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After the National Reconciliation Commission: The Way Ahead

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Book cover Transitional Justice in Ghana

Part of the book series: International Criminal Justice Series ((ICJS,volume 25))

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Abstract

Despite the full implementation of a particular transitional justice mechanism , some needs of a transitional society may remain unfulfilled. Tying the loose ends after a specific mechanism has executed its function would thus require resorting to other transitional justice mechanisms to complement and make amends for the limitations of the mechanisms that have already been implemented. In an effort to ascertain the transitional needs that remain unaddressed in Ghana after the work of the National Reconciliation Commission, this chapter utilises a normative approach to assess the commission’s work in relation to other transitional justice mechanisms —namely, prosecutions, amnesties, reparations and institutional reforms. Drawing on emerging and established principles of international human rights law, it identifies key loopholes and outstanding issues in Ghana’s transitional process. The chapter provides an insight into the legality of the amnesty provisions under Ghana’s 1992 Constitution, the country’s duty to prosecute gross human rights violations that were perpetrated from 1957 to 1993 and the extent of the fulfilment of victims’ rights to reparations.

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Notes

  1. 1.

    About the arguments that there is no fixed approach for addressing human rights violations, see for instance Ambos 2015, pp. 469, 470; and Kritz 2009, pp. 13–14.

  2. 2.

    See Olsen et al. 2010, pp. 458, 464–465, who assert that the ability of truth commissions to enhance protection of human rights in a society depends on the presence of other transitional justice mechanisms . See also De Greiff 2012, pp. 35–36; and International Centre for Transitional Justice https://www.ictj.org/about/transitional-justice. Accessed 5 November 2019. Indeed, the Inter-American Court of Human Rights has held that a state’s engagement in a truth telling exercise does not obviate from its duty to utilise judicial measures in dealing with past human rights violations. See Inter-American Court of Human Rights, Garay Hermosilla et al. v Chile, 15 October 1996, Case 10.843, Report No. 36/96 (Garay Hermosilla 1996), paras 74, 75, 77, where the court held that although the state of Chile had established a truth commission to investigate past human rights violations and awarded reparations to victims, the truth commission could not be considered as a judicial institution. Moreover, the court held that since the commission’s terms of reference did not empower it to name perpetrators and punish them, the truth telling exercise could not be regarded as a substitute for a judicial trial. See also Mallinder 2007, p. 216; and Méndez 1997, pp. 255, 263, 269.

  3. 3.

    De Greiff 2012, pp. 35–36.

  4. 4.

    See United Nations General Assembly 2006, para 3(b).

  5. 5.

    See Tomuschat 2002, p. 325; and Werle and Jessberger 2014, pp. 79–83.

  6. 6.

    See Convention on the Prevention and Punishment of the Crime of Genocide , opened for signature 9 December 1948, No. 1021 (entered into force 12 January 1951) (Genocide Convention) , Article IV; Geneva Convention (IV).

    Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (Fourth Geneva Convention), Article 146; Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (First Geneva Convention), Article 49; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (Second Geneva Convention) Article 50; Geneva Convention (III) Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (Third Geneva Convention), Article 129; and in relation to torture, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984 (entered into force 26 June 1987) (Torture Convention) , Articles 5 and 7. The duty to prosecute also applies to third party states in respect of war crimes that occur in international armed conflicts. The position of international law is however not settled, regarding whether or not third-party states have a duty to prosecute crimes against humanity and genocide . See also Jones 2015, pp. 99–102; and Werle and Jessberger 2014, pp. 79–82.

  7. 7.

    See the Torture Convention , above n 6, Articles 5, 7; International Convention for the Protection of All Persons from Enforced Disappearance, opened for signature 20 December 2006 (entered into force 23 December 2010) (Enforced Disappearances Convention), Articles 6, 7, 11; and International Convention on the Suppression and Punishment of the Crime of Apartheid, opened for signature 30 November 1973, A/RES/3068(XXVIII) (entered into force 18 July 1976) (Apartheid Convention), Articles IV and V.

  8. 8.

    See Convention for the Suppression of Unlawful Seizure of Aircraft, opened for signature 16 December 1970, UNTS 1973 (entered into force 14 October 1971) (Aircraft Seizure Convention), Articles 7 and 22; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, opened for signature 23 September 1971, 974 UNTS 177 (entered into force 26 January 1973) (Safety of Civil Aviation Convention), Articles 7 and 24; and International Convention against the Taking of Hostages, opened for signature 17 November 1979, No. 21931 (entered into force 3 June 1983) (Convention against Hostage Taking), Article 8.

  9. 9.

