A reply to Prof. Prempeh

Voting right “fundamental”, “inalienable” and “god-given”:

Prof. H. Kwasi Prempeh is a man I admire so much for his keen interest in democracy, development and public affairs. On Wednesday evening, the good law Professor made an observation on Facebook. The observation was in respect of a statement attributed to Mr. Tony Lithur, the lawyer for the President in the ongoing election petition. It appears that Mr. Lithur in his address to the Supreme Court on Wednesday asserted that the right to vote in Ghana is “fundamental”, “inalienable” and “God-given." Professor Prempeh did not think that the assertion of the President’s lawyer was accurate in law or jurisprudence. To Prof. Prempeh, “the right to vote is, in Ghana as everywhere else, a right that emanates from "positive law" - in this case, the Constitution”. This observation by Prof. made it to the headline. My understanding of this statement by Prof. is that a law cannot be both “fundamental” and “positive” at the same time. In other words, a law cannot be “god-given” and “man-made” at the same time.





For the first time, I have to disagree with Prof. Prempeh. I rather agree with Mr. Lithur. A right may be “god-given” and “man-made” at the same time.” I do this not oblivious of the danger or the near-recklessness involved in a beginner like myself trying to move against an established legal authority like Prof. This is how I intend to explain my position. I will first give a brief history of what has now become known as human right. The purpose of this rendition of history is to make the point that there is no material difference between “god-given” rights and “fundamental” right and that the two can also be “positive” or “man-made” at the same time. If I am able to show this, then, I believe there will be no force left in Prof.’s critique of Mr. Lithur. I will then conclude the note by explaining why the right to vote, which was previously only a “Constitutional,” “man-made” or “positive” right, has now acquired the additional attributes of “fundamental” or “god-given” right in Ghana. I will also show, contrary to what Prof has said, that Ghana is not alone in this business of migrating the right to vote on to the “fundamental” human rights scheme. I start.





The starting point is that no entitlement can be enjoyed as of right unless it is “man-made”. The use of the term “god-given” therefore does not mean that God or god has literally dropped that right down as in the case of the Ten Commandments. I therefore will not attempt to think that Prof.’s interpretation of “god-given” is that there are some rights that have been literally handed down by God. Now what does it mean to say that a right is “god-given”? This will be found in the history of what is known today as human rights.

The idea of human rights itself started long before the marriage of the Church to the State. It used to be called “natural law” or “natural right”. “Natural” because the proponents believe that there are certain things that human beings are entitled to by the mere fact of their being humans; that no person, including the sovereign, could take that entitlement away from him; that those entitlements are inalienable and inherent; and that all you have to show to be accorded those entitlements is that you are a human being. Socrates, Plato and Aristotle all spoke about these “natural” inherent entitlements.





The fall of Greece and the concomitant rise of Rome did not kill this thinking. Cicero and other Roman philosophers continued to propound these ideas of “natural rights”. Also, the rise of the Church and its subsequent marriage to the State kept these ideas growing. The only change, however, was in the term used to describe these entitlements. “Natural rights” subsequently became “God-given” rights. St. Thomas Aquinas and St. Augustine wrote extensively about this. Then the divorce of the Church and the State came, where the writings of the so-called enlightenment thinkers, the contractarians, or the libertarians, Locke, Roseau, Paine, etc changed the nomenclature of these entitlements from “God-given” right to “human rights.” That notwithstanding the concept remained the same.





After the Second World War and the coming of the Universal Declaration of Human Rights in 1948, the war-time leaders decided to stress and concretize the point that these “human rights” were “fundamental” and could not be traded for anything. That was how come we now refer to them as “fundamental human rights”. To this extent, one cannot legitimately or seriously argue that there is a difference between “god-given” rights and “fundamental” rights. The two terms refer to the same “inherent” and “inalienable” rights, found in the American and the French declarations. One thing ran through all these changes – no one enjoyed these entitlements as of right unless they are made “positive” by a human sovereign. Thus, to be meaningful “rights” must always be elevated from “god-made” to “man-made”. Accordingly, the two “- mades” can co-exist. In fact the former “–made” means nothing unless it transforms into the latter “-made”. Having established this, I now proceed to explain why I think Mr. Lithur was not wrong with his permutation – “fundamental”, “inalienable” and “God-given”.

