Article 33 (1) provides that ‘where a person alleges that a provision of this Constitution on the fundamental human rights and freedoms has been, or is being or is likely to be contravened in relation to him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress’
On this basis, he argued that, at the time of the legal action, the Applicant (Marhguy) was not a student of Achimota and thus could not have alleged that the school infringed on his rights when he had not yet gained admission.
According to him, one had to submit to the school the required ‘Acceptance of Admission Form’ as a necessary condition to becoming a student, a document the AG said the Applicant had not done. In his view, the Applicant had not placed himself in a position in which he could assert a violation.
This view was challenged by lawyer for the Applicant. He argued among other things that Article 33(1) is not only concerned with past violations but also prospective violations and that the alleged breaches fall perfectly within the scope of the provision – that is to say, even if it was assumed that Marhguy was not yet a student of Achimota, he was still clothed with capacity because of the potential or looming breach of his rights.
In decision of the Court, Justice of the High Court, Justice Gifty Agyei Addo, first and foremost, used the opportunity to give some legal education on the importance of capacity in all litigations. She said capacity is the oxygen of every legal action and that where a person is bereft of the requisite capacity to mount an action, the trial must abate.
“Capacity, as the authorities teach, is fundamentally germane to the foundation of an entire case. A challenge to capacity goes to the jurisdiction of the court. For the court’s jurisdiction cannot be invoked by a person not of the desirable capacity”, she explained.
Placing the arguments of the AG and the Applicant side-by-side, the Justice said she was a loss that the question of capacity would come up before her for determination.
“I must state from the outset that I am at sea as to the merit of the challenge to the applicant’s capacity”, she noted.
She restated Article 33(1), emphasizing “… has been, or is being or is likely to be contravened in relation to him…”, to support the applicant’s arguments that the provision takes care of prospective breaches too.
“From the Article, all that an applicant needs to satisfy to invoke this Court’s jurisdiction is that he is a person alleging that his right has been, is being or is likely to be violated. The frivolity or otherwise of such allegation must be left to be determined by the court”, she clarified the position of the law.
She said it was absurd for the AG to advance an argument on that tangent considering the circumstances.
“In fact, the preposterousness of the learned Attorney-General’s submission lies in the 1st Respondent’s own refusal to accept the Acceptance Form, yet the Attorney-General blames it on the Applicant as having failed to attain the studentship status. How can the Applicant establish the student-institution relationship when as alleged, the institution has refused to accept his forms?”, she quizzed.
In her words, “such thinking is too simplistic and unattractive”.
“I must reiterate that a person’s right need not be breached to invoke the jurisdiction of this court under Article 33 (1) of the 1992 Constitution. Once there is a threatened breach of the person’s right also, the cause of the action is ripe”, reemphasized.
The Court said any attempt to yield to the AG’s argument on the position of the law will lead to bizarre outcomes.
“Accepting the argument of the learned Attorney-General is tantamount to establishing an erroneous principle that human rights applications such as the instant [case], the applicant must prove his allegation of a breach or likely breach of a violation of his human rights first to be deemed capacitated to mount the action. The logic and thinking is flawed and same is rejected”, she explained.
Consequently, she dismissed the AG’s challenge to the applicant’s capacity to mount the action, describing it as “wholly meritless”.