Transitional justice and constitutionalism: The case of Ghana

• Author: Yankson-Mensah, M.
• Published date: 04 March 2021
• Date: 04 March 2021
• DOI: https://doi.org/10.47348/SACJ/v33/i3a2
• Pages: 542-561

Transitional justice and

constitutionalism:

The case of Ghana

MARIAN YANKSON-MENSAH*

ABSTRACT

The delicate process of constit ution-making during tran sition covers a range

of issues, but usually featu res questions on how to address past human right s

violations, change repressive laws, recogni se basic rights and reform state

institutions. Hence, t he constitution-mak ing process can have signi cant

implications on the tra nsitional justice mechan isms that are adopted and

how they are implemented. In the cas e of Ghana, the 1992 Constitution

came into force after decades of p olitical instabi lity. On 28 April 1992, a

draft constit ution for Ghana’s fourth republic was approved in a referendum.

As part of the tr ansitional provisions in t he 1992 Constitution, amnes ty

provisions were enshrined to prote ct members of all previou s militar y

regimes from prosecut ion. However, the 1992 Constitution did not contain

express provisions for initiation of o ther transitional ju stice mechanisms.

In a bid to reect on the rarely exa mined relationship bet ween transitional

justice mechanism s and constitutionalism, this paper sha ll examine Ghana’s

amnesty laws, tr uth commission and repa rative measures in relat ion to the

constitution-ma king process and constit utional norms. The pape r opines

that as separate process es towards a common end, proper sync hronisation

of Ghana’s transitional justice pro cesses and constitution-maki ng could have

shaped the country’s tra nsitional justice mechan isms in the right d irection

towards achieving their pe rceived goals.

1 Introduction

On 7 December 2000, Ghana’s closely contested presidential and

parliamentary elections marked a breakthrough in the history of

democracy in the country. For the rst time after gaining independence

from British colonial rule, the holding of elections resulted in a

successful change in government, and Jerry John Rawlings who had

ruled the country for nearly two decades had to leave the presidency.

The opposition New Patriotic Party emerged victorious, led by John

Agyekum Kufuor. With Ghanaians having endured more than three

decades of excessive political instability and prolonged military rule,

* LLB (Kwame Nkrum ah University of Scie nce and Technology) LLM (Universit y

of the Western Cape), Dr Iur (Humboldt Universit ät zu Berlin); Project O fcer,

Internatonal Nuremberg Pri nciples Academy, Nuremburg, Germany.

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https://doi.org/10.47348/SACJ/v33/i3a2

(2020) 33 SACJ 542

© Juta and Company (Pty) Ltd

the assumption of Kufour into power was celebrated nationwide as a

‘second independence’ for the count ry.1 Upon assumption into ofce,

the New Patriotic Party government had to contend with t he challenge of

addressing the pervasive political and social polarisation in the countr y

created as a result of gross human rights violations perpetrated under

decades of political instability. The dilemmas of the new government

included how to resolve the general push for truth, justice, and national

reconciliation as well as how to demobilise and disar m Rawlings’s

soldiers, such as militar y groups from the 1982 coup d’état.2 Moreover,

Ghanaians generally remained in the dark regarding the fact s and

circumstances sur rounding the heinous atrocities that were perpetrated

by previous constitutional and military govern ments.3

This situation typi es the predicaments of transitional societies.4 In

such circumstances, transitional justice provides options for dealing

with perpetrators of gross human rights violations, establishing

the facts(or the truth) relating to the perpetration of human rights

violations, initiating or strengt hening democracy and rule of law, laying

the foundation for institutional reform, preventing the recur rence of

gross human rights violations in the society, providing remedies for

victims of human rights violations, as well as pursuing accountability,

justice, peace a nd reconciliation.5 The United Nations has dened

transitional justice as ‘the full range of processes and mechanisms

associated with a society’s attempts to come to terms with a legacy of

1 E Gyimah-Boad i ‘A peaceful turnover in Gha na’(2001) 12 J Democracy 103 at 112.

2 Ibid at 115.

3 See RK Ameh ‘Doing justice after co nict: The ca se for Ghana’s National

Reconciliation Com mission’(2006) 21 Canad J Law & Soc 85 at 96– 97.

4 See R Teitel ‘Transitional jur isprudence: The role of law i n political transformation’

(1996) 106 Yale LJ 20 09 at 2018–2021, where she describes the di lemmas of the ‘rule

of law’ during tra nsition.

5 On the different go als of transitional ju stice, see the Afric an Union Peace, justice, an d

reconciliation in Afr ica: Opportunities and chall enges in the ght against impunity:

Report of the AU Panel of the Wis e, February (2013) 13, available at https://reliefweb.

int/sites/reliefweb.int/les/resources/ipi_e_pub_ peacejusticeafrica.pdf, accessed on

7 October 2020; K A mbos ‘Evaluando la e ciencia de la Justicia Tran sicional Unos

comentarios preli minaries ’ (2015) 9 Zeitschr für Internat Strafrecht sdogmatik (ZIS)

468 at 469; DA Crocker ‘Reckoni ng with past wrongs: A nor mative framework’

(1999) 13 Ethics & Internat Aff 43 at 53– 62; N Kritz ‘The d ilemmas of tr ansitional

justice’ in N Kr itz (ed)Transitional Justice: How E merging Democracies Re ckon with

Former Regimes vol I (1995) xix at xx, x xi; H van der Merwe et a l ‘Introduction’ i n

H van der Merwe et al (eds) Assess ing the Impact of Transitional Justice: Challenges

for Empirical Rese arch (2009) 3; Y Sooka ‘Deal ing with the past a nd transitional

justice: Buildi ng peace through account ability’ (20 06) 88 Intern at Rev Red Cross

311 at 320–321; and J Zalaquett ‘Confr onting human right s violations comm itted

by former governments: Pr inciples applicable and polit ical constrai nts’ in N Krit z

(ed) Transitional Ju stice: How Emerging Democracie s Reckon With Former Regimes

vol II (1995) 1 at 5, 6, 8.

Transitional justice and constitutionalism:

The case of Ghana 543

https://doi.org/10.47348/SACJ/v33/i3a2

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