FOREST POLICY TRADE AND FINANCE INITIATIVE PAPE R | MARCH 2020 CHILD LABOR LAWS AND POLICIES IN GHANA WITH SPECIFIC EMPHASIS ON THE COCOA SECTOR TAYLOR CRABBE, FOREST TRENDS, and FERN
CHILD LABOR LAWS AND POLICIES IN GHANA
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Child Labor Laws and Policies in GhanaPAPER | MARCH 2020
CHILD LABOR LAWS AND POLICIES IN GHANA WITH SPECIFIC EMPHASIS ON THE COCOA SECTOR
T A Y L O R C R A B B E , F O R E S T T R E N D S , a n d F E R N
MARCH 2020CHILD LABOR LAWS AND POLICIES IN GHANA2
Acknowledgments
The author of this report, Ghanaian law firm Taylor Crabbe, is grateful to Forest Trends and Fern, and to the funder of this report, the UK Department for International Development (DFID), for the opportunity to conduct this research. The author would like to thank Saskia Ozinga and Jade Saunders for their additions and feedback, and Zoë Kennedy and Emmanuel Danso for their analysis of the cocoa import data and the Ghana Living Statistics Survey data. The views expressed in this publication reflect those of the author, and do not necessarily reflect the views of Forest Trends, Fern, or the UK Department for International Development.
Acronyms
CFI
CHRAJ
CLaT
CLFZ
COCOBOD
CP/LC
CSO
DA
DICAP
EU
FCUBE
GCLMS
GEA
GoG
GSGDA
HAF
ICT
ILO
IPEC
NSCCL
NTC
RAP
SDGs
SOP
TSC
Ministry of Interior
Metropolitan/ Municipal/District/Child Protection Committees
National Employment Policy
National Tripartite Commission
Sustainable Development Goals
Standard Operating Procedure
West Africa Cocoa and Commercial Agriculture Project
Worst Forms of Child Labor
Cocoa and Forest Initiative
Child Labor and Trafficking
Child Labor Free Zones
European Union
Ghana Employers’ Association
Government of Ghana
Hazardous Activity Framework
LEAP
MELR
MINTER
MMDA
MMDCPC
MoGCSP
NEP
NGO
EU Regulation .............................................................................................................................................................................. 9
Chapter I: National Legal Framework Concerning Labor and Human Rights in Ghana ................................ 11
1.1 Introduction ................................................................................................................................................................. 11
1.2 The Hierarchy of Laws in Ghana ............................................................................................................................11
1.3 Constitution of the Republic of Ghana (1992), and Human Rights and Freedoms ....................................... 12
1.4 Acts of Parliament .................................................................................................................................................... 13
1.4.1 Children’s Act, 1998 (Act 560) .......................................................................................................................................13
1.4.2 Labor Act, 2003 (Act 651) ............................................................................................................................................. 14
1.4.3 Human Trafficking Act, 2005 (Act 694) ................................................................................................................... 16
1.4.4 Criminal and Other Offences Act, 1960 (Act 29) ................................................................................................... 17
1.4.5 Juvenile Justice Act, 2003 (Act 653) ........................................................................................................................ 18
1.4.6 Domestic Violence Act, 2007 (Act 732) .................................................................................................................. 18
1.5 International Treaties ............................................................................................................................................ ..18
1.5.1 International Covenant on Economic, Social, and Cultural Rights (ICESC) .................................................. 19
1.5.2 International Covenant on Civil and Political Rights (ICCPR) ........................................................................... 19
1.5.3 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) .................... 19
1.5.4 Convention on the Rights of the Child (CRC) ........................................................................................................ 19
1.5.5 Conventions of the International Labor Organization (ILO) ............................................................................. 20
1.5.6 African Charter on Human and Peoples’ Rights .................................................................................................. 20
1.5.7 African Charter on the Rights and Welfare of the Child .................................................................................... 20
Chapter II: Government Polices and Action Plans/Strategy Concerning Child Labor .................................. 21
2.1 National Social Protection Policy, 2015 ............................................................................................................... 21
2.2 Child and Family Welfare Policy, 2015 .............................................................................................................. 22
2.3 National Employment Policy ................................................................................................................................ 23
2.4: National Gender Policy, 2016 ............................................................................................................................. 24
2.5 National Plan of Action Phase II, on the Elimination of the WFCL (NPA2) (2017-2020) ............................ 26
2.6 National Plan of Action for the Elimination of Human Trafficking in Ghana (NPA) (2017-2021) ................ 28
2.7 Justice for Children Policy, 2015 ......................................................................................................................... 29
2.8 2010 Declaration of Joint Action to Support the Implementation of the Harkin-Engel Protocol (2010 Declaration) and its Accompanying Framework of Action .................................................................................... 30
2.9 Strategy on Anti-Child Labor and Trafficking in Fisheries, 2018 ................................................................... 30
Chapter III: Institutional Framework..................................................................................................................... 32
4.1 Introduction ............................................................................................................................................................. 35
4.2 Nana Adjei Ampofo v. Attorney-General & National House of Chiefs (2011) SCGLR 1114 .......................... 35
4.3 Donkor & Others v. Gliksten (West Africa) [1997-98] 1 GLR 799 .................................................................... 35
4.4 Foli VII and Others v. The Republic [1968] GLR 768 ........................................................................................ 35
Chapter V: Findings from Existing Legal Framework on Human Rights and Combating Child Labor in Ghana ......................................................................................................................................................................... 36
5.1 The Legal Framework ............................................................................................................................................. 36
5.2 The Policy Framework .......................................................................................................................................... 37
Chapter VI: Conclusions and Recommendations .............................................................................................. 37
6.1 Improving the Legal Framework .......................................................................................................................... 37
6.2 Improvement of the Institutional Architecture ................................................................................................... 38
6.3 Integrated Solution ................................................................................................................................................38
Table of Contents
5
Executive Summary
This report, by Ghanaian Law Firm Taylor Crabbe, details the legislative and institutional framework for the protection of human and labor rights, and specifically child labor, in Ghana. It concludes that there is an elaborate existing legislative and institutional framework for the protection of labor and human rights in Ghana, including detailed laws and policies for combatting the exploitation of children as laborers.
