Outlawing Criminal Libel Law: A Speech by Akufo-Addo

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SPEECH DELIVERED BY NANA AKUFO-ADDO, 2012 PRESIDENTIAL CANDIDATE OF GHANA’S NEW PATRIOTIC PARTY (NPP),

ON

“OUTLAWING CRIMINAL LIBEL LAWS IN GHANA”,

AT THE CONFERENCE ON THE TWIN THEMES OF “AFRICAN CONSTITUTIONALISM: PRESENT CHALLENGES AND PROSPECTS FOR THE FUTURE” AND “AFRICAN CONSTITUTIONALISM AND THE MEDIA”, CO-ORGANISED BY THE INSTITUTE OF COMPARATIVE AND INTERNATIONAL LAW AND THE KONRAD ADENAUER STIFTUNG, AT THE UNIVERSITY OF PRETORIA, PRETORIA, SOUTH AFRICA, ON 4TH AUGUST, 2011

I am honoured by the invitation to participate in this important colloquium on the twin themes of “African Constitutionalism: Present Challenges and Prospects for the Future” and “African Constitutionalism and the Media”, important, at least, for those of us who believe that entrenching the principles of democratic accountability, respect for human rights and the rule of law at the very centre of Africa’s body politic is critical to Africa’s chances of meaningful development in this 21st century. Decades of authoritarian rule across the continent in the post independence era not only subverted the promise of the independence movement that freedom would result in good governance, progress and prosperity, but also led to the systematic worsening of the already low living standards of the African people. It is against this background and the collapse of world communism that the continent experienced at the beginning of the 1990s a revival of the democratic aspirations that lay at the heart of the independence movement. Nowhere was this development more in evidence than in Ghana, which had been the torchbearer of the African liberation struggle and which, tragically, after independence, fell into poor governance and authoritarian rule.

The Ghanaian people, just as they had demonstrated in the drive towards independence in the 1940s and 1950s, showed again their determination to live in conditions of freedom and democracy. On 28th April, 1992, they approved by an overwhelming margin in a referendum the adoption of the Constitution of the Fourth Republic, which set up the institutions of a liberal democratic state operating on the basis of the separation of powers, with express guarantees of fundamental human rights, including, naturally, the right to free expression.

In furtherance of this, on 2nd August 2001, the then President of the Republic, his Excellency John Agyekum Kufuor gave his assent to the enactment of the Criminal Code (Repeal of Criminal Libel and Seditious Libel Laws) (Amendment) Act, 2001 (Act 602). By this singular deed, a historic victory was won in the struggle of our people for liberty and, especially, for freedom of expression. This brought to an end more than a century-old regime of laws repressive of free expression. My modest self had a happy and privileged role in this historic process by being the Attorney General who piloted the passage of the repeal through the Parliament of Ghana’s Republic.

Ghana’s laws on free expression have been largely shaped by English law and legal tradition, just as they have been deeply influenced by our colonial experience. Suffice it to say that the criminal libel and seditious libel laws, which were the object of the repeal legislation of 2001, can be traced to the first Criminal Code, the 1892 Criminal Code Ordinance and its subsequent amendment in 1934.

As is well-known, in Ghana, as elsewhere, the press played a significant role in the anti-colonial struggle, mobilising nationalist consciousness and exposing the oppression and inequities under colonialism. These laws were, thus, in the main, passed in response to emerging nationalist agitation and used rather cynically in an attempt to deter nationalist newspapers and publicists from exposing the ills of colonialism. Indeed, the provisions of the 1892 Criminal Code Ordinance on criminal libel and sedition and the 1894 Newspaper Registration Ordinance were both enacted to respond not only to the emerging nationalist press of the time, but also to the broad agitation of Gold Coasters against the infamous 1894 Crown Lands Bill, which sought forcibly to expropriate the people of Gold Coast of their ancient right to the land of their birth, as was done in apartheid South Africa and other systems of settler colonialism in Southern Africa generally. A positive outcome of the agitation was the establishment, on the seminal date of 4th August, 1897, of the Aborigines Rights Protection Society, the first of the great nationalist organisations of the Ghanaian people, which successfully mounted opposition to the Bill, and, together with the mosquito, saved our country from some of the seemingly intractable problems confronting many nations of southern and eastern Africa.

