Symposium on Protest and Legal Mobilization: From Constitutional Promise to Street Reality – Constitutional Rights and Protest Policing in Ghana

[Maame Efua Addadzi-Koom is a Senior Lecturer and Director of Research of law at the Kwame Nkrumah University of Science and Technology.

Richard Obeng Mensah is a Lecturer of law at the Kwame Nkrumah University of Science and Technology.]

When the water cannons roll in and the tear gas clears, what remains of the constitutional right to protest? Protest policing across democracies has become a crucial indicator to assess whether the constitutional right to protest is genuinely upheld or restricted. It is on the streets that this right is truly tested. In Ghana, a country celebrated as a beacon of democracy in Africa, the question of how to protect the right to protest in the face of abrasive protest policing tactics became urgent, given the spate of protests recorded over the last four years (2021-2024). While the 1992 Constitution guarantees the right to protest, contemporary policing tactics — ranging from lawfare mechanisms such as injunction applications, as well as arbitrary arrests and detentions, to the deployment of pepper sprays, water cannons, tear gas, and firing of shots — reveal a troubling dissonance between constitutional ideals and operational realities. This blog post examines the constitutional and human rights implications of protest policing, drawing insights from selected protests that occurred between 2021 and 2024. It explores how policing tactics reveal deeper tensions between state authorities and the preservation of fundamental freedoms. It also offers insights that resonate beyond Ghana’s borders and contribute to global discourses on protest governance.

Policing Tactics in Contemporary Protests: 2021-2024

Between 2021 and 2024, Ghana experienced a surge in protests, most of which were initiated by the youth, driven by grassroots mobilisation to defend public interests in the face of economic distress, governance failures, and environmental crises. In our study of protest policing within the period, we used five selected protests as case studies for our analysis. The five protests were #FixTheCountry, Arise Ghana, #OccupyJulorbiHouse, #Stopgalamseynow, and #Freethecitizens. #FixTheCountry protest was triggered by the declining state of the country’s economy, governance, accountability, and living conditions of the average citizen under the Akuffo-Addo government. The Arise Ghana protest was organised based on a couple of reasons including, increase in fuel prices, the imposition of a controversial electronic-levy, accountability demands regarding  COVID-19 related expenditures, illegal acquisition of state lands by government officials under the ruling administration, rising police brutality, state-sponsored killings of innocent Ghanaians and the growing culture of human rights violations. The #OccupyJulorbiHouse protest was staged to demonstrate Ghanaians’ displeasure with the profound economic mismanagement and corruption by the government. Government’s mismanagement of illegal small-scale mining (also known as galamsey), which resulted in an acute environmental crisis, especially the degradation of forest lands and pollution of water bodies, led to the #Stopgalamseynow protest. The #Freethecitizens protest was an offshoot of the arbitrary arrests and detentions that occurred during the #Stopgalamseynow protest. Protestors called for the release of all arrested persons and demanded that galamsey be stopped.  

The literature on the subject mentions five most common protest policing tactics. These include the show of force or Miami model, which deploys an overwhelming number of police officers; the escalated force model, where police escalate their response to match increasingly violent protestors; the negotiated management model, where police and protestors engage in dialogue to negotiate the terms, conditions, and boundaries of an intended protest; the strategic incapacitation model, which involves targeted arrests of individuals believed to instigate violence during protests; and the command and control model, where police personnel and resources are deployed based on well-laid-out predictions of protest developments.

Among these models, the use of show of force, escalated force, and strategic incapacitation tactics were the most common tactics employed by the Ghana police. A possible reason for the popularity of these models is because they offer the police alternative tactics that are more forceful than the negotiated management model which has become less effective in the recent past.  For example, during the two-day Arise Ghana protest, which aimed to address economic hardship, government corruption, and rising human rights abuses, the police employed the escalated force tactic. They initially formed a human barricade when the protesters attempted to veer off the approved route, after which they escalated to using tear gas, pepper spray, and water cannons when the protesters started throwing stones at the police and burning tyres. In the #OccupyJulorbiHouse protest, which opposed economic mismanagement and corruption, the police utilised both strategic incapacitation and show of force models. They arrested and detained several protesters, and some were physically assaulted; others were shoved and had their mobile phones seized. During the #Stopgalamseynow protest, which challenged the government’s inaction regarding illegal small-scale mining and its environmental effects on land and water resources, the police arrested approximately 54 protesters under the strategic incapacitation model, of whom about 39 were charged and brought before the courts. Lastly, the police implemented the show of force tactic during the #Freethecitizens protest, a follow-up to the #Stopgalamseynow protest that called for the release of those arrested. The police arrived for this three-day protest with an overwhelming number of officers, which, at least on the first day, was estimated to exceed the number of protestors. 