    On the duty to prosecute arising from the duty to protect human rights , see Tomuschat 2002, p. 325; and Werle and Jessberger 2014, pp. 317–326.

  10. 10.

    See the First Geneva Convention, above n 6, Article 1.

  11. 11.

    See International Covenant on Civil and Political Rights, opened for signature 16 December 1966 (entered into force 23 March 1976) (Covenant on Civil and Political Rights), Article 2(1); African Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982) (entered into force 21 October 1986) (Banjul Charter), Article 25; European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953) (European Convention on Human Rights), Article 1; Charter of Fundamental Rights of the European Union, opened for signature 26 October 2012, 2012/C 326/02 (entered into force 1 Dec. 2009) (European Charter), Article 51; and American Convention on Human Rights, opened for signature 22 November 1969 (entered into force 18 July 1978) (Pact of San Jose), Article 1(1).

  12. 12.

    See the United Nations Human Rights Committee 2004, para 18. See also Werle and Jessberger 2014, p. 80.

  13. 13.

    See Inter-American Court of Human Rights, Velásquez-Rodríguez v Honduras, Judgment of 29 July 1988, Ser. C. No. 4 (Velásquez-Rodríguez 1988), paras 165–170. Regarding this decision, Tomuschat 2002, pp. 321, 323 and 325–326, comments that the decision of the court was rather rigorous and cannot possibly be applicable to all cases of human rights violations at the instance of the state. In his view, although other bodies have given similar decisions, this position of the law has some limitations in so far as it does not have a binding effect on every country. He however in the end acknowledges that the duty to prosecute has gained enough acceptance to be regarded as ‘positive law’.

  14. 14.

    See the African Commission on Human and Peoples’ rights, Zimbabwe Human Rights NGO Forum v Zimbabwe, 15 May 2006, Communication No. 245/2002 (Zimbabwe Human Rights NGO case), para 171.

  15. 15.

    See Zimbabwe Human Rights NGO case, above n 14, para 171.

  16. 16.

    On this subject, see Roht-Arriaza 1990, pp. 474–475.

  17. 17.

    See Universal Declaration of Human Rights, adopted 10 December 1948, 217 A (III) (Universal Declaration), Article 8; and Covenant on Civil and Political Rights, above n 11, Article 2(3). The basic components of this right have been espoused in the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 2005, which sets out the means for complying with the existing rules of international law regarding the rights of victims of human rights violations to remedies. See also United Nations General Assembly 2006, paras 2(c), 8, 9.

  18. 18.

    See African Union 2003, para c(c); Covenant on Civil and Political Rights, above n 11, Article 2(3); Universal Declaration, above n 17, Article 8; International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, UNTS vol 660, p. 195 (entered into force 4 January 1969), Article 6; Torture Convention , above n 6, Article 14; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature 12 December 1977, 1125 UNTS 3 (entered into force 7 December 1978) (Additional Protocol 1), Article 91; and Rome Statute of the International Criminal Court (last amended 2010), opened for signature 17 July 1998 (entered into force 1 July 2002) (Rome Statute), Articles 75, 79. See also Convention on the Rights of the Child, opened for signature 20 November 1989, UNTS, vol 1577, p. 3 (entered into force 2 September 1990) (Convention on the Rights of a Child), Article 39, where it requires enhancement of physical and psychological recovery and social reintegration of child victims.

  19. 19.

    See African Union 2003, para c(c); and the United Nations General Assembly 2006, para 17. Regional courts have also elucidated the need for remedies. For instance, the African Commission on Human and Peoples’ Rights in the Zimbabwe Human Rights NGO case, above n 14, held that states owe an obligation to, where possible, ‘restore the right violated and provide appropriate compensation for resulting damage’. See also European Court of Human Rights, Aksoy v Turkey, 18 December 1996, 100/1995/606/694, para 95; and European Court of Human Rights, Kaya et al. v Turkey, 24 October 2006, Application no. 4451/02, para 50, where the court held that remedies must be effective in both law and fact, in the sense of not being unreasonably withheld by the conduct of the authorities in the state in question. See also Velásquez-Rodríguez 1988, above n 13, paras 25, 64, 66; and Inter-American Court of Human Rights, Osorio Rivera and Family Members v Peru, 26 November 2013, para 235, where the court stated that customary international law reflects that every violation of an international duty that results in harm gives rise to a duty to provide adequate redress.

  20. 20.

    Universal Declaration, above n 17, Article 8.

  21. 21.

    See Covenant on Civil and Political Rights, above n 11, Article 2(3).

  22. 22.

    United Nations Human Rights Committee 2004, paras 15 and 18.

  23. 23.

    Ibid.

  24. 24.

