access to information and national security in ghana - Right2Info

0 downloads 16 Views 508KB Size Report
the context of promoting and protecting the public's right to know. .... is to check on executive excesses. ... balance between the competing interests of national security and freedom of ..... However, if we treat them separately as limits to social .... and use the information to detect and prevent threats to the security of the State.

ACCESS TO INFORMATION AND NATIONAL SECURITY IN GHANA: DRAWING THE BALANCE

Prepared for OSIWA By Dr. Kwadwo Appiagyei-Atua Senior Lecturer, Faculty of Law University of Ghana, Legon

Acronyms

FOI UDHR ICCPR NSC BNI ACP PRAAA RTI

Freedom of information Universal Declaration of Human Rights International Covenant on Civil and Political Rights National Security Council Bureau of National Investigations Assistant Commissioner of Police Public Records and Archives Administration Act Right to Information

Executive Summary The paper’s focus was to examine and analyse the relationship between freedom of expression and national security and address the issues of ensuring the requisite balance between the competing interests of national security and freedom of information (FOI) in the context of promoting and protecting the public’s right to know. The work took off with a theoretical overview of the relationship between freedom of information and national security by briefly examining the origins of freedom of expression from the Western and African perspectives. It then focused on a discussion of freedom of expression as dealt with by international human rights law. Reference was made to the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the regional human rights instruments. With respect to Africa, the African Commission on Human and Peoples’ Rights Declaration of Principles on Freedom of Expression in Africa, which provides an expanded meaning, scope and understanding of freedom of expression, was discussed in some detail. Among others, it was noted that the new dimension it brings to the table is, the recognition that “freedom of expression and information ... is a fundamental and inalienable human right and an indispensable component of democracy.” The conclusion reached is that access to information is vital to effective promotion of national security. At the same time in some critical respects national security may be enhanced by limiting access to certain vital information which may harm national security if unbridled exercise of right to information is permitted. Thus, “national security is not fundamentally at odds with freedom of expression and information.” What is important is that at the end of the day, national security shall not turn into regime security. In narrowing down the focus to Ghana, it was observed that the 1992 Constitution of the Fourth Republican of Ghana has enhanced features for the enjoyment of human rights under Chapter 5 of the Constitution. With respect to freedom of expression, it is noted that the current Constitution is an improvement on the previous constitution’s recognition of freedom of expression by recognising, among others, specifically, the right to information and academic freedom as elements of freedom of expression that should be enjoyed under the Constitution. The right to information is specifically recognised in the 1992 Constitution under article 21(1)(f) and can also be inferred from freedoms of expression, thought, conscience and belief, including academic freedom under article 21(1)(a) and (b) as well as articles 162-165 of the Constitution on freedom and independence of the media. However, like all rights, they are limited both by general and specific limitations under the Constitution. Some of the basis for the limitations include for the protection of national security. Other rights affecting right to information and national security is article 18(2) privacy rights. The work notes that much as national security occupies a significant place in the Constitution and other laws of Ghana, there is no specific definition of national security. The closest defining one finds is under the Security and Intelligence Services Act, 1996 (Act 526)

describes what constitutes “threats to the security of Ghana” under section 42 of the Act. One can also infer an understating of national security in the Ghanaian context from the use of phrases such as acts “injurious to the public interest” or “prejudicial to the security of the State.” It is noticed that the Constitution adopts a generally liberal approach to establishing the relationship between right to information and national security. A clear exception, however, is the emergency powers which grant the President powers to derogate respect for all rights during periods of emergency, in clear violation of the International Covenant on Civil and Political Rights which protects some rights as non-derogable during periods of emergency. In spite of this general liberal posture, some statutes maintain a generally restrictive stance as far as access to official information is concerned. Towards re-modelling Ghana’s laws to reflect the letter and spirit of the Constitution, some of these restrictive laws have been repealed or amended. A good example is the Criminal Code (Repeal of Criminal Libel and Seditious Laws) (Amendment) Act, 2001 (Act 602). These laws which were repealed here were used in the case of Republic v Tommy Thompson Books Ltd, Quarcoo & Coomson to hold that although the offence of criminal libel was a limitation on freedom of the press and independence of the media, it was a law reasonably required in terms of article 164; that sections 112(2) and 117(1)(h) of the Code were constitutional and did not contravene the spirit and letter of the Constitution. References to freedom of expression and national security in the Constitution are discussed, including article 69(12), which prescribes how proceedings in Parliament for the removal of the President from office should be conducted in private. Also, article 121(2) of the same Constitution deals with a situation where a public officer is required to produce before Parliament a document where the Speaker or the National Security Council certifies that the document belongs to a class of documents, the production of which is injurious to the public interest or prejudicial to national security. The other laws examined include the Evidence Act, 1975 (NRCD 323), the Whistleblower Act, 2006 (Act 720), the Civil Service Act, 1993 (PNDCL 327), the Armed Forces Act, 1962 (Act 105), the Anti-Terrorism Act, 2008 (Act 762); the Habeas Corpus Act, 1964 (Act 244); the Emergency Powers Act, 1994 (Act 472), the Public Order Act 1994 (Act 491) and the Public Records and Archives Administration Act, 1997 (Act 535). Among these, some which are still steeped in the old-fashioned approach of clothing virtually all information with the cloak of secrecy remain in the statute books. These include the State Secrets Act and the Oaths Act. Section 1(1)(a) of the former, for example, does not provide any limits on the exercise of the powers to deny access to state secrets. The Right to Information Bill also, while providing principled ways backed by law for citizens and others to obtain information from government agencies, in some respects provide broad and unnecessary exemptions, which even go ultra vires what one finds in the Constitution. The Bill therefore has some inherent weaknesses which may jeopardise effective access to information regarding national security. An example is the powers given to the President to approve disclosure of exempt information – instead of an independent

information commissioner – though one of the main goals of right of access to information is to check on executive excesses. It is found that the existing laws are generally favourable to accessing information. The main problem is with changing the culture of non-disclosure which is ingrained in the civil service. Finally, the work discovered that while there are references to words such as “classified,” “unclassified,” “secret,” “confidential,” “sensitive” documents or information in the statute books, there are no defined legal procedures for classification of documents, neither are these terms defined in any document (apart from “state secret”) as defined under the Evidence Act.

ACCESS TO INFORMATION AND NATIONAL SECURITY IN GHANA: DRAWING THE BALANCE Introduction Ghana is a former British colony which gained its independence on 6 March, 1957. It went through a chequered political history characterised by military interventions in attempts to establish and consolidate a democratic system of governance in the country. Ghana ultimately returned to constitutional rule in 1992 and democracy has held sway and become established since then. It is considered as a beacon of hope for democracy in Africa and is also one of the most peaceful and stable countries on the continent. The country’s Fourth Republican (or 1992) Constitution was adopted by a referendum on 28 April 1992. For the first time in its history, the Constitution’s provisions on human rights and fundamental freedoms provide an extended scope for the enjoyment of the right to freedom of expression by incorporating the right to information and the right to academic freedom. This development represents a watershed moment in the country’s efforts to promote respect for human rights generally and freedom of expression in particular due to the vital role that freedom of expression plays in anchoring the respect for, and the enjoyment of, other categories of rights and freedoms. The Commonwealth Statement on Freedom of Expression, for example, has recognised that “[f]reedom of expression is the primary freedom, an essential precondition to the exercise of other freedoms. It is the foundation upon which other rights and freedoms arise.”1 In light of the above, the paper seeks to examine and analyse the relationship between freedom of expression and national security and address the issues of ensuring the requisite balance between the competing interests of national security and freedom of information (FOI) in the context of promoting and protecting the public’s right to know. Freedom of Expression – Origins Right to information is derived from freedom of expression whose recognition can be traced, from the perspective of liberal rights jurisprudence, from the notion of tolerance. Tolerance is about the space that governments should allow for the enjoyment of freedom of religion, thought and conscience and the separation of powers between state and religion.2 From the African perspective, on the other hand, Paulin Hountondji contends that freedom of expression was established through the space granted citizens of each African polity to 1

See Commonwealth Secretariat, London, “Annex to the Latimer House Guidelines on Parliamentary Supremacy and Judicial Independence for the Commonwealth” (June 1998), at 11. 2 Groffier and Paradis, eds., The Notion of Tolerance and Human Rights (Carleton: Carleton University Press, 1991).

talk through and debate over their differences of opinion till consensus was reached through the process of “palava” or “palaver.”3 In this connection, Busia, notes: The members of a traditional council allowed discussions, a free and frank expression of opinions, and if there was disagreement, they spent hours, even days if necessary, to argue and exchange ideas till they reached unanimity. Those who disagreed were not denied a hearing, or locked up in prison, or branded as enemies of the community. The traditional practice indicated that the minority must be 4 heard, and with respect and not hostility.

The significance of freedom of expression in the Akan society, for example, is articulated in the proverb which ascribes the crime of murder to a person who denies another person the opportunity to express his/her thoughts. It is of interest to note that John Humphrey, one of the architects of the Universal Declaration of Human Rights (UDHR), lumps all freedoms relating to expression, including opinion, information, communication and the press – together as "freedom of information."5 Freedom of Expression, Right to Information and National Security – The Links As Expressed in International Instruments Freedom of expression is recognised in the UDHR where it is provided under Article 19 as follows: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

The International Covenant on Civil and Political Rights (ICCPR) expands on this freedom under article 19 by, including how information can be sought, received and imparted. Thus, in clause 2 of this article, the ICCPR provides, inter alia, that this process of seeking, receiving and imparting information can be done “either orally, in writing or in print, in the form of art, or through any other media of his choice.” Also, the ICCPR recognises that the freedom has limitations and consequently seeks to clearly define the parameters within the freedom can be enjoyed. Thus, article 19 (3) stipulates: The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.” [emphasis added]

Thus, the ICCPR identifies, as one of the limitations to the enjoyment of freedom of expression, national security. As a result of national security being one of the limitations to 3

K.A. Busia, Africa in Search of Democracy (London: Routledge and Kegan Paul, 1967) at 28. G.B.N. Ayittey, Indigenous African Institutions (Transnational Pubs., Inc., 1991), at 240-241. 5 J. Humphrey, "Political and Related Rights", in Theodor Meron, ed., Human Rights in International Law, (Oxford: Clarendon Press, 1984), 171, at 183. 4

the unbridled enjoyment of freedom of expression, the impression has been created by governments generally, that the two are irreconcilable bedfellows. Thus, where issues of national security arise, freedom of expression, and by extension, right to information, must take cover. However, Coliver contends, rightly, that, “national security is not fundamentally at odds with freedom of expression and information.” A similar approach of limiting the enjoyment of freedom of expression is adopted by the regional conventions. The European Convention on Human Rights and Fundamental Freedoms expands on the limitations placed on the enjoyment of freedom of expression by providing in article 10(1) that “[t]his article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.” Further, article 10(2) provides that The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The American Convention on Human Rights, on its part, includes, in its provision on freedom of expression, the fact that the exercise of the right “shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure: respect for the rights or reputations of others; or the protection of national security, public order, or public health or morals.”6 The African Charter on Human and Peoples’ Rights, on its part, however, at first took a retrogressive step on the subject by only tersely providing in its article 9 thus: 1. Every individual shall have the right to receive information. 2. Every individual shall have the right to express and disseminate his opinions within the law.

