➥ CASE SUMMARY OF:
Justice Paul Uuter Dery & Ors. v Republic of Ghana (2019) – ECOWAS
by “PipAr” B.C. Chima
ECOWAS – ECW/CCJ/JUD/17/19
➥ JUDGEMENT DELIVERED ON:
29th Day of April, 2019
➥ AREA(S) OF LAW
Right to privacy.
Right to work.
➥ NOTABLE DICTA
⦿ ECOWAS COURT CANNOT RECEIVE APPEAL OVER NATIONAL COURT DECISION
Para. 43: “This Court has in its flourishing jurisprudence held that it lacks the jurisdiction to sit on appeal over decisions of National Courts. In BAKARY SARRE & 28 ORS V. THE REPUBLIC OF MALI (2011), ECW/CCJ/JUD/03/11, the Court in determining the application filed by the Plaintiffs held that: ‘The said application substantially seeks to obtain from the Court a reversal of judgment delivered by the Supreme Court of Mali and seeks to project the Court of Justice of ECOWAS as a Court of cassation over the Supreme Court of Mali. Viewed from that angle, the Court declared that it had no jurisdiction to adjudicate on the matter.’”
⦿ THE RIGHT TO BE HEARD CONNOTES AN OPPORTUNITY TO MAKE REPRESENTATION
Para. 53: “The Court recognizes the principles of Audi alteram partem (hear the other side) which requires that persons affected by an adverse position must be given an opportunity to make representation. The right to be heard by its own nature connotes an opportunity to be heard within a reasonable time by an impartial court or Tribunal. This right is not limited to a one on one verbal representation but encompasses every avenue accorded to a party to be heard in a matter. This Court 18 reiterated the principle that parties must be given an opportunity to be heard in any matter affecting their interest in the following words: “the right to fair hearing is a human right derived from the concept of fair hearing, in this regard, a fair trial is not only seen as an additional instrument for protection of the rights of defence largo sensu…..” See MOHAMMED TAYYIB BAH V. REP OF SIERRA LEONE JUD NO: ECW/CCJ/JUD/11/15, (Unreported) in its consideration relied on the case of Ugokwe v. Okeke (2008), CCJELR pg. 149@ 146.”
⦿ ECOWAS COURT IS NOT AN APPELLATE COURT
An ancillary issue which the Court needs to address relates to the allegation of the status in law of the petitioner. The Supreme Court having ruled that the petitioner was duly registered and stricto senso not been a human right issues, this Court will not review the decision as it amounts to sitting on appeal on the decision of the national court. The court further reiterates that it is not an appellate court and will only admit cases from national courts where human rights violation are alleged in the course of the proceeding. See Private Alimu Akeem v. Federal Republic of Nigeria ECW/CCJ/RUL/05/11, Hissein Habre v. Republic of Senegal ECW/CCJ/RUL/03/10 and Messrs. Abdoulaye Balde & 5Ors. V. The Republic of Senegal ECW/CCJ/RUL/01/13. Jerry Ugokwe Vs Nigeria (2004-2009) CCJELR, Ocean King Vs Senegal ECW/CCJ/JUD/07/11, Bakare Sarres Vs Mali.
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice Gberi-Be Quattara
Hon. Justice Dupe ATOKI
Hon. Justice Keikura BANGURA
⦿ FOR THE CLAIMANT
⦿ FOR THE RESPONDENT
➥ CASE HISTORY
The Applicants seeks, inter alia: “A DECLARATION that the Republic of Ghana has violated and continues to violate the Applicants’ rights to fair hearing and administrative justice, enshrined in Article 10 of the Universal Declaration of Human Rights; Articles 5(2); and 14(1) of the International Covenant on Civil and Political Rights; and Article 7(1) (a) of the African Charter on Human and Peoples’ Rights.”
This case borders on an investigation conducted by one Tiger Eye PI into the activities of judiciary officers in Ghana in which various alleged acts of corruption, bribery and unethical practices were uncovered. That upon this discovery, the President of Ghana was petitioned for the removal of the superior Justices (which the Applicants are part of) who were implicated based on which the President of Ghana referred same to the Chief Justice in accordance with the provisions of the 1992 constitution of Ghana.
