A Grave Anomaly

Imagine the citizen who is arrested without charge, detained beyond the pale of law, cut off from counsel, family, and court, and released at last without explanation. Years pass. The wounds remain, psychological, social, and economic. He turns, at last, to the Constitution, invoking its most solemn guarantee of protection. Yet before his grievance is heard, he is told he has come too late. The court does not weigh the injustice; it consults the calendar. His claim is dismissed, not because it lacks merit, but because it is deemed “stale.”

Thus, justice expires.

This is no fiction. It is the practical effect of Order 67 Rule 3 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47). That provision requires that applications to enforce fundamental human rights be brought within six months of the violation or three months of its discovery. Miss this narrow window, and the High Court may never even hear what happened. A procedural rule becomes a guillotine at the gates of constitutional justice.

The constitutional question it raises is as stark as it is profound: can a right guaranteed by the supreme law of the land be extinguished by a time limit imposed through subsidiary legislation? Properly understood within our constitutional framework, the answer must be an unequivocal no.

At the heart of this controversy lies Article 33 of the 1992 Constitution of Ghana, the great gateway to constitutional justice. It is cast in language both broad and deliberate. Any person who alleges that a fundamental right “has been,” “is being,” or “is likely to be” violated may apply to the High Court for redress. There is no expiry date in that command. No ticking clock shadows its promise. It is a standing invitation to justice, open, enduring, and unqualified.

It is true that Article 33(4) empowers the Rules of Court Committee to regulate the practice and procedure of such applications. But let it be clearly understood that that power is one of facilitation, not restriction; of form, not substance. It does not confer authority to close the very door the Constitution has opened. When a procedural rule determines not how a right is enforced, but whether it may be enforced at all, it ceases to be procedure and becomes, in substance, a denial of the right itself.

This is precisely where Order 67, Rule 3 strays beyond its lawful bounds. It does not merely guide litigation; it extinguishes it. It converts a framework of access into a barrier of exclusion. It allows a subordinate instrument to override a constitutional guarantee. That inversion of hierarchy stands in direct conflict with Article 1(2) of the 1992 Constitution of Ghana, which proclaims the supremacy of the Constitution over all other laws.

Beyond the State: Multiple Perpetrators

It must also be recognised that breaches of fundamental human rights are not the exclusive domain of the state. Other organisations—corporate bodies, institutions, and even individuals—may be perpetrators of such violations. Whether it is an employer discriminating against a worker, a private security firm unlawfully detaining a citizen, or an individual engaging in acts of violence or intimidation, the reach of human rights violations extends far beyond the machinery of government. The Constitution’s promise of protection is meant to shield citizens from all forms of abuse, regardless of the source. To restrict access to justice through arbitrary time limits is to deny redress not only for state-inflicted wrongs, but also for those committed by private actors and organisations.

The Illusion of Alternatives

Yet, it is said in defence of this rule that all is not lost, that where the constitutional route is closed, other avenues remain open. One may, it is argued, pursue a civil action in tort, seek administrative remedies, or invoke alternative statutory procedures. The expiry of the constitutional claim, we are told, does not extinguish justice; it merely redirects it.

This argument, though superficially appealing, cannot withstand careful scrutiny.

In the first place, it mistakes substitution for equivalence. A claim in tort is not a constitutional claim. It is narrower in scope, encumbered by technical requirements, and often directed at private wrongs rather than abuses of public power or violations by organisations and individuals. The Constitution, by contrast, is concerned not merely with compensation but with vindication, accountability, and the affirmation of fundamental norms. To say that a citizen may pursue damages in tort is to offer a remedy of a different order for an injury of a higher kind.

Secondly, these alternative remedies are frequently illusory in practice. Victims of unlawful detention, police brutality, administrative abuse, or violations by private entities often lack the evidence, resources, or legal footing to sustain a civil action. Witnesses may be unavailable, records inaccessible, and institutional resistance formidable. The constitutional procedure under Article 33 of the 1992 Constitution of Ghana was designed precisely to overcome such barriers, through flexibility, accessibility, and a focus on rights rather than technicalities. To close that avenue and point to more onerous alternatives is not to preserve justice, but to diminish it.

Thirdly, and most decisively, the existence of alternative remedies cannot justify the extinguishment of a constitutional one. Fundamental rights are not contingent upon the availability of parallel causes of action. They stand on their own footing, grounded in the supreme law. If the Constitution confers a direct right of access to the High Court, that right cannot be rendered nugatory on the basis that some other, lesser path may still be pursued.

It is also said that limitation periods serve legitimate purposes: ensuring finality, preventing stale claims, and protecting defendants from prejudice. These are weighty considerations in private law. But they must be carefully calibrated in the realm of constitutional rights. The State is not an ordinary litigant. It wields power, commands resources, and bears constitutional obligations. To permit it to invoke the passage of time as a shield against accountability is to invert the very logic of constitutional governance. Moreover, private organizations and individuals, too, must not be allowed to escape responsibility for violations simply because time has elapsed.

Moreover, the concerns underlying limitation can be addressed by less drastic means. Courts are well equipped to assess delay, to weigh prejudice, and to tailor remedies accordingly. They may refuse certain reliefs where delay is inordinate or unexplained or adjust compensation to reflect evidentiary limitations. What they must not do is decline jurisdiction altogether. Justice may be tempered by time; it must not be extinguished by it.

Conclusion: No Expiry Date on Rights

Let there be no softening of words in this matter. A grave and dangerous anomaly has crept into the constitutional order of our Republic. A rule, humble in origin, procedural in appearance, has clothed itself with a power so stern that it threatens to empty the Constitution of its noblest promises. It proclaims, with a rigidity unknown to justice, that the citizen’s right to seek redress for the violation of fundamental freedoms must bow to the silent tyranny of time. It declares, in effect, that constitutional wrongs may wither and perish by the mere passage of days.

Perish that thought, however. Because fundamental rights are not granted to endure for a season. They are not leaves to fall at the approach of procedural autumn. They are, in their essence, inalienable, beyond barter, beyond erosion, and beyond the reach of time itself.

A Constitution is not a slogan. It is a covenant. And a covenant that may be defeated by delay is a covenant diminished.

Order 67, Rule 3 must go, not amended, not softened, but expunged. Only then shall the Constitution speak with its full voice again. Only then shall the citizen approach the courts not as a supplicant racing against time, but as a bearer of rights that endure.

Key legal references (for readers who want to look them up)

• 1992 Constitution, Article 33 (enforcement of fundamental rights)

• 1992 Constitution, Article 1(2) (constitutional supremacy)

• High Court (Civil Procedure) Rules, 2004 (C.I. 47), Order 67, Rule 3 (time limits for human-rights applications)

• Republic v High Court, Accra; Ex Parte CHRAJ [2007-2008] SCGLR 213 (limits of rules of court)

About the Author: Justice Sedinam Awo Kwadam (Mrs) is a Justice of the High Court, Republic of Ghana, Patron of the Federation of African Law Students (Ghana Chapter), and Adjunct Lecturer at GIMPA. She holds an LL.M. (Distinction), was Valedictorian of the 2025 Masters Cohort, participated in the ICC Summer School at Utrecht University, and was awarded Best Student in Law of Evidence at her call to the Ghana Bar in 2012. She is an alumna of KNUST and Achimota School.

The views expressed are personal and do not reflect the position of any institution.