However, realising this deficiency, at its 32nd Session,7 the African Commission on Human and Peoples’ Rights came up with the Declaration of Principles on Freedom of Expression in Africa, which provides an expanded meaning, scope and understanding of freedom of expression. The new dimension it brings to the table is, among others, the recognition that “freedom of expression and information ... is a fundamental and inalienable human right and an indispensable component of democracy.”8 Further, article 1(2) provides that “Everyone shall have an equal opportunity to exercise the right to freedom of expression and to access information without discrimination,” thereby recognising the important link between freedom of expression and right to information. 6

Article 13(2)(a) and (b) thereof. African Commission on Human and Peoples' Rights Ordinary Session held 17 - 23 October, 2002 in Banjul, The Gambia. 8 Article I(1) of the Declaration of Principles on Freedom of Expression in Africa. 7

To add more teeth to the notion of free expression, article IV of the document provides a detailed outline of freedom of information. In particular, clause 1 of article IV provides that public bodies hold information as “custodians of the public good” but not for themselves and that “everyone has a right to access this information, subject only to clearly defined rules established by law.” The same article provides protection for whistleblowers, inter alia, that they can only be sanctioned “where the imposition of sanctions serves a legitimate interest and is necessary in a democratic society.” Further it calls for secrecy laws to be amended “as necessary to comply with freedom of information principles.” The African Commission therefore sets the relationship not only between freedom of expression and national security but broadens the discussion to cover the links between freedom of expression and the right to information. Sturges contends in support of this position thus: Although set out as a right to opinion and the expression of opinion, it contains within it the right to freedom of access to information, expressed as the rights to seek, receive and impart information. Article 19, and its various re-statements in subsequent documents, provides a solid basis for a system of freedom of access to information, if supplemented by further legislation, regulation and 9 professional practice.

Also, Kumado notes that Indeed the purist might argue that freedom of expression necessarily entails information rights. For it is usual to conceptualise freedom of expression as the right to receive and to impart ideas and 10 information.

It is for this reason that various countries have sought to specifically recognise the right to information in its Constitution or Bill of Rights and/or or to enact a right to information legislation.11 The paper adopts the definition of access to information provided by Kofi Kumado thus: A process or a state of affairs which creates or provides opportunities for the people to get at or receive, either through their own initiative or governmental action, information generated, received, collected or stored by or available to government. In this context, government refers to all public 12 authorities and public officers.

Ghana’s Position on Freedom of Expression and Right to Information 9

Paul Sturges, “Freedom of Access to Information: A Paradigm for The Information Professions”: www.ifla.org/files/faife/publications/sturges/paradigm.pdf at 2. 10 C. E. K. Kumado, “The State of the Law Relating to Access to Information,” in Dawn Routledge, et al, eds., Proceedings of the Information for Accountability Workshop (Held at the British Council Ghana Auditorium, 3031 August 2000, Accra, Ghana; organised by Ghana Integrity Initiative and Rights and Records Institute, The International Records Management Trust), 37 at 39. 11

African countries which have so far enacted right to information laws are Ethiopia, Guinea, Liberia, Niger, Nigeria and Tunisia. Similar legislation is presently in advanced stages or nearing adoption in several other African countries, including Botswana, Ghana, Kenya, Mozambique, Namibia, Rwanda, Sierra Leone, South Sudan, and Zambia. 12

K. Kumado, supra note 11 at 38.

Ghana’s the 1992 Constitution contains important references recognising the right to freedom of expression and the right to information as well as steps that need to be taken to promote national security. Among others, the Constitution recognises the need for transparency and accountability in the conduct of government business by affirming the people’s solemn declaration and affirmation to among others, probity and accountability; and to the principle that “all powers of Government spring from the Sovereign Will of the People.” Further, article 1 (1) of the Constitution affirms that The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution.

Commenting on this provision, Kumado notes that Data or other information held or available to government have been collected with the taxes paid by the people and by the exercise of the authority derived from the people. Therefore, the information in government hands actually belongs to the people. This Article thus makes it difficult to justify 13 holding back information from the people, to whom it belongs.

The right to information is specifically recognised in the 1992 Constitution which provides under article 21(1)(f) thus: “All persons shall have the right to information, subject to such qualifications and laws as are necessary in a democratic society.” By the inclusion of the specific right to information as well as academic freedom, Ghana’s Constitution seeks to attach special importance to the need for the public to obtain and use information to enable a holistic enjoyment of freedom of expression in the country. In the words of Kumado, “[w]e can assume that the presence of the two provisions in the constitutional document is to give due recognition to the empowering character of information.”14 Thus, in considering the exercise and enjoyment of the right to information, one may refer, ensemble, to article 21(1)(a) and (b) which provide as follows: All persons shall have the right to (a) freedom of speech and expression, which shall include freedom of the press and other media; (b) freedom of thought, conscience and belief, which shall include academic freedom;

One may further refer to articles 162 and 163 of the Constitution which, respectively, guarantee freedom and independence of the media (and thereby buttress freedom of the press). Further, they impose an obligation on the state media to provide fair opportunities and facilities for the presentation of divergent views and dissenting opinions. In the case of New Patriotic Party v. Ghana Broadcasting Corporation, Francois JSC noted, “It seems clear, that the Constitution spells out unambiguously a primary objective of making information readily available to allow for valued judgments from all its citizenry.”15 Indeed, in the 1979

13 14 15

Ibid, 47. Ibid, 39.

Constitution (Third Republican Constitution of Ghana), article 28(2) dealt with the same subject-matter but placed it directly under the rubric of freedom of expression. Further reference can be made to Article 162 (5) which places an obligation on the mass media to monitor and ensure compliance of the Constitution by the government: All agencies of the mass media shall, at all times, be free to uphold the principles, provisions and objectives of this Constitution, and shall uphold the responsibility and accountability of the government to the people of Ghana.

Freedom of speech and expression and freedom of thought, conscience and belief, as provided in the Constitution of Ghana are subject to both general and specific limitations. Under the Constitution, general limitations are found in article 12(2) thereof which provides that every person in Ghana is entitled to the rights provided in the Constitution “subject to respect for the rights and freedoms of others and for the public interest.” 16 Specific limitations affecting freedom of expression are found under article 21(4)(c) and (e) which provides: (4) Nothing in, or done under the authority of, a law shall be held to be inconsistent with, or in contravention of, this article to the extent that the law in question makes provision (c) for the imposition of restrictions that are reasonably required in the interest of defence, public safety, public health or the running of essential services, on the movement or residence within Ghana of any person or persons generally, or any class of persons; or (e) that is reasonably required for the purpose of safeguarding the people of Ghana against the teaching or encourages disrespect for the nationhood of Ghana, the national symbols and emblems, or incites hatred against other members of the community except so far as that provision or, as the case may be, the thing done under the authority of that law is shown not to be reasonably justifiable in terms of the spirit of this Constitution.

On the other hand, the enjoyment of the right to information is made “subject to such qualifications and laws as are necessary in a democratic society.” Also, articles 162 and 163 are subject to laws that are “reasonably required in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of other persons.”17 The Constitution of Ghana gives ample attention to the links that should exist between freedom of expression, including right to information, and the limitations imposed on its enjoyment in the name of national security. Other limitations on freedom of expression, and by extension, the right to information, which are derived from statute law included the criminal libel and seditious laws which formed part of the existing law before the coming into force of the Constitution, 1992 but have been repealed.18

16

Public interest in the Constitution is defined under article 295 as “includ[ing] any right or advantage which enures or is intended to enure to the benefit generally of the whole of the people of Ghana.” 17 Article 164 of the Constitution. 18 See details below.

It is equally important to refer to, among others, articles 18(2) and 19 of the Constitution, on privacy and fair trial, respectively. As indicated by Sturges, Any formal statement on rights of access to information is likely to be qualified by the identification of exceptions: national security and the protection of personal privacy are the most common examples. Ironically these two principles are increasingly in conflict with each other as the demands of the guardians of national security lead to heightened pressure to open more and more of the activities of the individual to official surveillance. However, if we treat them separately as limits to social transparency, they reveal two different areas of human rights that call for careful balancing by governments that take such rights seriously. Privacy quite simply sets one human right against another (access to information) and calls for government to find equitable ways of reconciling the two. National security, on the face of it, sets the power of government up against the right of access 19 to information.

Article 18(2), on right to privacy, provides: No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others.

In this regard, Kumado notes: Article 18 can be used both as a shield and a sword by the individual and government alike. Thus access may be denied on the grounds that it will violate the privacy rights of others. On the other hand, one may deduce from the article a right of an individual to know (a) what information government has collected on him/her; (b) why it is collecting it; (c) who has access to this information 20 and (d) who has accessed it.

Article 19, on its part, deals with the right to a fair trial which can be compromised during trials alleged to be affecting national security. Also worthy of note, in this connection, is article 135 which deals with access to information in relation to the judicial process and the administration of justice. The article grants the Supreme Court the final say where the needs of the judicial process conflict with the desire of government not to disclose information. The Court is to order disclosure unless, in its opinion, disclosure will be “prejudicial to the security of the state or injurious to the public interest”. Its proceedings for the determination of this issue are to be held in camera. Ghana and National Security The 1992 Constitution of Ghana does not contain a definition of “national security”. Neither is it directly defined in any statute. The Security and Intelligence Services Act, 1996 (Act 526) (SIS Act)21 comes closest to defining the concept by describing what constitutes “threats to the security of Ghana” under section 42 of the Act, which includes

19

Sturges, supra note 9 at 12. C.E.K. Kumado, supra note 10 at 38. 21 The long title of the Act reads: “An Act to make provision in respect of the National Security Council; to provide for the establishment of Regional and District Security Councils, to specify some of the state agencies responsible for implementing government policies on security of the State and attendant issues on or relating to the internal and external security of Ghana and to provide for related matters.” 20

(a) espionage or sabotage that is against Ghana or is detrimental to the interest of Ghana or activities directed towards or in support of such espionage or sabotage; (b) foreign influenced activities within or relating to Ghana that are detrimental to the interest of Ghana and are clandestine or deceptive or involve a threat to any person; or (c) activities within or relating to Ghana directed towards or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political objective within Ghana or a foreign state.”

