EI 63 Saga: Lawyers waive rights to question judge’s integrity

The Accra High Court presided over by Justice Stephen Oppong has for the second time adjourned the case in which a private legal practitioner is challenging the directives of the President over Executive instrument E.I. 63, establishing the Emergency Communications System-Instrument, 2020.

In court on Tuesday, when the case was called the Judge drew the applicant’s attention to the fact that before becoming a judge, he was practising at Minka Premo and Co chambers, where the lawyer for NCA is practising, so he wanted to find out from the applicant’s if he had any objection of him hearing the case.

But the applicant and his lawyers waived the right to raise any objection. According to the Lawyer Justice Srem Sai, they have known him (Judge) to be a man of integrity and believes he will do justice to the case especially when it is an issue of public interest.

Substantive matter

On the substantive matter, however, the court noticed that what was attached to the motion for the interlocutory injunction was rather the affidavit in support of the originating summons, instead of an affidavit in support of the motion for interlocutory injunction.

Lawyer Srem Sai said was an over sighted and said they will take a date to do the right time.

Case adjourned to May 20, 2020.

Private Legal Practitioner, Francis Kwarteng Arthur has filed a suit to challenge the directives of the President over Executive instrument E.I. 63, the Establishment of Emergency Communications System-Instrument, 2020.

As a result of the E.I. 63, a private liability company, Kelni GVG Limited, 3rd respondent in the case, has directed the telecommunication network operators, to release to them the personal information of subscribers. These include but is not limited to the subscriber database, subscriber cell reference data, uncashed subscriber mobile money transfer data, mobile money merchant codes and addresses.

Lawyer Kwarteng Arthur in an application filed on Monday before the Human Rights Division of the High Court is, however, arguing that his personal information, which is in the possession of the 1st and 2nd respondents, Vodafone and MTN respectively, is protected by the 1992 Republican Constitution of Ghana and may not be given out to a third party by the 1st and 2nd respondents without recourse to law or laid down procedure or without his express permission or consent.

The application also contends among others that the Electronic Communications Act, 2008 (Act 775) contains a Condition Precedent for the President’s invocation of his power in section 100.

“The condition precedent is that the President should have first, declared the State of Emergency under Article 31 of the 1992 Constitution, as stated in section 99 of Act 775.”

According to Lawyer Kwarteng Arthur, since the condition precedent has not been triggered, the President in signing E.I. 63, acted illegally.

The application also states further that the President’s directive contained in the E.I. 63 and its implementation by the respondents have violated, are violating or are likely to violate his fundamental human rights to administrative justice, privacy, equality and non-discrimination.

The 3rd respondent, Kelni GVG Limited, on or about March 27, 2020, acting on behalf of the President wrote to all communication network service operators directing them, to put the applicant’s personal information and that of other subscribers at their disposal.

These information includes subscribers address, time of calls and/or text messages and call content as well as personal information on address, bank details etc.

The applicant is, therefore, asking the Courts to adjudge or declare the conduct by the 3rd respondent, Kelni GVG Limited, and the 4th respondent, the NCA, or any other person to procure his personal information from the 1st and 2nd respondents without following due process as a violation of his rights.

Further, it is the argument of the applicant that there is no logical correlation between mobile money transfer data in particular or telecommunication data of a person in general and their exposure to the COVID-19 disease.

“It is, therefore, not surprising that governments the world over (including other less developed countries and countries that are having extensive cases of public health emergency) are not adopting this strange measure in fighting the disease or contact tracing. Indeed, it is only Ghana and Ghana alone which is adopting this strange measure,” the applicant contends.

In another development, the applicant is petitioning the Chief Executive of Vodafone Group Plc in the United Kingdom to impress upon its Ghana office not to succumb to the President of Ghana’s pressure in breach of customers’ fundamental human rights and the High Court’s orders. A similar petition would be sent to MTN international as well.