This framework is anchored in the 1992 constitution and consists of various acts of Parliament, notably the Children’s Act (1998), the Labor Act (2003), and the Human Trafficking Act (2005). Ghana has also ratified the key International Human Rights and International Labor Organization (ILO) conventions, including ILO 182 on the Worst Forms of Child Labor (WFCL).
This report details the legal framework as well as the relevant government policies and action plans guiding the implementation or enforcement of the legal framework. These include a National Social Protection Policy, a Child and Family Welfare Policy, and a National Action Plan (Phase II) concerning the WFCL (2017-2020), as well as a National Action Plan for the Elimination of Human Trafficking (2017-2021).
Despite this extensive legal framework and a range of relevant implementation initiatives, it is well documented that child labor, including the WFCL, remains prevalent in Ghana; specifically, in the agriculture (cocoa), forestry, and fishing sectors, although data does suggest that it is declining.
To address child labor, this report makes several recommendations including raising awareness of incidences and the illegal nature of child labor, a realignment of mandates and recourses of enforcement agencies, and improvement of the legislative and institutional architecture for addressing child labor. These recommendations must go hand in hand with measures addressing the root causes of child labor such as the extreme poverty of most cocoa farmers.
Addressing child labor is also important because important consumer markets, notably the European Union (EU), the Netherlands, and the United States, are considering or have already passed policies to regulate the import of cocoa and other forest-risk commodities to ensure these imports are not produced with child labor and do not lead to deforestation.
The EU has indicated a desire to collaborate with Ghana to address child labor and deforestation concerning cocoa and is discussing with the Government of Ghana what this could look like. These discussions may help support the required change in Ghana described in this report.
MARCH 2020CHILD LABOR LAWS AND POLICIES IN GHANA6
BACKGROUND
Defining Child Labor Child labor is defined by the ILO as work that deprives children of their childhood, their potential and dignity, and that is harmful to physical and mental development.1 The ILO also points out that it is important to make a distinction between working children and child labor.2 There are many children that occasionally help on family cocoa farms, this can contribute to the child’s development and help prepare them to be productive members of society. Hence, not all work done by children should be classified as child labor that is to be targeted for elimination.
It is, however, a global priority to eliminate the WFCL3 as defined by Article three of ILO Convention 182.4 WFCL involves (1) all forms of slavery or practices similar to slavery; (2) the use, procurement, or offering of a child for prostitution, for the production of pornography or for pornographic performances; (3) the use or offering of a child for illicit activities; and (4) work which is by its nature or the circumstances in which it is carried out, likely to harm the health, safety, or morals of children.
Child Labor in Ghana In the case of Ghana, the minimum age for engaging a child in “light work” is 13 years5 and for regular work is 15 years.6 Light work constitutes work which is not likely to be harmful to the health or development of the child and does not affect the child’s attendance at school or the capacity of the child to benefit from schoolwork.7
The law prohibits the engagement of a child in exploitative labor.8 Labor is exploitative if it deprives the child of its health, education or development. Children must also not be engaged in night work, e.g., work between the hours of eight o’clock in the evening and six o’clock in the morning.9 The minimum
1 “What is Child Labor?” The International Labor Organization. https://www.ilo.org/ipec/facts/lang--en/index.htm (Accessed March 4, 2020) 2 “The Worst Forms of Child Labor” The International Labor Organization. https://www.ilo.org/ipec/facts/WorstFormsofChildLabour/lang--en/index.htm (Accessed March 4, 2020) 3 Including by the Sustainable Development Goals of which 8.7 reads: Take immediate and effective measures to eradicate forced labor, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labor, including recruitment and use of child soldiers, and by 2025 end child labor in all its forms. 4 “Worst forms of Child Labor Convention No. 182” The International Labor Organization. https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C182 (Accessed March 4, 2020)
5 Section 89 of the Children’s Act,1998 (Act 560) 6 Section 90 of the Children’s Act,1998 (Act 560) 7 Section 90 of the Children’s Act, 1998 (Act 560) 8 Section 87 of the Children’s Act,1998 (Act 560) 9 Section 88 of the Children’s Act,1998 (Act 560) 10 Section 91 of the Children’s Act,1998 (Act 560) 11 Section 91 of the Children’s Act,1998 (Act 560)
age for the engagement of a person in hazardous work is 18 years.10 Work is hazardous when it poses a danger to the health, safety, or morals of a person.11 This includes going to sea, mining and quarrying, porterage of heavy loads, work in manufacturing industries where chemicals are produced or used, work in places where machines are used, and work in places such as bars, hotels and places of entertainment where a person may be exposed to immoral behavior.12 These provisions apply to work both in the formal and informal sector.
