Promoting Human Rights from the Bench: Perspectives of a Ghanaian Magistrate.
Her Worship Bianca Gyamera-Beeko[1]
Introduction
When we talk about judges promoting human rights, we often think about the roles judges play in ensuring that the government, in its dealings with individuals, does not either infringe upon the rights of said persons or enact laws in excess of the powers conferred on them by a Constitution, be it written or unwritten. We think of judicial review; one of the key mechanisms by which the courts review and, if necessary, nullify actions or decisions of public authorities that are found to be ultra vires or beyond their legal powers.[2] This is unsurprising as the judiciary’s role in keeping governments in check so that they do not abuse their power is a well-documented and widely accepted fact. Indeed, I do not think there is any law student (from a common law jurisdiction, at least) that was not required to read Marbury v Madison[3] for this very reason.
However, magistrates in Ghana rarely ever adjudicate matters of such grave importance. In fact, the proper forum for human rights litigation is the High Court[4] and magistrates being judges of lower courts are bound by the precedents set by superior courts[5]. Magistrates, on matters of human rights, therefore, are not at liberty to make the ‘wild’, creative, arguments that they may have dreamt of and even championed while still human rights lawyers. So, it would appear that a magistrate can do very little for the promotion of human rights.
However, if you are minded to think carefully about each case the magistrate typically adjudicates carefully, you would agree with me that all such cases are human rights matters in one sense or the other. Take for instance a case of stealing, a typical criminal matter for District Courts in Ghana. There are issues relating to the right of the accused to fair trial such as the right to be presumed innocent until proven guilty, the right to legal representation, the right to adequate facilities to prepare his defence, etc. In fact, there are so many human rights considerations at each turn of the litigation process in general that failure to be conscious of such considerations could result in judicial officers unintentionally enabling human rights abuse.
For this reason, even though the magistrate does not have jurisdiction to entertain the more exciting, precedent-setting human rights matters, it is clear that there are many opportunities for the magistrate, who is so minded, to actively promote human rights. In the words of Eleanor Roosevelt, human rights begin in ‘small places, close to home, so close and so small that they cannot be seen on any map of the world. Unless these rights have meaning there, they have little meaning elsewhere’[6]. In this paper, I share from my experience on the bench on some of the ways through which I think a magistrate may promote human rights.
Avoiding undue delays
Justice delayed, they say, is justice denied. I have found this to be true for both civil and criminal matters.
When a matter is continuously adjourned, court users get frustrated and eventually begin to seek help from alternative fora. In Ghana, nowadays, there is an increasing tendency for people to submit matters that should really be adjudicated by the court to radio shows to be decided by untrained show hosts who rely on their own experiences and the input from their audiences[7]. One reason often offered for this is that the courts take too long to resolve disputes, making the radio shows a more attractive option.
Quite apart from the fact that undue delays discourage the public from patronising the court’s services, delays also create room for corruption to thrive. Say for instance an accused person is arraigned before the court and charged with the offence of stealing. He pleads guilty. Instead of sentencing him after convicting him on his own plea, he is remanded or granted bail to appear in two weeks for sentencing. During the time that the accused awaits his sentence, an opportunity is created for corrupt staff and prosecutors to represent to the accused that they are able to influence the magistrate’s decision if the accused is willing to pay a bribe. Not only does this create a false perception that tarnishes the magistrate’s reputation, but once word goes round that the magistrate can be influenced, it also erodes the confidence of the community in the ability of the court to deliver on its mandate and by extension, the whole justice delivery system.
Through the exercise of discretion
It is interesting to note that the only time the Constitution does not require Regulations be passed to govern the exercise of discretionary power is when the person or authority wielding said power is a judge or judicial officer[8]. So, magistrates, like all other judges and judicial officers in Ghana have the blessings of the good people of Ghana to exercise some discretion in the performance of their duties with the caveat that the exercise of these discretionary powers shall not be arbitrary, capricious, or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law[9]. Consciously resorting to human rights law as one of the yardsticks when faced with situations that require the exercise of discretion can be an efficient way to promote human rights because it ensures that the decision arrived at accounts for the applicable or relevant human rights considerations.
To illustrate, let us assume that a young, first-time offender is arraigned before the court for stealing a bunch of bananas. He pleads guilty with the explanation that he stole the bananas because he was hungry. The magistrate decides that is really no defence and therefore substitutes the plea of guilty with explanation with a plea of guilty simpliciter. The explanation goes to mitigation. In deciding on a sentence, the magistrate has the opportunity to exercise her discretion in a manner that effectively serves the ends of justice. The accused could either be cautioned and discharged, convicted and ordered to sign a recognisance for keeping the peace and to be good behaviour, or sentenced to a day in prison instead of being sentenced to serve a long custodial sentence or pay a fine which clearly, from the facts, the accused will not be able to pay. It all depends on the peculiarities of the particular case and the constraints imposed by law.
