Opinion; Subjects: GHANA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.23-01509(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on
Arbitrary Detention at its ninety-fourth session,
29 August–2 September 2022
Opinion No. 47/2022 concerning George Nyakpo (Ghana)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251
and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 42/22.
2.
In accordance with its methods of work,1 on 18 February 2022, the Working Group
transmitted to the Government of Ghana a communication concerning George Nyakpo. The
Government has not replied to the communication. The State is a party to the International
Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum-seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability,
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2022/47
General Assembly
Distr.: General
31 January 2023
Original: English
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2
Submissions
Communication from the source
4.
George Nyakpo is a Ghanaian national born in 1987. He usually resides in Ho, Volta
Region, Ghana. Mr. Nyakpo is a human rights defender and leading member of the Homeland
Study Group Foundation, a non-violent civil society movement that has been openly working
for the self-determination of the people of Western Togoland since 1994. The source explains
that the Foundation considers that Western Togoland corresponds to the Volta Region of
Ghana.
a.
Context
5.
According to the source, the Foundation is dedicated to working for self-
determination solely through non-violent means. Its activities include printing and
distributing materials promoting self-determination, engaging in non-violent symbolic acts,
such as symbolic declarations of independence, and holding demonstrations, meetings and
discussions regarding the path to self-determination. Reportedly, the Foundation has been
very vocal about its commitment to non-violence and its opposition to any groups that use
violence, including by calling for their investigation and prosecution.
6.
The source reports that, in recent years, Ghanaian authorities have used the criminal
justice system to target the Foundation’s activities. A pattern appears to have arisen whereby
members of the Foundation are arrested and detained based on allegations of serious crimes
such as treason, but are then held without charge for prolonged periods and subsequently
released before a court has had an opportunity to rule on the legality of the arrest or the length
of the detention. These same individuals are then quickly rounded up and rearrested,
restarting the procedural clock related to arrests and detentions. The source notes that, in
2017, seven members of the Foundation were arrested for wearing T-shirts with an inscription
referring to a date on which a symbolic declaration of independence of Western Togoland
was made. In May 2019, eight members of the Foundation were reportedly arrested in
anticipation of a meeting to discuss self-determination and charged with conspiracy to
commit treason, abetment of unlawful training, unlawful assembly and offensive conduct
conducive to a breach of the peace. A large group of about 80 supporters were also allegedly
arrested. Additionally, in November 2019, the Foundation reportedly made a symbolic
declaration of independence, following which some 30 persons were arrested for either
attending a gathering at a local radio station or planning a demonstration.
7.
Furthermore, the source reports that Ghanaian authorities have increasingly used the
Prohibited Organisations Act of 1976 to prosecute the Foundation’s leaders. The source
explains that the Act was issued by the military junta that ruled Ghana in the 1970s and has
remained unused since the country’s transition to democracy in 1992. According to the
source, the Act prohibits any organization “whose objects include advocating and promoting
the secession from the Republic of Ghana of the former British mandated territory of
Togoland or part of that territory or the integration of that territory with a foreign territory”.
Reportedly, the decree does not similarly prohibit such organizations focused on any other
territory of Ghana and makes no distinction between acts that are violent or criminal in nature
and acts that will generally occur in any ordinary democracy.
8.
The source notes that, in June 2020, the Volta Region was militarized ahead of the
2020 Ghanaian elections, a move that was condemned by opposition political parties in
Ghana. According to the source, this militarization and the repeated arrests and detentions of
the Foundation’s members, which greatly restricted its ability to operate, opened a space for
more violent groups to emerge. On 25 September 2020, a group calling itself the Western
Togoland Restoration Front declared an independent State in the Volta Region, using armed
road blockades and attacking police stations and personnel. Reportedly, the Foundation
issued a press release making clear that it was not affiliated with the Restoration Front, and
calling for non-violence and for the authorities to investigate and prosecute perpetrators.
9.
Allegedly, some 60 members of the Foundation were arrested in connection with the
events that took place in September. By late October, the courts reportedly expressed
exasperation concerning the detention of these individuals without sufficient evidence and
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they were released with all charges dropped against them. Despite requests from their defence
lawyers, no formal reasons for their release were provided.
b.
Arrest and detention
10.
The source indicates that Mr. Nyakpo was arrested on 14 July 2021 in Ho as he was
on his way to visit a friend. Reportedly, shortly before arriving at his friend’s home, two cars
with 10 men inside arrived, beat Mr. Nyakpo and drove away with him. The source notes that
there were no witnesses and that the arrest was carried out by the Bureau of National
Investigations.
11.
According to the source, no arrest warrant or other decision by a public authority was
shown to Mr. Nyakpo at the time of his arrest. He was immediately transferred to Accra,
under the jurisdiction of the High Court of Ghana, some four-hour drive away from his home,
further separating him from his family and life.