One can also infer an understating of national security in the Ghanaian context from the use of phrases such as acts “injurious to the public interest” 22 or “prejudicial to the security of the State.”23 Further reference can be made to acts which may prejudice the “defence of Ghana”24 and the maintenance of “public order” and “public safety;”25 as well as acts “prejudicial to the detection, prevention or suppression of terrorism, sabotage or espionage.”26 Furthermore, one can also touch on acts affecting the “trade secrets or financial, commercial, scientific or technical information that belongs to the Government and the information has monetary or a potential monetary value.”27 Finally, one can allude to one of the roles of the NSC, which is to “protect the State against threats of espionage, sabotage, terrorism, hijacking, piracy, drug trafficking and similar offences.”28 References to Freedom of Expression and National Security in the Constitution Article 69(12) of the Constitution provides that where proceedings are being held in Parliament for the removal of the President from office, in the interest of national security, the proceedings may be held in camera by an order of Parliament. While this provision may be a legitimate limitation,29 the Constitution does not specify the basis and the grounds upon which the public would be denied access to such proceedings in the name of national security. Such a provision would be necessary to avoid the situation envisaged by principle 2(b) of the Johannesburg Principles which provides as follows: (b) In particular, a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to suppress industrial unrest.

22

For example, articles 121(2) and (3) and 135 of the 1992 Constitution. Ibid. 24 For example, article 31(9) of the 1992 Constitution. 25 For example, article 126(3) of the 1992 Constitution. 26 Right to Info Act section 9(b) 27 Right to Info Bill section 10 28 Section 12(c) of the Security and Intelligence Services Act, 1996 (Act 526). 29 Refer to eg., Principle 2 of the Johannesburg Principles which provides: “A restriction sought to be justified on the ground of national security is not legitimate unless its genuine purpose and demonstrable effect is to protect a country's existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government.” 23

Article 121(2) of the 1992 Constitution stipulates that a public officer30 shall not be required to produce before Parliament a document where the Speaker or the National Security Council certifies that the document belongs to a class of documents, the production of which is injurious to the public interest or prejudicial to the security of the State, respectively; or that disclosure of the contents of the document will be injurious to the public interest or prejudicial to the security of the State, respectively.31 Where doubt arises as to the nature of a document such as is referred to in clause (2) of article 121, the Speaker or the National Security Council, as the case may be, shall refer the matter to the Supreme Court for determination whether the production, or the disclosure of the contents of the document would be injurious to the public interest or, as the case may be, prejudicial to the security of the State. Read together with article 135 of the Constitution, such a hearing shall be held in camera.32 In the case of Badu v Republic,33 it was held, among others, that article 124 of the suspended Constitution, 1969, gave exclusive jurisdiction to the Supreme Court to decide whether the contents of an official document such as the minutes of the Judicial Council or any portion thereof should be ordered to be disclosed or tendered at the trial. The trial judge therefore erred in refusing to refer the question of privilege raised in respect of the minutes to the Supreme Court for determination and that the error had occasioned a miscarriage of justice. These provisions may be justified under Principle 2(a) of the Johannesburg Principles. 34 However, the Constitution does not provide space for the ordinary citizen who may feel that the denial of disclosure is not justified and therefore would want the Supreme Court to intervene? This constitutional provision may therefore pose a limitation on the enjoyment of the right of access to information. The Constitution establishes the National Security Council (NSC) under article 83 thereof while 84(b) identifies one of the functions of the Council which relates to information gathering as follows:

30

"Public office" includes “an office the emoluments attached to which are paid directly from the consolidated Fund or directly out of moneys provided by Parliament and an office in a public corporation established entirely out of public funds or moneys provided by Parliament.” See article 295 of the 1992 Constitution. 31 Reproduced in Section 38 of the SIS Act. 32 Article 135 reads: “(1) The Supreme Court shall have exclusive jurisdiction to determine whether an official document shall not be produced in court because its production or the disclosure of its contents will be prejudicial to the security of the State or will be injurious to the public interest. (2) Where any issue referred to in clause (1) of this article arises as to the production or otherwise of an official document in any proceedings before any court, other than the Supreme Court, the proceedings in that other court shall be suspended while the Supreme Court examines the document and determines whether the document should be produced or not; and the Supreme Court shall make the appropriate order. (3) The proceedings of the Supreme Court as to whether an official document may be produced shall be held in camera.” 33 (1974) 2 GLR 361. 34 It reads: “A restriction sought to be justified on the ground of national security is not legitimate unless its genuine purpose and demonstrable effect is to protect a country's existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government.”

[E]nsuring the collection of information relating to the security of Ghana and the integration of the domestic, foreign and security policies relating to it so as to enable the security services and other departments and agencies of the Government to co-operate more effectively in matters relating to national security.

The enabling legislation setting up the National Security Council is the SIS Act.35 Section 18 of the Act sets up the office of the National Security Coordinator and section 19 outlines his/her functions. Among those that relate to freedom of expression and national security are found in section 19(b) and (d) which read as follows, to: (b) collate and evaluate intelligence reports relating to national security and ensure dissemination of the information within the Government as appropriate; (d) assist the relevant Intelligence Agency to gather defence intelligence both internal and external and use the information to detect and prevent threats to the security of the State.

In the fulfilment of these mandates under the Constitution and the enabling legislation, both the National Security Council and its Coordinator are not immune from investigation, litigation or prosecution. Section 21 of the Act provides for the investigation of complaints against an intelligence agency for any omission in the performance of its duties by the Director of the Intelligence Agency concerned who shall examine the complaint and take such action as is appropriate within a period not exceeding 30 days from the date of receipt of the complaint. Where the complainant is dissatisfied with the action taken by the Director or where no action is taken by the Director, he/she shall submit a written complaint to the Chief Justice who shall call for the establishment of a Complaints Tribunal.36 The Tribunal shall be composed of a chair of the rank of a High Court Judge or a lawyer of comparable qualification plus two other persons with expertise in the field of intelligence work. The Tribunal shall issue its report within 60 days of its establishment. This provision is in conformity with Johannesburg Principle 22.37 However, the 60-day duration may turn out to be over stretched. In the end, the right of access to information may trump over issues of national security, the time period involved may be unduly prolonged where the information needs to be obtained more speedily. One of the three limitations which may prevent the Tribunal from reviewing a case is where the forum is of the view that its activities would be “prejudicial to the national security.”38 This limitation, however, is subject to possible abuse as the law does not provide alternative means for resolving such an impasse. For example, who determines that the proceedings will jeopardise national security? Further, where such a decision is taken, will that leave the complainant, no matter how credible his/her case may be, bereft of any form of 35

The security agencies of the State are the Ghana Armed Forces (comprising of the army, navy and air force); Ghana Police Service (GPS); Ghana Immigration Service (GIS) and Customs, Excise & Preventive Service (CEPS); and, the intelligence organisations are the Bureau for National Investigation. 36 Provided for under section 22 of the SIS Act. 37 Principle 22 on the right to trial by an independent tribunal: (a) At the option of the accused, a criminal prosecution of a security-related crime should be tried by a jury where that institution exists or else by judges who are genuinely independent. The trial of persons accused of security-related crimes by judges without security of tenure constitutes a prima facie violation of the right to be tried by an independent tribunal. 38 Section 23 of the SIS Act.

compensation or relief? It is rather proposed that in such situations, the Tribunal should sit in camera. The Tribunal may also exclude from its proceedings persons, apart from the parties to the action, where it considers it necessary “in the interest of defence, public safety, public order, public morality or the protection of the private lives of persons concerned in the proceedings.”39 If that should happen the Tribunal shall be expected to fulfil the requirements of Johannesburg Principle 2.40 Where a warrant is needed to enable an intelligence agency to perform its functions, its Director may apply for one, specifying among others, where the warrant is required to enable the agency to investigate a threat to the security of Ghana or to perform its duties and functions under this Act; and, where the urgency of the matter and the information sought to be obtained through the warrant poses an important threat to the security of Ghana and the information cannot be obtained in any other way.41 In the situation where the purpose of the issuance of the warrant is to intercept communication, the application shall indicate (i) the type of communication proposed to be intercepted, the type of information, records, documents or things proposed to be obtained and the powers in paragraphs (a) and (b) of this section proposed to be used; and (ii) the identity of the person, if known, whose communication is proposed to be intercepted or who 42 has possession of the information, record, document or thing proposed to be obtained.

Only a Judge of the Superior Court shall have the power to issue a warrant authorising the interception of communications.43 The purpose is to limit possible abuse of the warrant to harass innocent citizens or opponents of the government in power in the name of national security. However, it is required that legislation be enacted specifying “in detail the precise circumstances in which such interferences may be permitted,” according to the Human Rights Committee’s General Comment 16 on article 17 of the ICCPR on privacy.44 Ghana does not have such legislation. Therefore, there will be no standard to use to measure the decision by the Judge to issue the warrant.

39

Section 24(1) of the SIS Act. Principle 2(a): A restriction sought to be justified on the ground of national security is not legitimate unless its genuine purpose and demonstrable effect is to protect a country's existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government. (b) In particular, a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to suppress industrial unrest. 41 Section 30(1)(b) of the SIS Act. 42 Section 30(1)(c)(i) and (ii) of the SIS Act. 43 Section 30(2) of the SIS Act. 44 Paragraph 45 of General Comment 16. 40

The SIS Act provides that an employee of an intelligence agency shall not disclose any information obtained in the performance of his duties under this Act except required by virtue of this Act or other enactment.45 This provision notwithstanding, an intelligence agency may permit the disclosure of information by an employee under the Act to (a) a public officer who has authority to investigate an alleged contravention of a law or to the Attorney-General if the information is required for an investigation or prosecution; (b) the Minister for Foreign Affairs if the information relates to the conduct of the international affairs of the country; (c) the Minister for Defence or a person designated by him if the information is relevant to the defence of the country; (d) the Chief Justice if the information is required by a competent court of judicature; (e) any Minister of State or person in the public service if in the opinion of the Director the disclosure of the information is essential in the public interest and the public interest outweighs any invasion of 46 privacy that may result from the disclosure.