    Ibid., para 18.

  25. 25.

    Ibid., paras 15, 17 and 18.

  26. 26.

    See Banjul Charter, above n 11, Article 7(1)(a), which provides that ‘Every individual shall have the right to have his cause heard. This comprises: The right to appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force’. This provision is further expanded in the African Union’s Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, para c(b). See African Union 2003, para c(b). See also Office of the United Nations High Commissioner for Human Rights 2009, p. 23. https://www.ohchr.org/Documents/Publications/Amnesties_en.pdf. Accessed 4 September 2019.

  27. 27.

    See Zimbabwe Human Rights NGO case, above n 14, para 171.

  28. 28.

    For the reasons why the NRC was established as opposed to criminal prosecutions being instated, see Sect. 3.2 in Chap. 3 of this book.

  29. 29.

    See United Nations General Assembly 2006, para 4.

  30. 30.

    On the fact that the NRC was established as an alternative to prosecutions, see Ameh 2006, pp. 99–100, where he refers to the argument of a former Attorney General in Parliament during the consideration of the National Reconciliation Bill in Parliament. On the subject of not considering transitional justice mechanisms as alternatives, see United Nations Commission on Human Rights 2005, para 8; and Ambos 2009, pp. 40, 51.

  31. 31.

    See the Rome Statute, above n 18, Article 8; and Werle and Jessberger 2014, pp. 392, 406–420.

  32. 32.

    In this regard, it should be noted that there is no internationally accepted definition of an armed conflict. However, one popular definition of the terminology is that of the International Criminal Tribunal for the Former Yugoslavia, which states that an armed conflict occurs ‘whenever there is a resort to armed force between states or protracted armed violence between government authorities and organized armed groups or between such groups within a state. See International Criminal Tribunal for the Former Yugoslavia, Prosecutor v Dusko Tadic A/K/A “Dule”, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para 70. Although this decision is not binding on Ghana, it is useful in this context, as it has been utilized by the International Criminal Court. See International Criminal Court, the Prosecutor v Thomas Lubanga Dyilo, Judgment pursuant to Article 74 of the Statute, 14 March 2012, Case No. ICC-01/04-01/06-2843 (Lubanga), para 533; and International Criminal Court, Prosecutor v Kantanga and Ngudjolo Chui, Decision on the confirmation of charges, 30 September 2008, Case No. ICC-01/04-01/07-717 (Katanga), para 238, where the court defined international armed conflict.

  33. 33.

    See the Genocide Convention, above n 6, Article II; and Rome Statute, above n 18, Article 6. For details of the structure of the crime of genocide , see also Werle and Jessberger 2014, pp. 293–294.

  34. 34.

    See, for example, Rome Statute, above n 18, Article 7.

  35. 35.

    Ibid., Article 7(2)(a).

  36. 36.

    See, for example, Katanga Case, above n 32, para 395; and Werle and Jessberger 2014, pp. 339–340.

  37. 37.

    Werle and Jessberger 2014, p. 340. See also International Criminal Court, the Prosecutor v Jean-Pierre Bemba Gombo, Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo, 10 June 2008, Case No. ICC-01/05-01/08-14-tENG (Bemba), para 33.

  38. 38.

    See National Reconciliation Commission 2004, vol 1, para 6.2.6.5.

  39. 39.

    Regarding the non-applicability of statutory limitations to certain human rights violations, see United Nations General Assembly 2006, paras 6, 7.

  40. 40.

    See Banjul Charter, above n 11, Article 25; and Zimbabwe Human Rights NGO case, above n 14, para 171.

  41. 41.

    On the question of whether the Universal Declaration of Human Rights has attained the status of customary international law, see Charlesworth 2008, para 15. http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e887#. Accessed 11 October 2019; and Hannum 1995–1996, pp. 318–352. See International Court of Justice, South West Africa Cases (Liberia v South Africa), Dissenting Opinion of Judge Tanaka, 18 July 1966, p. 288, where he stated that the Universal Declaration of Human Rights ‘is no more than a declaration adopted by the General Assembly and not a treaty binding on the member States’.

  42. 42.

    International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, Separate Opinion of Vice-President Ammoun, 21 June 1971, p. 76.

  43. 43.