12.
The source reports that Mr. Nyakpo was held for 56 days without being charged. A
statement of offence was provided to him on 22 July 2021, eight days after his arrest,
notwithstanding the legal requirement of a maximum of 48 hours. It was claimed in the
statement that he had allegedly committed an act of treason by preparing “to carry out by
unlawful means an enterprise to usurp the executive powers of the Republic” “on or before
25 September 2020 at the Volta Region”, contrary to section 182 (b) of the Criminal Offences
Act of 1960, and that he “participated in the campaign and activities of a prohibited
organization, namely, Western Togoland Organization”, contrary to article 2 (1) (d) of the
Prohibited Organisations Act.
13.
Allegedly, Mr. Nyakpo filed a motion for bail on 13 August 2021. On 27 August 2021,
the presiding judge adjourned the hearing on the motion for bail as no charge sheet or
statement of facts had been filed in the case. Adjournments were made in two further hearings
for the same reason. Rather than being released for failure to bring charges against him, the
source reports that Mr. Nyakpo was instead held in custody with repeated adjournments until
the prosecutor brought charges.
14.
On 8 September 2021, a separate case was reportedly opened in the Circuit Court of
Ho against Mr. Nyakpo and eight other members of the Foundation. No charges cognizable
under the ordinary criminal law were brought. Rather, the defendants were charged with
violating the Prohibited Organisations Act by attending a meeting of 100 people on 16
November 2019 at which they symbolically declared an independent State for Western
Togoland and then dispersed, with no further action taken at any stage beyond sharing the
event on social media. The source considers that the authorities’ failure to charge Mr. Nyakpo
with any offence directly related to the actions of the Western Togoland Restoration Front,
or with any offence before the High Court in Accra to which Mr. Nyakpo was transferred,
constitutes an admission that he had no affiliation with the actions carried out by the
Restoration Front and that his detention in Accra was without legal purpose.
15.
The source reports that the prosecutor did not appear to have informed the High Court
in Accra of the case against Mr. Nyakpo before the Circuit Court of Ho. It was left to Mr.
Nyakpo, in an affidavit from his lawyer dated 6 October 2021, to notify the High Court of
the case in Ho and to submit another request for his release. Allegedly, no immediate action
was taken and Mr. Nyakpo remained in detention.
16.
At the beginning of November 2021, Mr. Nyakpo was reportedly transferred back to
Ho. On 17 December 2021, he was released on bail, marking 100 days in detention since the
filing of charges in Ho on 8 September 2021, and 156 days since his original arrest on 14
July 2021.
17.
The source reports that the decision to release Mr. Nyakpo was taken unilaterally by
the prosecutor during the bail hearing, prior to the High Court deciding on the lawfulness of
his arrest on the basis of the Prohibited Organisations Act or on the conditions of his release.
As a result, Mr. Nyakpo was prevented from ever having a court rule on the legality of his
detention or the terms of his release, and is at risk of being rearrested. In fact, immediately
upon Mr. Nyakpo’s release, the prosecutor threatened him with arrest, detention and
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prosecution should he speak about self-determination in Western Togoland or attend any
meetings or demonstrations related to it.
18.
According to the source, no justification was formally given for Mr. Nyakpo’s
continued detention during the period between 8 September and 17 December 2021. Mr.
Nyakpo was repeatedly denied a formal detention hearing and, during discussions with the
prosecutor, his lawyers were informed that he was being held because of a need for additional
investigation related to alleged violations of the Prohibited Organisations Act.
19.
The source submits that the use of the Prohibited Organisations Act to prosecute Mr.
Nyakpo is entirely arbitrary in so far as it appears to have been used by the prosecutor to
justify the repeated arrests and detentions of Mr. Nyakpo and other leaders of the Foundation,
in circumstances in which there were no grounds or evidence to arrest or prosecute them
under the ordinary criminal law of Ghana. The source underlines that the Foundation has
been openly engaging on the subject of Western Togoland since 1994 and that no action
appears to have ever been taken to designate it as an organization, or to prosecute the
Foundation’s members, under the Act, despite the decree’s existence since 1992. The source
submits that the increasing use of the Act against the Foundation’s members furthers the
authorities’ ultimate objective of silencing a non-violent movement seeking to uphold the
right to self-determination in Western Togoland, as guaranteed by international law.
c.
Legal analysis
20.
The source alleges that Mr. Nyakpo’s arrest and detention are arbitrary under
categories I, II, III and V of the methods of work of the Working Group on Arbitrary
Detention.
i.
Category I
21.
The source argues that Mr. Nyakpo’s deprivation of liberty was not permitted by the
Constitution or national law and is therefore arbitrary under category I.
22.
