Spy bill: It was funny, then silly, now it's serious

You don't want to barge into a shrine out of respect for the sacred. You tread cautiously. Yet government has shown no such sacred caution in barging into the shrine of the 1992 constitution where your fundamental human rights are kept hidden,protected and revered.

The government of Ghana is seeking to pass the Interception of Postal Packets and Telecommunication Messages Bill, 2015, into law. Why? According to the Ministry of Interior (proponents of this piece of legislation), ‘the object of the bill is to enact legislation for the lawful interception of postal packets and telecommunication messages for the purpose of fighting crime, suppressing organized crime including money laundering, terrorism, narcotic trafficking, identity theft and generally for the protection of national security.’

Why the rush?

Parliament put out a notice on Monday February 15, 2016 ostensibly, to solicit public input into the draft legislation, with Friday, February 19, 2016 as the deadline for submission of such inputs. Also the draft legislation was not published along with the public notice on the official website of Parliament. Clearly, this was a very short notice Parliament gave to the public for the submission of inputs into this piece of legislation. After sustained pressure by the media and some civil society organizations (particularly CDD and Occupy Ghana) for Parliament to give the public ample to consider the implications and likely impact of such a bill on the rights and freedoms of Ghanaians, Parliament gave another 2 week window within which the public was to make input into this bill.

Joy Fm, through its Thought Leadership wing, has led the way by organizing a major public forum for ‘We the People’ to subject this bill to some thorough scrutiny. The arguments for and against this piece of legislation were assessed. Occupy Ghana has also petitioned Parliament, stating very strong reasons why this bill should not be passed into law.

Why the need for this legislation?

A spoilt child is a boy who has many military toys but still wants a water pistol for Christmas. A sign of a spoilt government is when despite many laws, it still wants more to snoop around everybody's closet.

I ask myself, why does the government feel the need to initiate and seek the passage of this bill when there are about 5 or 6 laws in our statute books which create the opening for the legal authorisation of interception of postal packets and telecommunication messages where necessary? According to some respected lawyers in the country, the existing law is that interception of communication is prohibited and criminal.

However, it is permitted under the provisions of the Security and Intelligence Agencies Act, EOCO Act, Narcotics Control Act, Electronic Communications Act (ECA), and to some extent, the Electronic Transactions Act.

All of these laws unanimously indicate that there can be no interception without an order or warrant of a court. Additionally, and under the ECA, the President may issue Executive Instruments to authorise interceptions. And, the phone companies themselves might intercept for strictly specified industry purposes, which do not include disclosure to third persons.

So far, the arguments put forward by the initiators of the bill, are in my view trite, to say the least. According to James Agalga, Deputy Minister of Interior, ‘the law will cure the inherent inefficiencies of all the other laws such as the Anti-terrorism Act. ...the bill seeks to expand the scope of existing laws on terrorism, suppress organized crime and narcotic trafficking in the country.’

He further argues that ‘for the country to avoid abuse of the law in terms of interpretation, the current bill before the House has detailed the circumstances and conditions for an interception warrant.’

This argument, I contend, is a sheer attempt to throw dust into our eyes. Here’s why:

Provision 4 (3) of the bill says ‘Despite subsection (2) the national security coordinator may where there is the need for urgency, ORALLY authorise the interception without a warrant of a postal-packet or telecommunication message but the oral authorisation shall be confirmed by obtaining a warrant from the high court within 48 hours after the oral authorisation has been issued.’

Clearly, this is gallows humour gone bad! And it smacks of desperate attempts by the government of the day to curtail the right to privacy of ‘We the People’. What’s the need requiring the National Security Coordinator (a political appointee) to go to court to confirm something he would have long done in a manner that satisfies someone’s whim?

Another equally pathetic provision in this bill is Provision 18 (1) which says, ‘The Chief Justice may appoint a Justice of the High Court to supervise the implementation of this Act.

(2) A Judge appointed under subsection (1)

(a) Shall ascertain whether the provisions of this Act are being complied with; and

(b) Submit to the National Security Co-ordinator at intervals of not more than twelve months, reports on the compliance with this Act and any other matters that the Judge considers necessary’.

Why should the Justice of the High Court, appointed by the Chief Justice to supervise the implementation of this Act and ascertain whether the provisions of this Act are being complied with, submit to the National Security Coordinator who is required by the same Act to obtain interception warrant from a Justice of the High Court sitting in chambers?

Making the High Court Judge report to the NSC will undoubtedly remove any independent transparency and separation of powers. The judiciary should be the final arbiter of our laws, not the executive. Have the principles of Separation of Powers and Checks and Balances gone to the dogs in Ghana?

