Ghana’s Human Rights Court gives life to the right to information

Author: Michael Gyan Nyarko
Doctoral Candidate and Academic Tutor, Centre for Human Rights; Editor: AfricLaw.com

Ghana has been described as ‘a beacon of hope in Africa’ on account of its good governance and respect for human rights.’[1] With a fairly liberal constitution which guarantees quite an elaborate list of civil and political rights as well as socio-economic rights, political stability and economic growth over the past two decades, this description of Ghana is not farfetched.  While Ghana has performed reasonably well with regards to respect for human rights, there still remain several human rights issues that require urgent attention. One of those issues is the right to information.

The right to information is guaranteed and entrenched in the Constitution.[2] Article 21(1)(f) of the Constitutions provides that ‘all persons shall have the right to information, subject to such qualifications and laws as are necessary in a democratic society’.  However, this right has not been effectively enjoyed as government has failed to enact a right to information law to give effect to the constitutional provision. A right to information bill proposed by successive governments has been pending for over a decades. The absence of a right to information law has left a vacuum where citizens do not have clarity on whom to approach for official government information, which information may not be requested and what financial burden they may bear for such request. This has resulted in the rather limited use of the right to information, especially with regards to request for official government documents.

That vacuum was filled by the Human Rights Division of the High Court of Ghana (the Court) in a judgement of 13 April 2016 per an application by 7 applicants against the Minister of Transport and the Attorney General of Ghana respectively.[3] The applicants sought an order of the court directing the Minister of Transport to furnish them with copies of the contract (and all documents related) for the branding of 116 Bus Rapid Transit (BRT) buses and furnish the applicants with information disclosing whether the award of contract was done in accordance with Ghana’s Public Procurement Act. The branding of the BRT buses had been subject to controversy when reports form the Parliament of Ghana revealed that a total of GHS 3.6 million (about US$ 950,000) averaging approximately GHS 31,000 (about US$ 8,100) had been spent on branding the buses. On the contrary the artist who was engaged to do the branding revealed to journalists in an interview that he only charged GHS 1,600 (just about 5% of the figure the Ministry of Transport submitted to parliament) per bus.

The applicants argued that the application was brought in line with their civic duty under article 41(f) of the Constitution ‘to protect and preserve the public property and expose and combat the misuse and waste of public funds and property’.  They asserted that in fulfilling this duty they seek to utilise their right to information to request the government to furnish them with the contract and other documents related to the branding of the BRT buses.

The respondents opposed the application on three grounds. First, that the applicants had not shown that their rights had been breach as required by article 33(1) of the Constitution; second, that they had not requested from the respondents the information they claim to have a right to before approaching the Court, and therefore had not satisfied the requirement of prior demand, which is a precondition for an order of mandamus to be properly made; third, that the right to information is not absolute but subject to such limitations as are necessary in a democratic society.

The Court rejected the first objection as baseless as the applicants had clearly indicated that they were seeking to enforce the right to information as it relates to them personally, in obtaining the information they sought from the respondents.

With regards to the second objection, the Court distinguished between the common law relief of mandamus and the enforcement of fundamental human rights which are constitutionally guaranteed. In the opinion of the Court, and rightly so, the application sought an order for the enforcement of the right to information of the applicants and not an application for mandamus, properly so called –the mere fact that the order sought is in the nature of a mandamus does not make it an application for mandamus per se. The Court also held that substance must take precedence over formalities in human rights matters and therefore the absence of prior request would not defeat the application. In the opinion of the Court, the requirement of prior request was only there to give the respondent the opportunity to address the request of the applicants. Consequently, if the respondents indeed had the intention of acceding to the request of the applicants, they would have done so when the application was served on them instead of filing a defence to the application. The court would not put any premiums on procedural defects to defeat the substance of the application.

As regards the third objection, the Court held that the right to information is inherent in all human beings in addition to it being constitutionally guaranteed. In the opinion of the court the right to information is ‘virtually boundless unless the state takes steps to limit, through legislation, its scope, reach or mode of application’. [4] The legislation is not the source of the right, but the Constitution. The absence of a freedom of information legislation, therefore, would not deprive the people from enjoying the right to information. The freedom of information law is only supposed to regulate how requests for information may be made, the designated entity or officer to whom the request may be made, time frame for response, the reasonable fees that may be charged for providing such information and prescription of the category of information that may not be disclosed in the public interest.  In the opinion of the Court, any suggestion that the constitutional provision lacks effect without an enabling legislation would essentially mean that the legislature’s failure to enact a right to information law reverses the constitutional guarantee of the right. The Court therefore concluded that the state should not be able to benefit from its own failure to enact a right to information law and in turn use the absence of such law to impede the enjoyment of the right to information.

The Court ordered the respondents to furnish the applicants with copies of the contract for the branding of the BRT buses within 14 days of the judgement. The Court also provided guidelines on the grounds on which respondents may reasonably refuse a request for information pending the enactment of a right to information law.

The decision of the Court should be lauded for many reasons, some of which are briefly expressed below. First, this decision is another major victory for human rights and especially the right to information in Ghana. It presents an important avenue for the enjoyment of the right to information, especially access to official government information which has been almost redundant as a result of government’s failure to enact a right to information law, clarifying the parameters within with the right may be exercised.

Second, the decision lays down an important precedent for the proposition that constitutionally guaranteed rights cannot remain illusory if the legislature fails to pass enabling legislation to provide guidelines on the extent to which the rights may be exercised and the reasonable limitations allowed – the state cannot benefit from its own failures.

Third, the Court adopts a human rights friendly approach preferring to examine the substance of the application rather than entertain procedural technicalities. This progressive approach to human rights should be encouraged. Human rights are so important that Courts should not allow technicalities to be used to defeat their effective realisation.

The decision also, essentially constraints the extent to which parliament can regulate access to information, as it specifically sets out the reasonable objectives that a freedom of information law should achieve.

In another vein, this decision could hasten government’s pace in enacting the freedom of information law. On the back of this decision, it should be reasonably anticipated that many government offices will be flooded with request for information. It is therefore in the interest of the government to provide clarity on the procedure for accessing official information and the kind of information that is off limit by ensuring the prompt enactment of the right to information law.

It is hope that the decision will lead the way in ensuring more transparency in government and especially enable journalists and anti-corruption activists to seek information and expose nefarious activities of public officials.

In conclusion, it should be said that when the representatives of the people fail to act with urgency to ensure the effective realisation of human rights, the courts must use their constitutional mandate as guardians of the law and the constitution to foster the enjoyment of the rights and freedoms that are guaranteed. It is only hoped that Courts in other African countries will emulate this bold step and ensure the effective enjoyment of the right to information.

[1] A Sithole ‘Ghana: A beacon of hope in Africa’ African Centre for the Constructive Resolution of Disputes (ACCORD), Policy & Practice Brief number 018 (2012).

[2] 1992 Constitution of Ghana.

[3] Lolan Kow Sagoe-Moses & others v The Honourable Minister & Attorney General, Suit No. HR 0027/2015, High Court (Human Rights Division 2), Accra.

[4] Page 6 of the judgement.

About the Author:
Michael Gyan Nyarko is a barrister & solicitor of the Supreme Court of Ghana. He is currently a Doctoral Candidate and an Academic Tutor at the Centre for Human Rights, University of Pretoria and the Editor of the blog Africlaw.com. He holds an LLM in Human Rights and Democratisation from the University of Pretoria and an LLB from the Kwame Nkrumah University of Science & Technology, Ghana. His research interests include international human rights law and democratisation, international institutional law, international investment law and business and human rights.