According to section 37 of the Act, it is an offence to disclose information obtained in the performance of one’s duties for the intelligence agency and the identity of any other person who is or was a confidential source of information or assistance to the intelligence agency; or any person who is or was an employee engaged in covert operational activities of the intelligence agencies. Further, section 39 of the SIS Act says that “the provisions on disclosure of information in this Part is without prejudice to the privileges conferred on a person under Part VI of the Evidence Decree, 1975 (N.R.C.D. 323) in relation to disclosure of evidence.”47 The NSC, acting under the authority of a Minister to be appointed by the President is to present a report on the intelligence agencies of the State to Parliament.48 The fulfilment of this responsibility is to ensure the exercise of oversight responsibilities by Parliament over the intelligence and security agencies. However, the reports are not published on a regular (annual) basis as legally demanded. Legislation Though the 1992 Constitution adopts a liberal approach to dealing with access to information, some statutes maintain a generally restrictive posture as far as access to official information is concerned. Towards re-modelling Ghana’s laws to reflect the letter and spirit of the Constitution, some of these restrictive laws have been repealed or amended. Yet, others remain in the statute books. The Criminal Offences Act, 1960 (Act 29) Certain key provisions of this Act which criminalised free speech have been repealed, thereby enhancing the enjoyment of freedom of expression without limiting it in the name of national security. These include the criminal law of libel and seditious laws which were repealed under the New Patriotic Party government of John Agyekum Kufour (2001-2009), 45

Section 36 (1) This category of people is also bound by the oath of secrecy. 47 Refer below to Evidence Act. 48 Section 17 of SIS Act 46

through the Criminal Code (Repeal of Criminal Libel and Seditious Laws) (Amendment) Act, 2001 (Act 602). The Preamble to Act 602 states as follows: An Act to amend the Criminal Code, 1960 (Act 29), as amended, by the repeal of Chapter 7 of Part II on libel; section 182A on power of the President to ban organizations; section 183 on power to prohibit importation or publication of newspaper and sedition; section 183A on defamation of the President and section 185 on communication of false reports injuring the reputation of the State, in order to bring the laws on expression and the media into conformity with the provisions of the Constitution; and to provide for related matters.

The amending Act 602 also made provision for cessation of any pending proceedings and action and the discharge of accused persons in that respect. The decriminalisation of these laws meets the standard required under principle 1.1 of the Johannesburg Principles.49 Most of these laws were used by previous regimes to suppress dissent and incarcerate regime critics. An example is the Republic v Tommy Thompson Books Ltd, Quarcoo & Coomson50 where defence counsel contended that the offence of sedition in section 185 of the Criminal Code, 1960 (Act 29) was “unconstitutional and also antithetical to the broad libertarian spirit which animates the Constitution of the Fourth Republic.” Also, that “sections 112(2) and 117(1)(h)51 of the Criminal Offences, 1960 (Act 29), constituted an unreasonable limitation on freedom of the press and independence of the media guaranteed by article 162(1) and that they were not laws reasonably required in terms of article 164 of the Constitution.” The court unanimously held that although the offence of criminal libel was a limitation on freedom of the press and independence of the media, it was a law reasonably required in terms of article 164; that sections 112(2) and 117(1)(h) of the Code were constitutional and did not contravene the spirit and letter of the Constitution.52 The repealing of these draconian laws have helped to liberalise the space for journalists to engage in acts which some argue compromise national security. Thus, the then Minister of the Interior, Honourable Mr Hackman Owusu-Agyemang under the same Kufour regime, was quoted as saying that “much as the media would want to attract people to their news items, highlighting unconfirmed issues on national security would create unnecessary

49

The Principle states: (a) Any restriction on expression or information must be prescribed by law. The law must be accessible, unambiguous, drawn narrowly and with precision so as to enable individuals to foresee whether a particular action is unlawful. (b) The law should provide for adequate safeguards against abuse, including prompt, full and effective judicial scrutiny of the validity of the restriction by an independent court or tribunal. 50 [1996-97] SCGLR 804. Other related cases are Tommy Thompson Books Ltd (No 1) v The Republic [1996-97] SCGLR 312; Republic v Tommy Thompson Books Ltd (No 2) [1996-97] SCGLR 484 and Republic v Mensah-Bonsu [1994-95] GBR 130; and Republic v General Portfolio Ltd, High Court, Misc 932/96, unreported. 51 Section 112(2) of the Criminal Offences Act, 1960 (Act 29) created the offence of criminal libel while section 117(1)(h) created the defence of absolute privilege. 52 The other cases are

uncertainty and panic in the country.”53 But the decriminalisation of those laws cannot necessarily be blamed for compromising national security. The problem is rather about the impediments placed in the way of journalists to access information and how that compels them to find other means to obtain the same or report the half truths that they are able to access. An arrest made without showing cause for the arrest is illegal and may entitle the suspect to lawfully resist the arrest.54 The same principle was applied in Sammy Crabbe v Attorney General, Min. of Justice & Anor where the High Court upheld the reliefs sought by the Applicant in the case. That is, 1) A declaration that it is unconstitutional, unlawful and a breach of the fundamental human rights guaranteed by the 1992 Constitution of the Republic of Ghana for the respondents and/or any other body or institution which forms part of the organs of the government of Ghana to deny or refuse the applicant, any citizen of Ghana or anybody or institution the right to his or her lawyer(s) during an arrest, detention or restriction which the respondents (namely the Attorney-General and the Director of Bureau of National Investigations (BNI)) term as "an invitation" or "friendly chat" or during any meetings, conversations or interrogations or an) other forms of communication however same is termed with the respondent or any of its organs. 2) An order of perpetual injunction restraining the respondents from denying or refusing the applicant's constitutional right of accessing his lawyer(s) during an arrest, restriction or detention which the respondents term as an invitation" or "friendly chat" or during any meetings, conversations or interrogations or any other forms of communication however same is termed with the respondents or any of its organs.

In the same case, the court upheld the contention of the Respondents that the second Respondent, the Director of the BNI could not be made a party to the suit since by virtue of the Security and Intelligence Agencies Act, 1996 (Act 526), his functions relate to sensitive and confidential security matters of state under the supervision of a Minister assigned ministerial responsibility for the Security and Intelligence Agencies by the President. Making the 2nd respondent a party, therefore, is in utter violation of Article 88 (5) of the 1992 Constitution and section 9 (2) of the State Proceedings Act, 1998 (Act 555). The proper person to sue in this case was the Attorney-General. One of the few remaining references to the use of national security to place a cap on freedom of expression is found in section 208(1) of the Criminal Offences Act, 1960 (Act 29) which provides that “A person who publishes or reproduces a statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace knowing or having reason to believe that the statement, rumour or report is false commits a misdemeanour.” Also, in relation to the criminal jurisdiction of the courts of Ghana, it is stated in section 56(4)(k) of the Courts Act, 1993 (Act 496), that

53

Daily Graphic, 17 September 2003, cf S.Y. Bimpong-Buta, The Role of the Supreme Court in the Development of Constitutional Law in Ghana; submitted in accordance with the requirements for the degree of Doctor of Law at the University of South Africa. 54 Asante v The Republic [1972] 2 GLR 177 (HC).

A person whether a citizen or not, is liable to be tried and punished in Ghana if that person does an act which if done within the jurisdiction of the courts of Ghana would have constituted any of the following offences: unauthorised disclosure of an official secret of the Republic.

State Secrets Act, 1962 (Act 101) The present Act does not define “state secret”. Section 106(2) of the Evidence Act, 1975 (NRCD 323) rather does and defines "state secret" as [I]nformation considered confidential by the Government, that has not been officially disclosed to the public, and which it would be prejudicial to the security of the state or injurious to the public interest to disclose.

Section 1(1) of the State Secrets Act provides situations where access to information may be limited on the basis that it may compromise the security of the state. It stipulates: 1(1) Any person who, for any purpose prejudicial to the safety or interests of the Republic55 (a) approaches, inspects, passes over, or is in the neighbourhood of, or enters any prohibited place; (b) makes any sketch, plan, model or note that is calculated to be or might be or is intended to be directly or indirectly useful to a foreign power; or (c) obtains, collects, records, or publishes or communicates in whatever manner to any other person any secret official code word, or password, or any sketch, plan, model, article, or note, or other document or information that is calculated to be or might be or is intended to be directly or indirectly useful to a foreign power; commits an offence under this Act.

Section 1(1)(a) does not provide any limits on the exercise of the powers to deny access to state secrets. It therefore does not seem to meet the standard required under Johannesburg Principle 19 on access to restricted areas, which states, among others, that restriction on the free flow of information may not be of such a nature as to thwart the purposes of human rights and humanitarian law. 56 Additionally, the provision that information that might be useful to a foreign power does not necessarily lead to the conclusion that its passage into the hands of that foreign power may prejudice national security. The law must be made clear that, for example, this foreign power is an enemy power or more importantly that it is not merely the usefulness of the information to the foreign power but that the release of the information would jeopardise national security.57

55

Section 15 states that “prohibited place” means (i) a work of defence belonging to or occupied or used by or on behalf of the Republic including arsenals, naval, army or air force establishments or stations, factories, dockyards, mines, minefields, camps, ships, aircraft, telegraph, telephone, wireless or signal stations or offices, and places used for the purpose of building, repairing, making or storing any munitions of war or any sketches, plans, models, or documents relating to any of them, or for the purpose of getting any metals, oil or minerals for use in time of war; (ii) a place not belonging to the Republic where any munitions of war or any sketches, models, plans or documents relating to any of them, are being made, repaired, gotten or stored under contract with or with a person acting on behalf of the Republic; (iii) a place that is declared by an executive instrument by the President to be a prohibited place on the grounds that information with respect to or damage to, that place would be useful to a foreign power. 56 Principle 19: Access to Restricted Areas. 57 See, for example, section 3(3) of the State Secrets Act

The other subsections of section 1 should also be subjected to the test under Johannesburg Principle 1.2, that: Any restriction on expression or information that a government seeks to justify on grounds of national security must have the genuine purpose and demonstrable effect of protecting a legitimate national security interest.

