut-être souhaitable que la Commission puisse recevoir vos réponses par écrit, ce qui nous permettra effectivement de compléter le dossier, et comme je l'ai dit tout à l'heure, je pense vos réponses peuvent, si les ONG ghanéenes le souhaitent, être publiées dans la presse ghanéene, de telle sorte que l'on puisse apprécier la manière dont l'état du Ghana répond aux préoccupations de la Commission. Nous souhaitons vivement, que l'exercice auquel vous vous êtes livré puisse se poursuivre, ce n'est pas tellement pour des devoirs de bureaucratie, mais c'est justement pour permettre petit à petit ce dialogue constructif dont j'ai parlé au départ que la Commission souhaite avoir avec les pays. Nous voulons que, au niveau de la Commission, lorsque le deuxième rapport sera présenté, que nous puissions vérifier les réponses. Si les réponses que vous nous avez donnés au cours de cet exercice ont vu une certaine amélioration dans certains domaines, de telle sorte que nous puissions apprécier, si il y a progrès ou non. De cette manière, je pense que les choses pourront aller dans la bonne direction.
Je voudrais remercier Monsieur l'Ambassadeur du Ghana. Ces remerciements, je les ai exprimés au début de notre exercice, je pense que, jusque là, la présentation des rapports périodiques a toujours été difficile et souvent les ONG nous ont critiqué, je ne veux pas savoir si c'est à tort ou à raison, quant à la manière dont nous avons examiné certains rapports. Je pense que nous devons au fur et à mesure que les jours s'écoulent améliorer nos méthodes de travail et c'est surtout pour cette raison que je me permets de vous faire ces propositions, naturellement avec le concours des ONG, nous pourrons faire du bon travail, à l'avenir. C'est donc pas pour faire de la paperasse que je vous suggère de nous envoyer vos réponses par écrit, c'est simplement pour que nos méthodes de travail soient améliorées.
Je me permets une dernière fois Monsieur l'Ambassadeur de vous remercier au nom de l'ensemble des membres de la Commission, nous avons été particulièrement satisfaits par votre disponibilité depuis hier, je pense que ce rapport devrait se poursuivre pour le bienfait de l'Afrique, pour le bienfait de la promotion des droits de l'homme sur notre continent, Monsieur l'Ambassadeur je me permets de vous demander de reprendre votre liberté - à supposer que vous ayez été en prison.
[Laughter]
Nous ne sommes pas dans une organisation politique.
WUDU:
Thank you, Mr. Chairman, for graciously freeing me from the ordeal I have gone through especially this morning. To be very frank, I thought that after my intervention this morning that my turn to provide answers to the various issues raised yesterday, I thought I wasn't going to be bombarded with any further questions. I was actually taken aback when Madam asked for the floor to, you know, ask some further questions.
Anyway, to be on a more serious note, Mr. Chairman, I also wish to thank you and the other members of the Commission for the patience and for the manner they took to listen to my original presentation yesterday as well as the patience and the manner they took to listen to my intervention this morning.
I just wanted to find out, Mr. Chairman, something about your internal practice, that is procedure. For instance one of the issues raised yesterday was that you do not have copies of the Constitution. I did make reference and said that the proper action would be taken. I do not know whether in your usual practice, the Commission normally has to write to governments to provide such documents which relate to human rights or if it is the governments themselves which are to take the initiative to send these documents to the Commission in Banjul. This obviously has a bearing on the other aspects, the request that you made to me that I make the response available to you in a written form for the records. Again, I do not know your procedure, your internal practices but I just wanted to be very clear in my mind, Mr. Chairman, that this is indeed accords with the external priorities of the Commission so that I would know whether to proceed or not. For instance I'm here representing my Government, I only came here to present a report because the Commission was meeting here in Addis Ababa if the Commission had met in Banjul, probably our nearest mission, our Ambassador in Guinea Conakry or some other would have dome from Accra, I don't know. But as it was the request has been put and I respect the wishes of the Commission but I just wanted to know whether the procedures in general otherwise are quite correct in this manner. Thank you.
NGUEMA:
Monsieur l'Ambassadeur, je crois que vous avez tout à fait raison, de vous inquiéter de tous ces problèmes, ce qui signifie que vous prenez à coeur le travail que nous faisons ici, que nous voulons réaliser avec les différents gouvernements africains. Naturellement, vous nous prenez un peu au dépourvu quand vous nous demandez, si nous devons écrire ou si nous ne devons pas écrire, c'est normalement le gouvernement ghanéen qui est souverain, qui doit décidez quel est celui qui doit venir devant la Commission pour présenter le rapport. Nous ne pouvons pas lui imposer un quelconque cadre de son pays donc, c'est un domaine qui nous échappe. Il reste que, puisque vous représentez le Ghana ici, nos rapports doivent être directs, nous vous le disons de vive voix, nous voulons un rapport écrit, un texte écrit de vos réponses. Mais naturellement, nous aurons à répondre au gouvernement à travers vous, naturellement mais vous pouvez déjà lui communiquer l'essentiel de nos observations puisque c'est vous qui avez accompli la mission. Je sais que vous ferez un rapport de mission, mais c'est simplement pour qu'à l'avenir nous soyons fixés. Notre Commission comme je vous l'ai dit tout à l'heure, est en train de mettre petit à petit au point ces différentes méthodes de travail. Vous allez nous aider justement pour que ces pratiques puissent être fixées et nous voulons les fixer dans la bonne direction, et je pense que ce que nous souhaitons, s'inscrit dans cette bonne direction, c'est à dire si nous pouvons avoir un texte écrit. Ce qui nous permettra donc, au moment de répondre à l'Etat Ghanéen, de nous référer à telle ou telle réponse que vous nous avez donné en son nom. Je ne veux pas dire que ça risque de poser des problèmes, mais je crois que il n' y a pas de difficultés de ce coté là.
