Last Day at HRAC

After 5 weeks, I’ve reached my final day with HRAC and the final day of my stay in Accra, generously supported by the Commonwealth in England Barristers’ Association (see post ‘Opportunities for Young Lawyers’ for more information). HRAC gave me a great send off. Although the working day normally finishes at 4pm, the team all stayed on for another hour or so for a farewell gathering, which included mouthwatering but very spicy kebabs for all to enjoy, a few bottles of lager, and one of the biggest cakes I’ve ever seen. I was also given a farewell gift: a red and white HRAC t-shirt. I hope there’s space for it in my backpack, considering all the clothes I’ve had made in the last five weeks (see post ‘Fabric  Shopping’ for more on this)!

I thought this would be a good opportunity to do a brief recap of everything (work-related) I’ve managed to cram into the past month. Most of what I have done has been detailed at length in previous blog posts, but not everything.

Drafting a paper on LGBT rights in Ghana

This was my first piece of work – totalling nearly 40 pages in length – and drawing extensively on work I have previously done with the Human Dignity Trust and the Center for Gender and Refugee Studies. 

The paper outlines the international, regional and domestic legal framework in respect of the criminalisation of homosexuality in Ghana. It also addresses recent anti-LGBT laws passed in Uganda and Nigeria and argues why it would be folly for Ghana to follow suit, taking into account its international obligations and rights protected by its own constitution.  The paper will be used by HRAC as an advocacy tool and will be submitted to the Ministry of Gender.

Research and proposals on disability rights in Ghana

I prepared a briefing paper on the socioeconomic rights of disabled people in Ghana, written for and submitted to the US Embassy. Following submission, the Embassy asked HRAC to put together an expression of interest for project funding. I had to quickly plan and cost a project and put together that proposal. I have recently discovered that the proposal was accepted by the Embassy and will be implemented in 2015.

Human Rights Clinic

HRAC runs a legal advice clinic, providing assistance to the general public. I shadowed and took notes for a few advice sessions. One case concerned an employment matter, and another concerned a matrimonial dispute. The latter I found particularly interesting and more information can be found in my post ‘Family Law in Ghana’.

Kewunor Dispute

I prepared a report for the Human Rights Clinic after having met with a client in Ada Foah who, along with 1500 others, was at risk of being forcibly evicted from his home and business in Kewunor. I visited the village and met with local residents. The paper traces the complex land history and is now with a local human rights lawyer, who has agreed to take up the case.

The Constitutional Review

In this paper – also totalling close to 40 pages – I considered the recommendations of the Constitutional Review Commission and their compatibility of the proposed new Constitution with Ghana’s international obligations. As the CRC’s recommendations are numerous, I only focussed on a few discrete areas, with other colleagues focussing in on other areas. My areas of interest included:

• the CRC’s recommendations regarding citizenship;
• the CRC’s recommendations regarding the death penalty and the punishment of life without parole;
• the CRC’s recommendations regarding pre-charge and pre-trail detention;
• the CRC’s recommendations regarding the arrest and detention of disabled people;
• the CRC’s  recommendations regarding discrimination against LGBT people;
• the CRC’s recommendations regarding fair trial rights;
• the CRC’s recommendations regarding children in court – including best practice in determining the age of juveniles, and obtaining children’s best evidence in court; and the CRC’s recommendations regarding trial time limits.

Court Visits

As well as the above, I also attended court on a few occasions. Twice I attended the Gender Based Violence Court to provide support to the mother of the complainant and to take a noting brief in a case in which HRAC was intervening. The case concerned the alleged rape of a young girl, and my observations are detailed in previous posts.

I also arranged a visit to the Supreme Court complex independently of my time with HRAC. This is also detailed in a previous post.

In retrospect, that was a busy month indeed! 

Forced Evictions

My trip to Ada Foah (see previous post) wasn’t all pleasure. Some work was involved. I was meeting with Wilfred Dzinado, the owner of Maranatha Beach Camp. He had, a few weeks ago, called the Human Rights Clinic at HRAC requesting help for a human rights complaint. I was there to investigate. His story is both sad and complicated, and should make us give careful thought to who really benefits from western style development.

This is Wilfred’s story.

Wilfred has owned the Maranatha Beach Camp in Kewunor Village, on the easternmost island of the peninsular of Ada Foah, for some 10 years. His camp is right next door to another, Midan Beach Camp. Both provide simple accommodation in reed huts, aimed at Ghanaian and international budget travellers and volunteers. The profits from Maranatha Beach Camp are ploughed back into the community in Kewunor. In particular, the profits fund the village school. Wilfred is currently in the process of building a new school structure, made from concrete rather than reeds. Maranatha Beach Camp profits also pay the school’s teachers. Many people from Kewunor are employed by Wilfred’s Camp.

The Bradt Guide to Ghana, the leading English-language travel guide for the country, describes Maranatha Beach Camp as follows:

“Located 2km southeast of town [Ada Foah], right next door to the Midas New Estuary Beach Club, this lusciously laid-back resort has an equally attractive location and is pretty similar in feel, though the reed huts, with mosquito nets above the beds and brightly painted world flags on the front doors, have sand floors only. Compost toilets and bucket showers. A portion of the proceeds is ploughed into local community projects such as turtle conservation and the maintenance of a school in the nearby village.”

However, the land underneath Kewunor Village has a complex history.

The tiny village of Kewunor is just a stone’s throw from the slightly larger Azizanya village, both of which lie in a municipality now known as Ada, or Dangme East District. The municipality was settled by four Dangme-speaking clans who, many, many years ago migrated from Lorlorvor, near the Shai hills, and were drawn to the area by the Songor Lagoon.  The territory was divided among the four clans, including the Lombiawe clan and the Dangmebiawe clan.

After the Katamanso War in 1826, Nene Tetegah of the Lomobiawe clan founded the town of Ada Foah. Since then, the whole of Ada Foah has been owned by the Tetegah family.

