Accra: Imagine the citizen who is arrested without charge, detained beyond the pale of law, cut off from counsel, family, and court, and released at last without explanation. Years pass. The wounds remain, psychological, social, economic. He turns, at last, to the Constitution, invoking its most solemn guarantee of protection.
According to Ghana News Agency, a grave anomaly exists within Ghana's legal system that may prevent justice from being served. The High Court (Civil Procedure) Rules, 2004 (C.I. 47) mandates that applications to enforce fundamental human rights be brought within six months of the violation, or three months from its discovery. This procedural rule can effectively prevent the High Court from hearing grievances based on the timing of their filing rather than their merit, thus extinguishing the quest for justice.
The controversy centers around Article 33 of the 1992 Constitution of Ghana, which allows any person alleging a violation of their fundamental rights to seek redress in the High Court. This constitutional provision makes no mention of an expiry date, offering an open and enduring invitation to justice. However, Order 67, Rule 3 imposes a restrictive timeline that undermines this constitutional guarantee.
Article 33(4) does empower the Rules of Court Committee to regulate the procedures for such applications, but this power is intended to facilitate access to justice, not restrict it. The procedural rule should not determine whether a right can be enforced; it should guide how it is enforced. Order 67, Rule 3 oversteps its bounds by effectively denying the right itself.
Furthermore, breaches of fundamental human rights can occur not just at the hands of the state but also through corporate bodies, institutions, and individuals. Whether it's an employer practicing discrimination, a private security firm unlawfully detaining a citizen, or acts of violence or intimidation by individuals, the Constitution's promise of protection is meant to shield citizens from all forms of abuse.
Defenders of the rule argue that alternative legal avenues remain open, such as civil actions in tort or administrative remedies. However, these alternatives often do not equate to constitutional claims. A claim in tort is narrower in scope and often encumbered by technical requirements, whereas constitutional claims focus on vindication, accountability, and the affirmation of fundamental norms.
Moreover, the practical challenges of pursuing these alternative remedies-such as lack of evidence, resources, or legal footing-often make them illusory. The constitutional procedure under Article 33 was designed to overcome such barriers, providing flexibility and accessibility. Closing this avenue in favor of more onerous alternatives diminishes justice rather than preserving it.
The existence of alternative remedies should not justify extinguishing a constitutional one. Fundamental rights are grounded in the supreme law and should not be contingent upon the availability of other legal actions. The Constitution confers a direct right of access to the High Court, a right that should not be nullified based on the existence of lesser paths.
While limitation periods serve legitimate purposes in private law to ensure finality and prevent stale claims, they must be carefully calibrated in the realm of constitutional rights. The State, being an entity of power and resources, should not be allowed to use time as a shield against accountability. Private organizations and individuals should also not escape responsibility for violations simply because time has passed.
Courts have the capability to assess delays, weigh prejudices, and tailor remedies without declining jurisdiction altogether. Justice should be tempered by time, not extinguished by it.
There is a pressing need to address the anomaly that has crept into Ghana's constitutional order. Order 67, Rule 3, must be expunged to restore the full voice of the Constitution and ensure citizens approach the courts as bearers of enduring rights, free from the tyranny of procedural time constraints.