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Citation: 25 Afr. J. Int'l & Comp. L. 91 2017

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TOWARD A PROGRESSIVE REALISATION OF
SOCIO-ECONOMIC RIGHTS IN GHANA:
A SOCIO-LEGAL ANALYSIS*

NANA TAWIAH OKYIR**

INTRODUCTION

The case of Ghana Lotto Operators et al. v. National Lottery Authority (Ghana
Lotto case)1 marks a turning point in Ghana's socio-economic rights (SERs)
jurisprudence. In this case, the Supreme Court of Ghana (SCG) acknowledged the
existence of SERs in the Ghanaian Constitution and indicated its preparedness to
enforce them. Although the case was not directly on the enforcement of SERs, the
SCG relied for the advancement of its jurisprudence on the Directive Principles
of State Policy (DPSPs) in Chapter 6 of the 1992 Constitution of the Republic of
Ghana2 to proclaim a SERs regime. The Court was initially invited to pronounce
on the controversy that the DPSPs are aspirations that serve as a guide to State
authorities and are unenforceable in court. The Court responded by overruling all
its previous decisions3 on the unenforceability of SERs by stating that there was a
'presumption of justiciability' in favour of the DPSPs.4 Advocates for social and
economic rights may latch onto this decision to propel the progressive realisation
of SERs in Ghana as required under the International Covenant on Economic,
Social and Cultural Rights (ICESCR).5

This article is an updated version of a paper submitted to the Graduate Program of the Harvard
Law School as partial fulfilment for the award of the LLM Degree.
* BA, LLB, BL (Ghana), LLM (Harvard). Lecturer, Faculty of Law, Ghana Institute of
Management and Public Administration (GIMPA).
1 [2007 2008] 2 SCGLR 1088.
2 Constitution of the Republic of Ghana, 1992, approved by Referendum on 28 April 1992. Came
into force on 7 January 1993.
3 In two of its earlier decisions the Court initially decided that the DPSPs were justiciable, but later
decided that the DPSPs were not in and of themselves justiciable. The two cases are discussed in
Part I.
4 See Ghana Lotto case, supra, note 1, at 1113.
5 Adopted and opened for signature, ratification and accession by General Assembly Resolution
2200A (XXI) of 16 December 1966. Entered into force 3 January 1976, pursuant to Article 27
of the ICESCR.

African Journal of Internationaland ComparativeLaw 25.1 (2017): 91-113

Edinburgh University Press
DOI: 10.3366/ajicl.2017.0183
Edinburgh University Press
www.euppublishing.com/ajicl
92 Nana Tawiah Okyir

Relying on this case, could the homeless kayayoo6 in the streets of Makola7
proceed to court to compel the state to provide her with housing? Or again, could
the teeming number of unemployed university graduates rely on this decision to
compel the government to provide them with jobs?
Although this trajectory of the court on SERs is not unique as compared
to other jurisdictions such as South Africa and India, it is progressive in the
Ghanaian context. However, one cannot overlook the factual situation on the
ground that, possibly due to the controversies surrounding the justiciability or
otherwise of the DPSPs, the Ghanaian legal system has not developed the attitude
of analysing personal rights claims in the nature of SERs claims. Indeed, as noted
by Quashigah,8 because Ghanaian lawyers are not in the habit of couching briefs
to reflect SERs, the Ghanaian courts have not developed the skill and expertise to
handle such claims. 9 It is unlikely therefore that this case will lead to a rush of
litigation flooding the courts on SER claims. Despite its importance, the decision
does not offer a strong regime for the realisation of SERs. Also, it does not
provide a detailed roadmap for the actualisation of these rights as provided in
the Constitution.
This article, however, argues in favour of the strengthening and entrenchment
of constitutional provisions that reflect SERs in the Ghanaian Constitution, in
order to aid the judiciary to succeed along its new path in finding 'flexible
and imaginative' ways to enforce SERs. The article further acknowledges the
linkages between SERs and the availability of resources, and suggests that in
the context of Ghana, this may be addressed and mitigated with the adoption
of the recommendations of Ghana's Constitution Review Commission (CRC)1"
that a National Development Plan with SERs as its basis be constitutionalised.
The article also finds as feasible the extension of citizen participation and social

6 Internal migrant worker from the rural areas to the urban centres of the Ghana undertaking basic
menial jobs in many commercial centres.
7 A major market and trading centre in Accra, Ghana.
8 Kofi Quashigah, 'Trends in the Promotion and Protection of Human Rights Under the 1992
Constitution, in Kwame Boafo-Arthur (ed.), Ghana: One Decade of the Liberal State (Zed
Books, 2007), pp. 21, 26.
9 As an illustration, the SCG, in 2008, was invited to consider the issue of the continuous use of
pan latrines in many homes in the nation's capital in the cases of Adjei-Ampofo (No.]) v. Accra
MetropolitanAssembly & Attorney- General(No.]) [2007 2008] SCGLR 611, and Adjei-Ampofo
(No.2) v. Accra MetropolitanAssembly & Attorney- General (No.2) [2007 2008] SCGLR 663.
The case was couched by the plaintiff as a violation of the Article 15 civil and political rights of
the dignity of persons who are made to carry human excreta in pans on their heads. In the end the
case was decided by amicable settlement with the defendants agreeing to phase out the practice
in five years. Considering the facts of the case one wonders why the action was not framed in the
nature of a right to housing because of the suggestion that most landlord refuse to build toilets
because they want to maximise their space and provide for more sleeping rooms to rent out.
Indeed it could have also been argued that the carrying of the pan latrines posed a major health
risk to the carriers and thus an affront to their right to health. Could the action have been founded
on the fact that these rights, though not stated clearly in the Constitution, be part of the rights
which are inherent in a democracy and intended to secure the freedom and dignity of man?
10 The Constitution Review Commission of Ghana was set up by the President of Ghana and
inaugurated on 11 January 2010. The Commission submitted its final report titled 'From a
Political to a Developmental Constitution' on 20 December 2011.
 Socio-economic Rights in Ghana 93

movements, which appears to have achieved some success in civil and political
rights activism, to complement the attitude of the courts in the furtherance of the
progressive realisation of SERs.
This article is organised in three parts. Part I is an overview of the evolution of
SERs in Ghana while Part II addresses the Ghana Lotto case and the presumption
of justiciability, and provides international comparatives from India and South
Africa. In Part III, the discussion focuses on the future of the progressive
realisation of these rights in Ghana. The article ends with concluding reflections.

I. OVERVIEW OF THE EVOLUTION OF SOCIO-ECONOMIC RIGHTS

IN GHANA

A. Introduction
SERs in Ghana are traceable to a number of international conventions to which
Ghana is party but particularly the International Covenant on Economic, Social
and Cultural Rights (ICESCR).11 As part of its treaty obligations, Ghana is
required to take steps toward the progressive realisation of SERs.12 This part of
the article traces the growth of SERs in Ghana from independence to the present.

B. Evolution of Socio-economic Rights in Ghana

Ghana has had both military and constitutional regimes. This article, however,
focuses on the development of SERs during constitutional regimes, particularly in
the third republic and the present fourth republic.
The Third Republican Constitution 13 provided the first real opportunity for
the introduction of SERs language into Ghana's post-independence era, albeit
in the form of the 'Directive Principles of State Policy'. This was a significant
development in the evolution of SERs in the country.14 The Constitution further
provided these rights under a separate chapter, different and distinct from

11 Ghana signed and ratified the ICESCR on 7 March 2008, in the same year and some four months
before the Ghana Lotto case decision was delivered. In Ghana Lotto, the plaintiffs attempted
to rely on the UDHRs, the ICESCRs and the African Charter on Human and Peoples' Rights.
According to the court, because the plaintiffs failed to clarify the extent to which the rights under
the international instruments should be imported into Ghanaian law, it declined to address the
connection of the instruments to Ghana's obligations. Had the courts proceeded to address this
issue it would have further provided a means through which Ghanaians would have sought to
enforce SERs in the country.
12 See Articles 1 and 2 of the ICESCR.
13 Constitution of the Republic of Ghana, 1979. The Constitution came into force September 1979
and was overthrown in December 1981.
14 Under the 1957 Independence Constitution of Ghana, some SERs were provided, albeit to a
very limited extent, for a person's right to property, with respect to compulsory acquisition of
property by the state. In Ghana's first Republican Constitution, the President was required, upon
assumption of office, to declare that Ghanaians will not be deprived of their property except in
the public interest and based on law. The force of this declaration was, however, whittled down
significantly when the SCG declared it a mere unenforceable declaration which operates only on
the conscience of the President.
94 Nana Tawiah Okyir

the chapter on Fundamental Human Rights.15 These Principles included the

social, economic and educational objectives of the state. As with the previous
constitution, 16 the lifespan of the 1979 Constitution was short and the impact
or otherwise of such novelty in the evolution of SERs in Ghana could not be
ascertained. The 1992 Constitution which ushered in the Fourth Republic of
Ghana, however, provided Ghana with another opportunity to continue on its
trajectory to a progressive realisation of SERs.