    See United Kingdom House of Lords, Regina v Bartle and the Commissioner of Police for the Metropolis et al. Ex Parte Pinochet, Regina v Evans and Another and the Commissioner of Police for the Metropolis et al. Ex Parte Pinochet (On Appeal from a Divisional Court of the Queen’s Bench Division), 24 March 1999 (Pinochet). https://publications.parliament.uk/pa/ld199899/ldjudgmt/jd990324/pino1.htm. Accessed 30 October 2019, where it was held that the prohibition of torture under international law has gained the status of jus cogens, and therefore entitles states to the exercise of universal jurisdiction with regards to the crime of torture. See also International Criminal Tribunal for the Former Yugoslavia, Prosecutor v Anto Furundzija, 10 December 1998, Case No. IT-95-17/1-T (Furundzija), pp. 59–60, where the court held that in view of the jus cogens nature of torture, every state has an obligation to investigate, prosecute and punish or extradite perpetrators of torture who are found on their territories. The Supreme Court of Israel has also held in the case of Attorney-General of the Government of Israel v Eichmann that the power of states to prosecute these crimes is owed essentially to the fact that the implications of international crimes go beyond the bounds of domestic law, thereby affecting the wellbeing of the whole international community. See Supreme Court of Israel, Attorney-General of the Government of Israel v Eichmann, 29 May 1962, Criminal Appeal No. 336/61, as cited in Amnesty International 2012, p. 6. https://www.amnesty.org/download/Documents/24000/ior530132012en.pdf. Accessed 20 October 2019.

  44. 44.

    However, civil cases have different periods of limitations, as provided under the Limitations Decree of 1972. See Republic of Ghana, Limitation Decree, 1972, National Redemption Council Decree 54. Hence, claims for reparations for instance would be subject to limitations. See also Supreme Court of Ghana, Ghana Commercial Bank v Commission on Human Rights and Administrative Justice, 2003, African Human Rights Law Report, paras 31–43, where the courts stated that Ghana’s laws on statutory limitations are applicable to human rights claims, although the limitations do not apply to non-judicial investigations.

  45. 45.

    On the issue of the low magnitude of human rights violations in Ghana, see Wain 2003, pp. 8–9; and Valji 2006, pp. 2–3.

  46. 46.

    See the Universal Declaration, above n 17, Article 8.

  47. 47.

    See Covenant on Civil and Political Rights, above n 11, Article 2(3); Torture Convention , above n 6, Articles 5, 7; and Enforced Disappearances Convention, above n 7, Article 6. Regarding the crime of enforced disappearances, although Article 5 of the Convention for the Protection of All Persons from Enforced Disappearance, 2006, states that a systematic conduct of the crime constitute crimes against humanity, it does not preclude single cases of the offence from prosecution. This is evident from the use of the crime (i.e., ‘enforced disappearance’) in its singular form in most parts of the Convention and in particular in Article 6.

  48. 48.

    Regarding this issue, Roht-Arriaza observes that in the decision of the Velásquez-Rodríguez case, which first interpreted the ‘ensure and respect’ phrase to connote the existence of a duty to prosecute, it was not stated anywhere that the principle is applicable to only instances where there was a systematic pattern of human rights violations. See Roht-Arriaza 1990, p. 472.

  49. 49.

    See Freeman and Pensky 2012, p. 44; and Freeman 2009, pp. 32–33.

  50. 50.

    Office of the United Nations High Commissioner for Human Rights 2009, p. 8. See also Werle and Vormbaum 2018, p. 68.

  51. 51.

    See Werle and Vormbaum 2018, p. 69.

  52. 52.

    See Constitutional Court of South Africa, Azanian Peoples Organization et al. v The President of the Republic of South Africa et al., 25 July 1996, Case No. CCT 17/96, pp. 33–36, 44–45, where the court stated that an amnesty was essential in order to encourage perpetrators to tell the truth, as well as to enhance the process of reconciliation in the country. See also Ambos 2009, p. 66; and Mallinder 2007, pp. 211–212, 228–229.

  53. 53.

    See Ambos 2009, p. 66; and Mallinder 2007, pp. 211–212, 228–229.

  54. 54.

    See United Nations Commission on Human Rights 2005, paras 19 and 24.

  55. 55.

    Ibid., para 24.

  56. 56.

    Freeman and Pensky 2012, pp. 45–51. For further details of the five arguments against amnesties, see also Ambos 2009, pp. 31–32, 54–55; and Mallinder 2007, pp. 211–212, 228–229, where she proposes some conditions under which amnesties should or should not be ‘intervened’ by courts.

  57. 57.

    See Sect. 6.2.1 in the present chapter of this book. For details of this argument, see Freeman 2009, pp. 36–39.

  58. 58.

    See Freeman 2009, pp. 39–40.

  59. 59.

    See Torture Convention , above n 6, Article 12. See also Freeman 2009, pp. 40–41.

  60. 60.