According to the source, the Constitution of Ghana permits the deprivation of liberty
upon reasonable suspicion of having committed a crime, the boundaries of which are
established in the Criminal Procedure Code. Section 15 of the Criminal Procedure Code
provides that a person arrested without a warrant may be held in custody for 48 hours. The
source reports that Mr. Nyakpo was not advised of the reasons for his arrest until eight days
after his arrest, on 22 July 2021. The source therefore submits that Mr. Nyakpo was
unlawfully detained from 14 to 22 July 2021.
23.
Under section 29 of the Criminal Procedure Code, an individual may be placed in
pretrial detention during an investigation when it is “necessary for the prevention of a breach
of the peace or disturbance of the public peace or the commission of any offence or for the
public safety”. The detainee must have been ordered and must have failed to execute a bond,
and the detention must be ordered based on a written judicial decision and only for periods
of up to 15 days. The source submits that, in the case at hand, no bond was set and Mr.
Nyakpo’s detention was not reviewed every 15 days. In fact, Mr. Nyakpo reportedly spent
much of his pretrial detention seeking to have a hearing on his bail application.
24.
The source further notes that Mr. Nyakpo continued to be held in custody for two
months following the filing of charges against him in the Circuit Court of Ho. Given the
nature of the conduct necessary to violate the Prohibited Organisations Act, the source finds
it unreasonable to assume that any further investigations were necessary or were realistically
being carried out by the prosecutor. Indeed, the source contends that the facts alleged against
Mr. Nyakpo only required determining that the Foundation seeks self-determination for the
people of Western Togoland and that Mr. Nyakpo attended a meeting that was filmed and
broadcast on social media. The source argues that, given the lack of regular judicial review,
the necessity of an investigation was not verified.
25.
The source submits that the Prohibited Organisations Act is unconstitutional. Article
11 (6) of the Constitution of Ghana provides that laws in effect at the time of its enactment
must be construed with “any modifications, adaptations, qualifications and exceptions
necessary to bring it into conformity with the provisions of this Constitution”. The source
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argues that the Act appears to contravene prima facie multiple constitutional guarantees. In
particular, article 17 of the Constitution guarantees equality before the law and prohibits
discrimination, except in specific cases outlined under paragraph 4 of that article. The source
contends that the Act contravenes the Constitution as it applies only to the people of the Volta
Region and does not similarly prohibit other persons in other regions of Ghana from seeking
self-determination. Additionally, the Act criminalizes any and all conduct related to self-
determination for these people, including holding meetings, distributing materials, attending
demonstrations or otherwise speaking about self-determination in the Volta Region.
26.
Moreover, the source stresses that the Constitution guarantees basic human rights and
fundamental freedoms, including the equal application of the law and the rights to freedom
of opinion, speech, assembly and association. The source submits that the blanket restrictions
contained in the Act violate basic principles underlying such rights and, therefore, at least
from the time Mr. Nyakpo was indicted under the Act on 8 September 2021, his detention
was arbitrary.
ii.
Category II
27.
According to the source, Mr. Nyakpo was charged with attending a Foundation
meeting of around 100 people, during which a symbolic declaration of independence was
made. Reportedly, the indictment makes clear that participants peacefully dispersed and that
the only actions taken to give effect to the declaration were to spread news and videos on
social media.
28.
According to the charges against Mr. Nyakpo, the Foundation is a prohibited
organization under the Act. The source recalls that the Foundation is a civil society movement
dedicated to promoting the right to self-determination of the people of Western Togoland
through non-violent means and in accordance with the law. The source notes that the right to
self-determination is explicitly guaranteed under article 1 of the International Covenant on
Civil and Political Rights, and belief in self-determination, speaking about it, or joining
organizations or meetings about it are all protected actions under the Universal Declaration
of Human Rights and the Covenant.
29.
The source recalls the Working Group’s finding that the right to freedom of opinion
and expression includes the opportunity to express the way in which peoples may freely
choose their political system, constitution or government, which points to the link with other
human rights.2 Furthermore, article 25 of the Covenant guarantees the right of individuals to
participate in those processes that constitute the conduct of public affairs. In this regard, the
Human Rights Committee has stated that the rights under article 25 of the Covenant are
related to, but distinct from, the right of peoples to self-determination, including the right to
freely determine their political status and to choose the form of their constitution or
government.
30.
The source submits that restrictions on the rights to opinion, speech, association and
assembly must be necessary and proportional to achieve a legitimate aim. In its general
comment No. 34 (2011), the Human Rights Committee highlighted that such restrictions
“may never be invoked as a justification for the muzzling of any advocacy of multi-party
democracy, democratic tenets and human rights”.3 Moreover, it emphasized that States must
take extreme care to ensure that treason laws and similar provisions relating to national
security, whether described as official secrets or sedition laws or otherwise, were crafted and
applied in a manner that conformed to the strict requirements of necessity.4
31.
