“In the material world, laws are geared to protect the right to equitable remuneration. But life is beyond the material. It is temporal as well. Many of us believe in the soul. Moral Rights of the author are the soul of his works. The author has a right to preserve, protect and nurture his creations through his moral rights”
Moral rights stand for what are termed as “Author’s Special Rights”. Founded on Article 6bis of the Berne Convention, moral rights protect attribution and integrity, stating:
Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.
The legislation of different countries varies on author’s power to waive his moral rights. At one end, there are some civil law countries, like France, that impose a virtually absolute bar on transfer or the waiver of such rights. At the other end there are common law countries which freely allow the waiver of moral rights.
As a matter of practice, waiver of the moral rights is an inevitable element of the relationship between an author, his work and his publication. Since the production of a book, sound recording or motion picture will necessarily alter the author’s original work to some degree, and thus by entering into such a relationship, the author effectively waives the right of integrity and disclosure, at least to the extent reasonably dictated by the terms of the relationship.
In the United States, the term ‘moral rights’ typically refers to the right of an author to prevent revision, alteration, or distortion of his work, regardless of who owns the work. Moral rights as outlined in Visual Artists Rights Act, 1990 also allow an author of a visual work to avoid being associated with works that are not entirely his own, and to prevent defacements of his works. The Act provides for waiver of moral rights, but only by a signed, written agreement specifying the work and the precise uses to which a waiver applies. Section 106A of the American Copyright Act provides for waiver of moral rights.
It is also pertinent to note that the concept of moral rights is restricted by the Visual Artists Rights Act of 1990 and the Copyright Act to visual artists only.
Section 87, Copyrights, Designs, and Patents Act, 1988 of United Kingdom deals with the consent and waiver of moral rights. A waiver –
a) May relate to a specific work, to works of a specified description or to works generally, and may relate to existing or future works, and
b) May be conditional or unconditional and may be expressed to be subject of revocation;
And, if made in favour of the owner or prospective owner of the copyright in the work or works to which it relates, it shall be presumed to extend to his licensees and successors in title unless a contrary intention is expressed. Any of these rights may be waived by instrument in writing signed by the person giving up the right.
Relevant provisions of Indian Law
Section 57 of the Indian Copyright Act, 1957 provides for moral rights-
57. Author’s special rights. (1) Independently of the author’s copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right
a. To claim authorship of the work; and
b. to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation:
Is Waiver Possible under Indian Law?
A case decided not too long ago by the Delhi High Court, Amar Nath Seghal v. Union of India discusses the issue of moral rights in substantial detail. In this case, the plaintiff/author assigned his copyright in a bronze mural, to the Union of India. The mural was placed in Vigyan Bhavan, but was later pulled down and dumped. The author, Amar Nath Seghal, sued for violation of his moral rights.
The case was filed in the early 90’s and an interim injunction was passed in favour of the Plaintiff. In response, the defendants made an application under the Arbitration Act, 1940 seeking stay of proceedings in the suit claiming that the dispute ought to be referred to arbitration in the light of a term in the assignment requiring arbitration of all disputes.
The defendants further argued that “the plaintiff had assigned his copyrights to the defendants and having purchased the same, the defendants are under no fetters while dealing with the mural in question.”
The interim application was decided in 2002 and the case itself was finally decided in 2005. The court dismissed the claim under the Arbitration Act and further observed: “These [moral] rights are independent of the author’s copyright. They exist even after the assignment of the copyright, either wholly or partially.”
The court quoted from Smt. Mannu Bhandari v. Kala Vikash Pictures Pvt. Ltd. and Anr. (1986)
“Section 57 confers additional rights on the author of a literary work as compared to the owner of a general copyright. The special protection of the intellectual property is emphasised by the fact that the remedies of a restraint order or damages can be claimed “even after the assignment either wholly or partially of the said copyright…” Section 57 thus clearly overrides the terms of the Contract of assignment of the copyright. To put it differently, the contract of assignment would be read subject to the provisions of Section 57 and the terms of contract cannot negate the special rights and remedies guaranteed by Section 57. The Contract of Assignment will have to be so construed as to be consistent with Section 57. The assignee of a copyright cannot claim any rights or immunities based on the contract which are inconsistent with the provisions of Section 57.”
From the above wording, it could be argued that “moral rights” are akin to the Fundamental Rights guaranteed under the Constitution, in that they cannot be waived.