    See Covenant on Civil and Political Rights, above n 11, Articles 2(1), 2(2) which requires state parties to ‛respect and ensure’ realisation of the rights in the convention and to utilise any needed legislation or mechanisms ‛to give effect to’ the rights in the treaty. The duty to prosecute arises from the ‛respect and ensure’ phrase, which has been interpreted to give rise to such a duty. Also, the duty of states to provide remedies to victims under Article 2(3) of the International Covenant on Civil and Political Rights, 1966 has been interpreted to give rise to a duty to investigate human rights violations. See Roht-Arriaza 1990, p. 483; and United Nations Human Rights Committee 2004, para 15. See also Freeman 2009, pp. 40–41.

  61. 61.

    For details of this argument, see Freeman 2009, pp. 41–42. See also Rome Statute, above n 18, Article 29; and Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, opened for signature 26 November 1968, A/RES/2391(XXIII) (entered into force 11 November 1970), Article 1.

  62. 62.

    See Covenant on Civil and Political Rights, above n 11, Article 4(2). Also, there are treaties which do not permit derogation of all their provisions. See International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, UNTS, vol 993, p. 3 (entered into force 3 January 1976); and Convention on the Rights of a Child, above n 18. See also Freeman 2009, pp. 42–43.

  63. 63.

    See Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, UNTS, vol 1155, p. 331 (entered into force 27 January 1980) (Vienna Convention), Article 27. Under the Covenant on Civil and Political Rights, above n 11, Article 7, however, a state can abrogate its duties under the treaty, where there is a ‘public emergency which threatens the life of the nation and the existence of which is officially proclaimed’. Nevertheless, whatever actions which are taken by a state in such a situation should not result in a breach of its other treaty obligations or cause ‛discrimination solely on the ground of race , colour, sex, language, religion or social origin’.

  64. 64.

    United Nations General Assembly 1992, Article 18(1). See also United Nations Economic and Social Council 1989, para 19, which prohibits the grant of blanket amnesties to protect persons who have committed acts of ‘extra-legal, arbitrary or summary executions’; and United Nations Commission on Human Rights 2005, para 24. Moreover, the Human Rights Commission has observed that by virtue of being connected to the duty of the state to investigate gross violations of human rights, the existence of blanket amnesties can contravene the right to truth. See United Nations Commission on Human Rights 2006, para 45.

  65. 65.

    See the United Nations Security Council 2004, paras 10 and 64. States parties of the UN are therefore urged to investigate, prosecute and punish perpetrators of human rights violations. Also, staff and peace negotiators of the United Nations are not allowed to tolerate amnesties that seek to oust prosecution of international crimes and gross human rights violations, such as torture, forced disappearances, and extrajudicial or arbitrary killings. See United Nations Commission on Human Rights 2005, paras 19 and 24; and Office of the United Nations High Commissioner for Human Rights 2009, p. 27.

  66. 66.

    See Inter-American Court of Human Rights, Barrios Altos v Peru, 14 March 2001, Series C No. 75 (Barrios Altos), pp. 14–15, 17; and Inter-American Court of Human Rights, Barrios Altos v Peru, Concurring Opinion of Judge A.A. Cançado Trindade, 14 March 2001, Series C No. 75, pp. 2, 4. See also Inter-American Court of Human Rights, Almonacid Arellano et al. v Chile, 26 September 2006, Series C No 154 (Almonacid Arellano), pp. 51–52, 53, where the court, referring to its prior decision in Barrios Altos v Peru stated that states parties owe a duty to prosecute and punish perpetrators of crimes against humanity thereby invalidating any laws which bar such prosecution. The court also stated that amnesty laws are incompatible with the dictates of international human rights law. These decisions of the court have been reiterated in other subsequent decisions of the court. See Inter-American Court of Human Rights, La Cantuta v Peru, 29 November 2006, pp. 83, 89–91; Inter-American Court of Human Rights, Gomes Lund et al. (“Guerrilha Do Araguaia”) v Brazil, 24 November 2010, pp. 55, 64; and Inter-American Court of Human Rights, Gelman v Uruguay , 24 February 2011, pp. 69, 80–81.

  67. 67.

    See, for instance, the Zimbabwe Human Rights NGO case, above n 14, paras 203, 204, 206, 144, where the commission referred to various cases of the Inter-American Court of Human Rights.

  68. 68.

    See African Commission on Human and Peoples’ Rights, Malawi African Association et al. v Mauritania, 11 May 2000, Communication Nos. 54/91, 61/91, 98/93, 164/97 à 196/97 and 210/98 (Malawi African Association) , paras 82–83.

  69. 69.

