The statement signed by the
National President, Benson Nutsukpui, said that in as much as the bill
is important for the State, portions of it must be reworked to ensure
that citizens’ rights are not trampled upon.
THE “Spy Bill” as
it is called, when passed will grant access to security agencies to
listen in on private conversations of Ghanaians with the intention of
safeguarding the security of the State.
THE Association among
other things is calling for the “withdrawal of provisions of clause 4(3)
and (4) of the Bill, which allows the National Security Coordinator to
orally authorize interceptions for 48 hours without any court order or
warrant”.
Below is the statement:
THE
Ghana Bar Association has taken note of the provisions of the
Interception of Postal Packets & Telecommunications Bill (the
“Bill”) and wishes to make its views known on it as follows:
1.
We welcome the attempt to consolidate the existing provisions on lawful
interception of communication/correspondence, scattered in various
formats in several statutes. We therefore suggest that all the current
statutes on lawful interception are specifically harmonised within the
context of the current Bill, and the relevant repeals and revocations
done to avoid legislative confusion and disharmony.
2. The
relevant provisions of the various legislations that must be
specifically considered for consolidation, repeal or revocation, as the
case may be, are as follows:
• Sections 43 to 51 of the Mutual Legal Assistance Act, 2010 (Act 807);
• Section 25(5) of the Economic and Organised Crime Office Act, 2010 (Act 804);
• Section 124 of the Electronic Transactions Act, 2008 (Act 772);
• Sections 73 and 100 of the Electronic Communications Act 2008, (Act 775);
• Section 34 of the Anti-Terrorism Act, 2008 (Act 762);
• Section 29 of the Insolvency Act, 2006 (Act 708);
• Sections 37 and 39(a) of the Postal and Courier Services Regulatory Commission Act, 2003 (Act 649);
• Sections 29 to 31 of the Security and Intelligence Agencies Act, 1996 (Act 526);
• Sections 27 to 30 of the Narcotics Drugs (Control, Enforcement and Sanctions) Act, 1990 (PNDCL 236);
• Order 60, rule 18 of the High Court (Civil Procedure) Rules, 2004 (CI 47); and
• Regulation 6(1) of the Electronic Communications Regulations, 2011 (LI 1991).
3.
Further it is critical that Parliament considers several other statutes
that contain protection of privacy and secrecy provisions, and how
these may or may not be affected by the Bill. The relevant current
statutes with protection of privacy and secrecy provisions are:
• Banking Act, 2004 (Act 673),
• Central Securities Depository Act, 2007 (Act 733),
• Children’s Act, 1998 (Act 560)
• Commission on Human Rights and Administrative Justice Act, 1993 (Act 456),
• Credit Reporting Act, 2007 (Act 726),
• Data Protection Act, 2012 (Act 843),
• Domestic Violence Act, 2007 (Act 732),
• Electronic Transactions Act, 2008 (Act 772),
• Juvenile Justice Act, 2003 (Act 653),
• Matrimonial Causes Act, 1971 (Act 367),
• Mental Health Act, 2012 (Act 846),
• National Health Insurance Act, 2012 (Act 852),
• National Identity Register Act, 2008 (Act 750),
• Public Health Act, 2012 (Act 851),
• Public Records and Archives Administration Act, 1997 (Act 535),
• Representation of the People Act, 1992 (PNDCL 284),
• Securities Industry Act, 1993 (PNDCL 333),
• Specialist Health Training and Plant Medicine Research Act, 2011 (Act 833), and
• Standards Authority Act, 1973 (NRCD 173).
4.
We also note that telecommunication network operators will now be
required, expressly and by law, to have interception capability, making
it even more important that the law forbids, and provides punishments
for, the misuse and abuse of that capability by any person, including
the operators themselves. Currently, the strongest punishment appears to
be the maximum 5-year imprisonment provided under the Electronic
Communications Act. We would propose that this punishment is
standardized for all violations, and that provision be made for
appropriate sanctions directed at any operator who does or permits
unlawful interception. Ghana has to put out a strong message that we
support the use of lawful interception to prevent crime, but abhor the
use of unlawful interception to violate the constitutional right of the
individual to privacy.
5. We are also particularly concerned
with the provisions of clause 4(3) and (4) of the Bill by which the
National Security Coordinator is permitted to orally authorise
interceptions for 48 hours without any court order or warrant. Our
concern is two-fold.