Also, other sections of this law seem to violate a fundamental principle of natural justice which postulates that everyone is considered innocent until proven otherwise. For example, section 1(2) provides that it is not necessary, on a prosecution under this section, to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the Republic, and, notwithstanding that no such act is proved against him, he may be convicted if, from the circumstances of the case, or his conduct, or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the Republic. Also see subsection (4) which states: In proceedings against a person for an offence under this section, the fact of having been in communication with, or attempted to communicate with, an agent of a foreign power, whether within or outside the Republic, is evidence of that person having a purpose prejudicial to the safety or interests of the Republic obtained or attempted to obtain information that is calculated to be or might be or is intended to be directly or indirectly useful to a foreign power.

In this regard Johannesburg Principle 22 should apply. Section 3 of the Act relates to wrongful communication of information and provides as follows: (1) A person commits an offence who, having possession, or control of a secret official code word or password or a secret official document or information, (a) communicates that code word, password, document or information to any other person, other than a person to whom there is a lawful authority to communicate with, or a person to whom it is in the interest of the Republic a duty to communicate it, or (b) uses that information for the benefit of a foreign power or in any other manner, or (c) retains that document in the possession or control of that person when there does not exist a right to retain it or when it is contrary to the duty of that person to retain it or fails to comply with the directions issued by lawful authority with regard to the return or disposal of that document, or (d) fails to take reasonable care of, or so personally acts, as to endanger the safety of that secret official code word or password or that secret official document or information. (2) A person commits an offence who, having possession or control of a secret official code word or password or secret official document or information (a) that relates or is used in a prohibited place or anything that is in that place, or (b) that has been made or obtained in contravention of this Act, or (c) that has been entrusted in confidence to that person (i) by a person holding office under the Republic or by reason of a position as a person who holds or has held office under the Republic, or (ii) as a person who holds or has held a contract made on behalf of the Republic or a contract the performance of which in whole or in part is carried out in a prohibited place, or

(iii)

as a person who is or has been employed under a person who holds or has held that office, does any of the acts referred to in paragraphs (a), (b), (c), and (d) of subsection (1).

(3) A person commits an offence who, having the possession or control of a document or an information that relates to munitions of war, communicates it directly or indirectly to a foreign power, or in any other manner prejudicial to the safety or interests of the Republic. (4) A person commits an offence who receives a secret official code word or password or a secret document or an information, knowing or having reasonable grounds to believe, at the time when it was received that the code word, password, document or information is communicated in contravention of this Act, unless it is proved that the communication of the code word, password, document or information was contrary to the desire of that person. (5) A person commits an offence if that person (a) retains for a purpose prejudicial to the safety or interests of the Republic an official document, whether or not completed or issued for use, when that person does not have a right to retain it, or when it is contrary to duty to retain it, or fails to comply with the directions issued by a Government department or a person authorised by the department with regard to the return or disposal of that document, or (b) allows any other person to have possession of an official document issued for the use of that person alone, or communicates a secret official code word or password so issued, or, without lawful authority or excuse, has possession of an official document or secret official code word or password issued for the use of any other person, or on obtaining possession of an official document by finding or otherwise, neglects or fails to restore it to the person or authority by whom or for whose use it was issued, or to a police officer.

The section 3 provides legitimate intrusions on access to information, privacy and freedom of expression generally. Evidence Act, 1975 (NRCD 323) Sections 106 and 107 of the Evidence Act, relate directly to rules regulating disclosure or otherwise of state secrets. Subsection 2 of section 106 stipulates that the Government has a privilege to refuse to disclose and to prevent any person from disclosing a state secret except under the following exemptions: first, where it is allowed as provided by section 107 of the Evidence Act or by any other enactment. And second, unless the need to preserve the confidentiality of the information is outweighed by the need for disclosure in the interest of justice. The Government's privilege under subsection (1) of section 106 may be claimed only by the member of the Government responsible for administering the subject matter which the secret of state concerns, or by a person authorised in writing to claim the privilege by such member.58 Section 107 grants the Government the privilege to protect the identity of a person who has supplied it information purporting to reveal the commission of a crime or a plan to commit a crime. Section 92 of the Act stipulates that

58

Section 106(3) of the Evidence Act.

(1) Subject to subsection (2), the presiding officer [of a court] may not require disclosure of information claimed to be privileged in order to rule on the claim of privilege. (2) Where a Court has to rule on a claim of privilege under section 105, 106 or 107 relating to State secrets, informants, and trade secrets and cannot do so without requiring disclosure of the information claimed to be privileged, the Court may require the person from whom disclosure is sought or a person authorised to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of any other persons, except the person authorised to claim the privilege and a person who the persons, except the person authorised to claim the privilege and the person who the person authorised to claim the privilege is willing to have present. (3) Where the justice determines that the information is privileged, neither the justice nor any other person shall ever disclose, without the consent of a person authorised to permit disclosure, what was disclosed in the course of the proceedings in chambers.

Whistleblower Act, 2006 (Act 720) This Act has as its purpose, “to provide for the manner in which individuals may in the public interest disclose information that relates to unlawful or other illegal conduct or corrupt practices of others; to provide for the protection against victimisation of persons who make these disclosures; to provide for a Fund to reward individuals who make the disclosures and to provide for related matters.”59 The Act describes a “whistleblower” as a person who makes a disclosure of impropriety.60 Such a person may make a disclosure of information where he/she has reasonable cause to believe that the information tends to show (a) (b) (c) (d) (e) (f)

an economic crime has been committed, is about to be committed or is likely to be committed; another person has not complied with a law or is in the process of breaking a law or is likely to break a law which imposes an obligation on that person; a miscarriage of justice has occurred, is occurring or is likely to occur; in a public institution there has been, there is or there is likely to be waste, misappropriation or mismanagement of public resources; the environment has been degraded, is being degraded or is likely to be degraded; or the health or safety of an individual or a community is endangered, has been endangered or is likely to be endangered.

These conducts all have the potential to endanger national security. Therefore, providing opportunities for persons to blow the whistle is a positive way of using freedom of expression to promote national security. More importantly, it promotes right of access to information. The Whistleblower Act seems to imply that all the references to secrecy and limitations on disclosure may be set aside where it can be established that impropriety is involved.

59 60

Long title to the Act. Section 1(3)

Civil Service Act, 1993 (PNDCL 327) In Ghana, the civil service is part of the public service61 and it includes service in both central and local governments.62 Civil servants, in the course of performing their administrative functions, do generate, come into contact with and handle various types of information. They are expected to hold such information jointly with government and in trust for the State and people of Ghana. In their position as custodians of this information they are to retain, protect, as well as to use and to communicate the information as and when ordered to do so, or is deemed appropriate to do so.63 Section 4 of the Oaths Act, 1972 (NRCD 6) provides that any officer who fails to submit to a prescribed oath shall be deemed to have vacated the office counting from the date of refusal. If he/she has not already assumed the position, the person would be disqualified from taking that post. Among the categories of person who are to take this oath are “[a]ll civil servants or any other persons holding office or executing official functions as the President may by executive instrument designate.”64 In addition, section 90 of the Civil Service Act provides that persons recruited into the Civil Service shall swear the oath of allegiance, the oath of secrecy and the official oath. 65 It is also provided that a civil servant shall not be considered for the first promotion unless evidence is made available of the compliance with subsection (1) by that civil servant. Information disclosure by civil servants is tightly regulated. For example, section 76(h) provides that “[w]ithout prejudice to the generality of section 75, it is misconduct for a civil servant to make an unauthorised disclosure of classified or unclassified official information or document to a private person or to another public officer.” One may also refer, for example, to regulation 7 of LI 47 which states: Any report, statement, or record of any meeting, inquiry or proceedings, which the Commission may make in exercise of its functions or any Member may make in performance of his duties and any communication sent to the Commission on a matter with which the Commission is concerned or any communication sent by the Commission to a civil servant in his official capacity, shall be privileged in that its production may not be compelled in any legal proceedings if the President on the advice of the Commission certifies that such production is not in the public interest.

This regulation, however, contradicts what obtains in the Civil Service Code of Conduct which provides, among others, that “[c]ivil servants should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and

61

Article 295 of the Constitution Civil Service (Interim) Regulations, 1960 (L.I. 47). 63 Dr R. Dodoo, “Access to Information and Civil Service Reforms,” in D. Rougtledge et al, eds, supra note 10, 21 at 23. 64 See Second Schedule to the Act. 65 See details on the oaths below. 62

restrict access to information only when the wider public interest clearly demands that the information should not be released.”66 The guiding principles of the Code of Conduct for the Ghana Civil Service also provide information which affect access to information. For instance, a Civil Servant shall not seek to frustrate the policies, decisions or actions, of Government by the unauthorised, improper, or premature disclosure of any information to which he has had access as a Civil Servant.67 Armed Forces Act, 1962 (Act 105) Under article 210 of the Constitution of the Republic of Ghana, the Armed Forces of Ghana consists of the Army, the Navy and the Air Force and such other services for which provision is made by Parliament. Section 16 of the Armed Forces Act provides as follows: Every person subject to the Code of Service Discipline who (a) improperly holds communication with or gives intelligence to the enemy, (b) without authority discloses in any manner whatsoever any information relating to the numbers, position, material, movements, preparations for operations of any of the Armed Forces or of any forces co-operating therewith, (c) without authority discloses in any manner whatsoever any information relating to a cryptographic system, aid, process, procedure, publication or document of any of the Armed Forces or of any forces co-operating therewith, (d) makes known the parole, watchword, password, countersign or identification signal to any person not entitled to receive it, (e) gives a parole, watchword, password, countersign or identification signal different from that which he received, (f) without authority alters or interferes with any identification or other signal. (j) does or omits to do anything with intent to prejudice the security of the Armed Forces or any forces cooperating therewith, shall be guilty of an offence and on conviction, if he acted treasonably shall suffer death, and in any other case shall be liable to imprisonment for life or to any less punishment provided by this Act.