Interestingly, Article 27 (2) of the Universal Declaration of Human Rights provides:
(2) everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
There is no express provision under Section 57 of the Indian Copyright Act, 1957 allowing authors to disclaim authorship. However, according to different statutes, the right to claim authorship also includes the right to disclaim authorship. Under the case Vishaka v. State of Rajasthan, the Supreme Court held that provisions of international conventions can be read into the Constitution where there is no contrary domestic law in the field.
Nations that are members of the Berne Convention for the Protection of Literary and artistic Works are required to meet a minimum level of protection, as set forth in the Berne convention’s Article 6bis. The multilateral treaty does not address waiver of moral rights; waiver is neither sanctioned nor prohibited, and individual member nations may implement the Berne Convention in their own ways.
In India, practice shows that moral rights cannot be bought or sold. However they can be waived and it will often be the case that as a condition to any contract which a performer may enter into that employers or production companies will seek a waiver of those rights. Indian law probably permits waiver of moral rights if it is in writing and meets the ‘reasonableness’ standard. For example, a waiver is more likely to be upheld if it is revocable and applies to specific alterations or modifications of copyrighted work rather than an irrevocable blanket waiver, particularly if the author had no bargaining power when the waiver is granted.
References:
i. Sonia Baldia, Intellectual Property in Global Sourcing: The Art of Transfer.
ii. 38 Georgetown Journal of International Law 499, spring 2007.
iii. Mira T Sundara Rajan, Moral Rights in the Public Domain, 2003.
By: Swagateeka Patel
Human Rights in Nigeria: the Buhari/idiagbon and Abacha Situations Compared and Contrasted
Wikipedia encyclopedia refers to human rights as “basic rights and freedoms to which all humans are entitled.” This exists in the areas of civil and political rights and particularly describes the right to life and liberty, freedom of expression, and equality before the law, social, cultural and economic rights includes the rights to participate in culture, the right to food, the right to work and the right to education. This is expressly summed up by Article 1 of the UN Universal Declaration of Human Rights (UDHR as:
“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”
Although this article will not delve into the history of Human rights which covers thousands of years and mainly drawn from almost every department of life such as culture, politics, religion and economy etc, it will merely look into a certain period of military rule in Nigeria when Buhari/Idiagbon and the Late General Abacha were in power as the rulers of Nigeria. It will seek to some extent objectively compare and contrast these two regimes for the purpose of establishing human rights situation in Nigeria within the period under study.
However, it is very germane to add here that so many ancient documents which can be recognized as concepts of human rights have existed globally, but credit should be given the United Nations Organization for the shaping of International Human rights Law as we have it today.
Human rights is agreed to be violated when a state or non-state actor within the International Community breaches any part of the United Nations Human rights treaty. This is hard to hard as such state or non-state actor may constantly risk condemnation by vehemently denying the act, and consequently covering up these acts of abuses with several sets of further acts which may prove difficult to demonstrate, particularly in several parts of the African continent.
General Mohammadu Buhari and Tunde Idiagbon (now deceased) came to power on Saturday December 31, 1983 although the regime of this duo was too short to appraise but the regime reigned in what many people of Nigeria could at best describe as dictatorial, even the successor regime of this regime led by General Ibrahim Babangida described the regime thus:
“He was too rigid and uncompromising in his attitude to issues of national significance”.
No sooner did Buhari/Idiagbon ceased government than the infamous Decree Number Four (DN4) of 1984 was promulgated by the duo; Buhari/Idiagbon became famous for coming down heavily against the Nigerian press, making the report of truth a very serious offence in the country, not many will for get the terrible situation of Tunde Thompson and Nduka Irabor of the Guardian who were imprisoned for making a ca report on the Government. The Buhari/Idiagbon regime would also executed Bernard Ogedengbe, Bartholomew Owoh and Lawal Ojulope for an offence committed by them as alleged by the regime after a national debate in spite of public pleas, the execution of these gentlemen were made possible by a retroactive decree courtesy of Buhari/Idiagbon regime.
Buhari and his Deputy would again promulgate another Decree called Decree Number two (DN2) of 1984 which made it possible for Tunde Idiagbon to detain anybody whether such person is a citizen of the country or foreigner, this decree stripped the court of law of the powers to depend the reason such person is being detained. In essence, the decree did not recognize the significance of the judiciary but was merely interested in achieving its aims of dictatorial tendencies. In what would later follow, the world became amused to hear the verdicts of 125 years imprisonments handed down to the regime suspects.