6. First, we find the current legal
position that requires a court order/warrant before any interception, to
be legitimate as it provides, at least, a semblance of protection
against arbitrary and unconstitutional interference. We need to find
ways of strengthening this, instead of taking it away or deferring it.
This is because the right to privacy being an undoubted fundamental and
inalienable right, the attitude of the Constitution is to give it the
most absolute form of protection subject only to the well-known
exceptions that permit limited interference with it in the interest of
the public such as the prevention of crime.
7. This is why the
Constitution provides specific circumstances that justify any
interference with the right. Those circumstances are the exceptions to
the rule that protects the right to privacy. The Bill in its present
form rather treats the invasion of privacy as the rule, and the
protection of it, the exception. The Bill does this by allowing
interference by the National Security Coordinator first, and then after
48 hours require him to seek judicial blessing or condemnation, if he so
desires, after any possible harm has been done. Accordingly by this
Bill there is a right to interfere first, and then where it can be shown
that the right to privacy should be protected, then the court’s will
protect it.
8. It is to prevent situations like this that the
doctrine of separation of powers which was propounded (and promulgated
in our Constitution) to safeguard the liberty of the individual, must be
applied in its pure form. It would be an oppressive law and may be
challenged as unconstitutional if implemented in that manner. The
Constitution, in Article 18, seeks to blunt the capricious effect of
such circumstances by demanding safeguards that are rooted in the rule
of law, best exemplified, for now, by making the judiciary (an
independent institution) the first point of call for purposes of
determining whether such interference qualifies within the exceptions
justifying interference with a person’s privacy.
9.
Thus we find that the Bill in its current form is unacceptable. The
proposed deferral of the court order/warrant for 48 hours under clause
4(3) would mean that there is no guarantee against abuse during this
period of secret surveillance, which is based only on an oral
authorisation issued by the National Security Coordinator. This, we
think, would be a clear violation of Article 18 of the Constitution, and
we recommend its deletion and the maintenance and strengthening of the
current position where there can be no interception without a court
order/warrant.
10. Second, the effect of clause 4(4) of the
Bill is to declare as “lawful,” information or evidence obtained during
this 48-hour period of potentially arbitrary interception, suggesting
that such information would be admissible in court proceedings. This
provision has to be looked at very carefully, particularly as its
application would suggest an erosion of the law on privileged
communications contained in the Evidence Act, 1975 (NRCD 323).
Specifically, this proposed provision conflicts with section 87(1) of
the Evidence Act, which says that the provisions of Part Six of the Act,
on privileged communication, “shall apply in all proceedings
notwithstanding the provisions of an enactment or of a rule of law which
make rules of evidence inapplicable or of limited application in
particular proceedings.”
11. Thus, arguably, information
obtained during this 48-hour period, if “lawful” would become admissible
even if it breaches (i) the privilege of an accused not to testify
(section 96), (ii) the privilege against self-incrimination (section
97), (iii) lawyer-client privilege (section 100), (iv) legal
work-product privilege (section 102), (v) mental treatment privilege
(section 103), (vi) religious advice privilege (section 104), (vii)
compromise communication privilege (section 105), (viii) trade secret
privilege (section 108), (ix) political vote privilege (section 109),
and (x) marital communications privilege (section 110).
12. It
would appear to us that information that might have been otherwise
privileged under any of these circumstances, save under the specific
exceptions provided by the Evidence Act, would become admissible as the
privileges would not apply if the same information was obtained during
the 48-hour secret surveillance. This would have the effect of eroding a
very important bedrock of our law of Evidence.
13. Finally,
there does not appear to us to be any way or means of verifying whether
information to be presented to the court, and obtained under the current
clauses 4(3) and 4(4) of the Bill, would have been indeed obtained
within or outside the 48-hour period, since that information is gathered
with no supervision or reference to any other person except the
National Security Coordinator. It is for this reason as well that there
ought to be no interception without a court order/warrant. It is on
these bases that we recommend 1. Proper legislative harmonisation, 2.
Very severe sanctions for breaches of the right to privacy, and 3. The
complete deletion of clause 4(3) and (4) of the Bill.
Dated in Accra this 11th day of March, 2016
Benson Nutsukpui (National President)
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