Kewunor itself was settled by Emmanuel Yetiekpor, an Ewe fisherman, in or around 1909. At that time Yetiekpor and his family lived on a portion of the land that is now in the sea. Under the authority of the Ada Foah chief (a member of the Tetegah family), Yetiekpor became the first chief of the Kewunor. The current village settlement was established in the 1940s. Yetiekpor’s descendants remain chiefs of the village. Today, the village is home to around 1,500 people.

In 1974, under an Executive Instrument dated 26 April, the Ghana Tourist Authority (GTA) acquired the island of Kewunor from the Tetegha family for use in tourism development. The land was surveyed, coconut trees counted, and full monetary compensation paid to the Tetegah family. However, the project was abandoned and the government has made no use of the land they acquired. All the while the people of Kewunor have resided there and cared for the land.

In 1990, the GTA under different leadership approached the Tetegah family requesting additional land. The family refused to give them more land, citing the government’s failure to develop the land it took in the 1974 acquisition.

In 2009 the Dangmebiawe clan of Ada entered into discussions with a major development compnay, to sell a parcel of 178 acres in Azizanya (including Kewunor) for the development of a luxury tourist resort. The Dangmebiawe Clan also began corresponding with the GTA, requesting the return of the piece of land acquired by the government under the 1974 Executive Instrument, claiming that the land was wrongfully acquired. In a letter from Atsu Gorleku & Co., the lawyers of the Dangmebiawe clan, to the Ministry of Tourism dated 3^rd August 2010, they claimed that the government in 1974 wrongfully paid compensation to William D. Nanor (a member of the Tetegah family). This, they say, was a fraudulent acquisition, because the Tetegah family did not own the land. However, others claim that the Tetegah family did, in fact, own the land and that the acquisition was therefore legitimate. Although a record of the sale no longer exists (if it ever did), a site plan constructed in 1931 to settle boundary disputes between Futuenya and Ada Foah reflects the Tetegah family as the rightful owners.

After executives of the development company discovered that the parcel of land in question was vested in the name of the GTA, they began dealing with the GTA directly. This prompted several letters from the Dangmebiawe clan to the Ministry of Tourism. In January 2011, Nene Osabutey Lamuer Okumo III (divisional chief and head of the Dangmebiawe clan) sent a letter to late President John Evans Atta Mills requesting the release of the Azizanya land to the Dangmebiawe, and in September of that year he sent a further request to the Lands Commission to release the land to the development company, following a settlement between the clan and the company.

In August 2012 the GTA sent a letter with an attached site plan to the Lands Commission requesting a lease on the Kewunor land so they could sub-lease it to the development company. The request was approved in December 2012. The Ghana Tourist Authority was granted a Government Mixed Use Lease on 72.94 acres of land in Azizanya for a period of 50 years. The lease was to take effect on 1^st August 2012.

In October 2013, the development company sent a formal vacate notice to Kewunor Acting Chief Torgburi Badzi insisting that all structures be removed from the site within 30 days. On 20^th November the company held a sod-cutting ceremony* on the premises of Midas Beach Camp, to which they invited Azizanya Assemblyman Tettech Akli to appear as an honoured guest, but failed to notify the people of Kewunor and proprietors of Midas and Maranatha Beach Camps.

As the situation currently stands, according to Wilfred, no proposal for compensation has been made to the 1,500 people in the Kewunor community who will be displaced if the luxury development goes ahead. A proposal for relocation has been made to a site very close to Kewunor. However, the site is extremely small and would not host the entire community. Moreover, the proposed area in a natural lagoon. During high tide, the site is underwater.

Wilfred has been offered compensation of GHC 30,000 (£6000) but no relocation proposal. He is not willing to accept this offer, which is inadequate compensation for the destruction of his entire livelihood.

The community has many complaints about the proposed development, aside from failure to relocate and failure to provide any or any adequate compensation. At present, Midas and Maranatha Beach Camps are frequented by the community. New luxurious resorts will be out of reach of the average Ghanaian. Wilfred believes that local people will not be allowed to frequent the resorts.

The community make their livelihoods from fishing. They are uniquely situated on a narrow stretch of land with the ocean on one side and the Volta river on the other. It is unlikely they will be able to continue their fishing businesses in another location.

The community houses a school which is funded from Maranatha Beach Camp’s profits, and maintained by volunteers who stay at the camp. If the Camp no longer exists, the lifeblood of the school will be cut off.

The development company has said that their development will open up job opportunities for local people. However, the community are fishermen and will not have the relevant skills for working in the new development.

The proposed area for development is also a turtle nesting site, where giant turtles breed from August to December. The development may therefore have a major environmental impact. Moreover, Maranatha Beach Camp helps to fund turtle protection in the local area.

Wilfred is of the view that his community are being targeted because they are seen as “outsiders”. There is other land in the area that is currently not developed and where no one lives that the company could consider for their resort. The village of Kewunor is primarily Ewe speaking, whilst those in the surrounding area speak Ada. Mr Dzinado says that he thinks this is one of the reasons that the District Assembly has failed to fund schools in Kewunor and why they are willing to sacrifice their land.

The issue is enormously complex, but I am moved at Wilfred’s commitment to his cause. Meeting him and working on trying to understand the case was the most rewarding work I have done in Ghana so far. HRAC is now taking up this case. 

*A sod-cutting ceremony is a traditional ceremony that celebrates the first day of a construction project.

Gender-Based Violence Court 2

I’ve been back to court to follow the continuing case I shadowed last week (see previous post of same title). Today the Defence opened its case and my role was purely to take a note of the evidence and also to provide some moral support to the mother of the alleged victim in court.

We stood outside in the heat for a while before entering court as the evidence of a child in another case was in progress and the judge had ordered the court to be cleared. I am pleased that the privacy of the child and protecting the child from intimidation was rightly considered by the judge, absent any formal guidance of how to approach such cases. I raised this concern in my previous post.

