The two laws surviving the repealed criminal libel law in Ghana
Ghana’s criminal libel law and seditious laws were abolished on July 27 2001. The country’s Parliament unanimously voted to change the Criminal Code (Repeal of the Criminal and Seditious Laws – Amendment Bill) Act 2001) – a law by which many journalists had previously been jailed for doing their job.
As Ghana had just chartered the path of multi-party democracy, walking away from an oppressive lineage of military dictatorships, the repeal was a watershed that further flaunted the country’s democratic intentions before the world.
In the years that followed, Ghana’s press culture flourished and the country soon became a yardstick by which democracy and press freedom was measured in much of Africa. But 21 years down the line, journalists are being arrested and thrown into jail for doing their job – the very things that the libel and seditious laws were repealed to prevent. It is déjà vu turned upside down on its head. What is the matter?
How did Ghana transform from being the African heartland of press freedom to become an iron republic that supports its journalists?
Many blame politics. Apparently, it is by dint of it being a vicious ‘game of thrones’ that many of the journalists that have been arrested by the current regime are perceived to be those aligned with the main opposition party.
Still, Ghana is a democracy and in democracies, things like the arrest of journalists who criticize government must be permitted by law – enter, Section 208 of the CRIMINAL AND OFFENCES ACT 1960, ACT 29, and Electronic Communications Act (Act 775) .
Two ugly sisters
These two laws provide government rather interesting justification to arrest journalists and critical voices for criminal prosecution even though the criminal libel law ceased to exist 21 years ago – false news. They are like the two ugly sister of the criminal libel laws who never left her.
Section 208 of the CRIMINAL AND OFFENCES ACT 1960, ACT 29 Reads: “(1) 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.”
And per the law, ignorance of the falsity of news that is published is no defence – the publisher is guilty of a misdemeanour and can be jailed for 3 years.
For the Electronic Communications Act (Act 775) the relevant part is section 76:
“(1) A person who by means of electronic communications service, knowingly sends a communication which is false or misleading and likely to prejudice the efficiency of life-saving service or to endanger the safety of any person, ship, aircraft, vessel or vehicle commits an offence and is liable on summary conviction to a fine of not more than three thousand penalty units or to a term of imprisonment of not more than five years or both.
These laws have led to the arrest of a number journalists.
On 27Th July, 2019, National Security operatives stormed the office of ModernGhanaonline.com, an online news portal, and arrested deputy editor, Emmanuel Ajarfor Abugri and Emmanuel Yeboah Britwum, were both reporters. They are accused of publishing false information about Albert Kan Dapaah (National Security Minister)
Noah Dameh was arrested by the Police in Ada on May 20, 2022 for false publication charges.
An earlier version of this article stated that David Tamakloe (editor of WhatsUp News), was arrested by plain-clothed, gun-wielding police officers from Ashanti Region for publishing alleged false information. His newspaper had published a story about a National Democratic Congress press conference that alleged tribal attacks on New Edubiase’s minority Ewe people. This was part of voter registration problems. Mr. Tamakloe would spend the night in New Edubiase’s cell.
On the 10Th of February 2022, Kwabena Bobbie Ansah, a broadcast journalist with Accra FM, was arrested in Accra for, “publication of false news and offensive conduct.” This was for posting a video on social media claiming that First Lady Rebecca Akufo-Addo, had fraudulently obtained state land in order to build a headquarters for her foundation.
MFWA and others issue condemnation
The Media Foundation for West Africa, along with other press freedom advocates like Reporters Without Borders (RSF), and Committee for the Protection of Journalists(CPJ), have condemned these arrests. They also demanded that the journalists be released.
In response to the arrest of the Modern Ghana journalists, for instance, the MFWA issued a statement saying it, “condemns in the strongest terms the raid carried out on the offices of ModernGhana.com on June 27, 2019, by men who described themselves as National Security Operatives, and demands the immediate release of the arrested journalists of the online media outfit.”
CPJ demanded the dismissal of the criminal charges against David Tamakloe after the 2021 arrest.
These arrests which were on the basis of Section 208 of the CRIMINAL AND OFFENCES ACT 1960, ACT 29 and Electronic Communications Act (Act 775) have seriously dented the image of Ghana which used to be the press freedom champion in West Africa.
