Talking Drums

The West African News Magazine

Civil Liberties in the Commonwealth a survey (part 2)

By E.K.M. Yakpo

"Constitutions drawn in London and virtually imposed on a colonial possession as a condition for attaining independence cannot be said to truly reflect the aspiration of the people". This second instalment concludes the article first published last week.
A common exception is that which allows discrimination where "special circumstances" permit it. What these circumstances are and when they are found to be present, is left to the courts to determine. Such an issue arose in the Sierra Leonian case of Akar v. Att.-Gen, 1970, where the Sierra Leonian Government amended the constitution thereby restricting citizenship to person of "negro African descent". The Privy Council held that the amendment was discriminatory, therefore invalid. Their Lordships could not find any "special circumstances in a democratic country" to justify the amendment. The dissenting judgment of Lord Guest is of some interest. His Lordship felt that although the courts guardians of the constitution, they are the have to tread warily, "reasonably justified in a democratic society" must be liberally construed. Surely it is in the nature of things that a democratic society has control over the qualifications for citizenship of that society.

In some cases, the courts seem to exercise a remarkable judicial self- imposed restraint or "judicial passivism". In the celebrated flag salute controversy of Zambia, the Chief Justice accepted that the requirement for every school child to salute the flag or be expelled did hinder the enjoyment of religious freedom but held that there was a presumption of constitutionality in favour of the government. The case involved the Jehovah's Witnesses who claim to pay respect to God only. The United States has had similar cases and the Zambian courts could have learnt from their experience. Since 1938, the Supreme Court has held that the presumption of constitutionality in favour of the legislature is not applicable where a statute appears, 'prima facie" to invade the fundamental rights guaranteed by the first amendment. In such cases, the presumption is to the contrary.

It is plain that the bills of rights have had only a marginal impact on societies of the Commonwealth. Perhaps it is because the political pattern at inde- pendence involved a powerful national movement (e.g. CPP or TANU), as opposed to a weak opposition. The departure of the colonial power was likely to lead to a near monopoly of power by the national party. The inclu- sion of bills of rights at independence may have been seen only as a way of strengthening the judiciary to deter- mine conflicts between citizen and state. But the judges have not risen up to the challenge. In most cases the same judges who applied repressive colonial laws were, at the stroke of midnight on independence day, supposed to apply liberal provisions under a bill of rights. It is not surprising that they continued as before, backing the government of the day with the pre-sumption of constitutionality.

The British Government rejected them all without exception and so the independence constitution contained no bill of rights (Geoffrey Bing - "Reap the Whirl Wind").

It is questionable whether it is wise to frame bills of rights upon the pattern of the European Convention, while Third World economic, social and political problems are commonly regarded more urgent and different in kind. Apart from severe economic difficulties, most states of Africa, Asia and the Caribbean also have ethnic division which hinder nation building. Some would argue that precisely for such reasons, individual rights need to be protected. However, though the constitutions are modelled on West- minster, the governments are based on more poorly founded party systems, inefficient bureaucracies which tend to frustrate the working of the systems.

On the other hand, 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. Local needs are often ignored or are not pressed, so as to expedite independence. Bills of rights protect mainly political and related freedoms and it is arguable that guarantees of work, food, education, health and housing would be more meaningful than, say, freedom of speech. It is understandable that lawyers more readily assure can negative rights i.e., non-interference - by others with individual freedoms, than positive ones requiring economic resources for their fulfilment. Never- theless, the negative role alone is inadequate and is likely to cause imbalance.

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. The short-lived 1969 constitution of Ghana went even further than most Commonwealth countries in endeavouring to entrench very detailed individual rights. The stimulus for this legal overkill with its double-locked guarantee is to be traced back to the alleged dictatorship of the CPP under Kwame Nkrumah. And yet, it is instructive to note that the constitutional draft submitted by the Gold Coast Government under Kwame Nkrumah contained seven articles on fundamental rights modelled on the Indian and Irish provisions. The British Government rejected them all without exception and so the independence constitution contained no bill of rights (Geoffrey Bing "Reap the Whirl Wind').

Despite this wide support for bills of rights, it must be said that there are several respects in which the bills of rights are out of accord with the con- text in which they operate. African and Asian religious, cultural and social systems very rarely share the same values which have aspired the definition of human rights in western nations. The community and the duties imposed by custom, religious laws and family ties may rank higher than some aspects of individual freedom.

Further, the recent history of these new nations was scarcely an appropri- ate preparation for the maximum enjoyment of individual rights and freedoms. Colonial rule was essentially authoritarian and the introduction of the English legal system did not result in colonial people enjoying full liberties, due process of the law, free speech and the like, which the common law is said to guarantee the British people. The convenient, though ill- defined, doctrine of "indirect rule", buttressing the power of traditional rulers, the creation of native courts to administer unwritten customary laws and administrative orders, the exercise of powers of political detention or deportation and the use of laws of sedition and censorship framed more widely than in England were the significant intrusions upon the rule of law taken for granted in England.

It is important to note that the political order in many Commonwealth countries is fragile and there- fore the foundations upon which bills of rights may be built do not exist. Elaborate constitutional models incorporating guarantees of individual rights destined for early collapse may be less effective in securing liberty than realistic and stable political structures which lack such provisions.

Here the Tanzanian example is worth some attention. Neither at independence nor since has the constitution contained a bill of rights. The Presidential Commission charged to prepare the framework of the Interim Constitution of the One-Party State recommended against the adoption of a bill of rights. The Commission felt that "the rights of individuals in any society depend more on the ethical sense of the people than on formal guarantees in the law. "The Commis- sion also noted that British freedoms rest upon the consensus between the people and its leaders, not upon the law, which the Parliamentary majority can change.

Three reasons were given to support this well-considered rejection of a bill of rights:

(i) A bill of rights limits in advance of events, the measures which Government may take to protect the nation from threat of subversion and disorder.

(ii) The course of events cannot always be foreseen and constitutional guarantees for the individual will defeat their own purpose, if they serve to protect those whose object it is to subvert and destroy democracy itself, (one should not allow a person to use democratic means to destroy democracy itself as happened in the Weimar Republic).

(iii) A bill of rights will invite conflict between the judiciary and the legislature. The judiciary would be drawn into the political arena of controversy. Tanganyika has dynamic plans for economic development. These cannot be implemented without revolutionary changes in the social structure. Decisions concerning the extent to which individual rights must give way to the wider considerations of social progress are not properly judicial decisions. These are political decisions best taken by political leaders responsible to the electorate.

The Commission proposed an alternative method of protecting individual rights. A type of ombudsman in the form of a permanent commission of inquiry has succeeded beyond expectation in gaining the confidence of the people and in investigating maladministration.

In several respects it is more effective than a bill of rights. It is inexpensive and more accessible to the people, especially in the rural areas, than a court would be. Thus individual rights are better protected today in Tanzania than they are in most parts of the Commonwealth, where bills of rights have become talismanic words routinely inserted into constitutions, in the hope that the magic will work. But as the Simon Commission commented on the Indian Constitution in 1930: "...abstract declarations are useless unless there exists the will and the means to make them effective".

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