Child labor, including the WFCL, remains prevalent in Ghana despite many attempts by both the Government and the private sector to address it, although it is declining in most sectors. An analysis of data from the Ghana Living Standards Survey (GLSS), examining rounds 613 and 7,14 shows a significant decrease in child labor in all sectors, apart from the relatively small group of non-market services and manufacturing. (See Tables 1, 2, and 3.) It is noteworthy that the decline is most marked in the group of children between five and 12 years old.
Table 1: Population Distribution of Children Engaged in Child Labor (2012/2013) Economic Activity 5-12 years 13-14 years 15-17 years Total
Agriculture (including forestry and fishing) 1,120,989 441,225 605,967 2,168,180
Mining and Quarrying (including electricity, gas, and water)
4,173 2,308 5,535 12,016
Market Services (including trade, accommodation, food, and business administration)
205,785 108,905 160,581 475,272
24,155 9,777 25,011 58,943
Source: Ghana Statistical Services Data compiled, analyzed, and aggregated by Forest Trends.
12 Section 91 of the Children’s Act,1998 (Act 560) 13 “Ghana Living Standards Survey Round 6” Ghana Statistical Service. https://www.statsghana.gov.gh/gssmain/fileUpload/Living%20conditions/GLSS6_Main%20Report.pdf 14 “Ghana Living Standards Survey Round 7” Ghana Statistical Service. https://www.statsghana.gov.gh/gssmain/fileUpload/pressrelease/GLSS7%20MAIN%20REPORT_FINAL.pdf
7
5-12 years 13-14 years 15-17 years Total
Agriculture (including forestry and fishing) 639,479 345,092 535,087 1,519,659
Mining and Quarrying (including electricity, gas, and water)
844 2,172 3,242 6,258
Construction - 1,619 6,558 8,177
105,112 50,975 130,664 286,751
26,744 24,724 62,502 113,970
Source: Ghana Statistical Services. Data compiled, analyzed, and aggregated by Forest Trends.
Table 3: Percent Change in the Number of Children Engaged in Child Labor by Age and Sector (2012/2013- 2017/2018)
Economic Activity 5-12 years 13-14 years 15-17 years Total % change
(by sector)
Mining and Quarrying (including electricity, gas, and water)
-80% -6% -41% -48%
Market Services (including trade, accommodation, food, and business administration)
-49% -53% -19% -40%
11% 153% 150% 93%
Source: Ghana Statistical Services. Data compiled, analyzed, and aggregated by Forest Trends.
MARCH 2020CHILD LABOR LAWS AND POLICIES IN GHANA8
A study by Tulane University15 provides the most detailed on the ground assessment of child labor in the cocoa sector in Ghana and Cote d’Ivoire. The study estimates that the number of children in hazardous work – classified as WFCL – in cocoa production in Ghana is declining, although the report estimates there were still around 880,000 children involved in the WFCL in 2013/2014 in the cocoa growing areas (a decrease of six percent from 930,000 in 2008/2009).
EU Regulation The EU has recognized its responsibility as a consumer market by legislating to reduce market access for illegally harvested timber, conflict minerals, and the products of illegal, unregulated and unreported (IUU) fishing. It is now considering a regulation that would require companies to ensure transparency in their supply chains and to monitor and mitigate the negative impact of their imports on forests and human rights.16 Child labor has been given specific prominence, with the European Commission President calling for zero tolerance for child labor in her political guidelines for the new Commission.17
Furthermore, a number of EU Member States have developed laws that introduce Human Rights Due Diligence (HRDD) obligations for companies and corporate liability. The French duty of vigilance law (2017) and the Dutch child labor due diligence law (coming into force in 2021) are the most developed, with similar laws in various stages of drafting being considered in Germany, Switzerland, Austria, Finland, and Italy.18
The European Commission work program includes legislative action on Sustainable Corporate Governance by the end of 2020. The European Parliament’s Human Rights Subcommittee is also working on a Non-legislative Report on Human Rights Due Diligence legislation.
In terms of cocoa specifically, the EU is considering how best to ensure that the cocoa it imports from abroad will not be from areas which have been deforested and is not grown or processed using child labor. Given that by far most of Ghana’s exports go to the EU (Figure 1), this is particularly relevant.
Within the EU, the Netherlands is by far the largest importer of cocoa (Figure 2). Hence the Dutch child labor law, coming into force in 2021, is specifically relevant as it requires all companies that deliver products or services to the Dutch market to determine whether child labor occurs in their supply chains, and requires companies to set out a plan of action on how to combat it.