    See the case of Zimbabwe Human Rights NGO, above n 14, paras 204–216. Similarly, the European Court of Human Rights has stated in some decisions that in order to protect the right to effective remedy, amnesties are not permissible in cases of torture or ill treatment by an agent of state. See European Court of Human Rights, Abdülsamet Yaman v Turkey, 2 November 2004, Application no. 32446/96, para 55; and European Court of Human Rights, Yeter v Turkey, 13 January 2009, Application no. 33750/03, para 70. Aside from the regional courts, the issue of validity of amnesties has also been dealt with by some ad hoc tribunals. In the Furundzija case, above, n 43, pp. 59–60, it was held that the prohibition of torture under international law makes any national measures that either tolerate torture or shield perpetrators of torture from punishment illegitimate under international law. Moreover, the court held that in view of the jus cogens nature of torture, every state has an obligation to investigate, prosecute and punish or extradite perpetrators of torture who are found on their territories. The Special Court for Sierra Leone has also ruled that an amnesty that is granted under domestic law cannot bar another state from the prosecution of international crimes that are subject to universal jurisdiction. See Special Court for Sierra Leone, Prosecutor v Morris Kallon and Brima Bazzy Kamara, 13 March 2004, Case Nos. SCSL-2004-15-AR72(E)/ SCSL-2004-16-AR72 (E), pp. 30–31.

  70. 70.

    See African Union 2003, para c(d). Aside international jurisprudence on amnesties, domestic courts have also ruled on the invalidity of amnesties. See, for instance, Corte Suprema de Justicia de la Nación (Supreme Court), Argentina , Julio Simón et al. v Public Prosecutor, 14 June 2005, Case No. 17.768, S. 1767. XXXVIII (Julio Simón et al.), in which the Supreme Court of Argentina ruled that Amnesty Laws, 23.492 and 23.521 were invalid.

  71. 71.

    See Slye 2002, p. 178. See also Méndez 2006, p. 16.

  72. 72.

    See Slye 2002, pp. 178, who refers to such amnesties as corrective amnesties.

  73. 73.

    For further information about the Provisional National Defence Council, see Sect. 2.8 in Chap. 2 of this book.

  74. 74.

    See Republic of Ghana, Constitution of the Republic of Ghana, 1992 (1992 Constitution), First Schedule, ss 34.

  75. 75.

    For details of the amnesty provisions, see Sect. 3.2.1 in Chap. 3 of this book.

  76. 76.

    See Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) (Protocol II), Article 6(5), which states that ‘At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.’

  77. 77.

    On the need for legitimacy of the process of creating the amnesty, see Ambos 2009, p. 62; and Teitel 2000, pp. 58–59.

  78. 78.

    See Sect. 2.9 in Chap. 2 of this book.

  79. 79.

    See Boafo-Arthur 2005, p. 118; and Gyimah-Boadi 1994, pp. 78–79.

  80. 80.

    See Inter-American Court of Human Rights, Gelman v Uruguay , 24 February 2011, paras 238, 239.

  81. 81.

    Annan IL, Director and Chief Investigator, Commission on Human Rights and Administrative Justice, Ghana, Personal Interview (25 August 2016). Oduro F, Deputy Director, Ghana Centre for Democratic Development, Personal Interview (16 August 2016). Also, Ansah-Koi K, Department of Political Science, University of Ghana, Personal Interview (18 August 2016); and Boafo-Arthur K, Department of Political Science, University of Ghana, Personal Interview (18 August 2016), believe that the failure to repeal the said provisions, has largely been a result of protecting the interests of the political elite in the country, who are afraid of facing the consequences of any such attempts.

  82. 82.

    See Supreme Court of Ghana, New Patriotic Party v Attorney-General, 8 March 1994, 1993–1994 Ghana law Reports 2, p. 14.

  83. 83.

    The said amnesty laws had been enacted to protect perpetrators of human rights violations committed in Argentina between 1976 and 1983. See the case of Julio Simón et al., above n 70.

  84. 84.

    See Cerqueira and Arteaga 2016, pp. 6–7. http://www.dplf.org/sites/default/files/amnesty_law-final-24june.pdf. Accessed 30 October 2019; and Amnesty International 2016. https://www.amnesty.org/en/latest/news/2016/07/el-salvador-rejects-amnesty-law-in-historic-ruling/. Accessed 30 October 2019.

  85. 85.

    See Yi 2016, pp. 1, 2, 4. http://www.coha.org/wp-content/uploads/2016/07/PRsalvador_final.pdf. Accessed 30 October 2019.

  86. 86.

    See Amnesty International 2011. https://www.amnesty.org/en/latest/news/2011/10/uruguay-congress-adopts-landmark-law-tackle-impunity/. Accessed 12 October 2019; and Werle and Vormbaum 2018, pp. 293–294.

