Granting more powers to CHRAJ to promote human rights

In 1993, the Commission on Human Rights and Administrative Justice (CHRAJ) received a resounding endorsement from the public, who hailed it as a long-awaited solution to pressing issues of corruption, abuse of power and human rights violations in Ghana.

However, citizens appeared to have lost confidence in the Commission’s ability to ruthlessly deal with corrupt public officials soon after it was created. Many felt that the Commission had not lived up to expectation. But what was the basis of this expectation?

Citizens’ expectation
Many are aware of the landmark Re-Akoto case (1962) that challenged the constitutionality of the Preventive Detention Act (PDA), 1958, which gave powers to the government to detain individuals without trial.

In Re-Akoto, a political opponent of the government was detained under the PDA. He challenged the law, arguing that it violated his fundamental human rights and freedoms, including the right to free trial.

The Supreme Court ultimately ruled in favour of the government, upholding the PDA as constitutional. The government’s ability to detain individuals without due process or judicial oversight raised concerns about executive overreach, authoritarianism and the erosion of civil liberties.

Thus, in 1993, CHRAJ was established with a deliberate attempt to ensure that the executive arm of government does not abuse the fundamental human rights of citizens, following concerns about arbitrary detentions, torture and other human rights violations under the previous military regimes.

Territorial boundaries
Per Section 7 of the CHRAJ Act, the functions of the Commission are purely investigative. Notwithstanding, Section 8 of the ACT provides for some Special Powers of Investigations such as the power to issue subpoenas, to cause any person contemptuous and to question any person in respect of any subject matter under investigation.

Notwithstanding, it is important to recognise that the Commission has some limitations, too. In the case of Commission on Human Rights and Administrative Justice (No. 1) v Attorney-General (No.1) [1998-1999] SCGLR 871, the main issues considered by the Court were: whether or not the Commission has the power of review and supervisory jurisdiction over the decisions of such other courts and tribunals.

In delivering a unanimous decision, the Supreme Court outlined that CHRAJ, though it had the power to enforce its decision and recommendations, has no enforcement mechanisms of its own.

Also, in the case of Republic v High Court Accra; Ex Parte Commission on Human Rights and Administrative Justice (Richard Anane Interested Party) [2007-2008] SCGLR 213-369 the central issue decided before the Supreme Court was whether or not within the meaning of Article 218 (a) of the 1992 Constitution, CHRAJ was authorised to conduct investigation only upon the receipt of a former complaint made by an identifiable person or whether it may also do so on the basis of informal complaints made through the media and other public fora especially in matters relating to violations of fundamental rights and freedoms, injustice corruption, abuse of power and unfair treatment?

In its ruling, the court highlighted that in the absence of a formal complaint by an identifiable complainant (as in the instant case), CHRAJ had no jurisdiction under Article 218 (a) or

(b) to make definitive findings, draw conclusions and proceed to apply those far-reaching powers under Article 218 (d).

Social obligation
Although Ghanaians placed immense faith in CHRAJ, expecting an independent institution that would boldly tackle administrative injustices, the expectations exceeded CHRAJ’s legally defined mandate, creating a significant gap between expectations and reality. CHRAJ’s powers are significantly curtailed by the operation of law, limiting its ability to fully deliver on its promises.

The Commission’s lack of jurisdiction to investigate a case without former complaint renders its efforts to fight corruption impotent. While the Commissioner has powers equivalent to that of an Appeal Court Judge Sect 3(1)(a) 4(1) of ACT 456, its findings are enforced by the High Court. Notwithstanding, the High Court must find such findings “credible and of urgent need of enforcement”.

That, despite CHRAJ’s impressive record in promoting and safeguarding fundamental human rights of citizens, its anti-corruption efforts have been hindered by limited jurisdiction.

Though the Commission is rendered impotent, it’s been given the arduous task to sterilise corruption, which has plagued the nation’s institution for years. To cure this, there would be a need for constitutional reforms to grant CHRAJ greater autonomy and powers. CHRAJ’s dedication to human rights has earned them a reputation as a trustworthy and reliable partner capable of fighting corruption.

The writer is with the Formed Police Unit (FPU),
E-mail: [email protected]

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