15 “Survey Research on Child Labor in West African Cocoa Growing Areas” Tulane University. Available: https://www.dol.gov/sites/dolgov/files/ILAB/research_file_attachment/Tulane%20University%20-%20Survey%20Research%20Cocoa%20Sector%20- %2030%20July%202015.pdf
16 “The European Green Deal” European Parliament. https://www.europarl.europa.eu/doceo/document/TA-9-2020-0005_EN.pdf (Accessed March 4, 2020) 17 Direct quote from Ursula Von der Leyen, President of the European Commission’s candidacy agenda: “I will ensure that every new agreement concluded will have a dedicated sustainable-development chapter and the highest standards of climate, environmental and labor protection, with a zero-tolerance policy on child labor.” Available: https://ec.europa.eu/commission/sites/beta-political/files/political-guidelines-next-commission_en.pdf 18 “ECCJ publishes comparative legal analysis of HRDD and corporate liability laws in Europe.” The European Coalition for Corporate Justice. https://corporatejustice.org/news/16783-eccj-publishes-comparative-legal-analysis-of-hrdd-and-corporate-liability-laws-in-europe (Accessed March 4, 2020).
9
Figure 1: Total Value of Cocoa (HS18) Imports from Ghana to the EU, the USA, and China (2013-2017)
Source: UN Comtrade Data. Compiled by Forest Trends in 2019. Note: Data are presented in Millions (M) USD.
Figure 2: Top 10 European Importers by Value of Cocoa (HS18) From Ghana (2013-2017) (USD)
Source: UN Comtrade Data. Compiled by Forest Trends in 2019. Note: Data are presented in Millions (M) USD.
1400M
European Union USA China
412M 379M 379M 264M 164M 138M 130M 21M
MARCH 2020CHILD LABOR LAWS AND POLICIES IN GHANA10
The private sector encourages the EU to take regulatory action. Companies like Mars, Mondelez, and Barry Callebaut have released a statement calling on the EU to negotiate bilateral agreements with governments in cocoa producing countries, as well as to establish a demand-side regulatory and policy framework to encourage sustainable cocoa production and sustain market demand for coca from West Africa. This statement was also supported by Nestle and Tony Chocolonely, and a similar call was made by the industry group European Cocoa Association (including OLAM and Cargill, amongst others).
All of these “demand side” laws are more likely to have the positive impact that regulators seek if they are designed to support local governance processes and respect local laws. It is therefore important to understand the legal and institutional frameworks in the countries which will be impacted by these laws, as is the aim of this study.
CHAPTER I: NATIONAL LEGAL FRAMEWORK CONCERNING LABOR AND HUMAN RIGHTS IN GHANA
1.1 Introduction The Ghanaian child labor and human rights-related legal framework is anchored in provisions in the 1992 Constitution. The Constitution is the supreme law of Ghana and all other laws promulgated in Ghana must conform to the Constitution or risk a declaration of nullity by the Supreme Court.
The Constitution has substantive provisions on labor and human rights. It creates and tasks certain institutions with the protection of fundamental human rights and freedoms. The Constitution further enjoins the legislative arm of Government, the Parliament, to make laws that ensure the protection of particular groups in Ghana. There also exist in the legal framework Acts of Parliament and Legislative Instruments that make provisions for human and labor rights.
A complete appreciation of the human and labor rights legal framework of Ghana requires an assessment of provisions in law that guarantee and ensure the protection of rights and freedoms as well as the institutions tasked with this responsibility.
This report first discusses what constitutes “the hierarchy of laws of Ghana” to provide an understanding of both the hierarchical and vertical structure of the laws, and to show how a conflict is resolved. Second, it discusses the nature and scope of the provisions on human rights, including child labor rights, in the Constitution. Third, it gives a broad overview of other human and labor rights legislation in Ghana and their mandate. Fourth, it presents an overview of findings from relevant existing studies and interviews with key enforcement actors regarding child labor issues in Ghana. Finally, it presents some recommendations on how to begin closing the gap between the relatively strong legal framework addressing labor and human rights and the lack of enforcement within this framework.
1.2 The Hierarchy of Laws in Ghana The 1992 Constitution of Ghana pursuant to Article 1(2) is the supreme law of Ghana. Article 11 of the Constitution sums up the sources of law in Ghana as: The Constitution; enactments made by or under the
11
authority of Parliament; any Orders, Rules, and Regulations made by any person or authority under a power conferred by the Constitution (subsidiary legislation); the existing law; and the common law, which includes customary law. Although it is not specifically stated, Article 11 suggests a hierarchy of laws in Ghana placing the Constitution at the apex.
Ghana is a dualist state in terms of its incorporation of international law. In this regard, international treaties, agreements, and conventions must be ratified by Ghana’s parliament to become enforceable in the law courts in Ghana.20,21
Policies are not stated as a source of law in Ghana. The Constitution under Chapter Six provides for the Directive Principles of State Policy which serve as a guide to the agencies of State in the making of policies. Policies are considered merely as guidelines to the actions of Government and are generally not enforceable. Policies are, however, indicative of government action and intentions.