The Drafters of our constitutions, 1979 and 1992 were informed by this new terminology of “fundamental human rights”, for which reason the Chapter V of our current Constitution is titled “The FUNDAMENTAL Human Rights and Freedoms”. “Fundamental” was used to underscore the difference between the civil and political rights in Chapter V and the Economic, Social and Cultural rights provided for under Chapter VI and titled the “Directive Principles of State Policy”. This use of “Fundamental” by the drafter of our Constitution to distinguish the civil and political rights is not new in the world. India’s 1950 Constitution uses the same language to distinguish between the two categories of rights. The European Convention also uses “Fundamental” (Convention for the Protection of Human Rights and FUNDAMENTAL Freedoms).





Prof.’s disagreement is that Mr. Lithur used “fundamental” and “god-given” to qualify the right to vote; and that that description is wrong in law. He advanced to say that the right to vote is “positive” or “man-made.” Indeed, Prof would have been right before 2010 when the case of Ahumah-Ocansey v. the EC was not decided by the Supreme Court. However, since Prof. made his assertion just on Wednesday, August 7, 2013, over two years after that landmark case was decided, he could not still be right. What I am saying is that Mr. Tony Lithur (not Prof.) was very right by qualifying the right to vote as “fundamental” or “god-given.” The reason is as follows:





At the tail end of Chapter V – the “FUNDAMENTAL Human Rights and Freedoms” – of the 1992 Constitution is a provision - Article 33(5). That Provision allows a rights which is not part of Chapter V (the “Fundamental Human Rights and Freedoms) but which nonetheless is “considered to be inherent in a democracy and intended to secure the freedom and dignity of man” to be added to Chapter V as “Fundamental”. In other words, a right which is not already “fundamental” but which meets the criteria in Article 33(5) may be added to Chapter V by the Supreme Court and made “fundamental” or “god-give” or “inalienable” and be treated as such. That was exactly what the Supreme Court did in 2010 in the Ahumah-Ocansey case. Therefore since that day, the right to vote, which was hitherto a mere Constitutional right under Article 42, has been elevated to the level of “Fundamental Human Rights”. In effect, that right, since that day, has become part of Chapter V and is therefore “fundamental.” Really, if we were living in the day of St. Thomas Aquinas, we would have called it “God-given” or better still “natural” if we were living in the day of Plato.

Prof. also implies in his critique of Mr. Lithur that the right to vote is nowhere in the world treated as a “god-given” or “fundamental” right. That too cannot be a correct statement of the reality. So, let us step onto the international plane to see if Ghana’s Supreme Court is alone in this transaction of designating the right to vote as “fundamental”.





In the Canadian case of Sauvé v. the Attorney General of Canada (No. 2), the majority opinion given by McLachlin C.J. considered that the right to vote was “fundamental” to their democracy and the rule of law and could not be lightly set aside. In the South African case of August and another v. Electoral Commission & Ors., the Constitutional Court stated that “[t]he universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and personhood. Quite literally, it says that everybody counts." It cannot be reasonable disputed that democracy itself is widely considered as a “Fundamental” human right. Finally, in Hirst v. UK the European Court of Human Rights states that “the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion.” The continental Court continues: “prisoners in general continue to enjoy all the FUNDAMENTAL rights and freedoms guaranteed under the Convention.”





So it is quite clear at this stage that the right to vote, though initially a privilege within the bosom of the sovereign, who uses legislation – “positive law” – to decide to whom it should be given and when it should be given and withheld, has transformed greatly into a “fundamental” right which could not be arbitrarily limited; not even by the sovereign. The right is no more purely a “positive” law matter.

Now I turn to some house-keeping matters. While reading the comments under Prof.’s Facebook post, which post became the subject of the news item, I noticed some commentators busily making their own points and drawing some analogies. Some of the analogies sought to suggest that “fundamental” mean “absolute” or “unrestrained”. So, Mr. Lithur’s pronouncement was taken to mean that voting right is absolute. In fact, one person even stated that if the right is fundamental then there was no need to register before voting and also that there could be no age-limit. They conclude that the fact that the right to vote is limited by age and procedures of voting means that they are not fundamental or inalienable as Mr. Lithur argued. I think that is very unfortunate an argument to make. The right to personal liberty is “fundamental” but is not unlimited. The right to free speech and even the right to life are all fundamental but are not unlimited. Suffice it to say that that line of reasoning is unhelpful.





I end!





The writer is a practising Ghanaian Lawyer in the UK.