C. The 1992 Constitution and Socio-economic Rights

1. The ConstitutionalFramework
Ghana's 1992 Constitution was preceded by a number of key events. The
Committee of Experts that drafted the Constitution17 proposed the continuance
of DPSP in the new constitutional architecture.18 The Committee, however, noted
that, 'by tradition, the Directive Principles are not justiciable'. 19 This traditional
perspective taken by the Committee of Experts led it to recommend that the
principles should 'not of and by themselves be legally enforceable by any court' .20
However, the final version of the Constitution which was agreed to by the
Consultative Assembly, approved by a referendum and ultimately adopted and
promulgated, was silent on whether the DPSPs were justiciable or enforceable.
Also silent was whether these were SERs.
What the 1992 Constitution, like its precursor, provides for is a distinct chapter
on Fundamental Human Rights and Freedoms (FHRFs) 21 and one on Directive
Principles of Social Policy (DPSPs). 22 The chapter on FHRFs contains classically
what are called the civil and political rights while the chapter on DPSPs contains

15 Chapter 4 of the Constitution was on Directive Principles of State Policy, while Chapter 6 was
on Fundamental Human Rights.
16 Constitution of the Republic of Ghana, 1969. The evidence seems to suggest that because of
the position of the courts in the First Republic, the drafters of the 1969 Constitution were very
mindful to consider and incorporate the Universal Declaration of Human Rights (UDHRs) while
drafting the 1969 Second Republic Constitution of Ghana. The proposals further noted that
in modern written constitutions, there exist some provisions on economic, social and cultural
rights in addition to the very traditional, personal, civic and political rights. In the result, the
Constitution provided an elaborate chapter on human rights unprecedented in the history of
Ghana. In these provisions, rights which classically are SERs the rights of women and children
to such special care and attention as are necessary for their health, safety, development and well-
being, and the protection against the deprivation of property were included. The Constitution
lasted from 1969 to 1972 and was abrogated after a military coup d'etat in 1972.
17 Report of the Committee of Experts (Constitution) on Proposals for A Draft Constitution
of Ghana (31 July 1991). The Committee was a nine-member body of eminent Ghanaian
professional and traditional rulers tasked by the Military Regime to provide the draft of a new
constitution for the consideration of a Consultative Assembly.
18 See supra, notes 13 15, on the first time the DPSPs were introduced in Ghana.
19 Report of the Committee of Experts, supra, note 17, paras 94-96.
20 See ibid., para. 96.
21 Chapter 5 of the Constitution of the Republic of Ghana, 1992.
22 Chapter 6 of the Constitution of the Republic of Ghana, 1992.
 Socio-economic Rights in Ghana 95

'... predominantly the so-called ESC rights or economic, social and cultural rights
,23,24

The SCG also held that Chapter 6 provides for a number of objectives that are
in the nature of SERs. 25 These include a right to the protection and safeguarding of
the environment for posterity,26 a safeguard of the health, safety and welfare of all
persons in employment and the participation of workers in the decision-making
at the workplace. 27 The state is also under a duty to ensure that contributory
schemes that guarantee economic security for citizens of Ghana 28 are instituted
and maintained, and to also provide social assistance to the aged as will enable
them to maintain a decent standard of living. 29 Regarding education, the state's
duty is to provide educational facilities at all levels and to the greatest extent
3
feasible, making these facilities available to all citizens.
The Constitution, however, provides two different mechanisms for the
enforcement of the provisions which are in the FHRFs and the DPSP chapters.
Rights enumerated in Chapter 5 are subject to protection and redress by the
High Court, including anticipatory breaches of those rights. 31 There has not been
much controversy in Ghana on the vindication of Chapter 5 rights except for
instances where the question had been whether the SCG held concurrent original
jurisdiction with the High Court on matters relating to the enforcement of a
32
person's fundamental human rights, which are broadly Chapter 5 rights.
The question of how the rights of citizens and duties imposed on the state in
Chapter 6 can be enforced has, however, been unclear. Turning on this controversy
has been the introductory provision of Chapter 633 which states, interalia, that the
provisions of the chapter 'shall guide all citizens, Parliament, the President, the
Judiciary ... in applying or interpreting this Constitution... for the establishment
of a just and free society.' It is argued that the provisions in Chapter 6 are merely
guiding principles and not of themselves enforceable by the courts. 34 The counter-
argument is, '[J]f they are merely guiding principles of interpretation and action,

23 See Ghana Lotto case, supra, note 1, at 1104.

24 These include a right to protection from the deprivation of property, rights of spouses in relation
to property, economic rights including a right to work under safe, satisfactory and healthy
conditions, a right to form trade unions and educational rights, including free compulsory basic
education for all and rights of the sick. In light of the stance of the SCG on the advancement of
SERs, it remains to be seen if these rights will be interpreted as 'normal' civil and political rights
or SERs whose enforcement requires 'flexible and imaginative ways'.
25 See Ghana Lotto case, supra, note 1, at 1104.
26 Article 36(9) of the Constitution of the Republic of Ghana, 1992.
27 Articles 36(10) and (11) of the Constitution of the Republic of Ghana, 1992.
28 Article 37(6)(a) of the Constitution of the Republic of Ghana, 1992.
29 Article 37(6)(b) of the Constitution of the Republic of Ghana, 1992.
30 Article 38(1) of the Constitution of the Republic of Ghana, 1992.
31 Article 33(1) of the Constitution of the Republic of Ghana, 1992.
32 See Quashigah, supra, note 8, pp. 24 5. This matter has been settled: the High Court has
exclusive original jurisdiction in relation to the enforcement of personal fundamental human
rights. See Adjei-Ampofo (No. 1) v. Accra Metropolitan Assembly & Attorney- General No. 1
[2007 2008] SCGLR 611.
33 Article 34(1) of the Constitution of the Republic of Ghana, 1992.
34 See opinion of Bamford-Addo JSC, in the CIBA case (1996 97) SCGLR 378.
96 Nana Tawiah Okyir

one wonders why all the subsequent substantive articles in Chapter 6, such as
Articles 35 through 41, are couched in the normally mandatory language of "shall"
rather than "shall endeavour to" or "is expected to" ... '35 Despite this controversy,
however, since the return to constitutional rule in 1993, successive governments
to date have taken some policy steps and ensured the passage of certain legislation
which have sought, to a large extent, to make socio-economic interventions in the
lives of Ghanaians. 36 These attempts have, however, not been within an overall
rights realisation framework or rights discourse.

2. The Constitution Review Exercise

Ghana's 1992 Constitution is presently under review. The review process was
spearheaded by the Constitution Review Commission (CRC), set up by the
President of Ghana and inaugurated on 11 January 2010. The CRC was tasked
to gather the views of Ghanaians regarding the operation of the Constitution. It
was given a threefold mandate by its constituting instrument, the Constitution
Review Commission of Inquiry Instrument 2010 (C.1 64). The Commission
was to ascertain from the people of Ghana their views on the operation of the
Constitution and, in particular, the strengths and weaknesses of it; to articulate the
concerns of the people of Ghana as regards the amendments that may be required
for a comprehensive review of the Constitution; and to make recommendations to
the government for consideration including a draft Bill for possible amendments
to the Constitution.
In its Final Report, 37 the CRC recommended, inter alia, the consti-
tutionalisation of a national development plan framework which will have as its
basis DPSPs and cover all facets of national life. It further recommended the
constitutionalisation of some SERs: the Right to Food, the Right to Health, the
Right to Housing; the Right to Education, the Rights of the Aged, Children's
Rights, the Right to the Environment and Consumer Rights in the chapter on
FHRFs.