According to the source, Mr. Nyakpo was arrested and detained for a prolonged period
of time for attending a peaceful meeting that the Government itself admits led to nothing
more than some social media interest around a symbolic act. The source adds that Mr.
Nyakpo was detained without charge or the possibility of release upon the execution of a
bond, as required under Ghanaian law. The source notes that the crime for which Mr. Nyakpo
is being prosecuted carries a five-year sentence and submits that the rights of the members
2 The source refers to opinion No. 6/2019, para. 109.
3 Human Rights Committee, general comment No. 34 (2011), para. 23.
4 Ibid., para. 30.
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and supporters of the Foundation, including Mr. Nyakpo, are being restricted in a manner
that does not conform with the principles of necessity or proportionality.
32.
In addition, the source alleges that the Prohibited Organisations Act is not sufficiently
narrowly tailored to fulfil the requirements of international human rights law as it provides a
blanket ban on any exercise of fundamental freedoms related to Western Togoland. The
source considers that the Act cannot be said to be necessary or proportionate to meet a
legitimate aim. On the contrary, the source contends that the recent use of this law against an
organization such as the Foundation and the more general attempts by the Government to
silence the organization are both disproportionate, targeting all exercise of rights and
freedoms, and ineffective as they have led to the creation of a space for more radical and
dangerous groups to operate in Ghana.
iii.
Category III
33.
The source notes that, under article 9 (3) of the Covenant, detention should be
exceptional and short-term, the accused person should be released if there are measures in
place to guarantee that the individual will appear for trial and for the execution of the
judgment, and the presumption in favour of bail should preferably be applied if the period of
pretrial detention is prolonged.5
34.
The source recalls that Ghanaian law requires that the reasons for the arrest be
provided to the court within 48 hours and enshrines a presumption in favour of bail. It also
requires that a bond for release be promptly established and that, where such bond cannot be
executed, the legality of the detention be reviewed regularly.
35.
In the case at hand, the source submits that the reasons for Mr. Nyakpo’s arrest were
not provided during the first eight days of his detention. In fact, hearings on Mr. Nyakpo’s
detention were reportedly adjourned for 56 days, pending the filing of the charge sheet and a
hearing on his application for bail, which only occurred 156 days after the beginning of Mr.
Nyakpo’s detention.
36.
The source stresses that Mr. Nyakpo was held for significantly longer than necessary,
including for two months after the indictment was filed. At that point, there was no possible
justification for his continued detention in light of the charges that he faced. In addition, the
source contends that Mr. Nyakpo’s release was conditional and restricted his free exercise of
his basic rights to speech, assembly and association.
iv.
Category V
37.
The source argues that Mr. Nyakpo was arrested and deprived of his liberty on the
basis of a discriminatory law, which restricts the right to opinion, speech, assembly and
association only for the people of the Volta Region of Ghana. The source notes that no other
people in Ghana are subject to a similar restriction and reiterates that, until recently, the
Prohibited Organisations Act had not been used since the country’s transition to democracy
in 1992, including throughout the history of the Foundation, which was founded in 1994,
since which time it has been openly pursuing its activities.
38.
The source submits that the use of the Act provides a dangerous precedent,
establishing the grounds upon which authorities may restrict the rights and freedoms
guaranteed to all Ghanaians merely for people in the Volta Region of Ghana.
Response from the Government
39.
On 18 February 2022, the Working Group transmitted the allegations from the source
to the Government under its regular communications procedure. The Working Group
requested the Government to provide, by 19 April 2022, detailed information about the
current situation of Mr. Nyakpo and to clarify the legal provisions justifying his continued
detention, as well as its compatibility with the obligations of Ghana under international
human rights law and, in particular, with regard to the treaties ratified by the State. Moreover,
5 The source refers to opinion No. 6/2019, para. 129.
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the Working Group called upon the Government to ensure Mr. Nyakpo’s physical and mental
integrity.
40.
The Working Group regrets that the Government did not submit a reply, nor did it
seek an extension in accordance with paragraph 16 of the Working Group’s methods of work.
Discussion
41.
In the absence of a response from the Government, the Working Group has decided
to render the present opinion in conformity with paragraph 15 of its methods of work.
42.
In determining whether Mr. Nyakpo’s detention was arbitrary, the Working Group
has regard to the principles established in its jurisprudence to deal with evidentiary issues. If
the source has established a prima facie case for breach of international law constituting
arbitrary detention, the burden of proof should be understood to rest upon the Government if
it wishes to refute the allegations.6 In the present case, the Government has chosen not to
challenge the prima facie credible allegations made by the source.
43.