Also to mention in the context of the Armed Forces is the Armed Forces Council. It is set up under the Constitution with the mandate “to advise the President on matters of policy relating to defence and strategy including the role of the Armed Forces, military budgeting and finance, administration and the promotion of officers above the rank of LieutenantColonel or its equivalent.”68 It is mandated to publish annual reports to Parliament which shall afterwards become public document. Thus, through this means some information which may be considered confidential shall become public knowledge. However, the 66

Office of the Head of Civil Service, Code of Conduct for the Ghana Civil Service: Part II – Guiding Principles of Code 2 (e) Transparency. 67 Ibid, Part V – Information/Disclosure of Classified Material 16 (2). 68 Article 214 of the Constitution

information contained in such annual reports is also made subject to the disclosure in the name of national security. For example, the annual budget of the armed forces is mentioned but not the details as to what the money was used to buy each equipment. Moreover, the reports are not published on a regular annual basis. The Armed Forces Council is empowered to set up a court martial which has jurisdiction over military officials and to some extent civilians in relation to military disciplinary offences as spelled out by the Armed Forces Act, 1962.69 In addition, the Special Military Tribunal Act, 1982 (PNDC Law 19) allows for the setting up of this tribunal to try offences such as the commission of a coup d’état or invasion of the territory of Ghana. Both tribunals are, however, held in public. This rule notwithstanding, the trial of a person accused of the commission of an offence under subsection (1) of section 1 of this Law may be held in camera.70 It is also pertinent to refer to regulations 10 and 11 of Regulation 10 provides: If the Attorney-General or any person authorised in that behalf, certifies that, for reasons of security, the whole or part of the proceedings or other document, exhibit or other thing ought not to be disclosed subject to certain conditions specified by the person who so certifies, the Registrar shall, notwithstanding any provision of these Rules to the contrary, not permit inspection or supply a copy thereof without an order of the Court which may direct upon what conditions, if any, inspection shall be permitted or a copy supplied.

And Regulation 11: Nothing in these Rules shall affect any rule of law which authorises or requires the withholding of any document or the refusal to answer any question on the ground that the disclosure of the document or the answering of the question would be injurious to the public interest.

Police Service Act, 1970 (Act 350) The Ghana Police Service is established under article 200 of the Consittution of Ghana with the responsibility to “maintain law and order.” This constitutional mandate is backed by the Police Service Act, 1970 (Act 350). It is considered an offence under the Police Act for a police officer “to divulge any confidential information to a person not authorised to receive it. 71 Under section 36(1) of the Police Service Act, the IGP is mandated to prepare and submit an annual report at the end of June of each year and present it to Parliament in the performance of the latter’s exercise of oversight responsibilities over the police. The report is supposed to cover details of the administration of the Police Service and the Volunteer Police Reserve during the previous twelve months.

69

The Armed Forces (Court Martial Appeal Court) Regulations, 1969 (L.I. 662) The Special Military Tribunal (Amendment) Law, 1984 (PNDCL 77). 71 Section 17(j) of the Police Service Act. 70

Information of proceedings of the Police Council72 is not made public except, for example, the decision of an appeal submitted by a Police officer to the Council for review. In this case, the Council will submit a copy of its decision to the affected officer only. Anti-Terrorism Act, 2008 (Act 762) Under this law, among the various acts considered as amounting to act of terrorism is an act which prejudices national security or public security and is committed in furtherance of a political, ideological, religious, racial or ethnic cause.73 Also included in this category is an act designed or intended to disrupt a computer system or the provision of services directly related to communications.74 The rules of evidence are relaxed in the effort to fight, suppress or detect acts of terrorism. Thus, section 20(3) of Act 762 states that the court may receive in evidence information obtained from the Government, an institution or agency of a foreign state or an international organisation if the information is reliable and relevant even if the evidence is not admissible under the Evidence Act, 1975 (N.R.C.D. 323). Also, section 34(4) of Act 762 stipulates that notwithstanding the Evidence Act, information contained in a communication which is intercepted and retained in a foreign state in accordance with the law of the foreign state and certified by a judge of that foreign state to have been intercepted, is admissible in proceedings for an offence under the Act as evidence of the truth of its contents even if it contains hearsay subject to the information being corroborated. Section 34(1) of the Act also provides that a police officer not below the rank of an Assistant Commissioner of Police (ACP) may apply ex parte to a Circuit Court for an order to intercept communications for the purpose of obtaining evidence of commission of an offence under the Act. A police officer not below the rank of an ACP may make the application only with the prior written consent of the Minister. Upon receipt of an application made under section 34(1), the judge may make an order for allowing for interception of communications of a specified description received or transmitted or about to be received or transmitted by a communications service provider. Further, the judge could authorise a senior police officer to intercept or listen to a conversation provided by a communications service provider, or authorise the senior police officer to enter and install on a premises a device for the interception and retention of specified communications. All these are subject to the fact that there is reasonable suspicion of commission of an offence under this Act, or the whereabouts of a person suspected by the police officer to have committed an offence is contained in that communication.

72

According to article 203 of the Constitution, “The Police Council shall advise the President on matters of policy relating to internal security, including the rule of the Police Service, budgeting and finance, administration and the promotion of officers above the rank of Assistance Commissioner of Police. 73 Section 2(1)(h) of the Anti-Terrorism Act. 74 Section 2(1)(h)(i) of the Anti-Terrorism Act.

Additionally, the law allows for disclosure of information of passengers aboard a vessel or aircraft which is arriving or leaving the country to the Inspector-General of Police or to the competent authorities of a foreign state. The Director of Immigration may also provide information relating to persons entering or leaving the country by land to the competent authority in a foreign state.75 The use of the information provided to the IGP shall not be used or disclosed except to protect national security or public safety.76 Habeas Corpus Act, 1964 (Act 244) This Act seeks to ensure, among others, that a person is not arrested and detained incommunicado in the name of national security. Therefore the Act allows for a person who is arrested and alleges that he/she is being unlawfully detained to make an application to the High Court or any Judge thereof for an enquiry into the cause of the detention.77 This is in line with principle 21 of the Johannesburg Principles which reads: All remedies, including special ones, such as habeas corpus or amparo, shall be available to persons charged with security-related crimes, including during public emergencies which threaten the life of the country, as defined in Principle 3. A number of cases have come before the courts relating to the application of habeas corpus. Two of such cases, which were decided during the third republican era (under the 1979 Constitution), held, inter alia, that the Habeas Corpus Act, 1964 (Act 244), had not been abrogated by the Constitution of 1979 since it was not in conflict with the Constitution; and that the Constitution was supposedly promulgated for the good governance of the State and for the assurance of the fundamental human rights of the citizens and the Act was created to serve the similar purpose.78 Emergency Powers Act, 1994 (Act 472) Under this Act, an emergency may be triggered, among others, by the creation of a situation which “renders necessary the taking of measures which are required for securing the public safety, the defence of Ghana and the maintenance of public order and of supplies and services essential to the life of the community.”79 Where such a situation arises, the President shall declare a state of emergency. However, the President will be required to inform Parliament immediately about the facts and circumstances leading to the declaration of the state of emergency.80 Parliament then has seventy-two hours, after notification by the President, to decide whether the proclamation should remain in force or be revoked. The President shall be compelled to act in accordance with the decision that Parliament will take.81 This is a positive way of controlling presidential 75

Section 36(1)-(3) of the Anti-Terrorism Act. Section 36(4) of the Anti-Terrorism Act. 77 Section 1(1) of the Anti-Terrorism Act. 78 Republic v. Commanding Officer of the Third Battalion of Infantry, Ghana Army; Ex parte Kwaku [1974] 2 G.L.R. 340 and Republic v. Chieftaincy Committee on Wiamoasehene Stool Affairs: Ex parte Oppong Kwame [1971] 1 G.L.R. 321. 79 Section 5 of the Emergency Powers Act. 80 Section 1(1) of the Emergency Powers Act. 81 Section 1(2) of the Emergency Powers Act. 76

excesses. However, in Ghana’s system of governance where voting by conscience is more or less non-existent, the exercise may have little significance in checking the anticipated abuses that the President may commit by wrongfully declaring a state of emergency. The five requirements which a state of emergency must satisfy, which are provided in article 4 of the ICCPR seem to be satisfied. According to Coliver, ... [T]his derogation is only allowable when (a) the emergency "threatens the life of the nation," (b) the emergency "is officially proclaimed," (c) the measures are "strictly required by the exigencies of the situation" and are "not inconsistent with [the state's] other obligations under international law," and (d) the measures "do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

Generally, the Constitution’s provisions on the use of emergency powers are in accord with article 4 of the ICCPR. The exception is article 31(10) which deals with suspension of rights during periods of emergency as it provides a blanket suspension of all rights, including nonderogable rights thus: Nothing in, or done under the authority of, an Act of Parliament shall be held to be inconsistent with, or in contravention of, articles 12 to 30 of this Constitution to the period when a state of emergency is in force, of measures that are reasonably justifiable for the purposes of dealing with the situation that 82 exists during that period.

This provision contradicts the ICCPR and the Johannesburg Principles. Article 4 of the ICCPR provides that while some rights can be derogated from during periods of emergency, others cannot: 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the SecretaryGeneral of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

The non-derogable rights mentioned under article 4(2) are the right to life,83 protection against cruel, inhuman or degrading treatment or punishment, protection against servitude and forced or compulsory labour;84 the right against imprisonment merely on the ground of inability to fulfil a contractual obligation;85 non-retroactive application of criminal 82

Also section 7 of the Emergency Powers Act. Article 6 of the ICCPR. 84 Article 8(2) of the ICCPR. 85 Article 11 of the ICCPR. 83

sanctions,86 the right to recognition everywhere as a person before the law,87 freedom of thought, conscience and religion.88 Yet, the Ghanaian Constitution stipulates that the enjoyment of the plethora of rights (both derogable and non-derogable) guaranteed under Chapter 5 of the Constitution can be suspended from during periods of emergency so long as it is “reasonably justifiable.” This particular provision therefore gives room for concern that it may lead to abuses in the name of national security during a period of emergency. Also refer to Principle 3 of the Johannesburg Principles: In time of public emergency which threatens the life of the country and the existence of which is officially and lawfully proclaimed in accordance with both national and international law, a state may impose restrictions on freedom of expression and information but only to the extent strictly required by the exigencies of the situation and only when and for so long as they are not inconsistent with the government's other obligations under international law.