35 See Justice Professor Modibo Ocran, Former Justice of the SCG, and Emeritus Professor of
Law, University of Akron School of Law, Keynote Address at the Loyola University Chicago
International Law Review Symposium: The Rule of Law and Delivering Justice in Africa (15
February 2007).
36 In this regard mention can be made of the Free Compulsory Universal Basic Education (FCUBE)
Programme which was introduced in 1995 targeting universal education for Basic 1 through to 9
free and compulsory for all school age by 2005, the introduction of the Capitation Grant policy
in early 2005 targeted as providing public schools with grants from government that will replace
fees being charged to parents, and the National Health Insurance Scheme (NHIS) established by
the National Health Insurance Act 2003 (Act 650). The Act seeks to provide basic health-care
services to persons resident in the country through mutual and private health insurance schemes.
Legislation has also been passed including the Persons with Disability Act 2006 (Act 715) and
the Mental Health Act 2012 (Act 846).
37 Presented to the President of Ghana on 20 December 2011. The presentation of this report
concluded the CRC's work. A Constitution Review Implementation Review Committee (CRIC)
has been established to oversee the implementation of the recommendations made by the CRC.
 Socio-economic Rights in Ghana 97

In its White Paper,38 the government accepted the recommendation to

introduce specific enforceable provisions on Consumer Rights and a Right to
the Environment. The government also supported the constitutionalisation of a
Right of the Aged, to the extent that the right was not expressed to include a
mandatory state pension and social welfare. Though the government did not reject
the recommendations on the Right to Food, Health, Housing and Education, as it
did on Children's Rights, it requested that they be expressed in the DPSPs and
not in the chapter on FHRFs. 39 The White Paper, however, rejected the idea of the
constitutionalisation of National Development Planning on the basis, inter alia,
that it '... will have the effects of a command model of development planning and
tie the hands of successive governments to the ideological interests and policies
of a particular political party.'

3. JudicialAttitude to Justiciabilityof Socio-economic Rights

The answer to the question of whether a legal action can be founded on a
SER in the Ghanaian courts was, and still is, the subject of some uncertainty.
The discourse had focused on the differences of opinion in the interpretation of
Chapter 6 of the Constitution which the SCG has indicated contains the economic,
social, and cultural rights.40 The SCG has, in three landmark judgments, attempted
to provide clarity on this issue. First was the case of New PatrioticParty (NPP)
v. Attorney-General (the 31st December case).41 By a majority decision, the court
decided that the provisions in the DPSPs were in their entirety justiciable and
enforceable by the court. Adade JSC noted,42 concurring with the majority, that
since a constitution as a holistic document was justiciable, an express provision
was required in the constitution itself to indicate that a provision or chapter is not
justiciable. Consequently, absent express exclusionary provisions, all provisions
in the Constitution should be held justiciable.
43
In the case of New Patriotic Party v. Attorney-General (the CIBA case),
the SCG had to decide, inter alia, whether Article 37(2)(a) 4 was justiciable.
This article provides that the state shall enact appropriate legislation to ensure
effective participation in development processes including the rights of people to
form their own associations free from state interference. The court delivered a
unanimous decision on the question of justiciability. The court, led by Bamford-
Addo JSC, indicated that Chapter 6 provisions were not of themselves justiciable
but would be only when read together with other enforceable provisions in the

38 Gazetted on 15 June 2012 pursuant to Article 280 of the Constitution of the Republic of Ghana,
1992.
39 The express indication that the rights have to be under the Chapter on DPSP is probably
an attempt by the government to water down those rights regarding the seeming uncertainty
regarding the full effect of DPSPs.
40 See Ghana Lotto case, supra, note 1, at 1105.
41 (1993 94)2GLR35 192.
42 See ibid., at pp. 65-6.
43 (1996 97) SCGLR 378.
44 The provision is in the chapter on the Directive Principles of State Policy of the Constitution of
the Republic of Ghana, 1992.
98 Nana Tawiah Okyir

constitution.45 Thus the SCG sought to create a distinction: some provisions are
directly enforceable, and others are enforceable when read together with some
other provisions. This signalled a shift from the earlier decision in the 31st
December case46 and provided a basis for commentators to argue that there was a
lack of clarity as to whether or not SERs were justiciable.47
The uncertainty created by the highest court over the enforceability rights and
duties arising from DPSPs in Chapter 6 of the Constitution persisted for more
than a decade.48 To resolve this conflict the SCG in the Ghana Lotto case held
that the right rule 'is a presumption of justiciability in relation to the provisions of
Chapter 6 of the Constitution, 1992.49 It stated that prima facie, all provisions in
the constitution should be justiciable.5" This judgment appears, for many, as the
conclusion on the question of the justiciability of provisions of the DPSPs and the
commencement of an era of SERs advancement in Ghana.
However, the dearth of cases on SERs in our courts may be indicative of either
the lack of appreciation of the import of the decision in the Ghana Lotto case or a
general indication that there is a disconnection between the rights regime and the
people who are to benefit from the 'novel' situation. None of these possibilities are
positive and, as indicated earlier, it calls for a reassessment of and improvement
in the discourse on SERs in Ghana.

II. DECONSTRUCTING THE PRESUMPTION OF JUSTICIABIITY AN

INTERNATIONAL COMPARISON
A. Introduction

In this part, the presumption ofjusticiabilityof SERs in Ghana will be considered,

in particular the meaning of the presumption and the content and context of the
decision. Also the article will critically look at the case and in light of its call for
'flexible and imaginative' ways, to consider lessons that can be learned from the
interpretation and enforcement of SERs in India and South Africa.

45 See supra, note 41, at p. 394.

46 Although the Justices in the CIBA case gave seriatim opinions, only Sophia Akuffo JSC made
reference to the majority decision in the 31st December case on the justiciability of the DPSPs.
She sought to distinguish the 31st December case by indicating that the earlier case concerned
itself with the question of whether the court could apply or make reference of the Directive
Principles while in the instant case it was rather the question of whether an action for enforcement
can be founded solely on the DPSPs.
47 See Quashigah, supra, note 8. See also note 35.
48 See Quashigah, supra, note 8. See also Oswald K. Seneadza, The Attitude of Ghanaian
Courts Towards the Enforcement of Socio-economic Rights of the Citizenry: A Critical
Review, at: http://www.articlesbase.com/national-state-local-articles/the-attitude-of-ghanaian-
courts-towards-the-enforcement-of-socioeconomic-rights-of-the-citizenry-a-critical-review-
109408 1.html (accessed 11 December 2012).
49 See Ghana Lotto case, supra, note 1, at 1113.
50 See Ghana Lotto case, supra, note 1, at 1099.
 Socio-economic Rights in Ghana 99

B. The Ghana Lotto Case: A Deconstruction

The National Lottery Authority (NLA) was established under the National Lottery
Act 2006 (Act 722) to, inter alia, supervise and manage the Lottery and ensure
the enforcement of laws relating to lotto in Ghana. Subsequent to the passage
of Act 722 the NLA informed the general public that all forms of lottery not
organised by the NLA were prohibited in the country. 1 The announcement also
requested that existing private lottery operators cease all operations and submit
their operating equipment to the NLA. The Ghana Lotto Operators Association,
the umbrella organisation for private lotto operators, contested this directive,
questioning its constitutionality. They further contended that the provisions of Act
722 which outlaw private lotto contradicted Articles 35(1) and 36(2) of the DPSPs.
In response, the NLA argued that articles from the DPSPs were not justiciable and
hence could not be a basis for a declaration of the unconstitutionality of Act 722.
Due to the issue of the interpretation again of DPSPs, the High Court hearing2
5
the application referred the issue to the SCG for constitutional interpretation.
Contrary to its earlier decision, the SCG rejected the argument of the NLA, but
upheld the validity of the Act on grounds that the state is empowered to regulate
private enterprise, although such regulation must not be arbitrary or biased.
The plaintiff lost yet the case has become important for the advancement of
SERs in Ghana. The case gave the signal that Ghana was joining the community
of nations that 'safeguard the protection of SERs' 53 since the SCG accepted that
predominantly imbedded in the DPSP Chapter of the Constitution are rights called
the economic, social and cultural rights which have become just as fundamental
as rights in Chapter 5.54 Indeed the Court took the position that there was a need
55
to elaborate and enforce SERs in Ghana.
The introduction of a presumption ofjusticiability in relation to Chapter 6 of
the Constitution 'strengthens the legal status of ESC human rights in the Ghanaian
jurisdiction' .56 Where a provision is presumed justiciable, it would ordinarily be
given effect to unless it can be proven that it does not lend itself to enforcement
by the courts; in which case the presumption of justiciability would be rebutted.
In other words, all the provisions of the DPSPs are justiciable unless the court can
be persuaded otherwise. Since the SCG does not decide hypothetical cases, 57 it
did not provide in its decision which provision would lend itself to enforcement

