‘Abronye principles’ in the making?
The current uneasy mood in the country with regard to free speech or the lack of it, reminds me of George Orwell who said, “In our age, there is no such thing as ‘keeping out of politics’.
All issues are political issues and politics itself is a mass of lies, evasions, folly, hatred and schizophrenia.”
The prosecution of Kwame Baffoe, aka Abronye DC, for publication of false news under section 208 of Ghana’s Criminal Code has reopened one of the most difficult constitutional questions in Ghanaian criminal law: can the state criminalise speech that merely causes fear, alarm or disturbance without violating the constitutional guarantee of free expression?
At the centre of the controversy is whether such a law is compatible with Article 21(1)(a) of the 1992 Constitution which guarantees “freedom of speech and expression which shall include freedom of the press and other media”.
The constitutional argument against section 208 is straightforward.
Article 21 protects not only popular or accurate speech but also
controversial, mistaken, offensive and potentially inconvenient speech.
A democracy tolerates a wide range of expression precisely because the state should not become the final arbiter of truth in political discourse.
Critics argue that section 208 is overly broad and vague because concepts such as fear, alarm and disturbance of public peace are elastic and subjective.
Concern
The concern is that aggressive enforcement of section 208 may lead to journalists, activists, opposition politicians and ordinary citizens self-censoring out of fear that inaccurate or controversial statements could attract criminal sanctions.
Also, section 208 effectively places the burden on the accused to prove reasonable steps were taken to verify the information.
Critics argue this undermines the presumption of innocence protected under Article 19(2) (c).
The strongest constitutional attack, therefore, is that section 208 fails the proportionality test required under Ghana’s constitutional order.
Restrictions on free speech in international human rights law must be necessary in a democratic society and normally tailored to achieve a legitimate public interest.
Contrast this with the proponents of the need for section 208. They argue that freedom of expression is not absolute.
Article 164 of the Constitution expressly permits laws that are reasonably required in the interest of public order, public safety, public morality and for the protection of the rights and reputation of others.
They contend that deliberate falsehoods can produce real public harm: panic, violence, ethnic tension, attacks on public institutions or even threats to national security.
In this new age of social media and with it the proliferation of rapid misinformation, states increasingly struggle with fabricated claims capable of provoking unrest within hours.
Read this way, section 208 is not intended to suppress dissent but to protect society from reckless or malicious falsehoods likely to endanger public peace.
The state can legitimately argue that the law targets not mere criticism of government but false publications with harmful public consequences.
Rights
The debate as it rages needs to be situated against the backdrop of international human rights.
The right to freedom of expression is one of the broadest and most jealously protected rights in international human rights law.
It protects not only acceptable or popular speech but also speech that shocks, offends, disturbs, criticises government, exposes corruption or challenges dominant social and political ideas.
The modern international position, as reflected under the African Human Rights System and the United Nations Human Rights Committee, is that free speech is the foundation of democracy, accountability and human dignity.
Under Article 19 of the International Covenant on Civil and Political Rights (ICCPR), Article 9 of the African Charter on Human and Peoples Rights and Article 13 of the American Convention, freedom of expression covers political speech, press freedom, criticism of public officials, artistic and academic expression, and access to information, protest speech and dissemination of the ideas through the media.
The United Nations Human Rights Committee, which interprets the ICCPR has, through General Comment 34, stated that laws penalising the publication of false information are problematic where they are incompatible with strict necessity and proportionality standards.
The committee cautioned against criminal sanctions that suppress political debate or investigative journalism.
Any court assessing section 208 must of necessity consider the following questions: is the restriction sufficiently precise? Is it necessary? Is it proportionate? Does it criminalise speech beyond what is required to protect public order?
Although Ghana’s courts have strongly protected free expression, they have also recognised that speech rights may be limited in appropriate circumstances.
The challenge of section 208 may well usher in the ‘Abronye Principles’!
The writer is a lawyer.
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