Again, the 1934 Criminal Code Amendment Ordinance (No. 21), which extended the remit of sedition to cover expression hitherto not covered under the offence, was passed as an instrument to stem the rising tide of nationalist consciousness and agitation in the mid 1930s, known in Ghanaian history as “the stormy thirties”. It produced the most notorious application of the law of sedition and one of the most celebrated cases in our constitutional and legal history in 1936: I am referring to the case of Rex v. Wallace Johnson and Nnamdi Azikwe, which travelled all the way, through the West African Court of Appeal, to the British Privy Council The case itself is testimony to Ghana’s reputation as the hub of West African nationalist consciousness of the times. Wallace Akunor Johnson was a fiery, anti-colonial agitator and West African nationalist. A Sierra Leonean by birth, he lived in the Gold Coast in the heady 30s when anti-colonial agitation and nationalist consciousness were on the rise. Nnamdi Azikwe, on the other hand, as we all know, was a Nigerian nationalist and pan Africanist, who became the first President of independent Nigeria and who was also living in the Gold Coast at the time. They had published an article critical of European colonialism. Azikwe was the editor of the newspaper and Wallace Johnson a columnist of the paper.

That the law of sedition has been aptly described as a tool of colonial repression is amply justified by this case. The offending article read thus:

“Personally, I believe the ‘European has a God in whom he believes and whom he is representing in his Colonies all over Africa. He believes in the god whose law is ‘Ye strong, you must weaken the weak. Ye “civilized” Europeans you must ‘civilize’ the “barbarous” Africans with machine guns. Ye “Christian” Europeans you must ‘christianize’ the “pagan” Africans with bombs, poison gases etc.”

They were charged, tried and convicted on two counts of publishing seditious material and possession of a document containing seditious material. Dissatisfied with his conviction, Wallace Johnson appealed to the West African Court of Appeal, which dismissed the appeal. On further appeal to the Privy Council, the Council dismissed the appeal. After the dismissal of the appeal, the British colonialists refused to permit this son of West Africa to return to the Gold Coast.

To be sure, a considerable number of other prominent leaders of our nationalist movement, who were at the same time publicists and associated with the nationalist press of the time, also fell victim to the criminal libel and seditious libel laws in our Criminal Code. Thus, in the case of Ako Adjei and William Samuel Johnson v. The King 2 G & G 73, Ako Adjei, the man who introduced Kwame Nkrumah to Ghanaian politics, and William Johnson, two leading nationalists and publicists, were charged with the offence of sedition contrary to section 326 (2) of the Criminal Code (Cap. 9). They had published in the African National Times an article critical of Syrians in the Gold Coast, especially of their sharp commercial methods. They were tried and convicted by the trial court and on appeal the conviction was upheld. This was in 1951. The Court, delivering its judgment per Coussey Ag. C.J., made a somewhat muted protest against the law of sedition. He observed as follows:

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“The law of sedition is in many respects a hard one, but it is the duty of the Courts to administer the law as it is decided and not as any particular individual would wish it to be”

It is to be noted, however, that there was very little use of these laws after independence until the Constitution of the Fourth Republic came into force in January 1993. The post-colonial history of Ghana had largely been that of one form of dictatorship or the other. We have had our share of one-party political system between 1960 and 1966 (the Convention People’s Party (CPP) one-party state), and recurrent military dictatorships – 1966 to 1969 (National Liberation Council); 1972 to 1979 (National Redemption Council, Supreme Military Council and Armed Forces Revolutionary Council regimes); 1981 to 1993 (the Provisional National Defence Council).