As a preliminary issue, the Working Group notes that Mr. Nyakpo was released on
bail on 17 December 2021. However, proceedings against him are ongoing and may result in
deprivation of liberty. The source has also presented serious allegations of arbitrary
deprivation of liberty prior to him being released on bail, which are not contested by the
Government. Moreover, the Working Group notes the uncontested allegations that threats of
rearrest were made by the prosecutor against Mr. Nyakpo (para. 17 above). In these
circumstances, the Working Group shall proceed to examine the case in accordance with
paragraph 15 of its methods of work.
a.
Category I
44.
The Working Group recalls that a detention is considered arbitrary under category I if
it lacks legal basis. As it has previously stated, for a deprivation of liberty to have a legal
basis, it is not sufficient that there is a law that may authorize the arrest. The authorities must
invoke that legal basis and apply it to the circumstances of the case through an arrest warrant.7
Indeed, the international law on deprivation of liberty includes the right to be presented with
an arrest warrant, which is procedurally inherent in the right to liberty and security of person
and the prohibition of arbitrary deprivation, under articles 3 and 9 of the Universal
Declaration of Human Rights, article 9 of the Covenant, as well as principles 2, 4 and 10 of
the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.8 Any form of detention or imprisonment should be ordered by or be subjected
to the effective control of a judicial or other authority authorized by law, the status and tenure
of which should afford the strongest possible guarantees of competence, impartiality and
independence, in accordance with principle 4 of the Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment.
45.
In the present case, it is not contested that Mr. Nyakpo was arrested on 14 July 2021
without an arrest warrant, when two cars with some 10 officers from the Bureau of National
Investigations arrived at his friend’s house, where Mr. Nyakpo was present. Mr. Nyakpo was
beaten and driven away by these officials. The Working Group considers that an arrest carried
out in such a manner and in the absence of an arrest warrant violated Mr. Nyakpo’s rights
under article 9 (1) of the Covenant.
46.
Moreover, the source has submitted that Mr. Nyakpo was held for some 56 days
without any charges, although he was presented with a statement of offence some eight days
after his arrest, on 22 July 2021. He then filed a motion for bail on 13 August 2021, which
was due to be heard by the presiding judge on 27 August 2021. The hearing, however, was
adjourned due to the prosecution’s failure to bring charges. The same happened at two further
hearings. These allegations were put to the Government, which chose not to address them.
6 A/HRC/19/57, para. 68.
7 See, for example, opinions No. 46/2017; No. 66/2017; No. 75/2017; No. 93/2017; No. 35/2018; No.
79/2018; No. 89/2020; and No. 72/2021.
8 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39.
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47.
The Working Group recalls that article 9 (2) of the Covenant requires that anyone who
is arrested is not only informed of the reasons for arrest but also promptly informed of any
charges against them. The right to be promptly informed of charges concerns notice of
criminal charges and, as the Human Rights Committee has noted in its general comment No.
35 (2014), “that right applies in connection with ordinary criminal prosecutions and also in
connection with military prosecutions or other special regimes directed at criminal
punishment.”9
48.
The Working Group notes that Mr. Nyakpo was arrested without a warrant, and it was
only some eight days later that a statement of offence was provided, with charges following
some 56 days after the original arrest. The Working Group therefore concludes that there has
been a breach of article 9 (2) of the Covenant.
49.
Moreover, according to article 9 (3) of the Covenant, anyone arrested or detained on
a criminal charge shall be brought promptly before a judge to exercise judicial power. As the
Human Rights Committee has noted, 48 hours is ordinarily sufficient to satisfy the
requirement of bringing a detainee “promptly” before a judge or other officer authorized by
law following the individual’s arrest; any longer delay must remain absolutely exceptional
and be justified under the circumstances.10 The Working Group finds that Mr. Nyakpo was
not brought promptly before a judicial authority, in violation of article 9 (3) of the Covenant.
The Working Group recalls that the prosecutorial body cannot be considered a judicial
authority for the purposes of article 9 (3) of the Covenant.11 As a result, the Working Group
finds that the authorities failed to establish the legal basis for Mr. Nyakpo’s detention in
accordance with the provisions of the Covenant.
50.
Furthermore, the Working Group notes the uncontested allegations that Mr. Nyakpo
was released by the prosecution on 17 December 2021, before the court was able to decide
on the lawfulness of his arrest. While the Working Group in principle considers his release a
positive step, it is seriously concerned that this release was done for the sole purpose of
preventing the judiciary from ruling on the lawfulness of Mr. Nyakpo’s arrest. This ties in
with the uncontested allegations made by the source regarding the practice of systemic arrests
and rearrests by Ghanaian authorities, amounting to de facto “revolving doors” detentions
effected to restart the procedural clock related to arrest and detentions (para. 6 above).
51.
