Legal equality duty for public services should be scrapped, says Kemi Badenoch

Recent comments by UK Conservative leader Kemi Badenoch advocating for the abolition of the Public Sector Equality Duty (PSED) in the UK have sparked discussions on the nature of equality obligations for public services. While Ghana does not have a direct statutory equivalent to the UK's proactive PSED, its legal framework, primarily the 1992 Constitution, enshrines fundamental principles of equality and non-discrimination. This article examines Ghana's existing constitutional and legislative provisions that impose duties on public bodies to ensure equality, including the role of the Commission on Human Rights and Administrative Justice (CHRAJ) and recent developments like the Affirmative Action (Gender Equity) Act, 2024. It highlights the reactive nature of much of Ghana's anti-discrimination framework compared to the proactive duty found in some other jurisdictions, and considers the implications for legal practitioners advising public institutions in Ghana.

The discourse surrounding the legal obligations of public services to promote equality has recently been reignited by comments from UK Conservative leader Kemi Badenoch, who proposed scrapping the Public Sector Equality Duty (PSED) in the United Kingdom. Badenoch argued that the PSED, which requires public bodies like schools and hospitals to proactively consider equality in their decision-making, has become a "minefield" and encourages "dangerous and divisive agendas." These remarks, reported internationally, prompt a pertinent examination of similar duties and frameworks in other jurisdictions, including Ghana.

While the specific UK PSED, established under the Equality Act 2010, does not have a direct statutory parallel in Ghana, the underlying principle of ensuring equality and preventing discrimination in public service delivery is deeply embedded in Ghana's legal and constitutional fabric. This article aims to delineate the existing legal framework in Ghana that governs equality and non-discrimination in public services, exploring how public bodies are mandated to uphold these principles. It will assess the strengths and potential gaps in Ghana's current approach, particularly in light of the proactive duties seen in other legal systems, and discuss the practical implications for legal professionals operating within this context.

Ghana's commitment to equality and non-discrimination is fundamentally enshrined in its 1992 Constitution. Article 17(1) unequivocally states that "All persons shall be equal before the law," and Article 17(2) explicitly prohibits discrimination on grounds of "gender, race, colour, ethnic origin, religion, creed or social or economic status." These constitutional provisions serve as the bedrock for all subsequent legislation and policy, mandating that public bodies, as organs of the state, respect and uphold these fundamental human rights and freedoms.

Beyond these overarching constitutional guarantees, specific legislative instruments further elaborate on the duties of public services concerning equality. The Persons with Disability Act, 2006 (Act 715), for instance, mandates accessibility to public places and buildings for persons with disabilities, and addresses rights related to healthcare, employment, and education. Similarly, the Children's Act, 1998 (Act 560), includes provisions for non-discrimination against children on various grounds. The Commission on Human Rights and Administrative Justice (CHRAJ), established by the Commission on Human Rights and Administrative Justice Act, 1993 (Act 456), plays a crucial role as an independent body tasked with investigating complaints of human rights violations, including discrimination and abuse of power by public officers. While these laws provide a robust framework for addressing discrimination, they largely operate reactively, responding to breaches rather than imposing a broad, proactive duty on public bodies to actively promote equality in all their functions and policy-making.

The distinction between Ghana's largely reactive anti-discrimination framework and the proactive Public Sector Equality Duty (PSED) in the UK is significant. The PSED, under Section 149 of the Equality Act 2010, requires public authorities to have "due regard" to the need to eliminate discrimination, advance equality of opportunity, and foster good relations across nine protected characteristics. This means public bodies in the UK must proactively consider the impact of their decisions and policies on different groups, embedding equality considerations into their core functions.

In contrast, Ghana's constitutional provisions, while strong in prohibiting discrimination, do not explicitly impose a general proactive duty on public bodies to *advance* equality in the same comprehensive manner. The focus has historically been on ensuring equal treatment and providing recourse for discriminatory acts. For example, while the Persons with Disability Act, 2006 (Act 715) mandates accessibility, its implementation has faced challenges, with many public buildings remaining inaccessible years after the moratorium period. This highlights a potential gap where the absence of a proactive duty to integrate equality considerations into planning and resource allocation may hinder effective implementation.

However, recent legislative developments indicate a move towards more proactive measures, particularly in gender equality. The Affirmative Action (Gender Equity) Act, 2024 (Act 1121), passed in July 2024 and assented to in September of the same year, is a landmark piece of legislation. This Act mandates at least 30% female representation in decision-making roles by 2026, with a goal of full gender parity by 2034, and requires public institutions to budget for gender equality programmes. It also requires all state and private institutions to have a gender equity policy or plan within 12 months of the law coming into force. This Act represents a significant shift towards a more proactive and measurable approach to achieving gender equity within both public and private sectors, moving beyond mere non-discrimination to active promotion of equality.

The role of CHRAJ remains critical in Ghana's equality landscape. Its broad mandate includes investigating complaints of human rights violations by public officers and ensuring administrative justice. While CHRAJ acts primarily on complaints, its investigative powers and ability to recommend remedies provide an important mechanism for accountability and upholding equality principles. The ongoing public sector reform initiatives in Ghana also increasingly incorporate gender equality and inclusivity, as evidenced by the Comprehensive Gender Strategy for the Public Sector (CGSPS 2024–2028), which aims to integrate gender equality into public sector reform.

For legal practitioners in Ghana, understanding the nuances of the country's equality framework is paramount. While a broad, proactive "legal equality duty" akin to the UK's PSED has not historically been a feature of Ghanaian law, the 1992 Constitution's robust guarantees of equality and non-discrimination, coupled with specific legislation like the Persons with Disability Act, 2006 (Act 715), and the transformative Affirmative Action (Gender Equity) Act, 2024 (Act 1121), impose significant obligations on public services. Practitioners advising public bodies must ensure compliance not only with the reactive prohibitions against discrimination but also with the emerging proactive duties, particularly concerning gender equity.

The recent Affirmative Action Act signals a clear legislative intent to move towards a more proactive and measurable approach to equality in Ghana. Practitioners should closely monitor the implementation of this Act and its associated regulations, as it will necessitate significant changes in policy development, recruitment, budgeting, and service delivery across the public sector. The debate in other jurisdictions, such as the UK, serves as a reminder of the ongoing evolution of equality law and the importance of continually assessing whether existing frameworks adequately promote inclusive and equitable public services. In Ghana, the focus will be on strengthening enforcement mechanisms and ensuring that the spirit of constitutional equality is translated into tangible, proactive measures across all public institutions.