The Eid came and went. And it went with the fast. No sooner had it started than it was over. I knew from that moment that the ‘fasting question’ would die everywhere – on Twitter, TV and radio. I knew in my heart of hearts that the last time, the ‘fasting question’ would gain, grasp and lock in public attention was if another infraction occurred in some school somewhere in the Republic (the necessary and sufficient condition: the parents should be loud. Swear to visit hell on everyone who threatened their prince or princess, or whatever sweet nothings parents call their children).
I was going to chide everyone for having a short memory. For I thought we all forwent the children and forgot the problem. I was going to start with the old Christian hymn sung at Easter: the strife is o’er and the battle is done. I was going to say how it had begun to spin new meaning before my eyes. About how we had simply moved on from the problem with a kind of wicked laxity. That we had counterfeit progressiveness. I was going to say things like the battle was not done and the strife was not over but that we had prematurely made it so. I might have added that we were all becoming Neros playing our fiddles while our Rome burnt (that would certainly have gone too far, perhaps not within the boundaries of appropriate speech)
But gladly, I was wrong. The matter had not died. It was in abeyance in a testing furnace that was forging something. The Human Rights Division of the High Court was at work, the smith with the anvil of constitutional authority to do the finishing touches. A few days ago, the judgment of what I will call the Rastafari case came out. For a religious freedom law enthusiast, this is new fodder for ancient problems and I can’t wait to share my perspectives of the judgment with you soon. I have seen the judgment now and rest assured I will measure it, unpack it, stretch it out, weigh it, inspect it etc etc. At least for now let’s be content with the statement that Achimota School has been ordered to admit the Rastafari kids because the school had violated the right of the kids to so so and so. Today, I wish to make a few preliminary remarks – a sort of survey of Ghana’s jurisprudence on religious freedom with some emphasis on our perception of accommodation and why this case could not have gone any differently.
In my last post, I remember saying that when you decide to build a nation-state and adopt foreign substantive rights, you take them as they are with their legacies, histories, warts and all. What I did not add was that the process of adoption does not rob the nation-state of the opportunity to participate in fashioning newer meanings, unearthing hitherto unknown perspectives or extending present understandings. In that way, everyone, the creator and the adopter participate in ‘something beautiful’; the type that makes us wonder ‘What could this beauty be?’ (Please follow the philosopher Dworkin on this one. I don’t know the answer). I want to use this view as the starting point to discussing accommodation under Ghanaian law. And for all intents and purposes here, I use accommodation in a restricted sense to mean permitting derogation from generally applicable laws on the basis of religious reasons.
Before 1969, we did not have a comprehensive legal framework we could point to and say ‘look, person, here is a list of rights. They are all yours. You can claim them from the State. You can claim them pretty much from everyone else. Be careful, nonetheless, because they are subject to our public interest and maybe the opportunity others have to also enjoy their rights’. I concede that this position is one open to contest especially from ideologically incline chaps who would point me to Article 13 of the 1960 Constitution which listed a few half-hearted promises and asked our President to promise to be nice. They’ll even add the notorious case of Re Akoto as icing to the cake and call it the worst decision ever written. True, the judgment of Re Akoto may have tasted sour and sounded eerie but that is not enough to accuse that Supreme Court of disregarding human rights altogether. In fact, the highlight of that came in a case called Nyameneba and Ors v The Republic which was decided in December 1965 by three Supreme Court Judges, Ollennu, Akainyah and Siriboe (I must add something called JJ.S.C). This case is an interesting one indeed but I suspect its hilarity only exists in legal circles. So in this matter, Nyameneba and friends belonged to a Christian sect in a town called Princess Town somewhere in the Western Region. For so many years, they grew marijuana and used it to great effect (they called the stuff ‘herbs’). It wasn’t the effect of the marijuana that caused them so much trouble in Princess Town. Rather, it was because of their disrespect. Whenever they were on it, they would not hide the level at which they held everyone else in the Town with contempt. The chief and elders, they condemned. The young people, they accused of smoking cigars and drinking ‘alcoholic and spirituous drinks’. At a point, everyone else got tired of them and they had to be reported to the police. From the time of their arrest through every stage of the trial, they denied ever knowing that the ‘herbs’ were marijuana. In fact, at the trial, one of them, after raising and rewrapping his ntoma, cleared his throat made oath and said in a hoarse baritone:
“I am a farmer. I live at Princess. My leaves are leaves of life. I smoke the leaves which give me wisdom, understanding and strength so that I don’t do after some other people live. I don’t steal, I don’t lead a bad life. I don’t give false evidence against others. I am able to conform to the ten Commandments. When I smoke, I preach the Gospel to others so that they lead good lives. When I smoke the leaves, I don’t drink. In Genesis Chapter 2 verse 9 the leaves are referred to.”
