Ghanaian US based legal practitioner professor Kwaku Asare popularly known as Kweku Azar has said that Ghanaians almost instinctively and correctly understand that right are not absolute but what they fail to understand is power too is not absolute.
Thus, whenever there is a collision between rights and power, our natural refrain is to side with power and we are heard chanting that “rules are rules” as if rights are not rights.
According to him, if we want a limited government, as espoused in the Constitution, we must reset and accept that rights trump power and not the other way round.
That philosophical orientation does not mean power cannot interfere with rights but it means that such interference must be justified, with the degree of justification increasing in the fundamentality of the right.
To analyze the restriction, we proceed by asking what is government’s objective in imposing the restrictions; is the objective important; would the objective be clearly undermined by the operation of the right; are there any alternative measures that government can take other than the restriction.
Saying rules are rules is an improper analysis, unless we want a power society rather than a rights society, in which case we must suspend the Constitution and go back to the illiberal or military days of yore.
Rather, we do our 4-tier analysis as follows:
1. Government’s objective is to control appearance and to enhance discipline.
2. Yes, these are important objectives.
3. No, the objectives would not be clearly undermined by allowing the right to operate. There is no rational relationship between one’s hair style and appearance, much less with discipline.
4. There are multiple alternative ways for government to achieve its appearance and discipline objectives that do not interfere with religious liberty.
Public schools enact a rule on the hair style that interferes with religious liberty. In this instance, the interference may very well be permissible under the 4-tiered test.
His comments follows the social media debate on whether Achimota Senior High School should admit the Rastafarian student.
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