Buhari was also noted to have utilized excessive force in handling drug peddlers caught, as he issued death penalties to them in what political commentators believed should not have attracted death sentences, still death was the fate of several of these suspects in laws that resembled that of Saudi Arabia and other Arab nations.
The tactics of the Buhari/Idiagbon regime became too harsh for the survival of the people, with arbitrary creation of decrees to lead the regime but promulgated to harshly lure the Nigerian public into playing into the waiting ready-made hand of the regime. Victims who became preys of these draconian decrees were mostly detained and made to remain inside prisons for as many years as Buhari and Idiagbon pleased.
There are those have argued in favour of this regime, in that according them the regime came up with the famous War Against Indiscipline which re-awakened Nigerians to the social norms of the society and helped to maintain societal order and respect for the Nigerian society as a whole. But this is outside the human rights records of the time.
The regime of General Sani Abacha who lived from 20 September 1943-8 June 1998 and the de facto military leader of Nigeria between 1993 and 1998) suffered stiff opposition internally and externally because Pro-democracy activists made the regime unpopular. His regime was accused of gross human rights abuses both home and abroad. The heights of his human rights abuses was the arrest and detention of Chief Moshhod Kolawole Olawale Abiola, the man who won the 1993 Presidential election in the country, Abiola would later die in detention in a circumstance yet unclear till this day though this was not in the days of Abacha but his mere detention caused a global uproar as the appeals of several notable people from around the world to the Military leader to free Abiola was not heeded by him.
But the peak of the gross abuse of human rights in the country was ushered by the arrest, detention and hanging of Ken Saro-Wiwa, an activist by the regime in what was globally condemned.
Some the activities that characterized his regime as a tool for the gross violations of human rights in the country were the trial in absentia of Prof. Wole Soyinka, charged for treason, and the arrest and detention of Olusegun Obasanjo also jailed for treason. Abacha was also notable for banning political parties, in what people viewed as a means of likely transformation of himself to the life president of the country, and the personal control of the press. Several human rights activists who opposed his policies whether from the military or civil society were either detained without trial or jailed. Many other persons, chiefly members of the press were also jailed. Allegations of coups and counter coups reined in this regime too. The regime abruptly ended when General Sani Abacha reportedly died of heart attack in June 1998 at the Presidential Villa, Abuja.
Having narrated the background of certain of the human rights violations of two military regimes Nigeria during the military era of the nation, this article will go further in comparing and contrasting the regimes in terms of human rights violations.
In the first place, both regimes were not democratically welcomed by Nigerians as power was ceased through fraudulent means, Buhari/Iidiagbon overthrew a democratically elected government of shehu Shagari , while Abacha ceased power from an interim government led Ernest Shonekan. It is also a known fact that Buhari, Idiagbon and Abacha all participated in the coup that overthrew the government of Shehu Shagari. Abacha and Babangida would further bring down the government of Buhari/Abacha.
While the regime of Buhari/Idiagbon reigned for too short a period that any political analyst could valuably access, one can still point out that certain violations of human rights charter were committed that resembled the Abacha regime. One can not forget the incessant arrest and detentions of pressmen many of whom were jailed after trials too unconvincing to justify their offences. Buhari/Idiagbon shut down some media houses which was also a major feature of Abacha, in trying to personally control information and limit it to the whims and caprices of the regimes. Innocent pressmen who heard the names of Buhari/Idiagbon and Abacha fled for their dare lives and often abandoned their cameras and materials.
The two regimes also shared in the executions of persons globally thought innocent, especially after unconvincing trials, Buhari/Idiagbon executed Bernard Ogedengbe Bartholomew Owoh and Lawal Ojulope in yet a controversial circumstance, while Abacha executed Ken Saro Wiwa and his kinsmen, yet in another controversial circumstances. General sani Abacha operated with many of the draconian decrees set up by Buhari/Idiagbon administration, which both regimes used to try to gag the press and haul many innocent people into prisons.
Both regimes were tough on Nigerians, operating with draconian laws without recourse to the rule of law and legalities. This affected Nigerians negatively and brought sufferings to the people without correcting the anomalies both regimes claimed brought them to power. Again, it would seem that none of these two regimes announced a set date for the return of power to a democratically elected government.
Both regimes continuously received harsh criticism from the civil populace, and in fact, however, while the overthrow of Buhari/Idiagbon was very surprising to the people, many Nigerians may have rejoiced over the exit of Abacha which they attributed to divine intervention, believing it to be welcome development.