As noted by Coliver, even the Johannesburg Principles do not envisage derogations and any restrictions on freedom of expression must be "strictly required" by the exigencies of the situation.89 Section 9 of the Emergency Powers calls for the Gazette publication of detained persons and periodic review of their continued detention by a tribunal composed of not less than 3 Justices of the Superior Court of Judicature appointed by the Chief Justice. The detainee shall be entitled to compensation where the detention was found to be unjustified. This provision is in line with international law and the Constitution and is supported by principle 22 of the Johannesburg Principles which provides that (a) At the option of the accused, a criminal prosecution of a security-related crime should be tried by a jury where that institution exists or else by judges who are genuinely independent. The trial of persons accused of security-related crimes by judges without security of tenure constitutes a prima facie violation of the right to be tried by an independent tribunal. (b) In no case may a civilian be tried for a security-related crime by a military court or tribunal.

The Emergency Powers Act also provides that a court sitting in a locality where an emergency has been declared may decide to hold proceedings in camera and prohibit or restrict the disclosure of information relating to its proceedings if it is satisfied that it is in the interest of the public safety or the defence of the State so to do.90 This provision is a legitimate one so long as exercised according to the dictates of the Constitution.

86

Article 15 of the ICCPR. Article 16 of the ICCPR. 88 Article 18 of the ICCPR. 89 S. Coliver, “Commentary to: The Johannesburg Principles on National Security, Freedom of Expression and Access to Information,” Human Rights Quarterly Vol 20. No. 1 (1998), 12-80 at 35. 90 Section 11 Emergency Powers Act. 87

Public Order Act 1994 (Act 491) The Public Order Act came into being following a Supreme Court decision in the case of New Patriotic Party v The Inspector General of Police.91 Before then, the law on the conduct of public demonstrations was regulated by the Public Order Decree, 1972 (NRCD 68) and the Public Order (Amendment) Law, 1983 (PNDCL 48). These laws required a permit from the Police before a public demonstration could be held. In this case, the Plaintiff’s application for a permit was, however, denied, following which it instigated the action to challenge the constitutional legality of these laws, among others, as violating the right to freedom of assembly as guaranteed by article 21(1)(d) of the Constitution. The Supreme Court unanimously granted the Plaintiff a declaration that certain sections of the Public Order Decree, 1972 (NRCD 68) were inconsistent with the Constitution and were, to the extent of such inconsistency, null and void.92 The court held that the laws severely limited the enjoyment of freedom of assembly in the name of national security by giving wide discretionary powers to the Minister of Interior and the Police to regulate and control public demonstrations.93 Following this development, Parliament passed the Public Order Act which sought to repeal the two laws. Section 1 of the new law stipulates that any person who desires to hold any demonstration in any public place shall notify the Police of his intention not less than 5 days before the date of the special event. Where the Police have reasonable grounds to believe that the special event, if held, may lead to violence or endanger public defence, public order, public safety, public health or the running of essential services or violate the rights and freedoms of other persons, the Police may request the organisers to postpone the special event to any other date or to the relocate the special event. In case the organisers refuse to comply with the request to relocate or postpone the special event or fail to notify the police officer, the responsibility falls on the Police to apply to the courts for an order to prohibit the holding of the special event on the proposed date or at the proposed location. The court may then make such order as it considers to be reasonably required in the interest of defence, public order, public safety, public health, the running of essential services or to prevent violation of the rights and freedoms of other persons. The enactment of this law represents a major innovation in improving the right to free assemble and expression without facing the wrath of the Police in the name of national security.

91

.

[1993-94] 2 GLR 459 The nullified sections included: section 7 which gave the Minister of Interior the power to prohibit the holding of public meetings or processions for a period in a specified area. The second is, section 8 which provided that the holding of all public processions and meetings and the public celebration of any traditional custom should be subject to the obtaining of a prior police permit. 93 The third is section 12(a) which gave a police officer an unfettered power to stop and cause to be dispersed any meeting or processions in any public place in contravention of sections 7 and 8; and section 13(a) which made it an offence to hold such procession, meetings and public celebration without permission. 92

Public Records and Archives Administration Act, 1997 (Act 535) The Public Records and Archives Administration Act (PRAAA) seeks “to provide for the proper administration and management of public records, the preservation of national archives and for related matters.” Under the Act, “public records” means (1) records that belong to the Republic of Ghana created received and maintained— (a) by any public office, by a Minister of State or other person responsible for a public office or by any other officer or employee of a public office; (b) by any court with jurisdiction within Ghana or by any judge or other officer of such a court; (c) by any other body or individual so designated by regulation made under section 26 of this Act; (2) all public archives within the meaning of the Public Ordinance, 1955 (No. 35) in the custody of the National Archives of Ghana on the date of coming into force of this Act.

Among the relevant provisions of the Act to the discussion is section 9 of the Act which enjoins the head of a public institution where public records are created and kept to establish good records-keeping practices within the registry for the management of public records in accordance with standards directed by the Department. These standards shall include (a) (b) (c)

the creation and management of current records within appropriate filing systems; the implementation of retention schedules; the transfer of semi-current records into the custody of the director except where the records remains classified or secret on grounds of (i) national security, (ii) maintenance of public order, (iii) safeguarding of revenue, or (iv) the protection of personal privacy, and the deferment of their transfer has been approved by the Regulations.

The thirty years rule applies to public records in the national archives and any other archival repository designated by the director. According to this rule, public records shall be available for public inspection after the expiration of a period of thirty years from their creation unless a longer or shorter period is prescribed by the Regulations.94 However, the Right to Information Bill seems to limit the period to 25 years, as provided under clause 57 of the Bill: (1) Information classified as exempt information under sections 5 to 18 ceases to be exempt information on the expiry of twenty-five years calculated from the end of the calendar year in which the information came into existence. (2) On the expiry of the period specified in subsection (1), a person may seek access to the information and the agency which has custody of the information shall give access in accordance with the procedure for access under this Act.

94

Section 16 of PRAAA.

The Right to Information Bill, 2009 Attempts in Ghana to enact a right to information Act began in 1999. By 2003, the first RTI bill has been drafted to operationalise the constitutional right to information as provided under article 21(1)(f) of the 1992 Constitution. However, as of 2012, the bill (relevant portions of which are discussed below) is yet to be enacted into law. The general rule is that access to information may not simply be restricted or denied citizens on the grounds of national security even if the law supporting it does not indicate that the restriction is necessary in a democratic society to protect a legitimate national security interest. Thus, a right to information Act should meet this standard, as noted by Principle 11 of the Johannesburg Principles, Everyone has the right to obtain information from public authorities, including information relating to national security. No restriction on this right may be imposed on the ground of national security unless the government can demonstrate that the restriction is prescribed by law and is necessary in a democratic society to protect a legitimate national security interest.

The RTI Bill, according to its long title, is An Act to provide for the implementation of the constitutional right to information held by a government agency, subject to the exemptions that are necessary and consistent with the protection of the public interest in a democratic society, to foster a culture of transparency and accountability in public affairs and to provide for related matters.

Among the criticisms levelled against the Bill’s long title by the Coalition on the Right to Information (RTI Coalition) is that the target entities on which the burden lies to produce information on its own or upon demand should not be limited to a “government agency” only but also, private bodies. Moreover, “government agency” is limiting and should be replaced by “public body.”95 These recommendations are appropriate as there are currently certain key information on national security which are kept by private entities or para-statal organisations but which cannot be accessed if the law is to be passed in its current form. Clause 1(1) of the Bill provides the basis for access to information as follows: In accordance with paragraph (f) of clause (1) of article 21 of the Constitution, a person has a right of access to information or part of information in the custody or under the control of a government agency.

This provision, however, lacks content and scope of the right to information clause and should be added to enable the rights-holder know from the beginning about the nature of the right and the parameters within which it is to be enjoyed under the Act. Clause 1(2) of the Bill mentions the fact that the exercise of the right of access is subject to the exemptions specified in sections 5 to 18.

95

Coalition on the Right to Information, “Memorandum to Parliament: Detailed comment.” http://www.humanrightsinitiative.org/programs/ai/rti/ghana/ghana.htm

The right to information may be exercised through an application made in accordance with section 19 which provides that the application should be made in writing or orally to the government agency. The application should contain sufficient description or particulars and indicate the type of access required. It should also state the capacity of the applicant, an address to which a communication or notice can be sent and be accompanied with the relevant fee. The Bill identifies information which are accessible and those where there are exemptions or limitations on one’s ability to access it, on grounds of, among others, national security, national defence, public health, public morality, etc. However, even where these exemptions exist, the Bill tries to introduce a public interest override provision. Under clause 34, for example, where “the public interest in the disclosure … is greater than the harm contemplated” and “the disclosure of the record would reveal evidence of (i) a substantial contravention of, or failure to comply with the law; or (ii) an imminent or serious public safety, public health or environmental risk”, the sought information must be disclosed notwithstanding that it is exempted under the Act. This applies as a limiting principle on all exemptions, including for information subject to the Section 32 security exemption. Those exemptions which are directly relevant to national security are identified in clauses 7 to 10. The exemption regime, however, seems to be broader than what one finds under the Constitution or even under some of Ghana’s existing laws. Certain portions of the RTI bill could therefore be declared unconstitutional96 so as to remove the unnecessary fetters to accessing information in the country. Clause 7, dealing with information relating to law enforcement, public safety and national security, provides as follows: (1) Information is exempt from disclosure if it contains matters which if disclosed can reasonably be expected (a) to interfere with the prevention, detection or curtailment of a contravention or possible contravention of a law, (b) to prejudice the investigation of a contravention or possible contravention of a law, (c) to reveal investigation techniques and procedures in use or likely to be used in law enforcement, (d) to disclose the identity of a confidential source of information, matter or the information given by a confidential source in respect of law enforcement, (e) to impede the prosecution of an offence, (f) to endanger the life or physical safety of a person, (g) to prejudice the fair trial of a person or the impartial adjudication of a case, (h) to reveal a record of information that has been confiscated from a person by a police officer or a person authorised to effect the confiscation in accordance with an enactment, (i) to interfere with the maintenance or enforcement of a lawful method or procedure for protecting the safety of the public, (j) to endanger the security of a building, structure or means of transport or a system including computer and communication systems for which security is reasonably required, (k) to prejudice the security of a prison or place for lawful detention, 96

A full discussion of this matter is beyond the scope of this paper which limits the discussion to the portions relevant to national security.

(l) to facilitate the escape of a person from lawful custody, or (m) to prejudice a system or procedure for witness protection or any other procedure for the protection of persons or property where the protection is required.