Again, prior to our case being called I sat through several other cases, of which one witness was heard in each case prior to it being adjourned for a week or so. I was disappointed by the prosecutor – who had the unenviable task of prosecuting each and every case in that court. That’s a big case load. I was disappointed as her cross-examinations consistently failed to build up a case. There was no “boiling the frog”. In fact, in many cases, I was at times unclear as to whether she was making a cross examination or an examination in chief!

Life Without Parole

Between my court visits and Human Rights Clinic shadowing, I have been working on an opinion for HRAC on the Constitutional Review Commission’s recommendations for the new Constitution (see post here http://theflyinglawyer.blogspot.com/2014/07/hrac-my-second-assignment.html).

One of the recommendations that particularly struck me was that the death penalty be abolished and be replaced with the punishment of life without parole. Whilst the formal abolition of the death penalty is, in my opinion, undoubtedly a good thing (Ghana has been abolitionist in practice since 1993), I was concerned that the Commission advocated the sentence of life without parole without any analysis of the human rights implications of imposing such a sentence.

The attraction for the CRC of recommending life without parole as an alternative to the death penalty is understandable. It would allow the government to clam they are protecting the public by permanently removing serious offenders from society and appeases public outcry at the release of convicts on parole. However, the reality of the alternative punishment is frequently a protracted, hopeless death in unspeakable conditions (for more on this see this article by Garden Court Chamber’s Tom Stoate http://www.theguardian.com/profile/tom-stoate). This has serious human rights implications which have not at all been addressed in the CRC’s analysis.

Whole life sentences, for example, fail to take into account an individual’s capacity for redemption and rehabilitation, something of which there is growing legal recognition. Although and individual’s right to liberty under Art. 9 of the International Covenant on Civil and Political Rights (ICCPR) is a qualified right, and can be deprived in accordance with the law on the basis of ensuring public safety; where an individual no longer represents a threat to society and has demonstrated genuine remorse, any further period of imprisonment may be deemed arbitrary and thus unlawful. Art. 10 ICCPR states that detained persons must be treated with human dignity, and arbitrary incarceration is cruel and undignified.

There is a growing body of case law condemning the use of whole life or other indeterminate sentences. For example, in James, Wells and Lee v the United Kingdom (2012) ECHR 1706,  the European Court of Human Rights ruled “arbitrary and unlawful” the operation of indeterminate sentences, currently being served by prisoners in England and Wales. Justice Bratza, the President of the Court said:

“I consider that the time has come when the court should clearly affirm that the imposition of an irreducible life sentence, even on an adult offender, is in principle inconsistence with article three [freedom from torture or cruel, inhuman or degrading treatment or punishment] of the [European] convention”.

In 2006, Lord Phillips, former President of the Supreme Court of England and Wales said:

“Some murderers are being sentenced to a minimum of 30 years, or even full-life terms. But I sometimes wonder whether, in 100 years’ time, people will be as shocked by the length of sentences we are imposing as we are by some of the punishments of the 18^th century.”

In Vinter v the United Kingdom [2012] ECHR 61, the Grand Chamber of the European Court of Human Rights held that whole life sentences, where the prisoner has no hope of release, were inhuman and degrading and therefore unlawful. The Court held that for the Convention to be compatible with the European Convention, there had to be both a possibility of release and a possibility of review.

Art. 10 ICCPR states that the “essential aim” of the penitentiary system is “reformation and social rehabilitation”. The essential aim is not, therefore, punishment or revenge. Imprisonment for life with no hope of parole destroys any possibility of social reformation. Nowhere is this clearer than in the case of Douglas Vinter, who was sentenced to whole life imprisonment in the UK after committing a double murder. In a letter he wrote to the Guardian newspaper he said:

“I am sitting in the segregation unit and have been for a number of weeks. I was involved in a stabbing (not fatal) on the wing. You see how I can admit in a letter to an offence as serious as that. It’s because the judge when he sentenced me to natural life gave me an invisible licence that said I can breach any laws I want, no matter how serious, and the law can’t touch me. I’m above the law. I said to the governor, don’t waste any money on investigations, just give me another life sentence for my collection. They don’t mean anything any more.”

Whole life sentences are even more disturbing when they are made mandatory, and there is a growing body of case law which indicates that the imposition of a mandatory life term of imprisonment offends the principles of a fair hearing. This is particularly so where a sentencing hearing gives the court no scope to mitigate a life term regardless of an individual’s personal circumstances and the circumstances of the offence for which they fall to be sentenced. In The State v Vries [1997] 4 LRC, the High Court Namibia held that a mandatory minimum sentence was unconstitutional as it infringed the protection against cruel, inhuman and degrading treatment guaranteed by Art. 8(2)(b) of the Constitution. This was followed in State v Likuwa [2000] 1 LRC 600, where mandatory minimum sentences were struck out for all purposes.

Lord Bingham, sitting in the Privy Council in the De Boucherville case said:

“The sentence of life imprisonment is now the most severe penalty for which the law provides. There is ground for concern if the sentence is imposed on those who, despite the seriousness of their crime, could be adequately punished by a determinate sentence. Indeed, any mandatory or minimum mandatory sentence arouses concern that it may operate in a disproportionate manner in some cases. It was considerations of this kind which led the Supreme Court of Canada to conclude that a mandatory 7 year minimum sentence for importing drugs was incompatible with section 12 of the Canadian Charter of Rights and Freedoms, which guaranteed that no one should be subjected to cruel and unusual treatment or punishment: R v Smith (Edward Dewey) [1987] 1 SCR 1045.”

The Statute of the International Criminal Court, which deals with the grossest offences, including genocide, provides for a maximum of 30 years imprisonment. Even this can only be justified by the “extreme gravity of the crime and the individual circumstances of the convicted person”. 