I’m almost tempted to side with Kofi Bentil, Vice President of policy think tank, Imani Ghana when he asserts that ‘critical journalists, opposition politicians will be hunted down through the law and their private lives including marital and extra-marital relationships will be laid bare before the listening ears and watching eyes of security operatives.’

Will this ‘Spy Bill’ stand the test of Article 18(2) of the Constitution?

The Spy Bill is a bully in school. Should bullies be allowed to run wild and conquer? Only if the headteacher watches unconcerned.

I am not a lawyer yet. But in my fickle mind, the right to privacy of the Ghanaian people is safeguarded by the 1992 Constitution, Article 18 (2) which states quite clearly that ‘No person shall be subject 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 prevention of the rights or freedoms of others’.

Therefore, any piece of legislation which cannot stand the test of this fundamental provision will, in my estimation, be declared unconstitutional by the courts.

Lawyer and member of Occupy Ghana, Kojo Annan Ankomah, presents us with some insights. On whether or not this bill will stand the test of Article 18(2), he comments, ‘...the courts have stepped in to protect and uphold the right to privacy. The reasoning of the Court in Malone v. The United Kingdom remains pristine and unassailable.

And for Ghana, one thing stands clear: any law that gives to any public authority even a shred of unfettered discretion to intercept for any period, should not stand the Article 18(2) test.’

His argument is based on the 1984 case of Malone v. The United Kingdom, where the European Court on Human Rights applied Article 8(2) of the European Convention in examining the lawfulness of the tapping of Mr. Malone’s telephone calls.

It found that although the tapping had been ordered following a warrant issued by the Home Secretary on suspicion that Mr. Malone was involved in some criminal activity, and such warrant had been issued in accordance with UK law, the law in question did not contain adequate safeguards.

The Court held that the phrase “IN ACCORDANCE WITH LAW” [which phrase is in Ghana’s Article 18(2)] looked not only to having law but the quality of the law: it must be compatible with the rule of law, and must contain protection against arbitrary interferences.

The Court held that it was contrary to the rule of law if the discretion granted was expressed in terms of an unfettered power. Consequently the law must indicate, with sufficient clarity, the scope and manner of exercise of the discretion, “having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference."

As regards to interference, the court held that it could only be regarded as "NECESSARY IN A DEMOCRATIC SOCIETY" [which phrase is also in Ghana’s Article 18(2)] if the particular system of secret surveillance adopted contained adequate guarantees against abuse.

Kojo Annan Ankomah’s argument, based on this ruling, is very cogent and should hold sway in our courts.

The way forward

It is such a cruel bargain for government to hold back a bill that allows us to see what it does yet push through another bill that allows it to see what we do. It's against any basic moral conscience left in the worst criminal. Even terrorist know how to negotiate a life for another life, a hostage for another hostage.

The Right to Information Bill has been in Parliament for 13 years. The passage of this bill, aimed at promoting transparency and accountability by empowering ‘We the People’ to have access to information on how the government runs this country has been delayed for such a long period of time.

Now this same government wants ‘We the People’, to give it the mandate (through our representatives in parliament) to open our postal packets, monitor our phone calls, read our messages and generally tamper with our means of postal communication and information technology systems in the name of fighting crime and protecting national security.Imagine the effrontery!

I am however cautiously hopeful that this bill will be subjected to some thorough scrutiny in Parliament, by the minority, especially as the leader of the opposition NPP, Nana Akuffo Addo has categorically made a profound statement against this ‘Spy bill’; calling on MPs to vote against it.

In his version of the State of the Nation, delivered on Monday, February 28, 2016, he said: ‘There are serious concerns over, what has been termed, the ‘Spy Bill’ but the President chose to make no mention of it. ...Essentially, this bill gives the state unfettered, discretionary access to the private correspondence of individuals.

It poses potentially a major threat to individual freedom of expression and privacy. This law should not be passed, and the Minority has already signalled its opposition to the bill in parliament.

The irony is that the Right to Information Bill, which on the other hand, will rather enhance individual freedoms and good governance, by providing further access to public information, all in the spirit of transparency and accountability, had rather been put on the back burner. Obviously, it is not one that excites the president because it provides sunshine on corrupt practices ’.

Fellow Ghanaians, it’s time to end our appalling silence while the government we voted into power takes our country and ‘We the People’ for a ride. Let’s resist any attempt to get this bill passed by Parliament because it most certainly will have enduring implications for our rights, freedoms, liberties and more especially our rights to privacy; rights we ought to guard jealously.