FROM ARREST TO ADVOCACY: NAVIGATING HUMAN RIGHTS VIOLATIONS IN GHANA'S #STOPGALAMSEYNOW" MOVEMENT AND ITS POSSIBLE SUIT TO THE COMMISSION.

 

By Opoku Sarfo Kantanka[1]  and James Kwame Yeboah[2]

 

1.0 ABSTRACT

From the 21st to the 23rd of September 2024, some 53 protestors were arrested in Ghana during the #StopGalamseyNow demonstration, which aimed to halt illegal mining activities in the country. Following their arrest, these individuals faced various charges, including breach of public peace[3], and were detained beyond the constitutionally mandated 48-hour period[4]. Their legal representation argues that justice remains unserved, prompting considerations to submit a communication to the African Union (AU) Commission. This paper examines the eligibility criteria for such a complaint under the African Charter on Human and Peoples Rights.

 

This analysis evaluates whether the protestors' situation meets these criteria, focusing on the likelihood of their case being considered by the Commission. Given the alleged violation of their rights during the arrest and subsequent legal proceedings, this paper posits that the protestors may have a valid basis for seeking intervention from the AU Commission. Furthermore, it highlights the complexities surrounding the exhaustion of local remedies, particularly in cases involving systemic injustices and potential biases within the national judiciary.

 

Ultimately, this paper contributes to the discourse on human rights protections within the AU framework, particularly regarding citizens' rights to assembly[5] and protest.[6] By assessing the eligibility of the protestors’ case, it underscores the critical role of regional bodies[7] in addressing grievances related to human rights violations, offering insights into the intersection of national legal systems and international human rights mechanisms.

 

2.0 INTRODUCTION

The #StopGalamseyNow demonstration, which aimed at urging the government to take decisive action against illegal mining activities in the country, resulted in the arrest of 53 individuals, who were subsequently charged with various offenses, including stealing[8] and breach of public peace[9]. The legal repercussions were profound, as the protestors were detained beyond the constitutionally mandated 48-hour period and were later remanded in custody, awaiting further court appearances scheduled for the 11th and 12th of October, 2024. The protestors' legal team expressed concerns about the fairness of the judicial process, suggesting that justice may not be served, and is contemplating submitting a communication to the African Union Commission regarding the situation.

 

This paper aims to explore the eligibility criteria for submitting a complaint to the Commission under the African Charter on Human and Peoples' Rights (The Banjul Charter).

 

Given the context of the #StopGalamseyNow protests and the subsequent legal challenges faced by the demonstrators, it becomes essential to ascertain whether the conditions for submitting a communication to the African Union Commission are met. The complexities of local legal proceedings, the treatment of protestors, and the broader implications for human rights in Ghana warrant a careful examination of the legal framework governing the Commission's jurisdiction. This analysis will highlight the specific criteria outlined in the Charter, assessing whether the actions taken by the protestors and their legal representatives fulfill the necessary requirements for the Commission to consider their case. Through this inquiry, the potential for international legal recourse in response to alleged human rights violations in Ghana will be critically evaluated.

 

3.0 BODY

Within the period of 21st and 23rd September 2024, some 53 persons were arrested for having engaged in a protest which the police believed was prejudicial to public peace. The said demonstrators embarked on this protest dubbed #StopGalamseyNow where some Ghanaian citizens were calling on the Government of Ghana to halt all activities of illegal miners locally called Galamsey.

 

Individual protestors were charged with different offenses including but not limited to Stealing[10], Breach of public peace[11] and others. These protestors were arrested and detained beyond the 48-hour period as stipulated in the 1992 constitution of the Republic of Ghana[12].

 

Eventually, the protestors were arraigned before circuit court in Accra. After long hours of legal battle, the protestors were remanded in prison and are to appear before the court on 11th October and 12th October. The lawyers for the protestors were of the view that justice have not been served and is likely not to be served even after further appeal and are considering making a communication to the African Union Commission.