1.3 Constitution of the Republic of Ghana (1992), and Human Rights and Freedoms
This section discusses the national legal framework on human and child labor rights in Ghana. In addition, it highlights key governmental policies on matters of human and child labor rights.
The protection and preservation of rights is identified in the preamble of the Constitution as one of the principles upon which the people…
CHILD LABOR LAWS AND POLICIES IN GHANA WITH SPECIFIC EMPHASIS ON THE COCOA SECTOR
T A Y L O R C R A B B E , F O R E S T T R E N D S , a n d F E R N
MARCH 2020CHILD LABOR LAWS AND POLICIES IN GHANA2
Acknowledgments
The author of this report, Ghanaian law firm Taylor Crabbe, is grateful to Forest Trends and Fern, and to the funder of this report, the UK Department for International Development (DFID), for the opportunity to conduct this research. The author would like to thank Saskia Ozinga and Jade Saunders for their additions and feedback, and Zoë Kennedy and Emmanuel Danso for their analysis of the cocoa import data and the Ghana Living Statistics Survey data. The views expressed in this publication reflect those of the author, and do not necessarily reflect the views of Forest Trends, Fern, or the UK Department for International Development.
Acronyms
CFI
CHRAJ
CLaT
CLFZ
COCOBOD
CP/LC
CSO
DA
DICAP
EU
FCUBE
GCLMS
GEA
GoG
GSGDA
HAF
ICT
ILO
IPEC
NSCCL
NTC
RAP
SDGs
SOP
TSC
Ministry of Interior
Metropolitan/ Municipal/District/Child Protection Committees
National Employment Policy
National Tripartite Commission
Sustainable Development Goals
Standard Operating Procedure
West Africa Cocoa and Commercial Agriculture Project
Worst Forms of Child Labor
Cocoa and Forest Initiative
Child Labor and Trafficking
Child Labor Free Zones
European Union
Ghana Employers’ Association
Government of Ghana
Hazardous Activity Framework
LEAP
MELR
MINTER
MMDA
MMDCPC
MoGCSP
NEP
NGO
EU Regulation .............................................................................................................................................................................. 9
Chapter I: National Legal Framework Concerning Labor and Human Rights in Ghana ................................ 11
1.1 Introduction ................................................................................................................................................................. 11
1.2 The Hierarchy of Laws in Ghana ............................................................................................................................11
1.3 Constitution of the Republic of Ghana (1992), and Human Rights and Freedoms ....................................... 12
1.4 Acts of Parliament .................................................................................................................................................... 13
1.4.1 Children’s Act, 1998 (Act 560) .......................................................................................................................................13
1.4.2 Labor Act, 2003 (Act 651) ............................................................................................................................................. 14
1.4.3 Human Trafficking Act, 2005 (Act 694) ................................................................................................................... 16
1.4.4 Criminal and Other Offences Act, 1960 (Act 29) ................................................................................................... 17
1.4.5 Juvenile Justice Act, 2003 (Act 653) ........................................................................................................................ 18
1.4.6 Domestic Violence Act, 2007 (Act 732) .................................................................................................................. 18
1.5 International Treaties ............................................................................................................................................ ..18
1.5.1 International Covenant on Economic, Social, and Cultural Rights (ICESC) .................................................. 19
1.5.2 International Covenant on Civil and Political Rights (ICCPR) ........................................................................... 19
1.5.3 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) .................... 19
1.5.4 Convention on the Rights of the Child (CRC) ........................................................................................................ 19
1.5.5 Conventions of the International Labor Organization (ILO) ............................................................................. 20
1.5.6 African Charter on Human and Peoples’ Rights .................................................................................................. 20
1.5.7 African Charter on the Rights and Welfare of the Child .................................................................................... 20
Chapter II: Government Polices and Action Plans/Strategy Concerning Child Labor .................................. 21
2.1 National Social Protection Policy, 2015 ............................................................................................................... 21
2.2 Child and Family Welfare Policy, 2015 .............................................................................................................. 22
2.3 National Employment Policy ................................................................................................................................ 23
2.4: National Gender Policy, 2016 ............................................................................................................................. 24
2.5 National Plan of Action Phase II, on the Elimination of the WFCL (NPA2) (2017-2020) ............................ 26
2.6 National Plan of Action for the Elimination of Human Trafficking in Ghana (NPA) (2017-2021) ................ 28
2.7 Justice for Children Policy, 2015 ......................................................................................................................... 29
2.8 2010 Declaration of Joint Action to Support the Implementation of the Harkin-Engel Protocol (2010 Declaration) and its Accompanying Framework of Action .................................................................................... 30
2.9 Strategy on Anti-Child Labor and Trafficking in Fisheries, 2018 ................................................................... 30
Chapter III: Institutional Framework..................................................................................................................... 32
4.1 Introduction ............................................................................................................................................................. 35
4.2 Nana Adjei Ampofo v. Attorney-General & National House of Chiefs (2011) SCGLR 1114 .......................... 35
4.3 Donkor & Others v. Gliksten (West Africa) [1997-98] 1 GLR 799 .................................................................... 35
4.4 Foli VII and Others v. The Republic [1968] GLR 768 ........................................................................................ 35
Chapter V: Findings from Existing Legal Framework on Human Rights and Combating Child Labor in Ghana ......................................................................................................................................................................... 36
5.1 The Legal Framework ............................................................................................................................................. 36
5.2 The Policy Framework .......................................................................................................................................... 37
Chapter VI: Conclusions and Recommendations .............................................................................................. 37
6.1 Improving the Legal Framework .......................................................................................................................... 37
6.2 Improvement of the Institutional Architecture ................................................................................................... 38
6.3 Integrated Solution ................................................................................................................................................38
Table of Contents
5
Executive Summary
This report, by Ghanaian Law Firm Taylor Crabbe, details the legislative and institutional framework for the protection of human and labor rights, and specifically child labor, in Ghana. It concludes that there is an elaborate existing legislative and institutional framework for the protection of labor and human rights in Ghana, including detailed laws and policies for combatting the exploitation of children as laborers.