The Gender-Based Violence Court

The Ghanaian government seems to be taking genuine steps to address issues of gender-based violence in the country. In February 2013 a new ministry for Gender, Children and Social Protection was created with a mandate committed to ensuring gender equality, the promotion and protection of children, and the empowerment of the vulnerable through social protection interventions. The current Minister with this portfolio is the founder, and former director, of the Human Rights Advocacy Centre, where I am currently volunteering.

There has been a push towards tackling violence against women and girls and violent acts against women and girls are criminalised in the Children’s Act, the Domestic Violence Act, the Human Trafficking Act, and amendments of the Criminal Offences Act. Customary servitude and Female Genital Mutilation (FGM) are also criminalised.

Despite these laws, women and girls in Ghana remain adversely affected by sexual abuse, physical violence, harmful traditional practices, child labour, and socio-economic violence. In 2011, the Domestic Violence and Victim Support Unit of the Ghanaian Police recorded 12,906 cases of various forms of violence against women nationwide.

HRAC recently carried out research into violence against girls in schools, which revealed that 52 per cent of girls surveyed had been victims of violence in school and 14 per cent had experienced sexual abuse. HRAC also carried out research into spousal murders, which revealed that two spousal murders are reported every month in Ghana.

However, as stated above, initiatives are being taken with the aim of combating gender-based violence. For example, there is now a Domestic Violence and Victim Support Unit within the Ghanaian Police, with 97 offices nationwide. Police, healthcare providers and social welfare officers now receive training in gender-based violence. There are also now two specialist gender-based violence courts: one in Accra and one in Kumasi. It was the Accra court that I had the opportunity of visiting.

The gender-based violence court is interesting in that it has both civil and criminal jurisdiction. Its focus is mainly, though not exclusively, on offences stipulated under the Domestic Violence Act 2007 (Act 732), including physical abuse, sexual abuse, economic abuse, emotional, verbal or psychological abuse occurring within the context of a domestic relationship. It also deals with gender-based violence cases arising outside of domestic relationships, including defilement, rape and indecent assault. Under its civil jurisdiction it deals with matrimonial and adoption cases.

The reasoning behind having a specialist court is the acknowledgment that sexual violence and domestic violence can often have a particularly harrowing effect on the victim and that justice should be served speedily and adjudicated by specialist judges.

I recently had the opportunity of accompanying one of HRAC’s Human Rights Clinic clients to the Gender-Based Violence Court. Her very young daughter is the complainant in a defilement case. Defilement, in Ghanaian law, requires carnal knowledge of a child under 16 years of age, with or without consent (s.101(2) Criminal Code, Act 29, 1960).

There were a number of things that initially struck me on arrival at court, aside from its very dilapidated state. The first was that, unlike any other court I’ve been to, there were no security guards or bag searches at the entrance. We just strolled in. The next thing that struck me was just how busy the courtroom was. The public gallery was packed. It was difficult for us to find a seat. Many cases are dealt with in a day and the defendants, rather than being in a dock, are all seated along the side of the room, in handcuffs, waiting for their case to be called. I noticed that one of the defendants was staring at me intensely for the entire morning. I wondered at the ability of someone to engage in a form of sexual harassment while waiting for his trial for gender-based violence to be called on.

I was surprised that all the day’s defendants were in court, along with their legal teams and many members of the public. Given that all the cases concerned gender-based violence, and actually all the cases I sat through that morning involved sexual assault on young children, I was surprised that the cases were heard in public at all.

I was also surprised by the way in which cases were listed. In the UK, of course, the preference is for a case to be heard as far as possible in one go, or at the very least over consecutive days without interruption. Perhaps an hour or so in the morning might be reserved for a judge to hear bail applications, but, by-and-large, once a judge and jury start to hear a case they will then continue to hear that case before starting on the next matter. In Ghana it is very different. In my few hours in court I must have seen tiny parts of seven or eight different cases. Each of those cases was part heard; a new witness was called; and then the matter was adjourned, sometimes for several months, before calling on the next witness. The reasoning for this appears to be a combination of (i) ensuring flexibility in order to encourage witnesses to appear; and (ii) making sure the trial at least begins expeditiously for the sake of both victims and remand prisoners. However, given that the trial can then last months, heard in extracts with week-long gaps in between, I wonder how expeditious this method really is. I also worry about the ability of the judge (there is no jury system in Ghana) to recall the facts and the evidence in each case, given it is so spaced out and so intermixed with other cases, often involving similar facts.

The first matter I heard was a sentencing in a defilement case in which the defendant had been found guilty of raping a five year old girl. The defendant stood quietly and was represented by his lawyer, who gave a very short plea in mitigation, which seemed to focus solely on the defendant’s young age. I was surprised that the lawyer in question didn’t make any other submissions in mitigation. The judge was robust in her answer. She stated that she found no mitigating factors whatsoever, and that as the defendant had abused a position of trust, and taking into account the very very young age of the defendant and the injuries caused to her, the offence was particularly aggravated. She commented that she was minded to impose a sentence of life, but instead imposed a sentence of 20 years with hard labour, less the one year the defendant had already spent on remand. There were gasps around the courtroom. This was the most severe sentence I have ever been privy to in a court anywhere in the world, including in cases of murder. It is sobering to witness a sentence like that being passed, no matter how heinous the crime.

Eventually our matter was called on. We had been concerned that our key witness, a doctor, had under cross-examination retracted all the evidence she had previously given in her medical report. We were therefore today waiting to hear if the defence would make an application of no case to answer, and if it would be accepted.

Unsurprisingly, the defence did make their submissions. The advocate emphasised the constitutional importance of the presumption of innocence, and the high burden to be met by the prosecution. The judge gave this short shrift, stating that this was not the time to make a closing speech. The question was not whether there was reasonable doubt, but whether the prosecution had made out a prima facie case. The trial would therefore continue. The matter was the adjourned for a week.