As the Working Group has consistently argued,12 in order to establish that a detention
is legal, anyone detained must be afforded the right to challenge the legality of their detention
before a court, as envisaged by article 9 (4) of the Covenant. The Working Group wishes to
recall that, according to the United Nations Basic Principles and Guidelines on Remedies and
Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before
a Court, the right to challenge the lawfulness of detention before a court is a self-standing
human right, which is essential to preserve legality in a democratic society.13 This right,
which is in fact a peremptory norm of international law, applies to all forms of deprivation
of liberty,14 and to all situations of deprivation of liberty, including not only to detention for
purposes of criminal proceedings but also to situations of detention under administrative and
other fields of law, including military detention, security detention, detention under counter-
terrorism measures, involuntary confinement in medical or psychiatric facilities, migration
detention, detention for extradition, arbitrary arrests, house arrest, solitary confinement,
detention for vagrancy or drug addiction, and detention of children for educational
purposes.15 The Working Group finds a breach of article 9 (4) of the Covenant as Mr. Nyakpo
was prevented from exercising his right to challenge the legality of his detention.
9 Human Rights Committee, general comment No. 35 (2014), para. 29.
10 Ibid., paras. 32–33.
11 Ibid., para. 32; opinions No. 14/2015, para. 28; No. 5/2020, para. 72; 6/2020, para. 47; and No.
41/2020, para. 60; and A/HRC/45/16/Add.1, para. 35.
12 See, for example, opinions No. 1/2017; No. 6/2017; No. 8/2017; No. 30/2017; No. 2/2018; No.
4/2018; No. 42/2018; No. 43/2018; and No. 79/2018.
13 A/HRC/30/37, paras. 2–3.
14 Ibid., para. 11.
15 Ibid., para. 47 (a).
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52.
The Working Group further recalls that judicial oversight of detention is a
fundamental safeguard of personal liberty16 and is essential in ensuring that detention has a
legal basis. Given that Mr. Nyakpo was not able to challenge his continued detention, his
right to an effective remedy under article 8 of the Universal Declaration of Human Rights
and article 2 (3) of the Covenant was also violated.
53.
Noting all the above, the Working Group concludes that the arrest and subsequent
detention of Mr. Nyakpo lacked legal basis and were therefore arbitrary under category I.
b.
Category II
54.
As regards the allegations under category II, the source claims that Mr. Nyakpo’s
detention is arbitrary because it deprived him of a series of rights, including the rights to
freedom of association and freedom of expression, when he, along with others, attended a
meeting of the Foundation, during which a symbolic declaration of independence was made.
The source further alleges that the right to self-determination, which is explicitly guaranteed
under article 1 of the Covenant, was violated. The source adds that Mr. Nyakpo’s right to
participate in the conduct of public affairs under article 25 of the Covenant was equally
undermined. All these allegations were put to the Government, which chose not to address
any of them.
55.
In relation to the source’s submissions on the right to self-determination, the Working
Group recalls that the right to self-determination belongs to the peoples and, as such, is not
an individual right.17 Consequently, the Working Group shall not examine this allegation in
the remits of the present opinion.
56.
Turning to the other submissions, the Working Group notes that the rights to freedom
of opinion and expression and freedom of association are protected under articles 19 and 22
(1) of the Covenant and articles 19 and 20 (1) of the Universal Declaration of Human Rights.
57.
The Working Group recalls Human Rights Council resolution 24/5, in which the
Council reminded States of their obligation to respect and fully protect the rights of all
individuals to assemble peacefully and associate freely, online as well as offline, including
in the context of elections, and including persons espousing minority or dissenting views or
beliefs, human rights defenders, trade unionists and others. This echoes the principle
enunciated in Human Rights Council resolution 12/16, in which the Council called on States
to refrain from imposing restrictions that were not consistent with article 19 (3) of the
Covenant, including on discussion of government policies and political debate; reporting on
human rights; engaging in election campaigns, peaceful demonstrations or political activities,
including for peace or democracy; and expression of opinion and dissent, religion or belief.
58.
Indeed, the Working Group recalls that detention purely due to the peaceful exercise
of the rights protected by the Covenant may be arbitrary.18 The Working Group notes that
freedom of opinion and freedom of expression, as protected by article 19 of the Covenant,
are indispensable conditions for the full development of the person; they are essential for any
society and in fact constitute the foundation stone for every free and democratic society.19
59.
Freedom of expression includes the right to seek, receive and impart information and
ideas of all kinds regardless of frontiers and this right includes the expression and receipt of
communications of every form of idea and opinion capable of transmission to others,
including political opinions.20 Moreover, article 19 (2) of the Covenant protects all forms of
expression and the means of their dissemination, including all forms of audiovisual, as well
as electronic and Internet-based, modes of expression.21
16 Ibid., para. 3.
17 Human Rights Committee, general comment No. 12 (1984). See also its general comment No. 23
(1994), para. 3.1.