That the said investigation showed the Applicants’ engaging parties outside their official functions, with the 1st Applicant seen in his official residence accepting monies from both his clerk and alleged relative of the accused person as well as sheep and goat from the said relative. That the 2nd Applicant was also seen taking the money from his table and putting it either in his bag or drawer by his side. That in so far as the 3rd Applicant is concerned, the money was brought to him in his house.
➥ ISSUE(S) & RESOLUTION
I. Whether the court has the Jurisdiction to hear this case?
RULING: IN CLAIMANT’S FAVOUR.
Para. 45 – 46: “The objection that adjudicating on this matter will amount to sitting on appeal of the Respondent decision is not founded and the Court so holds. The court is also called upon to address the issues of res judicata in the context that the facts of the case at the national court are the same with the instant. From the pleas of both parties it is undisputed that the Applicants’ cause of action in the national court was premised upon the following: That the petition, due to the public disclosure of evidence on which it was based is null and void; That the action of the judicial council was constitutionally illegal; That the petitioner lacked juridical capacity to carry out the investigation being unknown to Law; That the investigation by the Police Service was illegal. On the other hand, the case at hand is purely on allegation of violation of right to fair hearing, right to privacy, right to work and equality before the law. Additionally the parties are not the same: whilst the current case is against the Respondent: Republic of Ghana, the national cases were against several parties including the petitioner, the Chief Justice, the Attorney General, the judicial Council and the head of the Police force. The principle of res judicata contemplates similar facts and same parties. In view of the above, the Court reiterates that it is not an appellate court and the facts do not lend credence to the operation of res judicata.”
Para. 48: “In the instant case, the Applicants allege violation of their human rights to fair hearing and fair trial; equality before the law and non-discrimination; privacy and work as guaranteed by various provisions of the UDHR, ICCPR, ICESCR and the ACHPR all of which are treaties ratified and domesticated by the Respondent through provisions in the 1992 Constitution and other statutes. The Court in a plethora of case law has held that mere allegation of human rights violation is sufficient to invoke the jurisdiction of the Court. In His Excellency Vice-President Alhaji Samuel Sam-Sumana v. Republic of Sierra Leone.-SUIT NO: ECW/CCJ/APP/38/16 and JUD NO: ECW/CCJ/JUD/19/17, the Court held that: ‘Indeed allegations of violations of human rights by an Applicant is sufficient to invoke the jurisdiction of this Court. This is distinct from the issues of the veracity of the allegation(s).’”
II. Whether the human rights of the applicants have been violated as alleged?
✓ Fair hearing: IN RESPONDENT’S FAVOUR.
Para. 54: “The Applicants in their originating application admitted that they were served with a notice by the Chief Justice to answer within a stipulated time to a petition submitted against them alleging judicial misconduct. The 2 nd Applicant responded and was given an opportunity to cross examine the petitioner and upon review was informed that he had a case to answer. The 1 st and 3 rd Applicants however failed to respond instead filed an action at the High Court contesting the legality of the investigation. This clearly is the situation contemplated by Article 7(a). A recourse to a competent national organ, (in this case the High Court of Ghana) is the guaranteed rights therein which the Applicants exercised. Having failed to respond to the preliminary process of the investigation, and having opted rightfully to lodge an appeal before a competent Court in accordance with Article 7 (a), the Applicants is estopped from raising the flag of violation of fair hearing.”
✓ Right to privacy: IN CLAIMANT’S FAVOUR, in part.
Para. 61: “With respect to the allegation that the petitioner being unknown to law, having not registered under the Data Protection Act, thus making the alleged acts unlawful; the Respondent stated that the Petitioner is a Company registered under the laws of Ghana and this was further confirmed by the decision of the Supreme Court where it held that the submission of the Plaintiffs (now Applicants) that the 1st Defendant (Tiger eye PI) is an unincorporated body and therefore incompetent to submit a petition to the President is not only disingenuous, but a ruse to sway the Court from the real issue. The Supreme Court found the Plaintiffs’ submission as unwarranted and dismissed same.”