I was concerned to learn that the complainant, who is under 6, would give evidence. Trials involving such young children must of course consider their rights and it would be wrong to suggest their evidence should not be heard. What concerns me is the lack of guidance around how their evidence is put before the court. In the UK, a child's evidence in family proceedings would normally be obtained by a CAFCASS officer who would ascertain the views of the child. In criminal matters, careful consideration would first be given to whether the child was capable of giving coherent evidence, and the public interest (including the best interests of the child) in that evidence being heard. Any evidence would be given by pre-recorded video interview, so as to shield the child from the intimidating courtroom environment and, of course, prevent them from coming face-to-face with the alleged perpetrator. The proceedings would have to take into account the extensive Ministry of Justice guidance on obtaining best evidence. 

However, in Ghana is seems there is no guidance for dealing with child victims/witnesses. In cases involving a juvenile defendant, the case is normally heard in the judge’s chambers. In cases like defilement cases, where there is an adult involved, it is up to the judge to decide how to hear the evidence. This can result in children aged 5 giving evidence in open court, which as described above, might be full to the brim, noisy and intimidating, even for an adult. This is an area of concern.  

Family Law in Ghana

The Human Rights Advocacy Centre, as well as lobbying for political, policy and legislative change, also runs a clinic that provides legal assistance directly to members of the public. I had the chance to shadow one of the initial advice sessions.

For reasons of client confidentiality I cannot discuss the case in point here, other than in extremely broad terms. It was a matrimonial dispute and the session highlighted to me some of the difficulties faced by women in relationships that have turned sour.

Women in Ghana, who more-often-than-not occupy the traditional role of the homemaker, are often economically dependent on their husbands. They often have no independent means of income, have no bank account and no pension. This makes them very vulnerable in the event that a relationship comes to an end, or if they no longer wish to remain married owing to adultery, abuse or irreconcilable differences.

I was pleased to learn from HRAC’s lawyers, however, that Ghanaian divorce law does make provision of equitable division of assets on divorce. Ghana’s ratification of the UN Convention on the Elimination of Discrimination Against Women was instrumental in bringing about this change, and was heavily relied on in the landmark case of Mensah v Mensah J4/20/2011 (2012). This just goes to show the value of international agreements and obligations in bringing about domestic change. English case law was also, interestingly relied upon in that case.

Prior to Mensah v Mensah wives had to prove a substantial contribution to the acquisition of property in order to have any claim. The court’s conclusion in Mensah is a strong one:

“The Petitioner should be treated as an equal partner even after divorce in the devolution of the properties. The Petitioner must not be bruised by the conduct of the respondent and made to be in a worse situation than she would have been had the divorce not been granted. The tendency to consider women (spouses) in particular as appendages to the marriage relationship, used and dumped at will by their male spouses must cease. Divorce as Lord Denning stated long ago, should not be considered as a stigma.”

The Court also stated:

“[C]ommon sense, and principles of general fundamental human rights requires that a person who is married to another, and performs various household chores for the other partner like keeping the home, washing and keeping the laundry generally clean, cooking and taking care of the partner’s catering needs as well as those of visitors, raising up of the children in a congenial atmosphere and generally supervising the home such that the other partner, has a free hand to engage in economic activities must not be discriminated against in the distribution of properties acquired during the marriage when the marriage is dissolved.”

However, efforts at ensuring justice for women in divorce may sometimes be frustrated by lack of access to justice. One woman I spoke to reported that she attempted to secure a divorce over five years ago through the traditional family-based means of resolving disputes. She reported that she was unable to secure the divorce at all, let alone on equitable terms, as her husband is a family elder and therefore commands a great deal of authority. The family-based system, she says, is biased against her.

This highlights a key issue in community based justice, and an issue that far from being a Ghanaian problem is repeated around the world. Last year, when I visited the National Law School in Jodhpur, India, the exact same problem was iterated by an advocate I spoke with there. This makes me think very carefully about how far we should, as lawyers, be advocating moves towards alternate dispute mechanisms to resolve disputes. I worry about the oversight of ADR, and whether the “weaker” party really can access justice – especially if the parties are unrepresented. It is something to bear in mind as mediation, particularly in the family sphere, becomes increasingly common. 

Away Day in Gomoa-Fetteh

Friday was HRAC’s office away day – an opportunity for all the staff to get together for team building activities and discuss the future direction of the organisation. In reality, much more fun was had than work. That’s probably no surprise given that the venue for our teambuilding was Tills Beach in Gomoa-Fetteh, about an hour and a half’s drive west of Accra:*

 The beach is pretty spectacular and we spent the morning eating almonds and coconuts straight from the tree and messing around on the beach, before all sitting down together for lunch. I had my first experience of banku. Banku is a sort of dumping made from fermented maize, eaten with a variety of sauces. It as an overpowering fermented-sour taste that, I’m afraid, is not entirely to my taste. I washed it down with a delicious fresh coconut.

During the afternoon we split into teams and worked together on team building activities, including building very unsuccessful miniature structures from pieces of paper. It’s a good thing we’re human rights specialists and not required to involve ourselves in artistic or structural endeavours:

We also discussed how the organisation can function better. Lots of ideas came out, including fostering more collaborative work between permanent staff and volunteers, and allocating people to specific projects for the duration of their time at HRAC, in order to develop skills and really make good use of people’s time. There were also concerns voiced that once volunteers leave, the work they have done also disappears, and that it was important to develop a way of ensuring the sustainability of work carried out.

*Visitors should be advised that there are strong rip tides here. Ask local advice before swimming

Disability Rights in Ghana

On Friday, I was asked to pull together a briefing paper for the US Embassy on the socioeconomic rights of disabled people in Ghana. This was a challenge. I only had about 3 hours to carry out all the necessary research and write the paper, and power was out and the internet was down for most of that time. Still, I managed to put something together before the deadline was up. Some of what I learned was really very interesting indeed.

Unsurprisingly, in Ghana persons suffering from both physical and mental disabilities constitute an impoverished marginalised group, characterised by lack of access to public health, education, and other social services that would ideally promote, support and protect the socioeconomic rights and realities of disabled people.