  87. 87.

    On the difficult nature of repealing the amnesty provisions, see Sect. 3.2.2 in Chap. 3 of this book.

  88. 88.

    United Nations General Assembly 2006, para 11. See also the African Union 2003, para c(b)

  89. 89.

    This could for instance include restoring one’s employment or properties lost as a result of human rights violations. See United Nations General Assembly 2006, para 19.

  90. 90.

    Such efforts could include for example memorialisation, apologies, acknowledgment of past violations by the state and finding the whereabouts of the disappeared. See United Nations General Assembly 2006, para 22.

  91. 91.

    See United Nations General Assembly 2006, paras 18, 24; United Nations Commission on Human Rights 2005, para 34; and United Nations General Assembly 1985, paras 8–13.

  92. 92.

    See the United Nations General Assembly 2006, para 15.

  93. 93.

    Attafuah 2004, pp. 126–127.

  94. 94.

    Ibid., p. 127.

  95. 95.

    Ibid.

  96. 96.

    See National Reconciliation Commission 2004, vol 1, para 7.4.2.1.

  97. 97.

    Ibid., para 7.4.2.2.

  98. 98.

    Ibid., vol 1, para 7.4.1.3; vol 3, paras 3.2.1, 3.2.3.

  99. 99.

    Ibid., vol 1, para 7.4.1.4.

  100. 100.

    Ibid., para 7.4.1.6.2.

  101. 101.

    Ibid., vol 3, Chapter 1. For further discussion of institutional reform, see Sect. 6.5 in the present chapter of this book.

  102. 102.

    See the United Nations General Assembly 2006, paras 15, 2(c), 3(d), 11(b); and United Nations Commission on Human Rights 2005, paras 31, 32, 34.

  103. 103.

    See the United Nations General Assembly 2006, para 15.

  104. 104.

    See the African Commission on Human and Peoples’ Rights, Sir Dawda K. Jawara v The Gambia, 11 May 2000, Communication No. 147/95 (Sir Dawda), para 32.

  105. 105.

    See Permanent Court of International Justice, The Factory at Chorzow (Claim for Indemnity) (The Merits) (Germany v Poland), Judgment No. 13, 13 September 1928, 1928 P.C.I.J. (ser. A) No. 17, p. 47; and Case Concerning The Factory at Chorzów (Claim For Indemnity) (Jurisdiction) (Germany v Poland), Judgment No. 8, 26 July 1927, 1927 P.C.I.J. (ser. A) No. 9, p. 21.

  106. 106.

    Kerbrat 2010, p. 579.

  107. 107.

    See National Reconciliation Commission 2004, vol 1, para 7.4.1.1.

  108. 108.

    See Sect. 4.4.4 in Chap. 4 of this book.

  109. 109.

    See Myjoyonline TV, Scars of the revolution (Video File) published by Myjoyonline TV on YouTube, 12 December 2019. https://www.youtube.com/watch?v=p2BC4LNhnIE. Accessed 3 January 2020.

  110. 110.

    The question of adequacy of the sums awarded as compensation is still controversial, in light of different views on the subject. For details of this, see Sect. 5.5.1 in Chap. 5 of this book.

  111. 111.

    See National Reconciliation Commission 2004, vol 1, para 7.4.

  112. 112.

    See Sir Dawda Case, above n 104, para 32. See also REDRESS 2014, p. 19, para 76. http://www.redress.org/downloads/publications/submission-to-special-rapporteur-on-reparations-programmes-public.pdf. Accessed 19 October 2019, where effectiveness of reparations is explained in terms of being beneficial to the victim.

  113. 113.

    In Ghana, lands are owned by traditional authorities (i.e., local chiefs), clans and the government. The title that is held by traditional authorities is allodial, meaning that they possess the land forever. Hence, although leases and assignments are possible, the land title reverts to the allodial title holders once the lease period has expired. In light of this form of land tenure, it would have been practically impossible to return certain leased properties that were confiscated to their owners, since in some instances the term of the lease would have expired, and title would have reverted back to the traditional authority.

  114. 114.

    See REDRESS 2014, p. 19, para 76. http://www.redress.org/downloads/publications/submission-to-special-rapporteur-on-reparations-programmes-public.pdf. Accessed 19 October 2019. See also the Banjul Charter, above n 11, Article 50, where it is stated that in instances where exhaustion of local remedies has been ‘unduly prolonged’, one can refer a matter to the African Commission on Human and Peoples’ Rights. This provision can be used to explain the requirement of promptness , in the sense that remedies must not be unduly prolonged.

  115. 115.

    See Sect. 4.4.4 in Chap. 4 of this book.

  116. 116.