51 The announcement was made pursuant to sections 1, 2 and particularly 4 of Act 722. Section 4
provides for the NLA as the only body permitted to operate any form of lottery. It criminalises
any contravention of that section.
52 Article 130(2) of the 1992 Constitution. This provision requires all courts to refer all matters
relating to the interpretation of the Constitution to the SCG.
53 See Seneadza, supra, note 48.
54 See Ghana Lotto case, supra, note 1, at 1105.
55 Ibid. See also Article 33(5) of the Constitution of the Republic of Ghana, 1992 which provides
that the rights in the constitution are not exhaustive and it includes those 'which are considered
to be inherent in a democracy and intended to secure the freedom and dignity of man'.
56 See supra, note 53.
57 See Asare v. Attorney-General (2003 2004) 2 SCGLR 823.
100 Nana Tawiah Okyir

and which would rebut the presumption of justiciability. This might have further
cleared the uncertainty the court was seeking to deal with.58
Despite the apparent commitment to the enforcement of SERs in the Ghana
Lotto case, the Court was not prepared to apply the same standards it uses to
enforce civil and political rights. The Court clearly indicated that SERs 'need not
be implemented in the same way as the political and civil rights embodied in
Chapter 5' .5 While declining to elaborate on the enforcement distinction between
Chapter 6 rights and Chapter 5 rights,60 the court indicated that it 'will need to
be flexible and imaginative in determining how the provisions of Chapter 6 are
to be enforceable.'61 It is probably its flexible and imaginative thinking which led
62
the Court to pronouncing on the presumption of justiciability. However, is this
flexible and imaginative enough?
Prior to this judgment, many scholarly and legal arguments relating to the
improvement and advancement of SERs in Ghana had been targeted at resolving
the question of the justiciability of the DPSPs in Chapter 6.63 With the seeming
settlement of that issue, the focus should be on expanding the debate and looking
closely at some of the critical issues that would 'strengthen the legal status of ESC
human rights in the Ghanaian jurisdiction'"4 and making these SERs real in Ghana
as appears to be the case in India and South Africa.

C. Comparative Experiences
The jurisprudence as is developing and growing in South Africa and India on
the enforcement of SERs provides insightful perspectives into the possible future
choices which Ghana can adopt in the quest to resolve the lingering uncertainty
with respect to the enforcement of SERs. In both India and South Africa, the
enforcement of SERs takes place within a contextualised framework -in India,
through the expansive interpretation of existing civil and political rights to include

58 Most of the rights are couched in language which, while placing a duty, provides very interesting
phrases which appear to make them practically unenforceable. On a close reading of Chapter 6,
one recognises several different legal drafting language styles. In some instances the provision
indicates a duty on the state to act positively in a particular manner while in other instances the
provision places a duty on no one at all. Ocran notes that the drafting of the provisions of Chapter
6 has contributed to making the enforcement of SERs in Ghana formalistically difficult. Again,
the language used appears to be premised on resource availability and the absence of rights on
demand. But as noted by the Committee on Economic and Social Rights language in the nature
of 'take steps' and 'progressive realisation' should be construed as requiring deliberate, concrete
and targeted action within a reasonable short time.
59 See Ghana Lotto case, supra, note 1, at 1107.
60 See supra, notes 24 and 25 on existence of some SERs in Chapter 5 and the existence of SERs
in Chapter 6.
61 See Ghana Lotto case, supra, note 58.
62 As noted, in its final decision the court declined to find an infringement of the economic right of
the plaintiffs and indicated that the plaintiffs were 'crying wolf'. It upheld the right of the state
to regulate private industry and did not consider it to be in contradiction to the duty of the state
to afford ample opportunity for individual initiative and creativity in economic activities.
63 See Ocran, supra, note 35. See also Quashigah, supra, note 8, p. 21.
64 See Ghana Lotto case, supra, note 1, at 1105.
 Socio-economic Rights in Ghana 101

SERs although DPSPs exist in their constitution; in South Africa, through the
actual direct constitutionalisation of SERs.

1. The Indian Example

Just as with Ghana, the Indian Constitution65 has two distinct parts for FHRFs
and for the DPSPs.66 However, unlike Ghana, the DPSPs provisions in the Indian
Constitution clearly provide that they 'shall not be enforced by any court' .67 This
is a clear and direct prohibition ousting the jurisdiction of the courts to address
provisions of the DPSPs -provisions which are similar in nature to its Ghanaian
counterpart. Thus an alleged breach of the principles did not offer any person
grounds for redress in the Indian courts.68
However, since 1977, the Indian Supreme Court has undertaken a novel
approach to resolving this dilemma of non-enforcement of the DPSPs. 9 Judges
have become active and outspoken supporters of SERs of oppressed people
through the instruments of social action litigation or public interest litigation."
Through this mechanism the Indian court has used the interpretation of the right
to life and security of persons to usher in a regime of SERs protection.71 In the
1985 case of Olga Tellis,72 the Supreme Court delivered a decision that the right to
life includes the right to livelihood.73 The court added that 'the sweep of the right
to life ... is wide and far reaching' and concluded that persons deprived of their
DPSP right to livelihood and work can seek redress based on this sweeping nature
of the right to work.74 In separate cases,7 5 the Supreme Court of India asserted
the right to education for children, although that right is not mentioned in the

65 India Constitution 1950.

66 See ibid., Part III and Part IV.
67 India Constitution, Article 37.
68 Sandra Liebenberg, 'The Protection of Economic and Social Rights in Domestic Legal Systems,
in Asbjorn Eide et al. (eds), Economic, Social and CulturalRights, 2nd edn (2001), pp. 55, 73.
69 See P. N. Bhagwati, 'Judicial Activism and Public Interest Litigation', 23 Columbia Journal of
TransnationalLaw (1984 5): 561. In the article Bhagwati highlights the point that the Indian
Court was faced with a legitimacy crisis and had to adopt an activist approach to make good
on many claims and demands of social justice from the Indian masses. As argued below, the
Ghanaian courts are yet to be preoccupied by social justice issues.
70 See Carl Baar, 'Social Action Litigation in India: The Operation and Limits of the World's Most
Active Judiciary', in Donald W. Jackson and C. Neal Tate (eds), Comparative Judicial Review
and PublicPolicy (Westport, CT: Greenwood Press, 1992).
71 Right to health upheld in the case of Vincent v. Union of India (1987) 2 SCR 468
(India); right to pollution-free environment in the case of M. C. Mehta v. Union of India,
MANU/SC/0396/1987(India); and the right to shelter in the case of Ahmedabad Municipal
Corporationv. Nawah Khan Gulab Khan & Ors. AIR 1997 SC 152 (India).
72 Olga Tellis and Ors. v. Bombay Municipal Corporationand Ors. and Vayyapuri Kuppusami and
Ors. v. State ofMaharashtraand Ors. Manu/SC/0039/1985 (India).
73 It is instrumental to note that it is only in the chapter on DPSP Article 39(1) of the India
Constitution that mention is made of 'the right to an adequate means of livelihood'.
74 See Olga Tellis case, supra, note 72, at para. 33.
75 Miss Mohini Jain v. State of Karnataka MANU/SC/0357/1992 (India), Unni Krishnan v. State
ofAndhra Pradesh & ors. (1993) 4 LRC 234 (India).
102 Nana Tawiah Okyir