 

In light of the above, this paper will thus examine the eligibility criteria for making a complaint at the African Union commission and whether or not those eligibility criteria are met to warrant the commission to hear the communication.

 

3.1 COMMUNICATION TO THE COMMISSION

Under the African Charter on Human and Peoples Right (hereinafter called the charter), there are two types of communications (Complaints) that can be received and adjudicated by the commission subject to some criteria to be fulfilled.

These communications includes:

 

1. Communications from states.[13]

2. Other communications.[14]

 

3.1.1 COMMUNICATIONS FROM STATES

Under article 47 of the charter, a state who have good reasons to believe that another state has violated or is violating or is about to violate any provisions of the charter, has a duty to either write to the violating state to draw its attention of the state to that matter. That same communication shall also be addressed to the Secretary General of the OAU and to the Chairman of the Commission.[15]

 

The burden is on the receiving state to write back within three months after receiving the communication, to the state that has drawn its attention, and explain the matter succinctly to that state[16]. The second communication should include relevant information relating to the laws and rules of procedure applied and applicable and the redress already given or course of action available.[17] It should be noted that member states of the African Union cannot refer to their local laws to violate the rights of individuals in its territories, once that specific right has been captured by the African Charter on Human and Peoples’ Right (The Banjul Charter) or better still, the African Union Charter.

 

Moreover, notwithstanding the above, a state who has good reasons to believe another state is violating the Charter, can make a complaint against that state directly by addressing that communication to the Chairman of the commission, to the Secretary General of the Organization of African Unity, further to the state involved for an adjudication of the matter by the Commission.[18]

 

However, it appears from article 49 of the Charter[19] that the only criteria to be met before a state can make a complaint is that the state has to be a state party to the Banjul Charter.

 

3.1.2 OTHER COMMUNICATIONS

Under the Charter, the commission can also hear other communications. This type of communications are those communications coming from other parties other than a state party to the charter.

 

From article 56 of the Charter[20], there are seven criteria to be met before the commission will hear other communications. These criteria are explained below:

 

The author(s) should not be anonymous.[21]

This criterion suggests that the party bringing the communication to the commission must add his or her name even if he or she requests anonymity. The author must not necessarily be affected or be a victim before he or she can have the right to make a claim before the commission.  This principle was stated in the case of Social and Economic Rights Action Center (SERAC) v. Nigeria. [22]

 

The case of SERAC v. Nigeria[23] emerged from severe human rights violations faced by the Ogoni people in Nigeria, who protested against environmental degradation due to oil extraction activities in Nigeria.

 

In this case, the Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social Rights brought the complaint against Nigeria on behalf of the Ogoni community. A critical aspect of their communication was that the authors were clearly identified. This transparency aligned with the admissibility criteria under Article 56 of the African Charter on Human and Peoples' Rights, which states that authors of communications should not be anonymous.

 

The rationale behind this criterion is to ensure accountability and credibility. By identifying themselves, the authors allowed for a more robust investigation of their claims, enabling the Commission to engage with them directly for further information or clarification. This non-anonymity also helped establish trust in the proceedings, as the Commission could ascertain the legitimacy of the grievances raised.

 

The clarity regarding the authors' identities in this case strengthened the communication's admissibility, ensuring that the Commission could fully address the serious allegations of human rights violations of the Ogoni people of Nigeria.

 

The communication should be compatible with the Charter of the African Union and the Banjul Charter. [24]

This means that any communication must be harmonious or must be in line with the object and purpose of the AU charter and the African Charter on Human and Peoples rights. This suggests that any communication, which is intended or tends to defeat the object and purpose of the AU charter and the charter on Human and Peoples’ rights shall not be heard by the commission.

 

The communication must not be written in disparaging or insulting language directed at the state party or any institution of that state party.[25]

This criterion is there to ensure that decorous words are being used in the interactions between each other and not any insulting language, which in turn, tends to lower the reputation of one party.