    See for instance the United Nations 2010, p. 2, where institutional reforms are mentioned as one of the mechanisms of transitional justice. On the linkage of institutional reforms to guarantees of non-repetition , see Andreu-Guzmán 2013, p. 4. https://www.files.ethz.ch/isn/164673/80ed6b7fa08ff1e0620fe297f85f63f0.pdf. Accessed 1 November 2019; and Ferstman 2010, p. 23. See also the United Nations General Assembly 2006, para 23; and the case of Velásquez-Rodríguez 1988, above n 13 para 174.

  117. 117.

    See Office of the United Nations High Commissioner for Human Rights 2006, p. 3. https://www.ohchr.org/Documents/Publications/RuleoflawVettingen.pdf. Accessed 4 September 2019.

  118. 118.

    See Borraine 2006, p. 23; and see Office of the United Nations High Commissioner for Human Rights 2006b, pp. 3, 23–24. https://www.ohchr.org/Documents/Publications/RuleoflawVettingen.pdf. Accessed 4 September 2019, where it is written that due to the relevance of institutional reform, truth commissions should conduct institutional hearings, apart from individual hearings, to enable them to uncover institutional failures that led to serious human rights violation. For instance, the South African TRC undertook some form of institutional hearing, by calling representatives from state institutions like the police and military during its work.

  119. 119.

    See United Nations Commission on Human Rights 2005, para 36. See also Méndez 1997, p. 261, where he writes that such an obligation is emerging, with regards to crimes against humanity, in the sense of the state preventing known perpetrators from assuming authoritative positions in law enforcement and other institutions of influence in the society.

  120. 120.

    See Malawi African Association case , above n 68, para 142.

  121. 121.

    See Velásquez-Rodríguez 1988, above n 13, paras 187 and 188. See also Inter-American Court of Human Rights, Myrna Mack Chang Guatemala, Judgment of 25 November 2003 (Merits, Reparations and Costs), 25 November 2003, para 284, where the court held that the state of Guatemala should ensure that monitoring of intelligence activities by the military and police is done thoroughly so as to prevent these bodies from violating peoples’ human rights and freedoms.

  122. 122.

    See United Nations General Assembly 2006, paras 1 and 2; and the case of Velásquez-Rodríguez 1988, above n 13, para 174.

  123. 123.

    See United Nations Commission on Human Rights 2005, para 35.

  124. 124.

    Office of the United Nations High Commissioner for Human Rights 2006b, p. 4. https://www.ohchr.org/Documents/Publications/RuleoflawVettingen.pdf. Accessed 4 September 2019. See also United Nations Security Council, para 52, where it is written that vetting usually involves ‘a formal process for the identification and removal of individuals responsible for abuses, especially from police, prison services, the Army and the judiciary’.

  125. 125.

    Nalepa 2013, pp. 46–47.

  126. 126.

    Lynch 2013, pp. 61, 62.

  127. 127.

    See United Nations Commission on Human Rights 2005, paras 35, 36, 38; and the United Nations General Assembly 2006, paras 23(c) and 23(h).

  128. 128.

    See United Nations Commission on Human Rights 2005, paras 35, 36, 37; and the United Nations General Assembly 2006, paras 23(a).

  129. 129.

    See United Nations Office of the High Commissioner for Human Rights 2006b, p. 4. https://www.ohchr.org/Documents/Publications/RuleoflawVettingen.pdf. Accessed 4 September 2019.

  130. 130.

    For details of the different measures used, see Hutchful 1997, pp. 252–264.

  131. 131.

    See 1992 Constitution, above n 74, Article 210(2).

  132. 132.

    See 1992 Constitution, above n 74, Articles 84, 153, 154, 201, 203, 206, 208, 211, 214

  133. 133.

    For a summary of the commission’s recommendations on institutional reform, see Sect. 4.4.1.3 in Chap. 4 of this book.

  134. 134.

    See United Nations Commission on Human Rights 2005, paras 35, 36 and 37; and United Nations General Assembly 2006, para 23(a).

  135. 135.

    Regarding the low resourcing of the prisons, see Benjamin 2009. https://briarpatchmagazine.com/articles/view/prison-reform-in-ghana. Accessed 3 October 2019.

  136. 136.

    See Velásquez-Rodríguez 1988, above n 13, para 175.

  137. 137.

    National Reconciliation Commission 2004, vol 3, paras 3.3.19–3.3.27, 3.3.28–3.3.35.

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Yankson-Mensah, M. (2020). After the National Reconciliation Commission: The Way Ahead. In: Transitional Justice in Ghana. International Criminal Justice Series, vol 25. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-379-5_6

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