fundamental human rights but is in the Directive Principles of State Policy.76 In

the Unni Krishnan case the Court held that the right to education was implicit in
the right to life because it was a right of inherent fundamental importance.
The unique approach adopted by the Indian Supreme Court to enhance and
enforce SERs has, however, not been without criticism. The Supreme Court has
been accused of judicial activism and illegitimately politicising constitutional
adjudication.77 The Court has also been accused of penetrating the realm of
policy formulation and administrative operations.78 Criticisms notwithstanding,
the citizens of India appear to have found in their courts the opportunity to
get their government to act on matters which, decades after independence,
appeared to be elusive. The actions of the courts are welcoming and filling a
void that requires active intervention by the state and other public authorities79
The evidence, however, appears to suggest that even in the Indian context the
decisions of the courts have remained aspirational. For the many who are seeking
to have basic SERs, the reality is totally different from the aspiration.80 The
evidence from a number cases in which the Supreme Court of India gave ground-
breaking decisions with great impact on India's jurisprudence point to the fact
that ultimately the parties who were the subject of the decision did not get in real
terms the rights for which the case was in court. In the Olga Tellis81 case, although
the Supreme Court expanded the right to life to encompass the right to livelihood,
the pavement and slum dwellers who were seeking to prevent their eviction were
evicted without resettlement.82 There is also evidence to suggest that while for
most slum dwellers the case is considered a shield to prevent summary evictions,
the case has also been used to justify eviction without any resettlement.83

76 India Constitution, Article 45 provides that the state shall endeavour to provide within a period
of ten years from the commencement of the Constitution, free and compulsory education for all
children until they complete the age of fourteen years.
77 See Jamie Cassels, 'Judicial Activism and Public Interest Litigation in India: Attempting the
Impossible?' 37 American Journal of ComparativeLaw (1989): 496 excerpts in Vicki Jackson
and Mark Tushnet (eds), Comparative Constitutional Law, 2nd edn (New York: Foundation
Press, 2006), p. 7 18. See also Geetanjoy Sahu, 'Implementation of Environmental Judgments in
Context: A Comparative Analysis of Dahanu Thermal Power Plant Pollution case in Maharashtra
and Vellore Leather Industrial Pollution case in Tamil Nadu', 6 (3) Law, Environment and
Development Journal (2010): 335, available at http://www.lead-journal.org/content/10335.pdf,
where she argues that judicial activism in the Indian courts may bring about unenforceable
decisions.
78 See ibid.
79 See ibid.
80 See Nick Robinson, 'A Survey of the Supreme Court's Docket Finds a Court
Overwhelmed by Petitions from Those with Money and Resources' (11 December 2012), at:
http://www.frontlineonnet.com/fl2703/stories/20100212270304600.htm.
81 See Olga Tellis case, supra, note 72.
82 Shivani Verma, Justiciabilityof Economic Social and CulturalRights: Relevant Case Law, Inter-
national Council on Human Rights Policy, Working Paper for Review Meeting,15 March 2005,
available at: http://www.ichrp.org/files/papers/96/108_-_JusticiabilityofEconomicSocial
andCulturalRights_-_Relevant Case Law Verma Shivani 2005 background.pdf.
83 See International Network for Economic, Social and Cultural Rights, 'Summary of the Case' (11
December 2012), at: http://www.escr-net.org/docs/i/401006.
 Socio-economic Rights in Ghana 103

2. The South African Example

The Constitution of the Republic of South Africa (1996) was promulgated with
an expansive bill of rights providing for the constitutionalisation of SERs.84
This Constitution is considered the most progressive in the world and has
become the yardstick for academic discourse on the constitutional protection of
socio-economic rights internationally.85 As noted by Liebenberg, in comparative
constitutional law, it is still considered unique for a country to provide for
directly entrenched and justiciable socio-economic rights.86 This Constitution
provides no distinction between rights which are considered civil-political and
those considered socio-economic.87 The rights are not hierarchical.88 Chapter 2
further provides that the bill of rights is applicable to all laws and binds all organs
and actors of state. 89
With the power that they have from the entrenchment of SERs in the
Constitution, the courts in South Africa, primarily the Constitutional Court, appear
to have delivered a series of judgments which have further enhanced the regime
of socio-economic advancement in South Africa. In the case of Government of the
Republic of South Africa v. Grootboom,9 the Constitutional Court reiterated the
right of access to adequate housing by South Africans and declared that the state
had not met its obligations under section 26 of the South African Constitution
on the right to adequate housing. 91 In the case of Minister of Health and Others
v. Treatment Action Campaign and others (No.2) 92 the Constitutional Court,
relying on section 27 of the Constitution, ruled that the policy of reducing the
risk of mother-to-child transmission of HIV as formulated and implemented by

84 John Cantius Mubangizi, 'The Constitutional Protection of Socio-Economic Rights in Selected

African Countries: A Comparative Evaluation', 2 (1) African Journal of Legal Studies (2006):
1 19.
85 Ibid., at p. 2, See also Liebenberg, supra, note 68, at pp. 61 71.
86 Ibid. at p. 57.
87 South African Constitution, 1996, Chapter 2. SERs provided for in the constitution include the
right of access to adequate housing, the right of access to health care, sufficient food and water
and social security, the right to fair labour practices, the right to the environment, children's rights
and the right to basic education.
88 See Mubangizi, supra, note 84, at p. 4.
89 South African Constitution, 1996, section 8.
90 2000 (1) SA 46 (CC). In this case, shacks and shelters of squatters on privately-owned vacant
land that had been earmarked for low-cost housing were bulldozed and burnt and possessions
destroyed. After demanding temporary accommodation from the municipal government without
success, the squatters led by Mrs Grootboom asked the High Court to order the government to
provide them with adequate basic temporary shelter or housing until they could obtain permanent
housing or basic shelter. The government appealed this decision to the Constitutional Court.
Because the squatters' housing problem would not be resolved within a reasonably short time and
the national housing programme did not offer temporary accommodation, the Court concluded
that the programme violated the squatters' right to housing under section 26 of the Constitution.
91 The Court cautioned that a government programme cannot ignore the immediate needs of those in
desperate situations in order to focus on medium and long-term goals, and stated that the housing
program must include reasonable measures to provide relief for 'people who have no access to
land, no roof over their heads, and who are living in intolerable conditions or crisis situations'. It
emphasised that the rights in the Constitution are all interrelated and mutually supporting.
92 2002 (5) SA 703 (CC).
104 Nana Tawiah Okyir

government fell short of the Constitutional requirement to progressively realise the

right of pregnant women and their new-born children to have access to health care
services to combat mother-to-child transmission of HIV. The Court went further
to order, inter alia, the removal of restrictions that prevent the availability of anti-
retroviral drugs (Nevirapine) that reduce the risk of mother-to-child transmission
of HIV in public hospitals and clinics. In contrast, in the case of Soobramoney
v. Minister of Health, KwaZulu-Natal,93 the Court did not find the existence of
a right of access to health care by the applicant who was in desperate need of
dialysis treatment, failing which he would die. The Court was of the opinion that
the policy decision taken by the state to limit access to dialysis treatment to only
certain categories of patients which excluded the applicant did not breach the duty
of the state to provide access to health care.
This sample of cases from the South African courts indicate the existence of
the entrenchment of the rights in the constitution and the readiness of the court
to latch onto this opportunity to develop the mechanisms which will address
the enforcement of SERs in practical situations. The hurdle of determining the
justiciability or otherwise of such rights is thus a non-issue for the courts. This
situates the court to play a vital role in the improvement of the regime.
However, the Court was unable to provide a remedy for Mr Soobramoney in
the case of Soobramoney v. Minister of Health, KwaZulu-Nata9 4 deferring to
political decision-making processes.95 The plaintiff in the case of Government
of the Republic of South Africa v. Grootboom,96 Mrs Irene Grootboom, also died
while still waiting for formal housing almost a decade after the decision.97 These
may be pointers to the fact that having SERs entrenched in a constitution or even
provided for through legislation is not sufficient to make the people who need the
actual benefits of a SERs regime receive the same. Indeed a number of articles and
scholarly works98 attribute the failure of the litigation of SERs to bring about rapid
transformation in South Africa to the unsatisfactory and sometimes near failure of
the state to implement decisions of the Courts with little or no consequences for
state officials.