 

Thus, in the case of International Pen and Others v. Nigeria[26], International Pen, a non-governmental organization advocating for writers' rights, along with other petitioners, brought a communication against Nigeria concerning the detention of several journalists and writers who were critical of the government. The authors of the communication argued that the Nigerian government was violating the rights to freedom of expression and to participate in the cultural life of the community, as guaranteed by the African Charter on Human and Peoples' Rights.

 

During the proceedings, the Nigerian government objected to the admissibility of the communication, asserting that the language used by the authors was disparaging and insulting towards the state and its institutions. The government claimed that such language undermined the dignity of the state and violated the decorum expected in submissions to the Commission.

 

The African Commission ruled on the issue of language, stating that communications should be respectful and not contain insults or disparaging remarks directed at the state or its institutions. This principle aims to foster a constructive dialogue and to uphold the dignity of all parties involved in the proceedings.

 

Ultimately, the Commission found that while the authors concerns about human rights violations were legitimate, the manner in which they expressed their grievances was important for admissibility. The ruling underscored the need for a respectful discourse in human rights communications, highlighting that even in the pursuit of justice, decorum must be maintained.

 

The communication should not be based solely on news disseminated through the media.[27]

This is to ensure that claims are legitimate and are not based on any frivolous matters being exaggerated by the media when disseminating information to the public.

 

Thus, in Kenya Human Rights Commission v. Kenya[28] (2009) the African Commission on Human and Peoples' Rights established that communications must not be solely based on media reports.

In this case, the Kenya Human Rights Commission (KHRC) submitted a communication to the African Commission, alleging that the Kenyan government had violated the rights of individuals during the 2007-2008 post-election violence. The communication detailed various human rights abuses, including extrajudicial killings and torture, primarily based on reports and information disseminated through the media.

 

The Kenyan government contested the admissibility of the communication, arguing that many of the claims were grounded in media reports and lacked direct evidence. The government pointed out that relying solely on media sources could result in misrepresentation and a lack of verifiable facts regarding the alleged human rights violations.

 

The African Commission found merit in the government's argument regarding the reliance on media reports. It emphasized that while media accounts can provide context, they should not form the sole basis for claims presented to the Commission. The Commission underscored the need for credible evidence, including firsthand testimonies or documented evidence, to substantiate allegations of human rights violations.

 

This case reinforced the principle that for a communication to be admissible, it must be based on reliable evidence rather than unverified media reports.

 

The party seeking for its grievances to be addressed must have exhausted all local remedies if any, unless it is obvious that the procedure is unduly prolonged.[29]

This criterion is the most controversial amongst all the criteria listed under article 56 of the charter[30]. This means that all local remedies available to that particular party must be exhausted before the commission can hear the complaint.

 

The idea that local remedies have to be exhausted stands to reason that the party must have attempted to obtain justice from the local courts or any other tribunal as the case may be and must not be based on assumptions that there is the likelihood of the outcome of the case being pronounced against him.

 

This principle was espoused in the case of Bakweri Lands Claim Commission v Cameroon.[31] In that case, the Bakweri people of Cameroon alleged violations of their land rights due to the government's expropriation without compensation. The Commission emphasized that the authors must exhaust all available local legal avenues before seeking redress at the international level. The Commission also noted that local remedies were deemed exhausted when the domestic judicial system failed to provide timely and effective recourse. This case highlighted the balance between seeking local remedies and recognizing when such efforts become futile.

 

In addition, where a substantive case has been decided but there are other motions filed by any of the parties at the local level, it does not bar the commission from hearing the matter as it will be deemed as local remedies have been exhausted.

 

This principle was established in the case of Tsatsu Tsikata v The Republic of Ghana[32]. In Tsatsu Tsikata v. The Republic of Ghana, the complainant, Tsatsu Tsikata, the former CEO of the Ghana National Petroleum Corporation, was convicted and sentenced to prison on corruption-related charges. He filed a communication to the Commission, claiming his rights had been violated.