Bien Monsieur l'Ambassadeur nous en avons terminé et je pense que nous nous reverrons à un autre moment. Je vous remercie.
UMOZURIKE:
The direct answer to his question, Mr. Chairman, is that guidelines were sent to all states presumably at a time when Ghana had not ratified and possibly may or may not have got it, but I thought that guidelines were sent to all states, it must be in some ministry either Foreign Affairs or Attorney General. These guidelines really spell out many of the questions we have made, we have put to him - the documents wanted like the Constitution, the basic documents, they are all in the guidelines. So we either can send another guidelines to Ghana or call its attention to the one that has been sent. Thank you.
NGUEMA:
Mais Monsieur l'Ambassadeur le sait puisque il est l'envoyé de l'état du Ghana. L'état du Ghana ayant recu ces documents, c'est qu'il a du lui communiquer. Bon, si cela n'a pas été fait, ça ne rentre plus dans nos préoccupations. Ça c'est un débat, je pense que nous pouvons lever la scéance pour cinq minutes de suspensions. Monsieur l'Ambassadeur, je vous remercie une dernière fois.
African Charter on Human and Peoples' Rights
clawback clauses (18)
implementation of (16-18)
incorporation of (18), (24)
see also national human rights commissions
African Commission on Human and Peoples' Rights
role of (21) see also state reports
African culture (22), (30) see also traditional practices
African unity (20), (35)
Bar association (17)
Children's rights (33)
Colonialism (21)
Constitution (16), (17), (22), (24), (31), (33), (37)
see also government
Convention on the Elimination of Racial Discrimination (29)
Courts (20)
ajudication of rights in (17), (24), (34), (36), (37)
judgements of (22)
see also judicial independence
see also special tribunals
see also national human rights commissions
Democracy
transition to (20)
see also elections
see also multipartyism
Detention
arbitrary (40), (41)
Discrimination
ethnic (21), (33)
Duties (20)
Economic, social, and cultural rights (19), (21), (35)
ECOWAS (35)
Education
for human rights (19)
right to (19), (32)
system of (38), (39)
see also literacy
Elections (34) see also democracy
Expression, freedom of (23)
demonstrations (17), (23)
libel (31)
Fair trial
right of appeal (22)
see also special tribunals
see also courts
Government
military (20)
see also democracy
Health
right to (19), (32)
IMF (19)
Judicial independence (16), (20), (25), (34) see also courts
Law
annexed to state reports (18), (31)
Legal aid (38), (39) see also fair trial
Literacy (22)
Multipartyism (20), (34)
National human rights commissions (17), (19), (22), (24), (33)
Nkrumah Kwame (19)
Non-discrimination, right to (32)
Non-governmental organizations (NGO's) (18), (41)
providing information additional to state reports (30)
relations with government (20), (23), (35)
OAU (22)
Peoples' rights (19), (33)
Police
human rights abuses perpetrated by (40)
Political parties (17), (20), (23), (34), (37), (38)
Promotion of human rights (22)
African Day on Human and Peoples' Rights (19)
see also national human rights commissions
Right to life
capital punishment (22)
Special tribunals (25), (39), (40)
State reports
absence of state representatives (22)
appellation of (15)
as dialogue (15), (21), (30), (41)
content of (24)
delegation presenting (15), (17), (22), (27), (42)
follow up (23), (26), (41), (43)
general directives for preparation of (22), (43)
honesty in (15)
initial (15), (16), (18), (20), (22), (24), (31), (36)
overdue (18), (21)
periodic (18)
preparation of (23), (36)
procedure of examination (16), (21), (26-28), (41), (42)
providing information additional to state reports (30)
questions prepared in advance (26), (28), (29)
Secretariat's handling of (29)
translation of (25), (26)
Structural adjustment (19), (32)
Traditional practices (35), (38), (39)
treatment of widows (33), (36), (37)
trikosis (19), (34)
UN Human Rights Committee (27)
Universal Declaration of Human Rights (20), (21)
Women
education of (35)
rights of (19), (33)
see also traditional practices
Work, right to (19), (31)
World Bank (19)
APPENDIX
Periodic Report of Ghana