D. Lessons: India and South Africa

Ghana's Supreme Court has shown it is ready to adopt 'flexible and imaginative'
ways to provide for the enforcement of SERs in the country.99 As a necessary first
93 1998 (1) SA 765(CC).
94 See ibid.
95 Ibid. at para. 29.
96 2000 (1) SA 46 (CC).
97 'Grootboom Dies Homeless and Penniless', Mail & Guardian, 26 November 2012), at:
http://www.mg.co.za/article/2008-08-08-grootboom-dies-homeless-and-penniless.hmtl.
98 See Christopher Mbazira, 'Non-Implementation of Court Orders in Socioeconomic Rights
Litigation in South Africa: Is the Cancer Here to Stay?' 9 (4) ESCR Review (2008): 2. See also
Penelope Andrews, 'The South African Constitution as a Mechanism of Redressing Poverty',
in Muna Ddulo (ed.), Democratic Reform in Africa: Its Impact on Governance and Poverty
Alleviation (Oxford: James Currey, 2006), p. 57.
99 See supra, at p. 61.
 Socio-economic Rights in Ghana 105

step, it has settled the question of the justiciability of SERs. This, however, is not
enough. Due to the protracted debate as to the justiciability of SERs, the courts,
lawyers and the citizenry have not developed the habit of seeking to litigate on
these matters.100 The approach then of the Indian Supreme Court to propel such
litigation and fill the lacuna in the realisation of SERs may be a worthwhile lesson
for the SCG to draw upon. Where the SCG is unlikely to descend into the arena
of conflict so as to avoid a charge of judicial activism, it may concretely issue a
Practice Statement, which spells out clearly the relaxation of the rules of standing
and initiation of action when an issue relates to the enforcement of SERs. The
SCG may, also drawing from the Indian example, set up an office of complaints
and investigations, which can assist it to thoroughly investigate cases of SERs
abuses which can guide it in the formulation of remedies.
The Indian example provides a challenge to the Ghanaian Supreme Court to
act boldly. Its counterpart court in India in the face of a clear prohibition has
been able to fathom out ways to assert SERs. However, as noted earlier, though
admirable, the Indian Court faces criticism for not being able to provide for the
'have-nots' what they actually need -food, shelter, health care and a whole host of
other interventions that will make life worth living.10 1 That is a major setback in
the Indian approach and calls for modifications or additions to make its adoption
meaningful to Ghana.10 2
South Africa and Ghana may be comparable in that both have constitutions
that provide for a human rights regime. However, in the Constitution of Ghana,
there is a somewhat clear distinction between civil political rights and SERs which
are largely provided for in different chapters and require different treatments.10 3
Similar to Ghana, however, are provisions in the South Africa Constitution which
appear to subject the realisation of some of the SERs to the availability of
resources. 104
The South African example of constitutionalising and entrenching SERs may,
in the alternative to the Indian example, offer an example for the advancement
of SERs in Ghana. Unlike the Indian and Ghanaian models which leave a cloud

100 See Quashigah, supra, note 8.

101 This point invites the court to adopt a more activist approach. However, one has to be mindful of
the argument made by Sahu in note 77 above about the eventual non-enforcement or failure of
the Indian Court to provide 'real' rights. It may be counter-productive in Ghana where, instead
of there being a floodgate for cases on SERs, there may be a return to the possible uncertainty
arising from the unenforceable nature of the orders made by the courts in Ghana.
102 Recently the Indian Court has tried address some of these challenges by instituting Special
Commissioners for its decision. But this raises more issues. Is the failure to implement by
another branch of government an indictment of the gains of the judicial act of promulgating
the decision? Is it up to the Court to respond to this by trying to control its decisions all the way
to implementation, or is this yet another case of possible judicial overreach?
103 Chapters 5 and 6 of the Constitution of the Republic of Ghana, 1992; see the ratio in the decision
in the GhanaLotto case.
104 In section 26, for example, the South African state is required to take reasonable legislative and
other measures within its available resources to achieve the progressive realisation of the right to
adequate housing. Likewise the state in section 27 is required to take reasonable legislative and
other measures within its available resources to achieve the progressive realisation of the right to
health care, food, water and social security.
106 Nana Tawiah Okyir

of legal uncertainty hovering over the justiciability or otherwise of SERs and

thereby bogging down by ricochet the discourse on SERs and their ability to
grow in these countries, the South African example puts the legal enforceability
of SERs beyond the pale of legal controversy. Indeed, as has been shown by the
Constitutional Court of South Africa, the existence of such entrenched provisions
gives the basis for the courts to proceed to develop remedies that may be useful
and practical in the existing political milieu. In focusing on the development of
appropriate remedies, the evidence shows that the courts are progressing from an
initial deferential attitude to the political and administrative apparatus to a more
substantive and less deferential approach.10 5
Understandably, the example of South Africa is less than the norm and more the
exception. Arguably, the specific political environment both at the domestic and
international level as well as the euphoria that greeted South Africa's democratic
transition enabled the political elite to favour the wholesale incorporation and
entrenchment of the SERs. Specifically, South Africa's history of economic
disenfranchisement of large sections of its population prior to the adoption of its
1994 Constitution made the direct entrenchment of SERs in their constitutional
framework a political imperative. In Ghana, in 1992 these imperatives did not
exist, or if they existed were not particularly pressing. Having been under a
military regime for more than a decade, where space for political expression and
participation was limited, the constitutional document that was adopted during
Ghana's transition was more the product of a bargain for political expression
and not necessarily economic. The recent constitution review exercise in Ghana
offered thus the political elite the opportunity to go back to the drawing board and
rethink the constitutional document as an enabler of economic social expression.
The decision, therefore, by the government of Ghana not to fully adopt the
recommendation of the CRC1" 6 which would have had the effect of entrenching
and enforcing SERs is regrettable and a retrogressive step in the advancement
of SERs in Ghana.1" 7 The amendment of the Constitution to provide for the
entrenchment of these SERs or the clarity of the status of the DPSP10 8 is likely
to free the SCG from the shackles of the justiciability debate. The Court can then
concentrate on the provision of adequate judicial remedies for the enforcement
of these rights. The entrenchment of these rights coupled with the provisions in

105 See Liebenberg, supra, note 68, at p. 67.

106 See supra, note 10.
107 See supra, p. 38. In its White Paper, the government simply indicated that SERs being proposed
by the CRC should be placed in the DPSPs chapter with no further explanation. The CRC report
and the government White Paper both followed after the Ghana Lotto case. It may be that the
government considered that putting the proposed rights in the DPSPs chapter will ensure that
the chapter provides comprehensively all the SERs in the country. It could also be the case that
the position of government is indicative that it considered provisions in the DPSPs of less bite
than those in the chapter on FHRFs. This position of the government, however, has the potential
to resurrect the debate on the justiciability of the DPSPs.
108 The CRC did not make any recommendation on the issue of the justiciability of the DPSPs. The
report was issued after the decision in the Ghana Lotto case and it may be that the Commission
found the question moot because of that decision.
 Socio-economic Rights in Ghana 107

the Constitution which void any law that contradicts it 1" 9 and which empowers
the High Court to provide redress for both actual and anticipatory breach110
of the socio-economic right may provide an almost robust judicial protection of
SERs. This leaves room only for discourse on the loopholes in this regime- that is
the disconnect between judicial pronouncements and actual implementation and
realisation of the rights.

III. PROGRESSIVE REALISATION: LOOKING INTO THE FUTURE

A. Introduction
This part takes the discussion beyond the existing confines of judicial activity
in the realisation of SERs in Ghana. Under the 1992 Constitution, all arms of
government exercise power for and on behalf of the people.111 The Constitution
further requires the President to report to Parliament at least once a year on the
progress made to realise the DPSPs 'and in particular the realisation of basic
human rights, a healthy economy, the right to work, the right to good health
care, and the right to education'.112 In effect, the Constitution creates a fiduciary
relationship of which the people are the beneficiaries. The government holds and
exercises political, legislative and judicial authority. Therefore, the people through
concerted and directed action, albeit in a peaceful and non-violent manner, can
begin to create that needed change which would ultimately cause the desired
impact.

