ACILA wants Parliament to withdraw “Spy Bill”
The Africa Center for International Law and Accountability (ACILA) has urged Parliament to withdraw the “Spy Bill” to rework it or make substantial changes to the draft Bill to ensure a proper balance between the state’s interest to promote safety and its obligations to protect and respect the fundamental human rights of Ghanaians to the privacy of their communications.
ACILA said that a proper balance is needed to ensure that Ghana meets its obligations under domestic, regional, and international law to promote, protect, and respect an individual’s right to the privacy of his communications. It referred, in particular to the provisions in Article 18(2) of the 1992 Constitution of Ghana which affirms the right to privacy as a fundamental human right as well as continental and international instruments to which Ghana has ratified, including the African Charter on Human and People’s Rights (Article 9) and the International Covenant on Civil and Political Rights (Article 17).
It said that recourse needs to be had to these instruments because a citizen whose right to the privacy of communications is breached may bring an action against the state not only in Ghanaian courts, but also at the African Court on Human and People’s Rights (ACHPR) in Tanzania; the United Nations Human Rights Council; or at the United Nations Human Rights Committee for an effective remedy.
ACILA’s call, which was contained in a memorandum to Parliament on the draft Bill, “Interception of Postal Packets and Telecommunication Messages Bill, 2015”, popularly called the “Spy Bill”, outlined three main reasons why the Bill should be withdrawn, reworked, and reintroduced, if necessary.
It said that one of the reasons it is asking for a withdrawal of the Bill is the pervasive deficiencies in the draft Bill with potential implications for human rights violations without a notification to the person whose right to privacy is violated for an effective remedy.
Another reason, it said, is the lack of a persuasive justification for the enactment of the legislation. “For example, the Memorandum to the draft Bill does not tell us how many arrests, prosecutions, convictions have resulted from interception-related activities. There should be a reference to historical data which is available from warrants which have been granted from the hodgepodge of existing laws.”
A third reason is the lack of adequate time for meaningful and effective consultation with civil society, and, indeed, Ghanaians.
ACILA noted, however, that in the alternative that Parliament decides to go forward with the Bill, then it proposed substantial changes to the Bill to, among other things, replace the current draft provision where the Chief Justice appoints a judge to oversee the implementation of the legislation and instead provide for an independent commissioner to provide oversight, notification to persons whose mails and messages are wrongly intercepted, and provide an effective remedy for such breach.
Another change, it said, is to replace the authorization for the application of a warrant by the National Security Coordinator with a public officer whom Parliament has oversight or in the alternative maintain the status quo that allows agencies to apply directly to the court for a warrant.
On the controversial issue in Clause 3 of the Bill which grants the National Security Coordinator the power to orally authorize interception of a postal packet or telecommunication message without a warrant for 48 hours, ACILA said that the oral authorization without a warrant should be removed.
“Again, no justification was made in the Bill to depart from current practice which does not provide for interception or interception-related activities without a warrant. The Memorandum to the Bill should explain why oral authorization of interception is required taking into account current problems, if any, that agencies face in obtaining a warrant.”
It said that any justification proffered should also overcome a counter argument that obtaining a warrant in emergency situations is always possible even when the courts are not sitting.
“Absent a legally valid justification with safeguards for balancing the state’s interest in promoting public safety and the individual’s right to privacy, the interception without a warrant for 48 hours may be subject to abuse and will not accord with an individual’s right to the privacy of communications under the Constitution of Ghana and under regional and international law, to which Ghana is a party”, it said.
Other recommended changes included providing for a document retention policy to impose the burden of production on the state; requiring that the state bears the cost of the purchase of the equipment for lawful interception, not the person on whom the warrant is served to intercept mails and communications; and expanding the scope of coverage of the Bill to include non-public networks.