Again, the attitude of Buhari in present time, has been described as a desperate one as he continues to express absolute ambition to once again lead the people of Nigeria, the extent he has pursued this to the Supreme Court level amidst the lack of interest attitude of his party has been used as indices to conclude that Buhari is power thirsty and may not have concluded his plans within himselve as the Head of State of the country to hand over power to any democratically elected government, a date he never mentioned until he was overthrown by Babangida. Abacha also never expressed any desire to hand over to civilians; in essence, both regimes had no plans for transiting to civil rule. Buhari/Idiagbon and Abacha were no democrats.
I have so far tried in some way to compare the regimes and shall now dwell on the area differences between the two regimes, Buhari/Idiagbon we may conclude was a not self-centered one, while that of Abacha was considered selfish with a lot of looting, accountability was not considered a responsibility to the people of Nigeria by Abacha while Buhari/Idiagbon felt they owe the nation regular accountability and transparency.
The major point of departure of these regimes was a more vocal international condemnation of Gen. Abacha which would further lead to the suspension of the country from Commonwealth in November 1995, when the regime hanged Ken Saro Wiwa and nine other persons believed to be enemies of the military regime in the country. This was with further condition “That if no demonstrable progress was made towards the fulfilment of these conditions (democratisation and respect for human rights/release of political prisoners) within a time frame (of two years), Nigeria would be expelled from the association.”
As we later observed Abacha bluffed this condition and the nation was made a pariah State, and in fact a leper-State not deemed fit for relations by other good nations of the world, Abiola would soon die in Jail still die in detention in a controversial State, it was partly as a result of this that the country failed to make it to a particular nations cup in South-Africa.
With the reported recovery of huge sums by the Obasanjo regime from Overseas which has implicated the deceased general and his family in a wholesale looting of Nigeria’s coffers and some $3 or $4 billion USD in foreign assets have been traced to Abacha, his family and their representatives, $2.1 billion of which the Nigerian government tentatively came to an agreement with the Abacha family to return, the Abacha is regarded as highly corrupt, another major departure from the Buhari/Idiagbon regime.
However, we conclude this article by stating that in spite of the differences highlighted here no military government is ever considered good by the people, and as they say, the worst civilian government is better than the best military government.
By: Emeka Esogbue
The Attitude of Ghanaian Courts towards the Enforcement of Socio-economic Rights of the Citizenry: A Critical Review
The Attitude of Ghanaian Courts towards the Enforcement of Socio-economic Rights of the Citizenry: A Critical Review.
Introduction
Ghana has a chequered past; one interspersed with both civilian and military governments since its independence from Great Britain in 1957. The concept of human rights enshrinement in the Constitution was not foreign to the Ghanaian setup. Prior to the adoption of the 1992 Republican Constitution human rights were provided in the 1969 and 1979 Constitutions of Ghana. It was provided to a limited extent in Chapter Six of the 1979 constitution of Ghana. During the deliberations leading to the adoption of the 1992 Constitution, the Committee of Experts noted that even though there has been compartmentalization of human rights into civil and political right; and economic, social and cultural rights, they felt that whatever the material scope of the rights, all persons were entitled to them. (Paragraph 137 of Report of Committee of Experts on Proposals for Draft Constitution of Ghana).
The 1992 Constitution of Ghana has its Bill of Rights being Chapter Five of the Constitution. A reading of the constitution evinces a number of civil and political rights as well as socio- economic rights in the Bill of Rights. The socio-economic rights include: protection from deprivation of property (Article 20), property rights of spouses (Article 22), right to work under safe, satisfactory and healthy conditions and right to form trade unions (Article 24), right to educational opportunities and facilities (Article 25), women’s rights (Article 27),children’s rights (Article 28), rights of the disabled (Article 29). Also, a number of these socio-economic rights such as the right to a healthy environment (Art. 36(9)); the right to work; the right to good health care and the right to education are provided for under Chapter Six of the 1992 Constitution. Yet still a number of socio-economic rights like the right to social security and adequate standards of living are not provided for at all under the present constitution.
The Directive Principles of State Policy (DPSP) are to serve as guidelines in the application and interpretation of the constitution (Article 34(1) of the 1992 Constitution of Ghana). Due to this, it has been suggested that the directive principles are not justiciable. However, a provision in the constitution stipulates that the fundamental human rights mentioned in Chapter Five are not to be regarded as excluding others not specifically mentioned (Article 33(5)). In other words, Chapter Five does not exhaust the socio-economic rights.