B. Beyond the Problem: Looking into the Future, SERs and National
Development in Ghana
Importantly, this article does not suggest that focusing on the question of the
justiciability or otherwise of the DPSPs is not a meaningful venture in the quest
to advance the frontiers of SERs in Ghana. It is a significant starting point and
as such makes the Ghana Lotto case a momentous one. However, beyond this the
country should be seeking to confront and address the disconnect between the
existence of 'paper rights' or 'court rights' and the actual realities. Ghana must
overcome this challenge if it seeks to give real meaning to its democracy. In the
preamble of the 1992 Constitution, Ghanaians were optimistic in establishing a

109 Article 2 of the Constitution of the Republic of Ghana, 1992.

110 Article 33 of the Constitution of the Republic of Ghana, 1992.
111 Article 1 of the Constitution of the Republic of Ghana, 1992, provides that: 'The Sovereignty
of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of
government are to be exercised in the manner and within the limits laid down in this Constitution.'
112 Article 34(2) of the Constitution of the Republic of Ghana, 1992. Article 67 also requires the
President at the beginning of each session of parliament and at the dissolution deliver a message
on the State of the Nation. Based on these two articles, since 1993, all Presidents have delivered
in Parliament messages on the State of the Nation which includes all aspects of national life.
There has, however, not been any charge legally or politically that the messages fall short of the
requirements of Article 34(2).
108 Nana Tawiah Okyir

governance structure that will secure equality of opportunity and prosperity."'

People can thus be said to have been envisaging a Constitution that was going to
bring real change to their lives.
One of the major criticisms that have been levelled against the recognition and
subsequent enforcement of SERs the world over has been the issue of their close
connection to resource availability.114 Indeed one cannot ignore the fact that the
availability of resources plays an important role in a state's ability to protect and
enforce SERs.115 While this argument may be valid, the argument over resources
should not be used to stultify the provision of basic needs. The debate, therefore,
should be targeted at finding critical interventions around resource availability,
management and how to ensure the spread of these resources for basic needs such
as food, shelter, health care and education.
For critics, the question of resources is a political issue which should take place
within the political process and not through the legal process in the nature of rights
adjudication.116 Although the Committee on Economic, Social and Cultural Rights
does not accept the criticism that the linkage between SERs and resources negates
the validity of these rights, it accepts the fact that the ICESCR requirement of
progressive realisation of the rights is because of constraints due to the limits of
available resources.117 Therefore, invariably, any attempt or proposal to enhance
the realisation of SERs should be within the context of the discourse of the
resources and the allocation of these resources in a state party.
Resource allocation and distribution is very important to developing countries,
including Ghana.118 Governments have, since independence and particularly since
the beginning of the Fourth Republic, adopted plans and policies targeted at
deploying available resources towards the growth and development of Ghana.119

113 The opening paragraph of the Preamble to the Constitution of the Republic of Ghana, 1992, says:
'We the people of Ghana, IN EXERCISE of our natural and inalienable right to establish a
framework of government which shall secure for ourselves and posterity the blessings of liberty,
equality of opportunity and prosperity ... '
114 See Aryeh Neier, 'Social Economic Rights: A Critique', 13 Human Rights Brief (2006): 1 3.
115 See John Cantius Mubangizi, Professor of Law, University of Kwazula-Natal, South Africa,
Paper at the VII World Congress of the International Association of Constitutional Law:
Prospects and Challenges in the Protection and Enforcement of Socio-Economic Rights: Lessons
from the South African Experience (11 15 June 2007).
116 See Neier, supra, note 114, atp. 2.
117 See Committee on Economic, Social and Cultural Rights, Report on the Fifth Session, UN
Doc. E/1991/23(1991) [General Comment No. 3, para. 1]. See also note 11. In the note, the
implication of the ratification by Ghana of the ICESCRs is still an issue. But it is likely that
with the preparedness of the SCG to hear arguments on SERs without dismissing it, there is the
possibility that this an area for the advancement of the SERs.
118 Ghana recently joined the league of oil producing countries with official production of oil
commencing in December 2010 The expectation among Ghanaians is that wealth to be gained
from the oil production will provide the needed resources for the provision of most of their basic
needs and transform the Ghanaian society qualitatively.
119 From 1993 to 2001 the government operated the Coordinated Programme of Economic and
Social Development Policies, which was simply called the 'Ghana Vision 2020'. The priority
focus was on human development, economic growth, rural development, urban development,
infrastructure development and an enabling environment for growth. From 2001 5, the
government introduced the Ghana Poverty Reduction Strategy (GPRS I) with a focus on
 Socio-economic Rights in Ghana 109

These plans have been largely targeted as the economic growth of the country
but have to a very large extent provided programmes and policies which are also
geared towards the socio-economic advancements of Ghanaians, although they
have not been couched as attempts at providing SERs. The major setback which
has been identified with the full realisation of these socio-economic interventions
is the ad hoc nature of these interventions and the often abrupt interruptions which
arise because of changes in leadership in the country.120
The possibility of addressing a holistic national development agenda which
incorporates SERs and which is not subject to ad hoc changes may provide further
impetus towards the progressive realisation of SERs. This possibility appears to
have been envisaged by the CRC in its final report121 which discusses DPSPs in the
context of national development planning and proposes the institution of a long-
term National Development Plan (NDP) which will have at its core DPSPs.122
Bearing in mind that the SCG has already decided that the DPSPs are SERs,123
this proposal by the CRC on development, in effect, is an attempt by the CRC to
chart a new course for SERs realisation in Ghana.
Indeed the report indicates that Ghanaians called for an NDP which will
encompass all aspects of national life including access to education, health care,
-
shelter, food, sustainable jobs, unemployment and a clean environment1 an
indication of how important these issues are to Ghanaians. To address citizen
involvement in the National plan, the CRC recommended an Independent
National Development Planning Commission that is professional, multi-partisan
and representative of all critical stakeholders in Ghana's development. The CRC
further recommended that a plan based on nationwide grassroots consultation
is subject to a two-thirds parliamentary approval to become effective. After
a super-majority parliamentary approval, the CRC envisaged a national plan,
binding on all governments enforceable in the courts.125 It is important to note

Production and Gainful Employment, Human Resource Development and Basic Services,
Special Programmes for the Poor and Vulnerable, and Governance. The Growth and Poverty
Reduction Strategy (GPRS II) was designed as a sequel to the GPRS I. This was implemented
over the period 2006 to 2009. Currently the government is operating under the Coordinated
Programme on Economic and Social Development Policies.
120 The Final Report of the CRC, Chapter 3, indicates that the process of developing plans had
been generally regarded as micro-political processes owned by the government in power and
the plans had been changed with every change of government. Relying on this assumption, the
CRC proceeded to recommend an entrenched constitutional provision on national development
planning in Ghana. It also recommended that the National Development Plan should be a
comprehensive, long-term, strategic, multi-year, binding in nature and enforceable at the instance
of any person or institution.
121 See supra, note 37.
122 See Chapter 3 of the Final Report on the CRC, p. 43.
123 See supra, p. 54.
49
124 See supra, note 114, p. .
125 The preferred approach is to constitutionalise SERs. This, as a matter of necessity, includes
statutory development moving in tandem with constitutionalisation. However, the real challenge
is that law-making can stultify legal development through the courts. In formalising SERs, there
is the need to make it a skeletal frame permitting judicial activity to a great degree yet within
some tangible structure.
110 Nana Tawiah Okyir

that these recommended provisions were proposed to be entrenched in the

126
constitution.