A New Tactic: The Lawfare Model

Although previous protests prior to 2021 utilised the negotiated management model as a primary tactic, its usage diminished from 2021 to 2024 due to disagreements between the police and protest organisers over issues such as the start and end times of protests, protest routes, and protest dates. In response to the ineffectiveness of negotiated management, the police adopted a strategy we refer to as the “lawfare” model. It involves the police relying on the law to seek injunctions against holding protests. The legal basis for the injunction application arises from section 1(6) of the Public Order Act of 1994 (Act 491). This statutory provision authorises the police to apply to any judge or tribunal chairman for an order to prohibit a protest on a proposed date or at a proposed location when the protest organisers refuse to comply with an earlier proposal by the police to postpone or relocate the intended protests on reasonable grounds such as for public safety. In four out of the five protests we mentioned, with the #Freethecitizens protest being the exception, the police first employed the lawfare tactic during the pre-protest phase; failing that, they then used the other models during the protest. 

This new tactic raises several legal concerns. These include questions about the appropriate forum for filing injunction applications, which remains contentious; the nature of the application, whether it is ex parte or on notice; the impact of a pending injunction application on planned protests; and the correct procedures for serving an injunction order on protest organisers. Although the High Court, which is a lower court, has addressed some of these issues, the binding nature of its decisions is not as robust as those from the Supreme Court, which is the highest court and final arbiter. Consequently, in the absence of Supreme Court rulings on these legal matters, debates continue over the correct interpretation of the law, allowing the police to potentially exploit legal ambiguities to their advantage. This situation puts the citizens’ right to protest at risk. 

Constitutional Implications of Policing Tactics

The right to protest is guaranteed under Article 21(1)(d) of the 1992 Constitution of Ghana. A landmark decision, New Patriotic Party v Inspector General of Police, made barely a year after the Constitution came into force, further elaborated on the right to protest. The case struck down the previous status quo that required a police permit to organise a protest, stating that it was a colonial relic that did not fit the constitutional framework established by the 1992 Constitution. The Supreme Court held that requiring a police permit meant that protests were legally prohibited unless permitted by the police, which limited the scope of the constitutional right to protest. Instead, the Supreme Court ruled that in Ghana, the right to protest meant the right to do so without permission. The Court added that its interpretation of the right to protest did not sideline the power of the police to disperse protests when the peace of society is breached or likely to be breached. The Court also explained that the right to protest without permission was not limitless, as it required compliance with public peace and safety, as stipulated under the 1992 Constitution. Another limitation is the imposition of restrictions on the right in the interest of public safety or public order by a court order or a law, which must not be inconsistent with the Constitution. The decision led to the repeal of the previous statute regulating protests and the enactment of the Public Order Act of 1994 (Act 491), which is currently in use. 

Based on the nature and scope of the right to protest as guaranteed under Ghana’s constitution, our general impression of the policing tactics employed before and during protests is that they are abrasive. The abrasiveness of the tactics infringes on the rights of Ghanaians to protest. The lawfare model, which is applied before a protest occurs, challenges the right to protest even before it is exercised and threatens to restrict the expression of that right when successful. The show of force, escalated force, and strategic incapacitation models used during protests also impact the extent to which protesters can freely exercise their rights.  Those who are arrested, detained without access to a lawyer, or physically assaulted not only face violations of their right to protest but also experience infringements,  such as the right not to be subjected to cruel or inhumane treatment and the denial of access to justice. The 1992 Constitution guarantees the right to protest, but it is in the streets that its true enjoyment is tested based on the policing tactics applied.

Concluding Remarks

Repressive policing tactics stifle civic engagement and undermine public trust in the police, courts, and government, which are sometimes viewed as complicit in police excesses. With the increased use of the lawfare tactic, these public sentiments of distrust are likely to deepen and may drive other forms of social mobilisation, such as a heavier reliance on social media for protests. On the part of the police, we recommend two primary actions to bridge the gap between the constitutional promise of the right to protest and the reality of protesting in the streets. First, it is necessary to reform policing policies to ensure respect for the human rights of protesters, and second, to train police officers in effective policing practices. 

Photo attribution: “Street protest in Accra” by Heatrave is licensed under CC BY-SA 3.0