This framework is anchored in the 1992 constitution and consists of various acts of Parliament, notably the Children’s Act (1998), the Labor Act (2003), and the Human Trafficking Act (2005). Ghana has also ratified the key International Human Rights and International Labor Organization (ILO) conventions, including ILO 182 on the Worst Forms of Child Labor (WFCL).
This report details the legal framework as well as the relevant government policies and action plans guiding the implementation or enforcement of the legal framework. These include a National Social Protection Policy, a Child and Family Welfare Policy, and a National Action Plan (Phase II) concerning the WFCL (2017-2020), as well as a National Action Plan for the Elimination of Human Trafficking (2017-2021).
Despite this extensive legal framework and a range of relevant implementation initiatives, it is well documented that child labor, including the WFCL, remains prevalent in Ghana; specifically, in the agriculture (cocoa), forestry, and fishing sectors, although data does suggest that it is declining.
To address child labor, this report makes several recommendations including raising awareness of incidences and the illegal nature of child labor, a realignment of mandates and recourses of enforcement agencies, and improvement of the legislative and institutional architecture for addressing child labor. These recommendations must go hand in hand with measures addressing the root causes of child labor such as the extreme poverty of most cocoa farmers.
Addressing child labor is also important because important consumer markets, notably the European Union (EU), the Netherlands, and the United States, are considering or have already passed policies to regulate the import of cocoa and other forest-risk commodities to ensure these imports are not produced with child labor and do not lead to deforestation.
The EU has indicated a desire to collaborate with Ghana to address child labor and deforestation concerning cocoa and is discussing with the Government of Ghana what this could look like. These discussions may help support the required change in Ghana described in this report.
MARCH 2020CHILD LABOR LAWS AND POLICIES IN GHANA6
BACKGROUND
Defining Child Labor Child labor is defined by the ILO as work that deprives children of their childhood, their potential and dignity, and that is harmful to physical and mental development.1 The ILO also points out that it is important to make a distinction between working children and child labor.2 There are many children that occasionally help on family cocoa farms, this can contribute to the child’s development and help prepare them to be productive members of society. Hence, not all work done by children should be classified as child labor that is to be targeted for elimination.
It is, however, a global priority to eliminate the WFCL3 as defined by Article three of ILO Convention 182.4 WFCL involves (1) all forms of slavery or practices similar to slavery; (2) the use, procurement, or offering of a child for prostitution, for the production of pornography or for pornographic performances; (3) the use or offering of a child for illicit activities; and (4) work which is by its nature or the circumstances in which it is carried out, likely to harm the health, safety, or morals of children.
Child Labor in Ghana In the case of Ghana, the minimum age for engaging a child in “light work” is 13 years5 and for regular work is 15 years.6 Light work constitutes work which is not likely to be harmful to the health or development of the child and does not affect the child’s attendance at school or the capacity of the child to benefit from schoolwork.7
The law prohibits the engagement of a child in exploitative labor.8 Labor is exploitative if it deprives the child of its health, education or development. Children must also not be engaged in night work, e.g., work between the hours of eight o’clock in the evening and six o’clock in the morning.9 The minimum
1 “What is Child Labor?” The International Labor Organization. https://www.ilo.org/ipec/facts/lang--en/index.htm (Accessed March 4, 2020) 2 “The Worst Forms of Child Labor” The International Labor Organization. https://www.ilo.org/ipec/facts/WorstFormsofChildLabour/lang--en/index.htm (Accessed March 4, 2020) 3 Including by the Sustainable Development Goals of which 8.7 reads: Take immediate and effective measures to eradicate forced labor, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labor, including recruitment and use of child soldiers, and by 2025 end child labor in all its forms. 4 “Worst forms of Child Labor Convention No. 182” The International Labor Organization. https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C182 (Accessed March 4, 2020)
5 Section 89 of the Children’s Act,1998 (Act 560) 6 Section 90 of the Children’s Act,1998 (Act 560) 7 Section 90 of the Children’s Act, 1998 (Act 560) 8 Section 87 of the Children’s Act,1998 (Act 560) 9 Section 88 of the Children’s Act,1998 (Act 560) 10 Section 91 of the Children’s Act,1998 (Act 560) 11 Section 91 of the Children’s Act,1998 (Act 560)
age for the engagement of a person in hazardous work is 18 years.10 Work is hazardous when it poses a danger to the health, safety, or morals of a person.11 This includes going to sea, mining and quarrying, porterage of heavy loads, work in manufacturing industries where chemicals are produced or used, work in places where machines are used, and work in places such as bars, hotels and places of entertainment where a person may be exposed to immoral behavior.12 These provisions apply to work both in the formal and informal sector.