Or let us assume there is a criminal matter in which the accused has failed to meet the bail conditions set and is therefore still in the custody of the prosecution. Counsel for the accused informs the magistrate that the prosecution is denying him access to his client and that he only has the opportunity to see the accused when he comes to court. Prosecution, of course, denies this vehemently and counsel for the accused can really not prove this. The magistrate could issue a stern warning to the Prosecution to desist from denying the accused access to his lawyer and leave it at that and would have done his or her job. But the magistrate could also be proactive and exercise her discretion to order the prosecution to give the accused a few minutes alone to conference with his lawyer in one of the meeting rooms in the court building before the accused is taken back to the facility where he is being held, even if it has not occurred to his counsel to make such a request.
Creating awareness in rulings/judgments
I have to admit that this is by far my favourite. Magistrates in Ghana man the courts that interface the most with those we like to refer to as the ‘grassroots’. These are the average Ghanaians, many of whom have received limited formal education and are not well acquainted with the court system or our many laws. For this and other reasons, judgments must be read out in full and interpreted in a language the parties understand in open court[10]. This presents a great opportunity to create awareness among those present when the judgment is being delivered.
Recently, I delivered judgment in a matter in which the accused had, among other things, allegedly made videos accusing the police of taking bribes and facilitating illegal mining in the community and circulated said videos on social media. I took the opportunity to include in my judgment how a citizen could report corrupt police officers to the local office of the Commission of Human Rights and Administrative Justice or make a complaint to the Police Service’s toll-free number which I called out in court. Interestingly, I later on learnt from my staff that one of the investigators in that very matter had immediately after the court session refunded a bribe he had taken from the mother of one of the accused persons as he was afraid she would take a cue and report him.
Training staff
In Ghana, the staff in the District Courts often assist court users, many of whom are semi-literate and self-represented in preparing court documents such as witness statements[11]. The quality of these documents is directly proportional to the knowledge and experience of the staff who assists. Sometimes, when a witness statement is read and interpreted to the witness who is relying on same, they tell the court that they did not say that, or they said something they thought was important, but it was not captured. Poorly trained staff can also unintentionally deny persons access to the court in spite of the provisions made by the law. In Ghana for instance, widows can apply for letters of administration to administer the estate of their spouses who die intestate without recourse to the extended family[12]. This is ostensibly to protect widows so that they do not need to participate in any repugnant widowhood rights or give in to other unreasonable demands of the family before they can be properly catered for out of the estates of their deceased spouses. However, we still sometimes have the situation where some court officials insist that applications for letters of administration are supported with affidavits from the head of family before they accept the same for filing.
It is therefore important to be observant and quickly correct staff as some of these issues come to your notice as a magistrate. Needless to say, training need not be in the form of expensive seminars or such. Providing timely feedback regularly to staff and insisting that they do things properly can make a big difference.
Doing your job well.
You already know this. But it is worth re-emphasizing because sometimes we fail to realise how much of a difference the things we regard as insignificant can make.
Being a magistrate (and a judge, for that matter) is hard work. You need to keep abreast with the law, exercise firm control over your court, scrutinise evidence, decide on appropriate sentences and remedies, and write judgments. Every decision has implications for the human rights of the parties before you. Consequently, as cliche as it may sound, simply making the effort to do one's work well, can result in the promotion of the human rights of so many people in so many ways. By showing up at work armed with the law alone, someone’s right to access justice is promoted. When we speedily and efficiently resolve disputes, human rights such as the right to shelter, property, freedom of speech, fair trial, etc are promoted. And the list goes on and on. So the magistrate really need not do anything grand and extraordinary to make a difference; diligently doing one's work is, in my opinion, enough. To put it in the words of John Milton, “They also serve who only stand and wait”[13].
Conclusion
As members of the International Association of Women Judges, we share a commitment to eradicating gender bias, championing law reforms, and making the courts more gender sensitive. While those of us in the lower courts may not exactly be able to initiate change on a grand scale, we can still contribute to the realisation of these objectives in our own small but impactful ways. By avoiding undue delays, taking into account human rights considerations when exercising discretionary powers, creating awareness on human rights issues in the judgments we deliver and other pronouncements we make, training our staff, and generally doing our jobs to best of our abilities, we can contribute to the realisation of better human rights for all.
[1] B.A., LL.B, QCL (Ghana), Magistrate, District Court Bench, Ghana.
[2] J Beatson, Beatson, Matthews and Elliott’s Administrative Law Text and Materials (Oxford University Press 2018).
[3] Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
[4] Article 33(1) of the Constitution of Ghana, 1992 states (1) Where a person alleges that a provision of this Constitution on the fundamental human rights and freedoms has been, or is being or is likely to be contravened in relation to him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress.
[5] Articles 129(3), 136(5) of the Constitution of Ghana, 1992.
[6] Eleanor Roosevelt, quoted in Joseph P. Lash, Eleanor: The Years Alone (New York, American Library, 1972).
[7] https://www.graphic.com.gh/lifestyle/life/media-heroes-to-the-rescue-in-the-social-sector.html
[8] Article 296(c) of the Constitution, 1992.
[9] Article 296(b) of the Constitution of Ghana, 1992.
[10] Order 28 rule 1(1) of the District Court Rules, 2009 (C.I. 59).
[11] Order 18 rule 2(2) of the District Court Rules, 2009 (C.I. 59).
[12] Order 31 rule 13 of the District Court Rules, 2009 (C.I. 59).
[13] ‘On his blindness’ by John Milton.