In April 2022 Ghana fell to 30th place in the world, and 10th in Africa, in Reporters Without Borders (RSF) press freedom ranking. A country fact file published in RSF said “Although the country is considered a regional leader in democratic stability, journalists have experienced growing pressures in recent years. To protect their jobs and their security, they increasingly resort to self-censorship, as the government shows itself intolerant of criticism,”
According to the Freedom of Expression Monitor of the MFWA, Ghana also recorded 11 violations in the first quarter of 2022. This is 74% of the total violations recorded in 2021 (15).
The government has argued strongly for the law’s use, claiming that it is a tool of national security.
In the laws’ defence
It is clear that fear and panic can cause social chaos. The Police responded to criticisms against David Tamakloe’s arrest in October 2021 by saying that the allegations that Ashantis had targeted Ewe minorities could have led to tribal conflict.
The 1994 Rwandan genocide is often cited as an example of how irresponsible reporting can lead to fake news.
However, the existence and criminalization of news reporting makes it impossible to repeal the Criminal libel laws. Critics pointed out that there are civil remedies for false news reporting. These include fines.
There is also the issue that laws are not closed-ended.
Act 29 archaic and nebulous
Samuel Appiah Darko is a legal practitioner and media law lecturer at African University College of Communications. He points out that the law is quite ambiguous. “It is so vague and nebulous that it imposes criminal liability on almost any kind of speech that in the opinion of the enforcer can cause fear and alarm,” he explains in an article.
Being a relic of Ghana’s colonial past, this law was drafted in 1893. Lawyer Appiah Blacko points out that it was deliberately drafted by the colonial master to impose criminal liability for almost any speech that could cause alarm in the colonial metropolis.
“From anecdotal evidence, this law was made vague and wide to suppress publications likely to inflame agitation for independence.
“It was expected that after independence, Ghana’s laws would reflect the modern values of an independent state. Unfortunately, the neocolonial post-independence period rather reinforced the existing regime.”
He praises however section 76 (Act 775) for being more precise.
Section 76 of Act 775 more precise
This law clearly defines false communications and limits its scope to communication that could prejudice the efficiency or safety of life-saving services or vessels. It is similar to New York’s false reporting statute.
It would seem that the law with the most votes is the one that is better. However, the MFWA, along with rights groups continue to oppose these laws due to their repression of free journalism guaranteed by Chapter 12 of Ghana’s constitution.
Interestingly, when Ghana’s parliament was repealing the criminal libel law in 2001, Section 208 of the Criminal Offences Act, Act 29, already existed in the statutes.
Criminal Libel never went away
And had, in the period following the repeal of the law, remained dormant while democracy and freedom of expression flourished – it was trouble hiding in plain sight.
Ghana’s press freedom flourished and earned the country a fine reputation within the comity of nations only in happy ignorance of the bogeyman.
Ample civil remedies for libel
The government’s use of the dangerousness of false news as justification for the use of these laws to arrest and prosecute journalists is not a convincer. This is because false news can be solved civilly.
Since the repealing of the Criminal Libel Law libel actions have been brought under the umbrella of civil torts action. As a result of a conviction for defamation, sanctions include suspension of the publication company and fines on the journalist or publisher.
Reporters who report news that is not true are not subject to arrest or prosecution. The civil remedies are sufficient.
Repeal Section 208, Act 29Modify Act (Act 775) more precise
The state has more than enough resources to easily counter false news. Indeed, as part of the many moving parts of government machinery, there is a whole Ministry of Information. There is also a Ministry of Communication.
Also, false news in itself has a way of poisoning the credibility of media houses and journalists so much that the blowback from yellow journalism is dissuading enough.
As experts point out, Section 208 of the Criminal Offences Act, Act 29, is archaic and has no business remaining in the statutes of modern democratic Ghana. The law is a bequeath from Ghana’s colonial masters who had purposed it to repress dissent. it needs to be repealed to remove the unnecessary encumbrance on press freedom.
In the case of the Electronic CommunicationsAct (Act 7755), its supposed precision is doubtful given it leaves the categorization of false news to government’s discretion.