18 Human Rights Committee, general comment No. 35 (2014), paras. 17 and 53.
19 Human Rights Committee, general comment No. 34 (2011), para. 2.
20 Ibid., para. 11.
21 Ibid., para. 12.
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10
60.
In the present case, the Working Group notes the allegation that Mr. Nyakpo has been
charged with violations of the Prohibited Organisations Act and for violating section 182 (b)
of the Criminal Offences Act (para. 12 above), as well as for attending a peaceful meeting of
some 100 people on 16 November 2019, during which they symbolically declared an
independent State for Western Togoland and then dispersed, with no further action taken at
any stage beyond sharing the event on social media (para. 14 above). This is not contested
by the Government in the present case; nor has the Government presented any evidence that
the permissible restrictions under articles 19 and 22 of the Covenant apply to the actions by
Mr. Nyakpo. In fact, the source has specifically submitted that Mr. Nyakpo and the
Foundation rejected any violence employed by other entities (para. 8 above), a submission
that has not been contested by the Government.
61.
In these circumstances, the Working Group concludes that the detention of Mr.
Nyakpo resulted from his peaceful exercise of the freedoms of expression and opinion, and
freedom of association, as protected by articles 19 and 22 of the Covenant and articles 19 and
20 of the Universal Declaration of Human Rights.
62.
Furthermore, turning to the allegations that Mr. Nyakpo’s right to take part in the
conduct of public affairs under article 25 of the Covenant was violated, the Working Group
notes the source’s uncontested allegation that Mr. Nyakpo’s arrest was directly linked to his
engagement in the movement for self-determination of Western Togoland. The Working
Group recalls that the Human Rights Committee emphasized, in its general comment No. 25
(1996), that citizens also took part in the conduct of public affairs by exerting influence
through public debate and dialogue with their representatives or through their capacity to
organize themselves. That participation is supported by ensuring freedom of expression,
assembly and association. Noting the essential link between the rights to freedom of
expression, assembly and association, the Human Rights Committee also emphasized, again
in general comment No. 25 (1996), that the right to freedom of association, including the
right to form and join organizations and associations concerned with political and public
affairs, was an essential adjunct to the rights protected by article 25.22 The Working Group
therefore also finds the arrest of Mr. Nyakpo to be the result of his exercise of rights under
article 25 of the Covenant.
63.
Finally, the source has argued that the Prohibited Organisations Act is formulated in
overly broad and vague terms, allowing its provisions to be used to silence legitimate
expressions of opinion, such as in the case of Mr. Nyakpo. These submissions were put to
the Government, which has chosen not to address them.
64.
The Working Group recalls that charges involving vague and imprecise offences
jeopardize the ability of individuals to exercise their fundamental rights. Laws that are
vaguely and broadly worded may have a deterrent effect on the exercise of the rights to
freedom of thought, conscience and religion, freedom of opinion and expression, freedom of
peaceful assembly and association, participation in political and public affairs, equality and
non-discrimination, and protection of persons belonging to ethnic, religious or linguistic
minorities, as they have the potential for abuse, including the arbitrary deprivation of
liberty.23 The Working Group considers that this is precisely what has happened in the case
of Mr. Nyakpo and notes the uncontested allegations that there exists a pattern of such cases
in Ghana (paras. 6–7 above).
65.
The Working Group urges the Government to define any crimes in precise terms and
to take legislative measures to introduce an exemption from criminal responsibility for those
who peacefully exercise their rights guaranteed by the Universal Declaration of Human
Rights and the Covenant.
66.
Noting all the above, the Working Group finds that the arrest and detention of Mr.
Nyakpo was arbitrary under category II. The Working Group refers this case to the Special
Rapporteur on the promotion and protection of the right to freedom of opinion and
22 General comment No. 25 (1996), para. 26.
23 Opinion No. 10/2018, para. 55.
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11
expression, for further consideration of the circumstances of the case and, if necessary,
appropriate action.
c.
Category III
67.
Given its finding that the deprivation of liberty of Mr. Nyakpo was arbitrary under
category II, the Working Group wishes to emphasize that no trial of Mr. Nyakpo should take
place. Indeed, while Mr. Nyakpo has been released, it remains unclear whether all charges
against him have been duly dismissed. The source has made submissions under category III
and the Working Group shall proceed to examine these.
68.
The source claims that the deprivation of liberty of Mr. Nyakpo falls within category
III since he was detained for an unnecessarily long period, contrary to article 9 (3) of the
Covenant. According to the source, the reasons for Mr. Nyakpo’s arrest were not provided
during the first eight days of his detention, no charges were presented for 56 days following
his arrest and hearings on his detention were adjourned three times, pending the filing of the
charge sheet. These allegations were put to the Government, which chose not to address them.