 

The Commission noted that, despite ongoing motions related to his case in the local courts, the substantive issues regarding his conviction had already been decided. It ruled that the exhaustion requirement was met, as the previous court rulings effectively rendered further local remedies futile. This case affirmed that once a substantive matter is concluded, additional motions do not preclude the Commission from hearing a communication.

 

The communication must be submitted within reasonable time after the exhaustion of local remedies.[33]

The Charter that is, the Banjul Charter has, not defined reasonable time. Thus, the onus lies in the bosom of the Commission to decide as to whether or not a particular communication has been submitted within reasonable time given the peculiar circumstances surrounding each communication.

 

The communication should not deal with cases, which have been settled in accordance with the principles of the AU or the UN.[34]

This is to ensure that the defaulted party does not pay reparation twice, which is contrary to the rule of double jeopardy.

 

4.0 CONCLUSION

In conclusion, the situation surrounding the #StopGalamseyNow protest in Ghana raises significant questions regarding the protection of human rights and the avenues available for redress at the international level. The arrest and subsequent detention of the protestors, along with the alleged violations of their constitutional rights, highlight the urgent need for an effective legal response. The potential communication to the African Union Commission serves as a critical step in seeking justice and accountability for the protestors.

 

To determine the eligibility of this communication under the African Charter on Human and Peoples' Rights, it is essential to examine closely the criteria outlined in Article 56.

 

Overall, the examination of these criteria reveals a structured framework within which the protestors may seek redress. By adhering to these standards, the communication has the potential to contribute meaningfully to the ongoing discourse on human rights in Ghana, particularly in the context of environmental activism and the protection of civic freedoms. Engaging with the African Union Commission could pave the way for greater accountability and reform, leading to the vital role of international mechanisms in addressing domestic human rights challenges, in not only Ghana, but also Africa at large.

 

 

 

 

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[1] LLB 3 student at the Kwame Nkrumah University of Science and Technology.

[2] LLB 3 student at the Kwame Nkrumah University of Science and Technology. The writers are grateful to Mrs. Rose Asamoah Esq., a lecturer at KNUST who imparted us with the knowledge about the African Union, Martin Waana-Ang Esq. who has been our mentor whose numerous articles derived the writers into putting this piece together.

[3] Criminal and Other Offences Act of Ghana, 1960, (Act 29) Section 298

[4]  The constitution of Ghana, 1992, Article 14 (3)

[5] African Charter on Human and Peoples’ Right, Article 11

[6] The Constitution of Ghana, 1992, Article 21(1)(d)

[7] Which may include, the African Union, the Economic Community of West African States, among others.

[8] Criminal and Other Offences Act of Ghana, 1960, (Act 29) Section 124

[9] Ibid, n.3

[10] Ibid n.8

[11] Ibid n.3

[12] Ibid n.4

[13] African Charter on Human and Peoples’ Right, Article 47

[14] African Charter on Human and Peoples’ Right, Article 55

[15] African Charter on Human and Peoples’ Right, Article 47

[16] African Charter on Human and Peoples’ Right, Article 48

[17] Ibid n.15

[18] African Charter on Human and Peoples’ Right, Article 49

[19] African Charter on Human and Peoples’ Right

[20] ibid

[21] African Charter on Human and Peoples’ Right, Article 56(1)

[22] Decision, Comm. 115/96 (ACmHPR, Oct 27, 2001)

[23] ibid

[24] African Charter on Human and Peoples’ Right, Article 56(2)

[25] African Charter on Human and Peoples’ Right, Article 56(3)

[26] ACHPR Comm. Nos. 137/94 (1998)

[27] African Charter on Human and Peoples’ Right, Article 56(4)

[28] (2009) AHRLR 105 (ACHPR)

[29] African Charter on Human and Peoples’ Right, Article 56(5)

[30] African Charter on Human and Peoples’ Right

[31] [2004] AHPLR 43

[32] [2014] ACHPR 2

[33] African Charter on Human and Peoples’ Right, Article 56(6)

[34] African Charter on Human and Peoples’ Right, Article 56(7)