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.