Civil Liberties in the Commonwealth - a survey (Part 1)
E.K.M. Yakpo
Yet Commonwealth nations on their own accord still include bills of rights in their post-independence constitutions. Nigeria, under military rule, provided for the fundamental rights not to be suspended.Enforceable bills of rights have now become a common provision to include in the constitutions of the Commonwealth countries. Almost every constitution since the 1960s, includes a chapter giving specific rights and free- doms to individuals. The notable exceptions to this rule are Tanganyika, which never had any, and Malawi which has formally abandoned it.
Generally, bills of rights are not new in the Commonwealth. In 1950, a comprehensive bill of rights was embodied in the Constitution of India. In Ireland, constitutional protection for certain rights was included in the Free State Constitution of 1922 and Tonga had had one since 1861!
But it is worthwhile to note that such bills are considered, in the British constitutional theory, to be unnecessary, in the tradition of the common law and the 'Westminster model', which these countries claim to emulate. British tradition considers them to be alien and even dangerous, for they might replace effective legal protection at common law by insubstantial constitutional provisions. Yet even in the face of upheaval and constitutional breakdown, the bills of rights have shown a remarkable resilience and have survived in most states. Even Britain itself has departed, albeit marginally, from its stand against bills of rights. In 1950, she adopted the justiciable bill of rights of the European Convention on Human Rights. This fundamental departure was bound to influence the newly independent countries of the Commonwealth.
A common feature of the bills of rights is their justiciability, with the notable exception of the Ghanaian bill of rights of the 1960 Constitution. In Re Akoto the Supreme Court of Ghana ruled that the contents of the "Decla- ration of Fundamental Principles" were merely a guide to the President in the performance of his duties.
This examination will cover the impact such bills of rights have had on the political and economic lives of people and the response of the judiciary.
The bills of rights follow the general pattern of Articles 2 to 11 of the European Convention on Human Rights. These guarantee the right to life, liberty, due process of the law, privacy, freedom of conscience, expression, assembly and association. The bills of rights are given prominence as one of the earliest parts of most constitutions, except the constitution of Kenya, where it has been relegated to the latter part. There is usually a declaratory preamble which affirms that "...every person...is entitled to the fundamental rights and freedoms of the individual... whatever his race, colour or place of origin, political opinions, creed or sex." Only the Ghana constitution of 1969 actually outlawed sexual discrimination but then somewhat paternalistically required Parliament to pass special laws to give women and children the special care and assistance they were stated to need.
Commonwealth Secretary General Sir Shridath Ramphal.
As to "peaceful enjoyment of pos- session" in Article 1 of the Convention, the equivalent in many Commonwealth constitutions, is a lengthy and complex provision increasingly refined by the draftsmen. The provision in the constitution of Fiji, for example, runs into eight sub-sections of some 1,300 words. It prohibits compulsory deprivation of possession or interest in any kind of property except in accord- ance with the law, which requires reasonable notice and a Supreme Court order and the payment of "prompt and adequate compensation" It also requires that the compensation paid may be remitted abroad without the payment of tax! Similar provisions exist in the constitutions of Kenya, Swaziland, Lesotho and Zimbabwe where property includes pensions.
In most cases, rights and freedoms guaranteed are subject to modifications and exceptions. Thus there is provision for loss of liberty after a criminal sentence. Some exceptions refer to ma usual local circumstances such as the "power to acquire property of the Ameridians of Guyana, for the purpose of its care, protection and management (Constitution of Guyana, Section 8(2)). Or to restrict the movement of person who are not Bushmen, in certain parts of Botswana, "for the protection of Bushmen" (Constitution of Botswana, Section 14(k)),
In certain cases, the exceptions make such inroads upon the rights asserted as in fact to deny them. The Constitution of Mauritius, for example, pro- vides that the Police Commissioner has power to order the detention of any person "upon reasonable suspicion of his having engaged in or being about to engage in activities likely to cause serious threat to public safety or public order" (Constitution of Mauritius, Section 5(3)(k)). In many constitutions, personal freedom is subject to sweeping derogations, permitting deprivation of liberty or excluding a person from any specified area. This is a remnant of the colonial type of "deportation laws'' used to restrict the movement of troublesome individuals.
A number of constitutions make further exceptions such as the preventive detention order (Constitutions of Uganda and Guyana), but without the requisite compensation requirement for improver detention as found in the Convention. Secondly many of the rights are subject to qualifications "in the public interest,” such as defence, public health morality and the like. Thirdly, some constitutions expres- sly validate laws existing at the date of the constitution even if these laws conflict with the rights granted under the constitution. In Jamaica, Guyan and Zimbabwe, all laws in existence at the time of the constitution are preserved despite the possibility of inconsistency with fundamental rights. In Zimbabwe the conflict is real. In some instances the protection against inhuman and degrading punishment expressly permits the infliction of any punishment existing under any previous law.
Another major deficiency is the absence of a special machinery to enforce the fundamental rights declared by the constitution. In all Commonwealth countries, a person who alleges an actual or anticipated infringement in relation to him". Although some constitutions provide that special rules be made to govern practice and procedure, no such rules have been made anywhere. In many cases, the old English law procedures of the prerogative orders are used, especially in cases concerning personal liberty or the writ of Habeas Corpus". The Nigerian courts, for example, have refused to consider petitions "in vacuo". The petitioner must show that a personal right of his is involved. This is in keeping with the common law tradition that the courts do not entertain hypothetical questions (Olawoyin v. Att.-Gen. Of Northern Nigeria).