These exemptions are generally overly broad. For example, clause 7(1)(h) seems to say that the public is barred from accessing documents confiscated by the police, which is contrary to what the law says. Clause 7(2) provides that information is not exempt from disclosure (a) if it consists merely of a report on the success of a programme adopted by an agency to deal with a contravention or possible contravention of the law, (b) if it contains a general outline of the structures of a programme adopted by an agency to deal with a contravention or possible contravention of an enactment, or (c) if it consists merely of a report on a law enforcement investigation that has already been disclosed to the person who is the subject of the investigation.

Clause 7(3) provides that “[i]nformation created by or in the custody of the Armed Forces or the security and intelligence agencies established under the Security and Intelligence Agencies Act 1996 (Act 526) which relates to the security of the State is an exempt information.” It is observed that clause 7(3) is equally overly broad since not all information retained by the Armed Forces or the Security and Intelligence Agencies is sensitive and merits disclosure. It is interesting to note that the SIS Act itself provides some few useful limitations on non-disclosure. Therefore a right to information law which should liberalise the space to enable greater access to information cannot appear to be rather more restrictive. Moreover, sensitive information relating to national security and defence is already protected under clauses clause 7 (1), rendering clause 7(3) redundant. This view is anchored in Johannesburg Principles 11 and 12: Everyone has the right to obtain information from public authorities, including information relating to national security. No restriction on this right may be imposed on the ground of national security unless the government can demonstrate that the restriction is prescribed by law and is necessary in a democratic society to protect a legitimate national security interest. A state may not categorically deny access to all information related to national security, but must designate in law only those specific and narrow categories of information that it is necessary to withhold in order to protect a legitimate national security interest.

Clause 8 of the Bill covers information affecting international relations and stipulates thus: (1) Information is exempt information if its disclosure can reasonably be expected (a) to damage or prejudice the relations between the Government and the government of any other country, (b) to reveal information communicated in confidence to a government agency by or on behalf of another government, or (c) to reveal information communicated in confidence to an agency by an international organisation of states or a body of that organisation.

(2) Despite subsection (1), the exempt information may be disclosed if the President gives prior 97 approval for the disclosure.

It is commented that clause 8 (1) has a low harms test threshold. The concern is that the disclosure would not actually cause serious damage to a legitimate public interest and therefore do not need to be protected. Consideration should rather be given to withholding disclosure only when it will lead to "serious harm" or “serious damage” to relations of the Government with any other country.98 There is also concern about the fact that it is the President (by reference to clause 8(3)) that is granted the power to approve disclosure of exempt information since one of the main goals of right of access to information to check on executive excesses. This should be the work of an independent information commissioner. Clause 9 relates to information that affects the defence of the country. It provides that information is exempt information if its disclosure can reasonably be expected (a) to damage or prejudice the defence of the Republic or a foreign state allied to or friendly with the Republic, or (b) to be prejudicial to the detection, prevention or suppression of terrorism, sabotage or espionage.

Here, the difficulty is about how to ensure that the exemption in this clause be substantiated with an overriding harms test to ensure that consideration may be given only to withhold disclosure when it will lead to "serious harm" or “serious damage” to the defence of the Republic.99 Clause 10 touches on economic and any other interests and states as follows: Information is exempt from disclosure prior to official publication (a) if it contains trade secrets or financial, commercial, scientific or technical information that belongs to the Government and the information has monetary or a potential monetary value, (b) if the disclosure of the information can reasonably be expected to damage the financial interests of the Government or the ability of the Government to manage the national economy, (c) if the disclosure of the information can reasonably be expected to create undue disturbance in the ordinary course of business or trade in the country,

97

This provision should be read in conjunction with article 40 of the 1992 Constitution of Ghana: In its dealings with other nations, the Government shall (a) promote and protect the interests of Ghana; (b) seek the establishment of a just and equitable international economic and social order; (c) promote respect for international law, treaty obligations and the settlement of international disputes by peaceful means; (d) adhere to the principles enshrined in or as the case may be, the aims and ideals of i) the Charter of the United Nations; ii) the Charter of the Organisation of African Unity; iii) the Commonwealth; iv) the Treaty of the Economic Community of West African States; and v) any other international organisation of which Ghana is a member. 98 Coalition on the Right to Information, supra note 95. 99 Ibid.

(d) if the disclosure of the information can unduly benefit or be injurious to a person because it provides advance information about future economic or financial measures to be introduced by the Government, (e) if it contains criteria, procedures, positions or instructions that relate to negotiations carried on or to be carried on by or on behalf of the Government, or (f) if it contains questions to be used in an examination or test for educational purposes.

One may also pay attention to clauses 5 and 6 of the Right to Information Bill. Clause 5 provides that Information from the Office of the President and of the Vice President 5. (1) Information is exempt from disclosure (a) if it is for submission or has been submitted to the Office of the President or of the Vice-President, or (b) if it contains matters the disclosure of which would reveal information concerning opinion, advice, deliberation, recommendations, minutes or consultations made or given to the President or the VicePresident. (2) A certificate signed personally by the Secretary to the President or the Secretary to the VicePresident that information is exempt information is conclusive evidence that the information is exempt subject to the operation of article 135 of the Constitution. (3) Information which contains factual or statistical data and does not disclose information concerning a deliberation or decision of the Office of the President or of the Vice President is not exempt information.

This provision is also “unnecessarily” broad and against the principles of maximum disclosure.”100 Also, the broad powers given the Secretary to the President of Vice President to issue a certificate on exempt information is unjustified and violates international best practices. Clause 6 is on information relating to Cabinet and provides as follows: (1) Information is exempt from disclosure (a) if it is prepared for submission to the Cabinet or submitted to the Cabinet for consideration, (b) if it is an official information from the Cabinet, not published or released to the public, or (c) if it contains matters which if disclosed would reveal information on a decision, deliberation or discussion of the Cabinet. (2) Information which contains factual or statistical data and which does not disclose information concerning a decision, deliberation or discussion of the Cabinet is not exempt information. (3) A certificate signed personally by the Secretary to the Cabinet or the Head of National Security that the information is exempt information is conclusive evidence that the information is exempt subject to the operation of article 135 of the Constitution.

Again, this clause is overly and unnecessarily broad and should be subjected to a sufficient harms test in favour of access where the disclosure occasions no serious harm and it is in the public interest to disclose. There is an overriding provision in clause 19 which seeks to raise public interest over and above access to information exemptions: Disclosure for the protection of public interest 18. Despite a provision of this Act on exempt information, information is not exempt if the disclosure of the information reveals evidence of 100

(a) a contravention of, or a failure to comply with, a law, or (b) an imminent and serious risk to public safety, public health or the environment, (c) miscarriage of justice, (d) abuse of authority or a neglect in the performance of an official function, and the benefits of disclosure clearly outweigh the harm or danger that could occur in the event of a disclosure.

Oaths The Constitution recommends a number of oaths (12 in all) to be sworn to by public officials before they assume office. Those to which the officials are to swear directly to keep official secrets are the cabinet oath, ministers’ oath and the oath of secrecy. The Cabinet Oath is to be taken by all members of Cabinet by the President. It reads, among others, that the Cabinet Minister shall not “directly or indirectly reveal such matters as shall be debated in the Cabinet and committed to my secrecy.”101 This stipulation bear relationship with clause 6 of the Right to Information Bill, which provides among others that Information is exempt from disclosure 1(a) if it is prepared for submission to the Cabinet or submitted to the Cabinet for consideration, (b) if it is an official information from the Cabinet, not published or released to the public, or (c) if it contains matters which if disclosed would reveal information on a decision, deliberation or discussion of the Cabinet. (3) A certificate signed personally by the Secretary to the Cabinet or the Head of National Security that the information is exempt information is conclusive evidence that the information is exempt subject to the operation of article 135 of the Constitution.

The only exemption is in clause 6(2): “[i]nformation which contains factual or statistical data and which does not disclose information concerning a decision, deliberation or discussion of the Cabinet is not exempt information.” The Oath of Ministers applies to Cabinet Ministers, in addition to Ministers without portfolio. It states, inter alia, that the Minister “will not directly or indirectly reveal any matters that shall come to [his] knowledge in the discharge of [his] duties and committed to [his] secrecy as Minister of State (Deputy Minister).” Third is the Oath of Secrecy, which is to be sworn to by all civil servants. The relevant parts read that the official “will not directly or indirectly communicate or reveal to any person any matter which shall be brought under [his] consideration or shall come to [his] knowledge in the discharge of [his] official duties except as may be required for the discharge of [his] official duties or as may be specially permitted by law.”102 Classification of Information The system of records classification in Ghana is described as remains rigid, unnecessarily restrictive and antiquated. Currently, the levels of information classification include “top

101 102

See the Second Schedule to the 1992 Constitution of Ghana. Ibid.

secret”, “secret,” “confidential” and “restricted.”103 Other technical words used are “sensitive,” “classified” and “unclassified.” Yet, in practice, there is no specific law in place adopting such a classification system. The closest that the country has come to legislating on classification and declassification of information could be through the Right to Information Bill. It can be deduced that all information not categorized as “exempt” under the Right to Information Bill is not classified. The PRAAA (Act 535) also does not provide a strict criterion for classification of information, though words such as “classified” and “secret” are used, for example, as found in section 9 of this Act: (1) The head of a public institution where public records are created and kept, shall establish good records keeping practices within the registry for the management of public records in accordance with standards directed by the Department. (2) The standards shall include (a) the creation and management of current records within appropriate filing systems; (b) the implementation of retention schedules; (c) the transfer of semi-current records into the custody of the director except where the records remains classified or secret on grounds of (i) national security, (ii) maintenance of public order, (iii) safeguarding of revenue, or (iv) the protection of personal privacy, and the deferment of their transfer has been approved by the Regulations.

Moreover, these words are not defined. However, the PRAAA classifies documents into current and semi-current records. It defines current records as “records regularly used for the conduct of the current business of an institution or individual and which continue to be maintained in their place of origin.” On the other hand, “semi-current” records are those “records required only infrequently for the conduct of current business, and for the purposes of this Act, files and other assemblies on which no action has been recorded for five years shall be regarded as semi-current records.”104 Yet, in spite of not having a classification criterion, the PRAAA prohibits and criminalizes disclosure of confidential information.

103

Kofi Obeng-Adofo, “Civil Service Culture and Access to Information,” in Routledge et al, supra note 10, 86 at 88. 104 Section 27 of the PRAAA.

Suggest Documents