Govt challenges jurisdiction of court hearing West Blue case

The government is challenging the jurisdiction of the Human Rights Court hearing the suit contesting the engagement of West Blue Ghana Limited for the implementation of the Single Window and Risk Management System Project at the country’s ports.

A Tema-based clearing agent, Mr Michael Kweku Djan, is praying the Human Rights Division of the High Court to place an injunction on the Minister of Trade and Industry, the Minister of Finance, the Commissioner-General of the Ghana Revenue Authority (GRA), the Attorney-General and Minister of Justice and their agents from solely engaging West Blue Ghana Limited in the national single window project until the final determination of a suit challenging the engagement of the company.
With the establishment of the National Single Window, all shipment activities and transit-related businesses will be integrated to achieve efficiency and enable the government to generate more revenue at the ports.
The dispute stems from a letter purported to have been written by the Chief of Staff directing the Minister of Finance to engage only West Blue to implement the National Single Window project.
According to the applicant, the move by the government to do sole sourcing was unfair, unjust and unreasonable because that had blocked him and other agents from having equal opportunity to apply.
But a motion for an order striking out Mr Djan’s application for enforcement of his fundamental human rights has been filed and it is expected to be moved by the Deputy Attorney-General and Minister of Justice, Dr Dominic Akuritinga Ayine, at the court’s sitting in Accra today.

Grounds for A-G’s motion

One of the ground’s of the A-G’s motion is that Mr Djan had wrongly invoked the exclusive jurisdiction of the court to enforce human rights under Article 33 of the 1992 Constitution “because, on the totality of evidence filed by the applicant, there was no showing that there had been, or was likely to be, a contravention of any provision of the Constitution on fundamental rights and freedoms in relation to the applicant”.
The A-G’s office is arguing that the exclusive human rights jurisdiction of the court could be triggered only when the allegation of breach or possible breach of a right specified under the Constitution is supported by evidence.
“This Honourable Court cannot entertain vacuous claims of so-called human rights violation such as that of the applicant.
The burden of producing evidence in support of a claim of contravention of a right lies on the applicant; otherwise, the court may be faced with a situation where an applicant merely makes the allegation of breach and leaves it to the court to look into whether the allegation is well founded,” the motion notes.
Another issue being raised by the A-G is that the suit, taken as a whole, discloses no reasonable cause of action.
“Lastly, the respondents would contend that, granted that any breach of the Constitution is made out, the applicant lacks the capacity to bring the action because such breach is not in relation to the applicant so as to enable him to institute the present action,” the motion seeking to strike out Mr Djan’s suit argues.
The A-G is, therefore, praying the court to strike out the suit altogether for want of jurisdiction, adding, “Furthermore and in the alternative, the respondents will seek a dismissal of the application for injunction.”

According to the A-G, Mr Djan has wrongly invoked the jurisdiction of the court “by failing to demonstrate that there has been or there is likely to be a contravention of his fundamental right to freedom from discrimination and to work and equal opportunity”.

Urgency of the situation

Another argument canvassed by the A-G is that Mr Djan has also misunderstood the nature and scope of the right to work and to equal opportunity at the workplace.
“The respondents are not the employers of the applicant who, on his own deposition, is gainfully employed as a shipping agent. The respondents have in no way infringed on his rights as a shipping agent and the contract awarded to West Blue will not impact on his employment.
“His aspirations for bigger business opportunities are not exclusively dependent on the award of this contract,” the motion argues.
It says Mr Djan’s application does not disclose any reasonable cause of action and that the allegation of non-compliance with the Public Procurement Act has been shown to be totally unfounded.
Explaining why the government opted for sole sourcing, the A-G’s motion says “the urgency of the situation requires that government should act with expedition. Moreover, the nature of the project, which is based on the use of software, makes the use of competitive tender unsuitable”.