The legal framework protecting the rights of disabled people in Ghana has been poorly implemented, and rights provided for in law are frustrated in practice owing to lack of services, funds and facilities. Although District Assemblies (local government) are obliged to ring-fence 2 per cent of their funds for disability related issues, the Ghana Federation of the Disabled (GFD) has reported that in reality this rarely happens. Services for disabled people are therefore chronically underfunded.

A further problem is that disabled people and their families are simply unaware of legislation and government policies designed to assist them. For example, according to an administrative directive, persons with disabilities employed in the public sector are entitled to a disability allowance of 48 cedis every three months. This can be used for any purpose but might go towards home adaptations or mobility aids which are not covered by the National Health Insurance Scheme. The institutions where the persons with disabilities are employed are responsible for paying the allowance. This is the case only if the budgets are not exhausted, which means that in reality very few receive the allowance. Few persons with disabilities are aware of their rights as employees so few claim the allowance.

In 2006 Parliament passed the Persons with Disability Act (PDA). This is a commendable piece of legislation which includes provisions to promote and protect disabled persons rights in the fields of education, employment, transportation, access to public spaces, and medical care. The Act also provides guidelines for the public and private sectors on how they should respond to the needs of persons with disabilities, and creates the National Council on Disability, responsible for coordinating disability related activities in Ghana.

However, the Act has some significant shortcomings. For example:

• The Act mainly addresses matters relating to physical access to services with no mention of core rights relevant to persons with mental disabilities. For example, the community-based rehabilitation programmes provided for by the PDA is mainly restricted to the needs of the physically disabled without acknowledgement of the provision for community rehabilitation needs of people with mental disability.
•  The National Council on Persons with Disability is under-staffed and under-resourced.
• Vital legislative instruments have not yet been enacted. For example, no legislative instrument has yet been enacted regarding the Act’s provisions on free education for disabled people. It is therefore unclear at what level individuals will be able to access free education and what education will be covered. The legislative instrument regarding the Act’s provisions on tax rebates for employers of disabled people has also not yet been enacted, and thus the percentage tax rebate remains unconfirmed.
• Disabled people and the general public are unaware of the provisions of the Act, thus significantly hindering the realisation and enforcement of the Act’s provisions.

In 2012, Parliament successfully passed the Mental Health Act (MHA). The Act brings with it a raised prospect of the delivery of a better quality mental healthcare and also the protection of human rights of people with mental disorders in Ghana. It introduces a number of initiatives, such as the establishment of a Mental Health Authority and Visiting Committees to inspect hospitals and investigate patient complaints; and the recognition and protection of the human rights of persons with mental disabilities. Although this is an enormous step forward for Ghana, the MHA  also has some shortcomings. For example:

• it falls short of international best practice and the provisions of the UN Convention on the Rights of Persons with Disabilities as it allows for arbitrary detention of people with disabilities as well as removal of legal capacity, rather than supported decision-making; and
• although it applies to hospitals and clinics, prayer camps -  where very many mentally disabled persons are accommodated owing to prevailing beliefs that mental illness arises from evil spirits - fall outside the scope of the Act.

Learning about traditional healing and prayer camps was the most interesting thing I learned about during the course of my research. Both Human Rights Watch and HRAC have documented terrible abuses and harmful practices carrying on in traditional healing and prayer camps. These include patients being chained to trees outside in the heat/rain; patients being forced to remain there for months or years against their will; low standards of hygiene and sanitation; overcrowding; denial of medication, food and water; and mental and physical abuse. For more information about this see http://www.hrw.org/news/2014/03/10/ghana-monitor-mental-health-facilities

Yesterday, I was told that my briefing paper seems to have had an impact at the Embassy, and HRAC has, as a result, been asked to put together a proposal for funding from the Embassy for a programme of work surrounding disability rights. This was great news. The only catch was that it had to be submitted within 48 hours! I quickly sat down to work and put together a project proposal, with clearly stipulated objectives and activities.

As far as I can see, despite the much improved legal framework now in existence in Ghana, the rights contained in the above mentioned legislation will be rendered illusory without a public education initiative to educate both service providers and disabled people themselves about their legally enforceable rights.  Moreover, the availability of a legal forum where people can go to seek enforcement or redress to the breach of their rights, trained health/education/and justice professionals and administrators, and advocates to assist people in their representations, are necessary conditions for the successful implementation of both the PDA and the MHA.

My project therefore proposed the following objectives:

1. To educate disabled persons and their families on their rights under the law (including those with multiple needs, such as parents with disabled children or disabled LGBT persons).
2. To help disabled persons and their families seek redress for abuses of their rights.
3. To educate service providers, including health professionals, teachers, the police, and the prison service on promoting and protecting the rights of disabled people in Ghana.
4. To educate employers on their obligations under the PDA and how to make the workplace more accessible.
5. To provide training and written guidance to the judiciary on disability rights and best practice in access to justice for disabled people; and
6. to advocate for the promotion and protection of disabled persons’ rights with relevant government departments, and specifically to advocate for the enactment of necessary implementing legislation.  

My proposal included the following activities:

Educating disabled people and their families on their rights under the law

I proposed developing an outreach programme targeting separately persons with physical and mental disabilities. The programme should address:

• Challenging disability related stigma and specifically countering the idea that disability is a result of spirits or demons.
• Educating people on the key provisions of the PDA and the MHA, telling people in simple, accessible language what rights and benefits they and their loved ones are entitled to, how to request reasonable adjustments at work, and how to seek redress for abuses. Seminars should run, where necessary, with the assistance of counsellors, and in sign-language. Written guidance should also be made available in multiple formats, including oversize font and “easy read”. Seminars will also address the particular concerns of people with multiple needs, such as disabled women and parents with disabled children. Outreach sessions should be coordinated using HRAC’s existing networks, collaboration with service providers and other civil society organisations, professional associations, mosques and churches.
• Signposting people to reputable sources of help, including counsellors, psychiatrists, hospitals, employment offices, professional associations, and HRAC’s network of pro bono advocates.