Thus, until the Fourth Republic, Ghana had experienced approximately only 9 years out of the 36 years of its post independence history in conditions that could be described as relatively democratic. For the most part of the remaining 27 years, the repressive nature of the political system made the deployment of the arsenal of criminal and seditious libel laws superfluous. This was because the various press licensing laws and the general climate of repression allowed only such press as could be relied upon to reproduce the monolithic propaganda and praise-songs of the ruling regime.

But for a few exceptional cases, such as Mensah Gyimah v. The Republic, a 1969 case, there was therefore no pressing need to bring in aid of such regimes the provisions of criminal libel and seditious libel laws which have their origins in colonial rule. Mensah Gyimah was a politician whose political activism dated back to the anti-colonial struggle when he was a young man. By 1969, he had become a prominent political leader in the country. In the Mensah Gyimah case, the accused was charged with negligent libel and sedition under the Criminal Code and convicted on both counts at the trial court. On appeal against conviction, the Court of Appeal held that there was enough evidence to support the charge on sedition, but upheld the appeal against conviction on the charge of negligent libel as, in the opinion of the Court of Appeal, the trial judge had misdirected himself as regards the defence of justification under that offence. What had Mensah done to be convicted on a charge of seditious libel? He had simply published a matter of public notoriety – an article alleging that members of the Border Guards branch of the Ghana Armed Forces connived at certain illegal importations and exportations of goods and customs duty evasion and, further, that they took bribes from smugglers around Ghana’s borders with neighbouring countries. Archer JA, a future Chief Justice, in his judgment given as far back as 1971, observed as follows:

“I venture to suggest that the time is now ripe for the whole law of criminal libel, intentional libel, negligent libel and seditious libel, to be thoroughly reviewed and reformed for the benefit of the lawyer and the layman, what is the use of the law if its language cannot be understood”.

It has taken thirty years since these words for the laws of criminal and seditious libel not only to be reviewed and reformed, but to be repealed altogether.

For, though the Constitution of the Fourth Republic guaranteed freedom of expression, including freedom of the press and other media as a fundamental human right, and made elaborate provisions for the freedom and independence of the media, the existing laws, which were continued in force by the same Constitution, contained colonial laws on our statute books that were manifestly anti-libertarian and repressive of free expression. To the extent that they were not repealed or pronounced unconstitutional, the criminal and seditious libel laws in the Criminal Code could become the hunting grounds for any attempt to hold in check a critical and irreverent press and to perpetuate a culture of silence with which the antecedent military regime of the Provisional National Defence Council (PNDC) had long been associated with.

So it was that, when the people of Ghana won the battle for the restoration of their civil and political liberties and gave birth to the democratic, Fourth Republican Constitution, the government of the National Democratic Congress (NDC) (which was the metamorphosis of the Provisional National Defence Council) was confronted with a radically changed constitutional and legal framework, which did not permit the use of the more blunt and primitive legal means of holding in check robust and critical media.

It was in this changed climate that the government of the day found ready use for the colonial criminal libel and seditious libel laws still on our statute books. These laws were forcefully deployed by the NDC government in an attempt to silence an emerging recalcitrant and robust press. In response, democratic forces rallied to challenge the constitutional validity of these colonial laws in the light of the provisions of the Constitution guaranteeing freedom of expression and the freedom and independence of the mass media. Regrettably, these constitutional challenges to the validity of the offences of criminal libel and seditious libel were dismissed by our Supreme Court, which held that they were neither in contravention of the provisions of the Constitution nor inconsistent with them. In Nigeria, however, the Court of Appeal (Enugu Division), in the case of Nwankwo v. The State, was able to assert its position as a court of an independent people with a Constitution and to strike down the offence of sedition in section 5 (1) of the Criminal Code Law (Cap. 30) of Eastern Nigeria. The Court acquitted the two accused of two counts of sedition on the grounds that the offence was inconsistent with the fundamental right to freedom of expression guaranteed under the Nigerian Constitution. Olatawura JCA observed in these refreshing words:

“It is my view that the law of sedition which has derogated from the freedom of speech guaranteed under this Constitution is inconsistent with the 1979 Constitution more so when this cannot lead to public disorder as envisaged under section 4(i) (a) of the 1979 Constitution. We are no longer the illiterates or mob society our colonial master had in mind when the law was promulgated. To retain S. 5 (1) of the Criminal Code in its present form, that is even if not inconsistent with the freedom of expression guaranteed by the Constitution will be a deadly weapon and to be used at will by a corrupt government or a tyrant. I hereby express my doubt about its retention in our Criminal Code more so, as said earlier, there is adequate provision in the same Criminal Code for criminal libel. Let us not diminish from the freedom gained from our colonial masters by resorting to laws enacted to suit their purpose”

Such judicial activism was not to be found in Ghana. The only alternative for democratic forces, therefore, was political action and mobilisation for the repeal of these anti-libertarian laws. But the ruling government was adamant. As its Attorney General had occasion to state publicly on more than one occasion, these laws would be repealed over his dead body. Mercifully for him, the repeal occurred without his involvement and he is still very much alive!

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By the end of the 1990s, these laws had come to symbolise authoritarian, anti-democratic and anti-media impulses within our body politic. There was a general consensus, outside the ruling government and party, that these laws were not worthy of an independent people who had long wrestled their freedom from colonial oppression. The demand for their repeal was consistently articulated by the media and broad sections of civil society.

The opposition New Patriotic Party (NPP), as part of its electoral platform for the 2000 general elections, promised to repeal these laws when voted into power. It was, thus, only a matter of time when the new government of the NPP assumed power for the laws to be repealed in 2001. The laws were an affront to our people’s sense of liberty and constituted a powerful instrument in the hands of the previous government, which had been in office from the inception of the Fourth Republic in January 1993 till its electoral defeat in December 2000, to repress political expression. I hope I can be forgiven for saying that, as the unsuccessful advocate in the cases before the Supreme Court which had rejected the challenges to the constitutional validity of these laws, it was with some pleasure that, as Attorney General, I led the process for their repeal in Parliament. That was clearly a more effective submission than any I made before the Court!

The rationale for the repeal was fully stated in the following terms in the Memorandum to the Bill, which I placed before Parliament: “The time has come to repeal these laws and expand the boundaries of freedom in the State. Designed to frustrate our freedom and perpetuate our servitude, these laws should have been repealed at independence. Unfortunately, they were maintained and, in some cases, actually extended, especially during the period of the one-party-state of the First Republic, and have up to date remained on the statute books, even throughout the short-lived existence of the multi-party states of the Second and Third Republics. The dangers implicit in the retention of these laws for an open, free society are now plain for all to see. The laws are unworthy of a society seeking to develop on democratic principles, on the basis of transparency and accountability in public life. Government is confident that the good sense of the Ghanaian people will ensure that the expanded space created for expression and the media with the repeal of these laws will be used for the development of a healthy, free, open and progressive society operating in accordance with the rule of law and respect for human rights. It is time to chart a new course.” The Bill was passed without a single dissenting vote.

The repeal of these laws has had a very positive impact on the development of the Ghanaian mass media, freeing them from unnecessary self-censorship and promoting a robust and critical media. In the process, it has contributed to the growth of a vibrant and critical media that has won Ghana the reputation of having one of the most media friendly and liberal climates on the continent and has contributed significantly to the deepening of democracy in our country and enhancing public accountability as a strategic goal of public policy. This is not to say that there are no excesses and acts of unprofessional conduct by the media in Ghana. Media excesses and, at times, gross professional misconduct there are, and some of them cannot be justified under any circumstance. These have partly given a bad name to sections of our media and provided the ready ammunition to authoritarian and anti-democratic forces to initiate a rear-guard action for the reintroduction of the criminal and seditious libel laws. The parlous justification proffered has been that the repeal of these laws has made the Ghanaian media and journalists reckless and unprofessional in their work, thereby damaging the good name and reputation of public figures and endangering society as a whole. Even as one of the public figures most vilified in sections of the Ghanaian media, and one who ironically was a principal actor in the repeal of these laws, I continue to insist that their repeal was necessary in the public interest in our emerging democracy.