Para. 64: “In analyzing the submission of the parties, the Court is mindful to ask what the right to privacy contemplates. The origin of the right to privacy is derived from the principle of the right ‘to be left alone’ which can be evoked to protect the privacy of an individual from invasion either by a too enterprising press, a photographer, or the possessions of any other modern devices for the recording or reproducing of scenes and sounds. See Prince Albert Vs Strange; (1849) 47 ER 1302. This principle has been codified by several international human rights instrument in varying styles but basically guaranteeing the protection of individuals from unlawful or arbitrary interference to the privacy of their homes, property, correspondence or communications. See Articles Article 17 ICCPR which is pari – material with Article 12 of the UDHR and Article 18(2) of the Constitution of the Republic of Ghana is hereby recited: Article 17 ICCPR reads: 1) ‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2) Everyone has the right to the protection of the law against such interference’”.
Para. 67: “The question to answer is whether there was an interference with the right to privacy of the Applicants. It is the Applicants’ case that the filming and recording of the activities in their offices and residence was effected without their consent. This fact was not controverted by the Respondent and thus remains factual. Consequently the Court finds an interference with the privacy of the Applicants.”
Para. 68: “The purpose of the phrase “in accordance with the law” is to ensure that the scope for arbitrary tampering with rights by the executive is limited by domestic legislative or judicial authority. The question that arises is did the filming and recording comply with the law so as to justify the interference in the applicants’ privacy. In the case of Huvig v. France 11105/84 and Kruslin v. France 11801/85; the European Court of Human Rights identified three questions which provide a test for deciding if any given interference with a specific right(s) was “legal”: Does the domestic legal system sanction the infraction? Is the relevant legal provision accessible to the citizen? Is the legal provision sufficiently precise to enable the citizen reasonably foresee the consequences which a given action may entail?”
Para. 69: “The concept of “law” in this context is not confined to domestic legal processes but admits compliance with international human rights laws that impose international legal obligations applicable to the state in question, and a variety of internal regulations based on law . The case of the respondent is that the petitioner’s acts are in compliance with both the Whistle Blowing Act and The Data Protection Act and therefore are in accordance with the Law. The Applicants have not disputed the assertion. It is clear from the interpretation of the Whistle Blowing Act 2006 (Act 720) of Ghana that it empowers the disclosure of any information by any person on reasonable suspicion that another person has not complied with a law, is about or likely to break a law which imposes an obligation on that person. Indeed the information disclosed is about the commission of a crime of bribery which is an act that amounts to breaking the law. The Court therefore finds that the alleged act of interference being premised on a national legislation is in accordance with the law.”
Para. 70: “A provision of law will be deemed accessible when the individual concern can adequately access it or is aware of it through the dissemination process applicable in the given case. In the Silver and Others v. United Kingdom case 5947/72 6205/73 7052/75 , the ECHR held that the Standing Orders and Circular Instructions which the British Home Secretary issues to prison governors failed the accessibility test since they were not published, were not available to prisoners, nor were their contents explained in cell cards. They were, therefore, not “law” for the purpose of Article 8, paragraph 2 of the ECHR. In the instant case, the applicants are not just lawyers but judges of Superior Courts charged with the interpretation of the laws of the Respondent. The referred laws are published and indeed form part of the national laws to which they are from time to time called upon to adjudicate upon. Having not denied the existence or knowledge of the said laws, they are deemed to be accessible to the Applicants and therefore adjudged as Law and the Court so finds.”