The question then is, whether the socio-economic rights which are not mentioned in chapter Five are rights which can be enforced by the courts? The High court has been charged with the duty of enforcement of the fundamental rights with right of appeal to the Court of Appeal and then, the Supreme Court. A number of cases involving socio-economic rights under chapter Six of the constitution have come before the courts for interpretation.
1. The Legal Arguments Emanating from the Courts
The Ghanaian decisions to be examined in this respect are: the New Patriotic Party (NPP) v Attorney-General (the 31st December case, 1993-94, 2 GLR 35- 192) ; New Patriotic Party (NPP) v Attorney-General (CIBA case 1996-97, SCGLR 729-803) and Ghana Lotto Operators Association & 6 Ors. v National Lottery Authority (Lotto case, 23rd July 2008, unreported)).
In the 31st December case, an action was brought by the plaintiff, a registered political party in the supreme court for a declaration that the celebration of the 31st December as a statutory public holiday was inconsistent with articles 3, 35(1) and 41(b) of the Constitution. Amongst the issues for determination was whether the directive principles of state policy were justiciable. This was because the declaration sought was in respect of two provisions under chapter Six of the constitution.
Adade JSC, in giving the lead judgment of the court stated that “The Directive Principles of State Policy contained in the 1992 Constitution, Chapter Six were justiciable because the Constitution as a whole was a justiciable document and accordingly, if any part was non-justiciable, the Constitution itself had to indicate it”. But no provision in the constitution had indicated that chapter Six was not justiciable. Yet, the evidence to establish the non-justiciability of the principles had to be internal to the constitution otherwise it would be in conflict with it and thus be void and inadmissible. He stated further that “although in some quarters it had been said that the use of the phrase ‘shall guide’ in article 34(1) of the 1992 Constitution implied that the directive principles were not meant to be justiciable, the argument was weak and unimpressive and that though, all laws were for guidance, they had not on that account, be said to be non-justiciable”.
It must be said that though this was not a unanimous decision of the house either some members of the house inferring the non- justiciability of the directive principles from the Committee of Experts and Consultative Assembly reports, it must be said that the deliberations leading up to its adoption in the 1979 Constitution of Ghana does not support such a position nor does the express language in Article 34(1) suggest same. The majority decision is the one supported as such a decision can be said to be the natural deduction and conclusion to be inferred from the preamble and Article 1 of the constitution that the will of the people shall be supreme and that the fundamental human rights and freedoms shall be protected and preserved.
The CIBA case was concerned with a declaration sought under article 2(1) of the 1992 constitution by the NPP to the effect that the Council of Indigenous Business Association (CIBA) law was inconsistent and thereby contravened Articles 21 (1) (e), 35(1) and 37(2)(a) and (3) of the 1992 constitution of Ghana. The defendant raised a preliminary objection to the suit on the ground that the articles sought to be relied on by the plaintiff fell under chapter Six of the 1992 Constitution titled Directive Principles of State Policy (DPSP) and were thus not justiciable. In ruling on the preliminary objection to the action, the majority of the house held that the Directive Principles of State Policy had the effect of providing goals for legislative programmes and a guide for judicial interpretation but were not of and by themselves legally enforceable by any court.
According to Bamford Addo JSC, as a mouth piece of the unanimous majority, the Directive Principles of State Policy were of and in themselves, not justiciable. She made reference to Par. 95-97 of the Report of the Committee of Experts on Proposals for a Draft Constitution of Ghana especially par.96 which stated that the principles should not of and by themselves be legally enforceable by any court. She however qualified this statement to the effect that they could be justiciable when read in conjunction with other enforceable provisions of the constitution by reason of the fact that the courts are mandated to apply them, they become justiciable. Also, that any provision in chapter Six that could be interpreted to mean a guaranteed fundamental right also became justiciable. She concluded by stating that the justiciability of any provision under Chapter Six of the constitution would rest on the peculiar facts of the case presented before the court. The position stated by Bamford Addo remained the position as regards the directive principles of state policy until a new position was stated by the Supreme Court of Ghana in 2008 in Lotto case.
The Supreme Court decision in the Lotto case can be said to be the most recent and hence the current position of the law on the Directive Principles of State Policy. In this case, a reference was made to the Supreme Court of Ghana for a determination as to whether The National Lotto Act, 2006, Act 722 violated Articles 33(5), 35(1) and 36(2) of the 1992 constitution of Ghana.