The courts themselves have remained remote and inaccessible to most of the population in the Commonwealth and most of those who appear before the lower courts are not legally represented and therefore neither they nor the magistrates (who only have limited legal training any- way) are likely to raise constitutional issues. It is reported that in Lesotho, during the first three years of independence, before the constitution was suspended in 1970, the High Court was not called upon to determine a case involving human rights provision (Stein & Stein: "Legal aspects of the Lesotho Constitutional Crisis' - East African Law Journal, 1970). Indeed, the lower courts themselves were found to be infringing the bill of rights. In Nigeria, a customary court continued to convict and sentence people for the customary law offence of adultery, although the constitution provided that no one was to be punished for an offence unless it was defined by written law (Aoko v. Fagbemi, 1966).
It is also arguable that other factors in African and Asian societies are likely to contribute to the extra-judicial resolution of conflicts which might otherwise have involved fundamental rights. The manipulation of kinship or other links, face to face encounters with politicians are still expected to yield more effective results than formal confrontations through the judicial apparatus. Further, the far-reaching influence of the political party con- trolling government, with its assorted powers of patronage and coercion is also likely to discourage any but the most determined or most offended from openly attacking state policy on official decisions.
The majority of cases to come before the courts have involved the requirements of the "due process of the law". Here the courts have been most unimaginative. English common law rules are blindly adopted whether or not they are appropriate. The Constitutional Commission appointed in Trinidad and Tobago in 1972, to study constitutional reform commented: ". English common law which is, and has been for some considerable time, a part of the law of Trinidad and Tobago, has developed a body of rules and proced- ures designed to protect and therefore to recognise and keep in existence all those rights and freedoms." This attitude is dangerous, for it may lead to a restrictive judicial approach to the interpretation of the bill of rights, with the underlining assumption that the constitution merely restates doctrines which the common law has already adequately developed. Thus the courts have adopted trial procedures closely corresponding to basic rules of English criminal justice. A fundamental right in the Jamaican constitution is the protection against unlawful searches, 'except with his own consent". In King v. R. 1969, the appellant had been convicted of possession of drugs. The whole evidence against him had been obtained through unlawful police search. The Privy Council rejected the argument that the evidence should have been excluded. At common law, relevant evidence, however obtained, is admissible.
"Constitutions drawn in London and virtually imposed on a colonial possession as a condition for attaining independence, cannot be said to truly reflect the aspirations of the people."The judgment betrays the attitude of the common lawyer who believes that the common law confers protection which cannot be surpassed by any constitutional guarantees. American courts have long recognised that the only way to stop illegal searches is to exclude the evidence they yield. Once courts allow illegally obtained evidence which results in conviction, the constitutional guarantees have been rendered a nugatory. English courts lack the necessary expertise as far as the interpretation of constitutional provisions are concerned and should not be used as a guide.
The issue is: is it right for the courts to interpret constitutional provisions like ordinary Acts of Parliament? In most cases the provisions have been enacted in the form of ordinary Acts of Parliament, numbered chronologically with other Acts of Parliament, as is the case in Kenya. Nevertheless, whatever form they take, these are fundamental laws and this is often affirmed by an "...the earlier provision that "this Constitution is the supreme law". It follows that any Act which is inconsistent with it must be void. And yet common law courts apply the same method of interpretation of a road traffic Act to a constitutional provision.
In the Kenyan case of the Republic v. El Mann, 1969, the High Court of Kenya was invited by defence counsel to apply a liberal interpretation to the constitutional requirement that no one charged with a criminal offence shall be obliged to give evidence in his own case. The prosecution argued for a narrower interpretation. The High Court was impressed by the prosecution argument and said that arguments based on the spirit of the constitution are always attractive and have appeal to sentiment emotion. But what one believes to be the spirit of the law cannot prevail if the language of the constitution does not support that view. The court concluded that gener- ally a constitution is to be construed in the same way as any other legislation, that is, where the words used are un- ambiguous, they are to be understood in their natural and ordinary sense. This literal approach has been applied in most Commonwealth countries as in Collymore v. Att.-Gen, 1970, in Trinidad and Tobago and in Olivier v. Buttigieg, 1967 in Malta.
Another difficulty judges have frequently met is the interpretation, the qualifying phrase "Reasonably justified in a democratic society", which allows for the derogation from funda- mental rights. The Commonwealth contains a rich variety of "democratic societies" so that the concept "democracy" is a matter more appropriate for political philosophers rather than lawyers.
In dealing with the problem, the courts have conveniently put the onus on the victim of breach, to prove that the law is not reasonably justifiable in a democratic society. The judges justify this position by arguing that there is the "presumption of constitutionality" in favour of the legislature. Some of the exceptions arise from the nature of "plural societies", a common feature in a number of Commonwealth countries. Thus it may be necessary to permit discrimination in the application of personal, custom- ary or religious laws.
Next: Part 2