69.
The Working Group recalls that article 14 (3) (a) of the Covenant entitles everyone to
be promptly informed of the charges against them. In the present case, while Mr. Nyakpo
was provided with the statement of offence eight days after the arrest, the charges were not
brought until some 56 days later. The Government has provided no explanation for this delay
and the Working Group therefore finds a breach of article 14 (3) (a) of the Covenant and
article 10 of the Universal Declaration of Human Rights. Moreover, noting that it is essential
for detained persons to know the charges in order to enable those persons to both challenge
the legality of their detention and to prepare their defence, as well as noting its findings under
category II above, the Working Group considers that the violation of Mr. Nyakpo’s fair trial
rights was of such gravity as to render his detention arbitrary under category III.
d.
Category V
70.
The source has submitted, and the Government has chosen not to contest, that the
deprivation of liberty of Mr. Nyakpo falls under category V, namely that it was
discriminatory as it was based on a law that restricts the right to opinion, speech, assembly
and association only for the people of the Volta Region of Ghana when no other people in
Ghana are subject to a similar restriction.
71.
The Working Group observes that Mr. Nyakpo belongs to the Homeland Study Group
Foundation, an organization that has been openly engaging on the subject of Western
Togoland since 1994 and that no action appears to have ever been taken to designate the
Foundation as a prohibited organization or to prosecute its members under the Prohibited
Organisations Act (para. 19 above) until relatively recently, when they were reportedly
targeted under the provisions of national criminal law for peaceful expression of their
political views. The source provides examples of members being arrested in anticipation of
a meeting to discuss self-determination and charged with conspiracy to commit treason; for
wearing T-shirts with an inscription relating to a date on which a symbolic declaration of
independence of Western Togoland was made; and for taking part in such a symbolic
declaration of independence (para. 6 above). The source has argued that individuals often get
rounded up, arrested, detained for periods and released before the court hearings take place
only to be rearrested repeatedly afterwards.
72.
On the facts as narrated by the source and uncontested by the Government, the arrest
and detention of Mr. Nyakpo follows the same pattern. The Working Group is particularly
mindful of the threats by the prosecutor to arrest him again, should he continue with his
activism, and observes that this follows the pattern of harassment suffered by members of the
Foundation. The Working Group considers that Mr. Nyakpo was targeted because of his
peaceful activities and recalls that, when a detention results from the active exercise of civil
and political rights, there is a strong presumption that the detention also constitutes a violation
of international law on the grounds of discrimination based on political or other views.24 In
particular, noting the absence of any explanation by the Government, the Working Group
24 Opinions No. 88/2017, para. 43; No. 13/2018, para. 34; and No. 59/2019, para. 79.
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12
finds that Mr. Nyakpo was deprived of his liberty on discriminatory grounds, namely on the
basis of his political or other opinion. His arrest and detention thus violated articles 2 and 7
of the Universal Declaration of Human Rights and articles 2 (1) and 26 of the Covenant, and
were arbitrary under category V.
73.
The Working Group wishes to emphasize that the present opinion concerns solely the
deprivation of liberty of Mr. Nyakpo and is adopted without prejudice to the legal status of
the Western Togoland.
Disposition
74.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of George Nyakpo, being in contravention of articles 2, 3,
7, 8, 9, 10, 19, 20 and 21 of the Universal Declaration of Human Rights and articles
2, 9, 14, 19, 22, 25 and 26 of the International Covenant on Civil and Political Rights,
is arbitrary and falls within categories I, II, III and V.
75.
The Working Group requests the Government of Ghana to take the steps necessary to
remedy the situation of Mr. Nyakpo without delay and bring it into conformity with the
relevant international norms, including those set out in the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights.
76.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to unconditionally release Mr. Nyakpo immediately
and accord him an enforceable right to compensation and other reparations, in accordance
with international law.
77.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Nyakpo and to take appropriate measures against those responsible for the violation of his
rights.
78.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression, for appropriate action.
79.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
80.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Mr. Nyakpo has been unconditionally released and, if so, on what
date;
(b)
Whether compensation or other reparations have been made to Mr. Nyakpo;
(c)
Whether an investigation has been conducted into the violation of Mr.
Nyakpo’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of Ghana with its international obligations in line with the
present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
81.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example through a visit by the Working
Group.
82.
The Working Group requests the source and the Government to provide the above-
mentioned information within six months of the date of transmission of the present opinion.
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However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action would
enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
83.
The Working Group recalls that the Human Rights Council has encouraged all States
to cooperate with the Working Group and has requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.25
[Adopted on 30 August 2022]
25 See Human Rights Council resolution 42/22, paras. 3 and 7.