Kwaku Antwi-Boasiako: Reaction to OccupyGhana statement on Auditor-General’s accumulated leave

In Paragraphs 9 and 10 of their statement on Friday, OccupyGhana wrote:

9. Further, and with respect to leave being a right and not an obligation, article 24(2) of the Constitution assures all workers of ‘rest, leisure and reasonable limitation of working hours and periods of holidays with pay, as well as remuneration for public holidays.’ These are assurances, not obligations. Thus, if a worker may voluntarily opt to work beyond the normal ‘limitation of working hours,’ then that worker does nothing wrong in deciding to take less or even no ‘periods of holidays with pay,’ however personally unhealthy that might be.
10. That is why section 31 of the Labour Act cannot be interpreted or applied to convert the constitutional right into its exact opposite, a statutory obligation. Such an interpretation or application is not only unconstitutional, but does violence to the internal harmony of the Labour Act itself, section 20 of which aligns with the position of the superior provisions of the Constitution, that leave is a right.

My reaction:

“Every worker shall be assured of rest…” Article 24(2)

This right, under Economic Rights in the Constitution, is a right that the beneficiary has election to exercise for his benefit and for the benefit of the nation. Although it is a right and not an obligation (as OccupyGhana argues), the beneficiary of this right does not have election to forfeit or forgo it, as forgoing it inherently defeats the intended purpose of that right. Right to rest, right to health, right to life, don’t give the beneficiary election to choose the direct opposite as a way to defeat the intention of that right.

And that’s why in another comment, I have argued that a purposive interpretation of Article 24(2) cannot conclude that “every worker shall be assured of rest…” can be interpreted to mean a right not to go on leave (i.e. a right not to rest). The beneficiary can elect to decide when to rest and how to rest, but cannot decide not to rest. For emphasis, It is a right to rest, not a right not to rest.

The reason for that right is because the framers understood that human beings who work, need a rest. It cannot be, respectfully, a right that was provided for for the sake of giving workers an option to rest or not to rest, especially if we read that right alongside other Articles in the Constitution that promote the health and economic wellbeing of the nation.

Another example is a child’s right to education. While the child beneficiary can have the election to decide which school to attend (subject to some limitations), etc., the child beneficiary cannot have the election to decide not to go to school or to drop out of school.

The child beneficiary has a Constitutional right to education but does not have the Constitutional right to elect not to be educated. And that’s why some of the legislations that give effect to certain Constitutional rights also make provisions to prevent beneficiaries of the rights to elect to deny themselves the benefits of those rights, as in the case of Section 31 of the Labour Act, as denying themselves those rights defeats the PURPOSE of providing for those rights in the Constitution in the first place.

Kwaku Antwi-Boasiako, Accra
July 11, 2020