Child labor, including the WFCL, remains prevalent in Ghana despite many attempts by both the Government and the private sector to address it, although it is declining in most sectors. An analysis of data from the Ghana Living Standards Survey (GLSS), examining rounds 613 and 7,14 shows a significant decrease in child labor in all sectors, apart from the relatively small group of non-market services and manufacturing. (See Tables 1, 2, and 3.) It is noteworthy that the decline is most marked in the group of children between five and 12 years old.
Table 1: Population Distribution of Children Engaged in Child Labor (2012/2013) Economic Activity 5-12 years 13-14 years 15-17 years Total
Agriculture (including forestry and fishing) 1,120,989 441,225 605,967 2,168,180
Mining and Quarrying (including electricity, gas, and water)
4,173 2,308 5,535 12,016
Market Services (including trade, accommodation, food, and business administration)
205,785 108,905 160,581 475,272
24,155 9,777 25,011 58,943
Source: Ghana Statistical Services Data compiled, analyzed, and aggregated by Forest Trends.
12 Section 91 of the Children’s Act,1998 (Act 560) 13 “Ghana Living Standards Survey Round 6” Ghana Statistical Service. https://www.statsghana.gov.gh/gssmain/fileUpload/Living%20conditions/GLSS6_Main%20Report.pdf 14 “Ghana Living Standards Survey Round 7” Ghana Statistical Service. https://www.statsghana.gov.gh/gssmain/fileUpload/pressrelease/GLSS7%20MAIN%20REPORT_FINAL.pdf
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5-12 years 13-14 years 15-17 years Total
Agriculture (including forestry and fishing) 639,479 345,092 535,087 1,519,659
Mining and Quarrying (including electricity, gas, and water)
844 2,172 3,242 6,258
Construction - 1,619 6,558 8,177
105,112 50,975 130,664 286,751
26,744 24,724 62,502 113,970
Source: Ghana Statistical Services. Data compiled, analyzed, and aggregated by Forest Trends.
Table 3: Percent Change in the Number of Children Engaged in Child Labor by Age and Sector (2012/2013- 2017/2018)
Economic Activity 5-12 years 13-14 years 15-17 years Total % change
(by sector)
Mining and Quarrying (including electricity, gas, and water)
-80% -6% -41% -48%
Market Services (including trade, accommodation, food, and business administration)
-49% -53% -19% -40%
11% 153% 150% 93%
Source: Ghana Statistical Services. Data compiled, analyzed, and aggregated by Forest Trends.
MARCH 2020CHILD LABOR LAWS AND POLICIES IN GHANA8
A study by Tulane University15 provides the most detailed on the ground assessment of child labor in the cocoa sector in Ghana and Cote d’Ivoire. The study estimates that the number of children in hazardous work – classified as WFCL – in cocoa production in Ghana is declining, although the report estimates there were still around 880,000 children involved in the WFCL in 2013/2014 in the cocoa growing areas (a decrease of six percent from 930,000 in 2008/2009).
EU Regulation The EU has recognized its responsibility as a consumer market by legislating to reduce market access for illegally harvested timber, conflict minerals, and the products of illegal, unregulated and unreported (IUU) fishing. It is now considering a regulation that would require companies to ensure transparency in their supply chains and to monitor and mitigate the negative impact of their imports on forests and human rights.16 Child labor has been given specific prominence, with the European Commission President calling for zero tolerance for child labor in her political guidelines for the new Commission.17
Furthermore, a number of EU Member States have developed laws that introduce Human Rights Due Diligence (HRDD) obligations for companies and corporate liability. The French duty of vigilance law (2017) and the Dutch child labor due diligence law (coming into force in 2021) are the most developed, with similar laws in various stages of drafting being considered in Germany, Switzerland, Austria, Finland, and Italy.18
The European Commission work program includes legislative action on Sustainable Corporate Governance by the end of 2020. The European Parliament’s Human Rights Subcommittee is also working on a Non-legislative Report on Human Rights Due Diligence legislation.
In terms of cocoa specifically, the EU is considering how best to ensure that the cocoa it imports from abroad will not be from areas which have been deforested and is not grown or processed using child labor. Given that by far most of Ghana’s exports go to the EU (Figure 1), this is particularly relevant.
Within the EU, the Netherlands is by far the largest importer of cocoa (Figure 2). Hence the Dutch child labor law, coming into force in 2021, is specifically relevant as it requires all companies that deliver products or services to the Dutch market to determine whether child labor occurs in their supply chains, and requires companies to set out a plan of action on how to combat it.