Para. 72 – 73: “The Court agrees with the Respondent that the Applicants should have known that in accepting bribes to influence their judgment, they were engaging in acts against the ethics of their call and ran the risk of encountering an undercover investigation whose task is to expose them. The Court therefore finds that foreseeability test has been met and all other requirements for the interference to be ‘legal’ has been fulfilled, the court therefore holds that the interference is in accordance with the law. 3) Pursuit of the legitimate purposes. Both Art 8(2) of the ECHR which is pari material with Art 12 of the Constitution of Ghana identify the legitimate purposes for which an interference can be justified namely public safety, economic well-being of the country, protection of health and morality and the prevention of disorder or crime. From the facts already established the interference was to capture the commission of a crime receiving bribes from relative of an accused person. This clearly falls within the ambit of the pursuit of a legitimate aim of exposing the commission of a crime. For this reasons the Court holds that the interference is in accordance with the law.”
Para. 75: “The case of the Applicants is that the filming and recording of certain activities in their offices and residence without their consent was an unlawful interference in their privacy. The Respondent contend that the Applicants were captured in a secret audio visual recordings where the 1 st Applicant was seen in his official chambers accepting monies, sheep and goat from both his clerk and the relative of an accused. The 2 nd Applicant was also seen taking the money received from his table and putting it either in his bag or drawer by his side. In so far as 3 rd Applicant is concerned the money was brought to him in his house. To the extent that these gifts were meant to influence their judgment, the Applicants’ action amounts to bribery a crime under the national law. Courts are accepted by the public as being a proper forum for the ascertainment of legal rights and obligations and the settlements of disputes and the public has respect for the confidence in the capacity to fulfill this function. The Applicants, by virtue of their position as judges are public officers who are public figures: “… holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.’”
Para. 76 – 77: “In the case of Ludi Vs Switzerland No 238 ECHR 1992, where a telephone conversation was intercepted in an attempt to control crime of smuggling of cocaine the European Court of human rights held as follow: “Although the Court has no doubt that the telephone interception had been an interference with Ludi’s private life and correspondence, it found however that this interference had been in accordance with the Law.” It is instructive that the Applicants did not deny the content of the film as captured by the petitioner rather their contention is the unlawfulness of the method used to obtain the information. The Court aligns its thoughts with the reasoning in the Case of Van Hannover Vs Germany No 59320/00 ECHR 2004 where the European Court of Human Rights opined thus; “There is nothing unconstitutional when balancing the public interest of being informed against the protection of private life, in attaching the importance to the method used to obtain the information in question.””
Para. 78: “Based on the reasoning above, the court finds that whilst the recording and filming that took place in the offices and residence interfered with the right to privacy of the Applicants, it was however done in accordance with the Law and is necessary in the a democratic society for the prevention and exposure of the commission of a crime. The allegation of violation of right to privacy of the Applicants fails. The Court therefore holds that the interference subject to the exceptions is not a violation of the right to privacy of the Applicants.”
✓ Right to work: IN RESPONDENT’S FAVOUR.
Para. 84: “Though in the instant case, the Applicants were suspended, they were still paid their salaries albeit half and also their housing rent. This suspension to the extent that it did not permanently deprived them of work but merely a temporary measure pending the outcome of an investigation on a wrong doing cannot be deemed a violation of their right to work. The Court therefore holds that the Applicants’ right to work has not been violated by the Respondent.”
“That it has jurisdiction to adjudicate on this matter.
That the Applicants have not established a violation of their right to fair hearing by the Respondent.
That the Applicants have not established a violation of their right to privacy by the Respondent.
That the Applicants have not established a violation of their right to work by the Respondent.
That the Applicants have not established a violation of their right to equality before the law and freedom from discrimination by the Respondent.
For reasons adduced above, the case is hereby dismissed.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ ECOWAS COURT HAS NO JURISDICTION TO ACT AS APPELLATE COURT
In LINDA GOMEZ & 5 ORS V. REPUBLIC OF THE GAMBIA, Suit No. ECW/CCJ/APP/18/12 at paragraph 27, where the Court stated as follows: “It is clear that the Court has neither jurisdiction to annul domestic legislations of ECOWAS Member States nor the jurisdiction to act as appellate Court over their domestic Courts”.
➥ REFERENCED (OTHERS)