Help disabled persons and their families seek redress for abuses of their rights

I proposed that HRAC train a specialist group of its existing network of pro bono lawyers on the content of the PDA and the MHA, as well as relevant international human rights law, so that they are able to provide representation to those in need. This should include providing training to advocates who themselves suffer from a form of disability.

HRAC could also training to HRAC’s mediators and paralegals at its Human Rights Clinic so that they are better able to support disabled people in resolving disputes without recourse to the courts. HRAC could also train its mediators and paralegals so that they are able to identify test cases or other cases that would benefit from a hearing in court.

Finally, I proposed providing training in disability law and disability rights to traditional community leaders, so that they are able to assist in resolving disputes in their own community, and also help combat the endemic stigma surrounding disability in Ghana.

In addition to the above, I proposed publishing comprehensive written guidance on relevant international law, the PDA and the MHA aimed at advocates taking disability cases, made freely available on our website, as well as designing training on disability and health law for students studying law throughout Ghana and take that training to the Universities. Training could be accompanied by a disability law handbook for university libraries and clinics, in order to ensure the sustainability of HRAC's work. HRAC is currently collaborating with universities so that law students can gain experience in the office at HRAC and develop hands-on experience in disability rights.

Educating service providers, including health professionals, teachers, the police, and the prison service on promoting and protecting the rights of disabled people in Ghana

I proposed that HRAC, in collaboration with the Ghana Bar Association and the Ghana Law School, provide training on the PDA, the MHA and international best practice in promoting, protecting and advancing disability rights. This will include training on human rights centered service provision, accessible buildings, how to make reasonable adjustments to accommodate disabled people, and placing the inherent dignity and autonomy of the person at the heart of public service. Simple, accessible publications will accompany training.

Training sessions should be tailored according to sector and could cover:

• Schools and education (specifically aimed at Parent-Teacher associations in special schools)
• Human rights centered approaches to health care provision (specifically aimed at health care providers, and especially in Ghana’s three psychiatric hospitals);
• Policing and prisons.

 Educating employers on their obligations under the PDA and how to make the workplace more accessible

Again, in collaboration with the Ghana Bar Association and the Ghana Law School, I proposed that HRAC provide training to employers on their obligations under the PDA and the sanctions they could face for failing in those obligations. HRAC will also draw attention to the benefits of employing disabled people and how to make reasonable adjustments to the workplace environment to accommodate disabled employees. Training sessions should be accompanied by written guidance, and made freely available on HRAC’s website.

Provide written guidance to the judiciary on disability rights and best practice in access to justice for disabled people

I also proposed that HRAC design manuals for members of the judiciary on the UN Convention on the Rights of Disabled People as well as the content of the PDA and the MHA. This will ensure that judges are well versed in the relevant legal and human rights framework so that they are able to effectively adjudicate cases, including in those instances where the applicant does not have the assistance of counsel.

HRAC could also provide seminars for those working in the court system best practice in enhancing access to justice for disabled people without legal counsel. For example:

• Ensuring hearings are accessible for the physically disabled by ensuring accessible courtrooms and/or alternative venue availability (including hospital-based hearings).
• Ensuring hearings are accessible for those with mental disabilities or learning difficulties by providing for the availability of medical professionals, counselors, or responsible adults who can provide support and translate legalese into simple, accessible language.

Advocating for the promotion and protection of disabled persons’ rights with relevant government departments

I also proposed that HRAC continue to lobby relevant government departments to ensure that the National Council for Disability and the Mental Health Tribunals receive adequate funding to fulfill their functions meaningfully. HRAC should also continue to lobby relevant government departments to ensure the full implementation of all the provisions of the PDA and MHA, and for the publication of appropriate statutory guidance.

My proposal is now with the accounts department who are costing my proposals before submitting it to the Embassy. Watch this space…

Human Rights Advocacy Centre: update

You will have seen from last week’s posts on the work I’ve being doing with the Human Rights Advocacy Centre (HRAC). I’m posting now to give an update on that work and also give an idea of the general office culture.

The office day starts early and runs from 8am – 4pm. This means lots of early starts. I wake up at 6.45am and am out of the door within an hour.

The atmosphere in the office is great. Everyone is very committed to their work and clearly enjoying what they do. Despite the formal office attire, it’s a laid back environment and there are lots of laughs throughout the day, especially at lunchtime when everyone comes together to eat their locally bought 2 cedi lunches of red red (a delicious paste made of beans and palm oil, served up with fried plaintain), spicy omelettes, jollof rice (rice with tomatoes, peppers, onion and spices) and fresh mangoes. My colleagues are a mix of Ghanaian staff and young Ghanaians doing their national service, as well as international volunteers. On Tuesday evenings everyone gets together to go out for drinks, and I am looking forward to this Friday, when we are all heading out of the office for a teambuilding office away-day.  

HRAC: My Third Assignment

My second assignment (relating to the Ghanaian Constitutional Review) has briefly been put on hold, owing to a request that came in this morning from the US Embassy. The Embassy has requested information on the government’s policies regarding the socioeconomic rights of disabled people in Ghana, and areas for potential improvement. I’ve been asked to work on this straight away as a matter of urgency. I’ll keep you posted.

The Ghanaian Constitutional Review

I have been asked to work on HRAC’s review of the Ghanaian Constitutional Review. Here’s a bit of background:

In October 2010 the late President, John Evans Atta Mills, inaugurated a Constitutional Review Commission (CRC). The purpose of the CRC was to solicit views from the public on the review of the 1992 Constitution of Ghana.

The CRC’s final report was submitted to the President in December 2011. The Government issued a White Paper in June 2012 accepting most, and rejecting a few, of the CRC’s recommendations for constitutional amendment. A Constitutional Review Implementation Committee (CRIC) was then formed in order to take preparatory steps, including drafting the appropriate bills, necessary to implement the recommendations of the CRC.