15 “Survey Research on Child Labor in West African Cocoa Growing Areas” Tulane University. Available: https://www.dol.gov/sites/dolgov/files/ILAB/research_file_attachment/Tulane%20University%20-%20Survey%20Research%20Cocoa%20Sector%20- %2030%20July%202015.pdf
16 “The European Green Deal” European Parliament. https://www.europarl.europa.eu/doceo/document/TA-9-2020-0005_EN.pdf (Accessed March 4, 2020) 17 Direct quote from Ursula Von der Leyen, President of the European Commission’s candidacy agenda: “I will ensure that every new agreement concluded will have a dedicated sustainable-development chapter and the highest standards of climate, environmental and labor protection, with a zero-tolerance policy on child labor.” Available: https://ec.europa.eu/commission/sites/beta-political/files/political-guidelines-next-commission_en.pdf 18 “ECCJ publishes comparative legal analysis of HRDD and corporate liability laws in Europe.” The European Coalition for Corporate Justice. https://corporatejustice.org/news/16783-eccj-publishes-comparative-legal-analysis-of-hrdd-and-corporate-liability-laws-in-europe (Accessed March 4, 2020).
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Figure 1: Total Value of Cocoa (HS18) Imports from Ghana to the EU, the USA, and China (2013-2017)
Source: UN Comtrade Data. Compiled by Forest Trends in 2019. Note: Data are presented in Millions (M) USD.
Figure 2: Top 10 European Importers by Value of Cocoa (HS18) From Ghana (2013-2017) (USD)
Source: UN Comtrade Data. Compiled by Forest Trends in 2019. Note: Data are presented in Millions (M) USD.
1400M
European Union USA China
412M 379M 379M 264M 164M 138M 130M 21M
MARCH 2020CHILD LABOR LAWS AND POLICIES IN GHANA10
The private sector encourages the EU to take regulatory action. Companies like Mars, Mondelez, and Barry Callebaut have released a statement calling on the EU to negotiate bilateral agreements with governments in cocoa producing countries, as well as to establish a demand-side regulatory and policy framework to encourage sustainable cocoa production and sustain market demand for coca from West Africa. This statement was also supported by Nestle and Tony Chocolonely, and a similar call was made by the industry group European Cocoa Association (including OLAM and Cargill, amongst others).
All of these “demand side” laws are more likely to have the positive impact that regulators seek if they are designed to support local governance processes and respect local laws. It is therefore important to understand the legal and institutional frameworks in the countries which will be impacted by these laws, as is the aim of this study.
CHAPTER I: NATIONAL LEGAL FRAMEWORK CONCERNING LABOR AND HUMAN RIGHTS IN GHANA
1.1 Introduction The Ghanaian child labor and human rights-related legal framework is anchored in provisions in the 1992 Constitution. The Constitution is the supreme law of Ghana and all other laws promulgated in Ghana must conform to the Constitution or risk a declaration of nullity by the Supreme Court.
The Constitution has substantive provisions on labor and human rights. It creates and tasks certain institutions with the protection of fundamental human rights and freedoms. The Constitution further enjoins the legislative arm of Government, the Parliament, to make laws that ensure the protection of particular groups in Ghana. There also exist in the legal framework Acts of Parliament and Legislative Instruments that make provisions for human and labor rights.
A complete appreciation of the human and labor rights legal framework of Ghana requires an assessment of provisions in law that guarantee and ensure the protection of rights and freedoms as well as the institutions tasked with this responsibility.
This report first discusses what constitutes “the hierarchy of laws of Ghana” to provide an understanding of both the hierarchical and vertical structure of the laws, and to show how a conflict is resolved. Second, it discusses the nature and scope of the provisions on human rights, including child labor rights, in the Constitution. Third, it gives a broad overview of other human and labor rights legislation in Ghana and their mandate. Fourth, it presents an overview of findings from relevant existing studies and interviews with key enforcement actors regarding child labor issues in Ghana. Finally, it presents some recommendations on how to begin closing the gap between the relatively strong legal framework addressing labor and human rights and the lack of enforcement within this framework.
1.2 The Hierarchy of Laws in Ghana The 1992 Constitution of Ghana pursuant to Article 1(2) is the supreme law of Ghana. Article 11 of the Constitution sums up the sources of law in Ghana as: The Constitution; enactments made by or under the
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authority of Parliament; any Orders, Rules, and Regulations made by any person or authority under a power conferred by the Constitution (subsidiary legislation); the existing law; and the common law, which includes customary law. Although it is not specifically stated, Article 11 suggests a hierarchy of laws in Ghana placing the Constitution at the apex.
Ghana is a dualist state in terms of its incorporation of international law. In this regard, international treaties, agreements, and conventions must be ratified by Ghana’s parliament to become enforceable in the law courts in Ghana.20,21
Policies are not stated as a source of law in Ghana. The Constitution under Chapter Six provides for the Directive Principles of State Policy which serve as a guide to the agencies of State in the making of policies. Policies are considered merely as guidelines to the actions of Government and are generally not enforceable. Policies are, however, indicative of government action and intentions.
1.3 Constitution of the Republic of Ghana (1992), and Human Rights and Freedoms
This section discusses the national legal framework on human and child labor rights in Ghana. In addition, it highlights key governmental policies on matters of human and child labor rights.
The protection and preservation of rights is identified in the preamble of the Constitution as one of the principles upon which the people…
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