Unlawful Arrest, Detention and Imprisonment

According to the 1992 Constitution of Ghana, the African Charter on Human and Peoples Rights, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, no one may be subjected to arbitrary arrest, detention or imprisonment.

The United Nations Working Group on Arbitrary Detention describes deprivation of liberty as “arbitrary” in three kinds of cases:

1. Where there is NO LEGAL BASIS FOR DETENTION. This includes those held without charge or trial or despite a judicial order for their release, or those still in prison after the expiry of their sentence.

2. An arrest or detention which is lawful under national standards may nonetheless be arbitrary under international standards, for example if the law under which the person is detained is vague, excessively broad, or is in violation of other fundamental standards such as the right to freedom of expression.

The right of a person not to be unlawfully arrested, detained or restricted is clearly guaranteed and protected by national, regional and international laws.

Article 15 of the 1992 Constitution of Ghana explains that (1) “the dignity of all persons shall be inviolable” and that (2) “No personal shall, whether or not he is arrested, restricted or retained, be subjected to: (a) “torture or other cruel, inhuman or degrading treatment or punishment; (b) “any other condition that detracts or is likely to detract from his dignity and worth as a human being.”

Articled 14 (2) of the 1992 Constitution of Ghana states clearly that “A person who is arrested, restricted or detained shall be informed immediately, in a language that he understands, of the reasons for this arrest, restriction or detentions and OF HIS RIGHTS TO A LAWYER OF HIS CHOICE…”

The following Articles in the African Charter on Human and Peoples Rights (ACHPRs) make adequate provision for the enjoyment of the Right to Dignity, Liberty and Security of Peron:

Article 4

Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Article 5

Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

Article 6

Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.

There are several articles in the Universal Declaration of Human Rights (UDHR) which protect individuals against arbitrary arrest and detention of which the following are noted:

Article 5 of the Universal Declaration of Human Rights provides that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”,

Article 9 says “No one shall be subjected to arbitrary arrest, detention or exile.”

Article 11 (1) of the Universal Declaration of Human Rights to which Ghana is states, among other things, that “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”

The International Covenant on Civil and Political Rights (ICCPR) is very clear on the inherent dignity of a person as provided in the following articles:

Article 7; “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment….”

Article 9. 1.; “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

2. Says; “Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.”

3. States that; “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Article 10. 1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person

Comment on the Ejisu SHTC and the Initial Action of the Police

In the light of the principles of fundamental human rights and freedoms provided in the 1992 Constitution of Ghana, the African Charter on Human and Peoples Rights, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights as already discussed; and in view of the processes of the rule of law, we commend the Ghana Police in Ashanti Region for the swift action taken to “invite” the Assistant Headmaster of Ejisu Secondary Technical School for questioning over the reported detention of two students in his office under the conditions reported.

Like many other well-meaning Ghanaians, we condemn the reported action of the Assistant Headmaster as an affront to human rights and dignity, and an offence to the Rule of Law.

We pray that the Police in charge of the case will expedite action on the matter.  We also respectfully urge the Police to exercise due diligence in their investigations and ensure that justice is served.

Empowering and Enabling The Marginalised to Combat Poverty

Human Rights At Law Forum believes that it is important and necessary to enable the marginalised to exercise active participation as leaders in combating poverty.

In several communities, people living in poverty are denied the information, freedom of expression and means of active participation in decisions which affect their lives. We are therefore focusing on means of increasing the recognition of participation rights of people living in poverty, as well as their right to information and to defend their human rights.

HRALF is working regularly in partnership with other stakeholders in seeking to create models of good practice for the participation of affected individuals and communities.

Our approach to the Sustainable Development Goals, especially goal one which is to end poverty, will be a broader aim to change the debate on poverty and create a strategic platform in the discussion and the understanding of the causes of poverty.

HRALF will reach out to a wide range of audiences and introduce a new analysis that people especially in rural communities can draw on in their understanding of and their approach to poverty – one that is human rights centred.

Through community action and public engagement, we will aim to create a broad based and visible constituency that both understands the role that human rights abuses play in driving and deepening poverty and advocate for the respect, protection and fulfilment of human rights as part of the solution to poverty.

Chair,

Human Rights At Law Forum

Achieving Equal Access to human rights for those living in poverty

We undertake education and advocacy to have human rights considerations placed at the centre of efforts to eradicate poverty, so that those living in poverty have access to rights.

Many development and poverty eradication efforts do not address human rights violations that underlie poverty and/or are not effective because they fail to incorporate respect of human rights as a means of eradicating poverty.

People living in poverty also continue to face discrimination as well as significant barriers to accessing legal remedies and justice.

Therefore, we are focusing on challenging the barriers faced by the poor to resources, services and justice as well as the failure of poverty eradication efforts to consistently advance human rights.

Ensuring enforceability of Economic, Social and Cultural Rights

To effectively address the issue of poverty in Ghana, we must highlight and deal with the main accountability gaps that allow those responsible for human rights abuses that drive and deepen poverty to act with impunity. We must all work together to ensure that the legal frameworks are established and advanced.

We must all take action for the recognition and realisation of human rights obligations of governments beyond their own borders, for corporate accountability and for the recognition of the enforceability of all rights, especially economic, social and cultural rights as provided in Chapter 1992 Constitution of Ghana under the Directive Principles of State Policy.

17 Goals to Transform Our World

“We need to turn the recovery into a real opportunity to do things right for the future.” – UN Secretary-General António Guterres

COVID-19 is spreading human suffering, destabilizing the global economy and upending the lives of billions of people around the globe.

The pandemic is an unprecedented wake-up call, laying bare deep inequalities and exposing precisely the failures that are addressed in the 2030 Agenda for Sustainable Development and the Paris Agreement on climate change.