On appeal to the Supreme Court, Justice Akainyah squirmed as he listened to the submissions of counsels. Justice Sirriboe’s palm cupped his chin as he occasionally scratched his forehead. And in the middle sat larger-than-life Justice Ollennu. The only judge in modern history to have outdone the American Chief Justice Taft (Taft held the positions of President and Chief Justice of the United States, while Ollennu did Supreme Court Justice, Speaker of Parliament and member of the Presidential Commission). At the conclusion of the case, the judges knew they had to do something. There was no express right to freedom of religion. Thus, accommodation could not even be argued. In any case, the Re Akoto case had considerably watered down the Fundamental Principles in the 1960 Constitution. They had to do something. Larger-than-life Justice Ollennu, with his usual clinical pragmatism, found his answer in the Criminal Code, as we called it then. That when you are mistaken about the facts of something, you do not commit a crime. Since Nyameneba and friends had consistently and without the slightest equivocation denied ever knowing that their ‘herbs’ were marijuana, they could not be convicted of a criminal offence. C’est tout. Case closed! Finished! Nyamenaba and friends were acquitted and discharged. All of these happened at a time when we did not have the kind of elaborate human rights provisions we have today.
Thus began our religious freedom jurisprudence –on the stilts of God, herbs, marijuana and crime. Justice Lartey, twenty-seven years, later followed in the footsteps of the tradition whose cornerstone had been laid by our great Ollennu and his judicial equals. In Owusu and Another v Amoa-Obeng, the pastors of the True Faith Church of Mpatasie, without the fear of the Gods (sorry I used a capital, Gods are Gods you know) Tano and Kobi sued the Odikro/ chief of Mpatasie. Both the Christian sect and adherents of the native belief system then prevalent in Mpatasie had lived in peace for some time until that stagnancy was tested by the chief, his elders and the town development committee. In short, they wanted everyone to pay some money so they could make the God, Kobi happy. Of course, this was preposterous for the Christians. Though their ‘hearts were hot within them', they did not become belligerent. They instead swallowed saliva and offered to contribute some money for communal labor instead. Not long thereafter, the chief and his elders made some more rules, some of which forbid everyone from going to the farm on certain days including Wednesday. The Christians would not have it. ‘Fretting not themselves because of the evil doers’, they disobeyed the rule, whereupon they were asked to pay the fee to pacify the God, Kobi. They refused. The traditional authority would not have it and threatened to make them uncomfortable – they would burn their church and prevent them from worshipping in Mpatasie. The Church sued. At the end of the matter, Justice Lartey adjusted his wig and said it was needless to remind the chief and his elders that the 1979 Constitution safeguarded rights. That though that Constitution was abrogated, some parts of it were saved by a Provisional National Defence Council Instrument. That religious freedom was one of them. He went further to say there was a difference between customary law emanating from a belief in the supernatural and those which the courts would recognize and enforce. The present matter before him was simple. The chief and his elders were trying to use their authority to make rules that would ensure that this Christian sect of Mpatasie would recognize and worship Kobi and Tano. That was not going to happen as long as he held the judicial scepter in that hot courtroom in Kumasi. Indeed, to the sect which was well represented by their pastor in court that morning, ‘they had looked to the hills for help and help came from the Lord’.
These two moments in history teach us a timeless lesson. That religious freedom is antecedent to any governing structure. It is essentially the unappreciated adhesive that makes a framework of government possible. The fact that they were decided at times when we did not have sufficient provisions on religious freedom underscores that point.
What we saw in 1965, the USA saw in the 1990s, only after the Supreme Court had slipped in Employment Division v Smith. America’s religious freedom jurisprudence begins with its First Amendment and has two prongs in respect of that matter. There are the free exercise and establishment clauses (“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”). In this matter, the persons involved belong to a Native American Church that use peyote for ‘sacramental purposes’. They were also workers at a drug rehabilitation organization. At one of their church ceremonies, they had taken peyote (Peyote is a hallucinogen and under Oregon law, it was illegal to take such a substance without medical authorization). Because of it, they were sacked. The state would not have them receive unemployment benefits too because they had been dismissed for work-related misconduct. The matter went all the way up to the Supreme Court and the bench led by the old fashioned Justice Scalia - conservative Scalia, eccentric Scalia - held that the State law would only violate free exercise if the main purpose of that law was to ban certain activities because of their religious nature. Where the law had other non-religious aims and was facially neutral, people could not decide to opt-out. They had a duty to obey. Case finished!
Congress essentially said, ‘What the Hell?!’ and passed the Religious Freedom Restoration Act in 1993. In it, they found:
The framers of the Constitution, recognizing free exercise of religion as an inalienable right, secured its protection in the First Amendment to the Constitution;
Laws "neutral" toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
Governments should not substantially burden religious exercise without compelling justification;
Of course, the applicability of the RFA has been subjected to challenges here and there but the fundamental principles remain and the sheer force of Congress’ responsiveness in restoring religious freedom cannot be taken for granted. It was timely.
But the point really is this: before others found out that general laws could burden religious freedom, we had figured it out already in 1965 when we virtually had nothing to work with. Even at the time the Mpatasie case was decided in December 1992, the RFA had not come into force yet.
Do you think many years hence, when we now have copious provisions on human rights, a case on religious accommodation could have been decided otherwise?
By the way, where is Parliament in all this?