The background to the case concerned the issue of a writ by some private lotto operators in Ghana by virtue of newspaper announcements by the defendant established under the National Lotto Act, 2006 to the effect that no person other than the National Lotto Authority from operating any form of lottery in Ghana. The plaintiffs who were aggrieved sought a declaration inter alia that, Act 722 violated the afore-mentioned provisions.
Date- Bah JSC, giving the judgment of the court made some very interesting pronouncements on the justiciability of the Directive Principles of State Policy. It is this aspect of the case that shall be subject to our perusal. After establishing the fact that the plaintiffs had failed to make a case concerning the first two articles, he stated that the most relevant issue to be determined was whether the Act violated Article 36(2) of the constitution. He examined this article by stating that an issue was justiciable if it was capable of being settled by a court. For him all the provisions in the constitution were justiciable because it contained the most important rule on political governance.
In so stating, he reiterated the view earlier expressed by Adade JSC in the 31st December Case that all the provisions in the constitution were justiciable unless the constitution categorically stated otherwise. He distinguished the restraint on Indian judges to adjudicate on the Directive principles by reference Article 37 of the Indian Constitution which unequivocally stated that the Provisions in Part IV therein was unenforceable by any court as against a non- express exclusion in the Ghanaian constitution. After examining the Committee of Experts report on the adoption of the constitution of Ghana, he came to the conclusion that there was no language in the constitution suggestive that the Directive principles are not of and by themselves legally enforceable by any court. He stated that even if the original intention of the Committee may have being to make the principles unenforceable that did not appear in the constitution as such.
He continued that as the problems of the nation changed, the interpretations of the constitutions by the judiciary also had to change to reflect modern practices. A statement he made which is at the heart of this article bears repeating. He stated that the rights set out in chapter Six are predominantly the economic, social and cultural rights which by international and domestic practice are becoming just as fundamental as the rights in chapter Five.
The enforceability of these economic, social and cultural rights was a legitimate purpose for the court to seek to achieve through appropriate purposive interpretation and so any interpretation to Article 34 of the constitution should take into account the purpose of expanding the range of enforceable human rights in Ghana. He emphasized the need for the elaboration and enforcement of economic, social and cultural rights in light of the history, culture and legal system as a need of the present times and for the test of Article 34 if it could help meet this need, then the court should fulfil it.
He added that a presumption of justiciability in respect of Chapter Six of the constitution would strengthen the legal status of socio- economic and cultural rights in the Ghanaian jurisdiction and that any provision that does not lend itself to enforcement by its nature would rebut such a presumption as this would go a long way to deepen our democracy. Any ambiguity in article 34 should be resolved in favour of enforceability so as to strengthen the enforcement of fundamental human rights as a core value of the current legal and constitutional system.
Date-Bah however cautioned that the enforceability of these economic, social and cultural rights did not mean that the implementation in respect of it would be the same as the civil and political rights embodied in Chapter Five. The court thus needed to be flexible and imaginative in determining how provisions under the Chapter Six would be enforced.
Aside the courts, a body clothed with competence to hear complaints on the fundamental human rights is the Commission on Human Rights and Administrative Justice (CHRAJ) hereinafter known as CHRAJ. CHRAJ which is an elaboration of the Ombudsman in the 1979 constitution has now per Article 218(a) and section 7(1) (a) of the CHRAJ Act the mandate to investigate complaints of violations of fundamental rights and freedoms. In line with this mandate, CHRAJ has given a number of decisions on the fundamental human rights specifically the socio-economic rights. However it has not given a decision in respect of the justiciability of socio-economic rights.
2. Conclusion
Having recognized that the CIBA case was a departure from the 31st December case and that there was a conflict between two previous decisions, of the supreme court and thus the court was free to choose between the two or formulate a different rule, the court still went ahead to choose a presumption of justiciability of chapter Six of the 1992 constitution. This is probably due to the fact that the court recognized the increasing trend in various jurisdictions to this position as a need of our time and hence important that it does likewise.
After a reading of the various cases, it can be boldly stated that the Ghanaian position on the Directive Principles and thus, the socio- economic rights has now been established by the Lotto case and has been resolved in favour of the justiciability of the socio- economic rights. Ghana has therefore joined hands with other jurisdictions to safeguard the protection of the socio- economic rights, thus changing the attitude of the courts in that direction.
By: Oswald K. Seneadza