C. Beyond the Problem: Looking into the Future, Socio-economic Rights

and Social Movements
The use of social movements in Ghana in the human rights advocacy space is
well documented. 127 Atuguba 128 finds that since the return to constitutional rule in
1993, there has been a general increase in human rights movements although with
short-term, dispersed and uncoordinated activities. Atuguba further indicates that
movements do not appear to have activities that are targeted towards addressing
129
issues of SERs.
Social movements are action-oriented and focused on the promotion,
advancement, and sometimes resistance to certain issues of a political or social
nature. 130 Their significance then in the progressive realisation of SERs cannot
be overlooked. The movements can play pivotal roles to secure needed changes
131
through the use of mechanisms such as 'litigation ... lobbying and protests'.
In her book, Constituting Economic and Social Rights, Young argues that the
existence of social movements within the discourse of SERs helps to 'provide
new narratives about rights ... narratives that will help bridge the gap between
132
the formal recognition of rights and their protection in everyday arrangements.'
This argument will appear to hold for Ghana, especially when considered in the
context of the social movements that galvanised efforts towards the passage of
the Domestic Violence Act, 133 Persons with Disability Act, 134 and the Mental
Health Act 135 by the Parliament of Ghana. 136 The movement for the passage of
the Domestic Violence Act was initially formed to highlight the massive abuses

126 The CRC Report acknowledges that it is not feasible to entrench actual development plans and
provides only for the entrenchment of provisions that will ensure the feasibility of its proposals.
127 See Raymond A. Atuguba, 'Human Rights Activism in Ghana: Reality, Apparitions, and
Dreams' (2000), unpublished LLM paper written in conjunction with the Human Rights
Research Seminar, 1999 2000, Harvard Law School (available at the Harvard Law School
Library).
128 See ibid., Chapter 1.
129 See ibid., p. 27.
130 See Charles Tilly and Lesley J. Wood, Social Movements, 1768 2008, 2nd edn (New York:
Routledge, 2009), Chapter 1.
131 Katharine G. Young, Constituting Economic and Social Rights (Oxford: Oxford University Press,
2012), p. 223.
132 See ibid., p. 291.
133 Domestic Violence Act 2007 (Act 732). It provides for the protection for victims of domestic
violence, particularly women and children.
134 Persons with Disability Act 2006 (Act 715). It provides for persons with disability and establishes
a National Council on Persons with Disability to advance the cause of persons with disability in
Ghana.
135 Mental Health Act 2012 (Act 846). This provide for mental health care through the establishment
of a Mental Health Authority.
136 In all these instances, coalitions of interested human rights organisations were formed to serve
as pressure groups, lobbying, petitioning and in some instances undertaking street protests to
demand and ensure the passage of the Acts.
 Socio-economic Rights in Ghana 111

faced by women nationwide. After achieving success in getting the Police Service
to establish a Women and Juvenile Justice Unit, the movement commenced action
for the drafting of legislation to address the situation, which was later adopted by
the state. Although a Bill to address the situation was introduced in Parliament in
2003, it was only passed in 2007, after the movement had undertaken nationwide
137
consultations, protests and active lobbying of parliamentarians.
A well-coordinated and focused social movement, grounded in SERs, can
provide in Ghana the drive to compel government action even beyond the mere
adoption of policies and legislation to their actualisation. The idea of mobilisation
for human rights realisation is not alien to Ghana. Post the return in 1992 to
constitutional democratic rule, many of the advancements of human rights in
Ghana, albeit concerning civil and political rights, have been through mobilisation
and sometimes representative actions. 138 The successes chalked up and strategies
deployed, including those by the coalitions which pushed for the passage of
legislation on domestic violence and mental health, can be improved upon to
ensure the provision of access to shelter, food, employment and a host of SERs.
In the case of South Africa, for example, the existence of a right to access health
care 139 would have been meaningless for the many babies of HIV/AIDS mothers if
the Treatment Action Campaign (TAC) had not mobilised protesters and deployed
a well thought-out campaign to fight government policy and inaction. 4 Although
ultimately the issue was litigated in the Constitutional Court and other factors
may have contributed to the shift in policy to provide the needed drugs to prevent
mother-to-child transmission of HIV, the singular effect of social movement by
the TAC is significant.141

D. Beyond the Problem: Linkages between the Judiciary, National

Development Plan and Social Movements

Looking into the future for the progressive realisation of SERs in Ghana, a
multiplicity of actions will have to be taken to realise these rights. As a concrete
first step, the SCG should provide elucidation as to how it will enforce SERs
through flexible and imaginative ways. This could be through the medium of a
Practice Statement or Direction where, learning from India, the rules on standing
and process filing could be made less stringent and cumbersome for litigants.142

137 See Professor Takyiwah Manuah, 'The Passage of Domestic Violence Legislation in Ghana' (11
December 2012), at: http://www.pathwaysofempowerment.org/GhanaDV.pdf.
138 In the 31 st December and CIBA cases, a political party, the New Patriotic Party (NPP) sued the
state on behalf of the affected parties. The case in note 9 on the right to personal dignity was
commenced by a 'concerned citizen'.
139 South African Constitution, 1996, section 27, provides a right to have access to health-care
services including reproductive health care.
140 See Young, supra, note 131, Chapter 9.
141 Ibid.
142 See Bhagwati, supra, note 69. In the article, the author explains that the Supreme Court of India
made it possible for any member of the public or a social action group acting bona fide to seek
legal redress for persons or a class of persons who by reason of poverty or disability in a socially
or economically disadvantaged position cannot approach the courts for relief.
112 Nana Tawiah Okyir

Due to the linkages between SERs and resources, a national blueprint for
development in Ghana which has inbuilt plans to progressively realise SERs will
add to the multiplicity of factors to propel a stronger realisation of these rights.
A blueprint which is subject to parliamentary approval and judicial and technical
oversight will ensure constant interaction of state actors, invariably enhancing the
discourse of SERs. This may create an avenue for the SCG to be flexible and
imaginative.143
The existence of a vibrant social movement regime, poised to galvanise
citizen action through education and participation, will further provide the needed
impetus for the actualisation of these plans. The social movements will also
provide that external pressure on and oversight over state agencies in the march
towards the progressive realisation of these SERs which are in the national
blueprint.
The decision by government144 therefore to reconsider its initial opposition to
the recommendations of the CRC, to have a comprehensive long-term NDP which
is entrenched and binding on current and successive governments, is welcome. It
is an opportunity to rethink the recommendations of the CRC. The adoption of
these recommendations on national planning will add to the existing and future
mechanisms to improve and enhance the realisation of SERs in the country.

CONCLUDING REFLECTIONS
The focus of this article is the SERs regime in Ghana. It argues that the Supreme
Court decision to enforce SERs in flexible and imaginative ways is progressive.
The article suggests, however, that the judiciary cannot play a solitary role and
there is the need to fashion other ways of ensuring that the entire governance and
development setup is structured to make the nation capable, ready and willing to
take the required decisions that will ensure the implementation and realisation of
these rights.
In that regard, the article proposes the possibility of rethinking national
development in Ghana in terms of SERs. Furthermore, it suggests the massive
use of citizen movements or social movements to turn the hands of state actors
to ensure that SERs are actually realised for the many who require the benefits of
the realisation to live as meaningful members of Ghanaian society. The article
proposes the acceptance of the recommendations of the CRC on a long-term
binding national development plan grounded on the DPSPs. It also proposes the
rejuvenation of social movements to propel the activism for the implementation
of this national development plan when formulated.

143 See supra, note 61.

144 Recently, at the second Universal Periodic Review by the Human Rights Council, the Deputy
Attorney-General of Ghana, Ebo Barton-Oduro, indicated the governments' preparedness to re-
think all its positions to the recommendations of the CRC after it has assessed a nationwide
media sensitisation report on the recommendations of the CRC and the government White Paper.
In furtherance of that suggestion, the government through the National Development Planning
Commission in 2015 commenced public consultation for the drafting and eventual adoption of a
40-year National Development Plan for Ghana.
 Socio-economic Rights in Ghana 113

In the end, the Ghanaian should come to the appreciation that making real
SERs will require a holistic concerted effort. With this realisation, one can only
hope that the issues raised will add to the effort aimed at propelling Ghana forward
as she continues her onward march towards the progressive realisation of SERs.
This is a quest of many nations and admittedly many, if not most, have yet to
find the solution that answers many of the issues on the realisation of SERs.
The opportunity to advance the discourse on SERs beyond the presumption of
justiciability is almost tangible and must provide the basis for a new sense of
consciousness for the Ghanaian.