In March 2014 the Implementation Committee submitted a draft Bill for amendment of the Constitution to the Attorney-General.

The Bill proposes changes to 34 entrenched provisions of the Constitution, as well as inserting 7 new entrenched provisions.  Ghanaians will vote on the proposed changes to the 1992 Constitution later this year – the first time ever the Constitution will be amended via referendum. In order for amendments to be made, at least 40 per cent of the persons entitled to vote must participate, and at least 75 per cent of the people who vote must cast their votes in favour of passing the Bill.

In recent weeks civil society organisations have expressed concerns with the new Bill. One of the concerns that has been voiced is that the executive has had too much influence on the content of the Bill, through the CRC and the CRIC. There is concern that Parliament has not had enough of a role and that the referendum process is mere “rubber stamping” exercise, especially as several disparate proposed amendments will be voted on as a single issue. Civil society has also urged the need for much more public education on the content of the Bill prior to referendum. Because of these concerns many civil society organisations are now lobbying the Government urging a slow-down of Constitutional Reform.

I have been asked to consider the content of both the CRC review (which is huge – about the size of the Yellow Pages), the Government White Paper and the draft Bill itself. HRAC wants me to consider both the positive points and the shortcomings of the draft Bill in terms of its compatibility with Ghana’s international treaty obligations and public international law, for use as an advocacy tool. For example, the draft Bill takes a positive step forward in abolishing the death penalty (Ghana has been abolitionist in practice, if not in law since 1993). However, it replaces the death penalty with life without parole. This in itself may be deemed problematic in terms of international human rights law.

This is a big project and may take me until the end of my time in Accra to complete. Down to work…as soon as the power comes back on. 

Criminalisation of homosexuality in Ghana

Unfortunately, I had to take yesterday off owing to a bout of food poisoning. But now I’m fighting fit and back at work. I have finished my first assignment on the legal framework around the criminalisation of homosexuality in Ghana, Uganda and Nigeria.

The situation in Uganda and Nigeria has been well publicised. In February of this year the Ugandan President signed is assent to the Anti-Homosexuality Act (formerly known as the “Kill the Gays” Bill). Homosexual acts were previously illegal in Uganda, but the new Act goes much further towards criminalising homosexuality per se owing to the new offences of “attempted” homosexuality and “promoting” homosexuality. The offence of attempted homosexuality can be made out by any same-sex “touching”, by any part of the body, with any object or through anything, with "the intention of committing homosexuality”. It is therefore conceivable that arrests could be made for simply holding hands or hugging. NGOs working with sexual minorities to combat the HIV/AIDS epidemic, or landlords and families providing accommodation to LGBT people are now also at risk of being accused of “promoting” homosexuality.

The Nigerian Same Sex Marriage (Prohibition) Act was signed into assent in December 2013. This goes much further than simply criminalising same-sex marriage and, like the Ugandan Act includes provisions that will put NGOs and other organisations working to combat HIV/AIDS much more difficult. The Act also criminalises anyone who purports to be in a same sex marriage/civil union. The definition provided in the Act is so broad that it could include any two people of the same sex living in the same house, providing each other with mutual support – even if this is not a sexual relationship. The Act therefore places both homosexual and heterosexual people at risk of arbitrary arrest and detention and false accusations.

These are just a few of the difficulties arising from the Acts.

I was asked to focus on these areas as there is concern at HRAC that there is some appetite in Ghana for reactionary anti-homosexuality legislation to be passed. Consensual, private sexual acts between adult men is already criminalised in Ghana and is punishable by 5 – 25 years imprisonment. My analysis therefore also focused on the problems inherent in this aspect of the Ghanaian Criminal Code.

I considered two main areas:

• The compatibility of the Ugandan, Nigerian and Ghanaian law with their international treaty obligations; and
• The compatibility of Ugandan, Nigerian and Ghanaian law with their own constitutions.

My legal analysis concluded that the legislation in all three countries is deeply problematic. All three countries have ratified the International Covenant on Civil and Political Rights, which protects the rights to equality, dignity, privacy and freedom of expression, association and assembly. The United Nations Human Rights Committee, along with numerous other international and domestic courts and tribunals, has previously found that criminalising homosexuality breaches these rights (see Toonen v Australia UNHRC, Communication No. 488/1992, CCPR/C/50/d/488/1992, 31 March 1994).

All three countries have also ratified the African Convention on Human and People’s Rights, which also protects the rights to equality, dignity and freedom of expression, association and assembly. The African Commission has not expressly dealt with a case concerning the criminalisation of homosexuality, though it has made several pronouncements that national legislation that conflicts with international law is invalid (see for example Commission Nationale des Droits de l'Homme et des Libertés v Chad  Comm., No. 74/92 (1995); Media Rights Agenda and Others v Nigeria Comm., 105/93, 128/94, 130/94 and 152/96 (1998); Legal Resources Foundation v Zambia Comm., No. 211/98 (2001)). Earlier this year, the African Commission also passed Resolution 275 condemning discrimination on the grounds of sexual orientation and gender identity.

Finally, all three countries enshrine the rights to equality, dignity, and freedom of expression, association and assembly in their own Constitutions. Uganda and Nigeria also enshrine the right to privacy.

This is just a very brief summary of my complete analysis, which in the end amounted to 40 pages in total and included significant case law from the African Commission on Human and Peoples’ Rights, the UN Human Rights Committee, the Inter-American Court of Human Rights, the European Court of Human Rights, and domestic courts in Canada, the USA, Zimbabwe, South Africa, Fiji, India, the Philippines, Nepal, Ecuador and more.

It is intended that this document will be used as a lobbying tool for HRAC to assist in their LGBT advocacy efforts.

If anyone is particularly interested in this issue, I would recommend they visit the website of the Human Dignity Trust, which has a wealth of information available: www.humandignitytrust.org