Leveraging this moment of crisis, when usual policies and social norms have been disrupted, bold steps can steer the world back on track towards the Sustainable Development Goals. This is the time for change, for a profound systemic shift to a more sustainable economy that works for both people and the planet.

The Sustainable Development Goals are vital for a recovery that leads to greener, more inclusive economies, and stronger, more resilient societies.

https://www.un.org/sustainabledevelopment/sdgs-framework-for-covid-19-recovery/

Equality before the law, Article 3 of the African Charter on Human and Peoples' Rights

Changes in the Ghana's Company Act, 2019

Key Changes/Improvements In The New Company’s Act, 2019

NOTE: These are to be developed into a new page on the present RGD website with links to Act 992

“The golden thread running through the new provisions is “easing the doing of business”

Change from Regulations to Constitution Companies can be registered without filing any regulation/constitution except unlimited companies.

Suffixes to Company Names

All registered companies now have suffixes added to their names, The last word of the name of

a) a private company limited by shares shall be “Limited Company” or LTD;

b) a public company limited by shares shall be “Public Limited Company” or PLC;

c) company limited by guarantee shall be “Limited by Guarantee” or LBG;

d) private company unlimited by shares shall be “Private Unlimited Company” or PRUC;

e) public company unlimited by shares shall be “Public Unlimited Company” or PUC.

Significance – for easily identification of business types and to helps the public to know who they are dealing with

Major Transactions

Under the new law, shareholders now have increased influence in major transactions of companies. A resolution of shareholders are required in situations of acquisitions (buying purchases), dispositions (gifting, transfer or selling) and in cases where the transaction will affect the company’s rights and interest.

The effect of the provisions is to remove from the board of directors the authority to enter into such major transactions without the authorization of the majority of shareholders. It therefore strengthens shareholder democracy

Buy-out for Dissenting Shareholders - ENHANCED PROTECTION OF MINORITIES The new Company’s law enhances protection of minority shareholders. For example shareholders who oppose a particular transaction of a company and have been outvoted, have the opportunity to have their shares bought out. This innovation minimizing dissention in a company and provides relief against oppression of minority shareholders.

Office of the Registrar of Companies (Process Simplification)

The new company’s law creates a new independent office called the Office of the Registrar of Companies which is responsible for the registration and regulation of all businesses. Company registration, filing of particulars, reservation of names and conversion of companies will all 2 eventually be done online. Certificates to commence business is abolished and only certificates of incorporation will now be issued.

This new office should be in place within 2 years after the passage of the Act. No Regulations and Guidelines yet in place hence old Forms, Regulations and electronic software still being used until Registrar informs the Business Community by a Press Release when the new Forms now to be developed should be used.

Derivative Actions/3rd Party Action

Shareholders are empowered to enforce the rights of their companies through derivative actions. Under this procedure, shareholders are allowed to apply to the court for leave to bring an action in the name, and on behalf, of the company.

Beneficial Ownership Provisions In line with Ghana’s commitment to use transparency as a tool for fighting corruption, the new law allows for the identification of the true owners of all companies. The ORG will keep a central register of the true an actual owners of all companies in manual and electronic format.

Certificate To Commence Business Is Abolished The requirement for registered businesses to obtain a certificate to commence business has been abolished. Once resisted, a company can proceed to do business. This is to simplify the registration process. Therefore, there would be no minimum capital requirement before commencement of operations

• Companies with foreign participation would still have to comply with the GIPC rules on minimum equity requirements

Age limit for subscribers and shareholder A person who is 18 years and above may apply for the incorporation of a company A person below the age of 18 who is a shareholder of a company must have those shares held in trust for them and must produce a deed of trust as supporting evidence for either share transfer or incorporation.

Statutory declaration by Directors Application for incorporation shall include a statutory declaration by each proposed director indicating that within the preceding 5 years they have not been charged with or convicted of a criminal offence involving fraud or dishonesty, or relating to the promotion, incorporation or management of a company or declared insolvent or if they have, the date and particulars of the insolvency

Business Name reservation

There is now a statutory time period of two months for which the name of a proposed business may be reserved. This may be renewed for a further period of two months

Provision of Companies Bulletin 3

The purpose is to publish matters relating to the operation and regulation of companies The Bulletin would contain notifications in respect of companies such as;

• Publication of fees for the Registrar of Companies

• Change of name

• Court orders in respect of stay of proceedings in insolvency proceedings

• Notices striking company names off the register of companies etc

This is basically for information sharing

Qualifications of Company Secretary

Companies are now required to appoint a Company Secretary duly qualified under the Act to perform the duties of a company secretary. The directors of a Company shall not appoint a Company Secretary unless that person;

Has obtained a professional qualification or tertiary level qualification with an offering in company law practice and administration that enables the person to have the knowledge and perform the functions of a company secretary;

• Has been appointed a Company secretary trainee or has held office under a qualified company secretary for at least three (3) years; or

• is a member in good standing of the Institute of Chartered Secretaries and Administrators or the Institute of Chartered Accountants Ghana

• Having been enrolled to practice, is in good standing as a barrister or solicitor in the Republic

• By virtue of an academic qualification, or as a member of a professional body, appears to the directors as capable of performing the functions of a secretary of the Company.

Mandatory rotation of auditors of companies

An Auditor shall hold office for a term of not more than six years and is eligible for appointment after a period of not less than six years

Change from Regulations to Constitution

Full Abolition of the Doctrine of Ultra Vires (RULES governing approval or non-approval of Names in relation to the nature of business in relation to the name of the Company still applies

Business Name Reservation

Mandatory rotation of Auditors of Companies

Reference:
https://rgd.gov.gh/Amended.pdf