Fortunately, the good sense of Ghanaians and their love of liberty have ensured that these demands have not found fertile grounds for growth in the political space. Rather, there is general recognition of the need for training, critical engagement by society with our media, self-regulation and insistence on media ethics and journalistic standards by media houses, journalists and their organizations as part of the process of building a culture of high journalistic standards and professionalism in the Ghanaian media. This has largely been accepted as the means of addressing the current shortcomings and ills of our mass media.

Despite the repeal of these laws, however, media freedom is threatened by some of the arcane laws still on our statute books. This has become particularly apparent since the government of the National Democratic Congress once more assumed office in January 2009 after winning the 2008 general elections. Bereft of the convenient tools of criminal and seditious libel laws, the ruling government has had to comb through the Criminal Code and to seize upon the offence of offensive conduct conducive to breaches of the peace and the sister offence of publishing false news likely to cause fear and alarm to the public.

The first is, in truth, a breach of the peace offence and ordinarily has nothing to do with media freedom and the work of journalists. Desperate to keep in check a robust media, the police first seized on this offence to invade a radio station to arrest a panel member who had made certain unsubstantiated allegations against the former President of the Republic, His Excellency Jerry John Rawlings, regarding a fire that gutted to ashes his official residence. A mob of youthful supporters of the ruling NDC party was quickly mobilised to lay siege to the radio station, threatening to attack it. Instead of the police arresting them for unlawful assembly and conduct conducive to breach of the peace, they rather arrested the radio panelist. There was public outcry to this abuse of an otherwise apparently legitimate offence on our statute books. The police, shame-faced, responded by changing tack: they had taken the panelist to the police station for his own protection. The charges were never pursued.

Sensing that the offence of conduct likely to cause a breach of the peace could not easily be harnessed to the prosecution of journalists and media practitioners for what they say and write, the police next turned to the offence of publishing false news likely to cause fear and alarm to the public or to disturb the public peace. This law has been deployed in some two instances. One involved a commentator on a morning newspaper review programme, who was arrested on suspicion of having committed the offence of publishing false news likely to cause fear and panic. Again, the outcry that greeted the arrest and the ridicule of the conduct of the police, together with the intervention of the Ghana Journalists Association, led to the release of the journalist and eventually the dropping of charges against him. The other case involved an allegation made by a young woman in a radio phone-in that she was on board a bus travelling from Accra to Tamale in the Northern Region of Ghana, when the bus was waylaid by armed robbers who forced the passengers to have sex with one another. She was arrested and charged under the offence of publishing false news likely to cause fear and panic to the public. The matter is currently sub judice.

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Quite apart from the highly selective manner in which the false news law has been applied to date, there is first, the question of its abuse and use in cases where it should not apply. The more fundamental question, however, relates to the constitutional validity of the law, given the overly broad and sweeping terms in which it is couched. It may very well be legitimate to have a law that criminalises the deliberate publication of false news likely to lead to personal injury associated with the fear and alarm the false news causes. But, then, there ought to be a direct causal link between the false news and the injury sustained. The manifest example is the typical case of a mischief maker who cries fire in a packed cinema hall, when it is obvious that this will lead to a stampede in which persons are likely to suffer injury, including in extreme cases death. The problem with our current false news law is that it is more directed at mere expression and the state of mind, namely fear and alarm, which in the best of worlds is difficult to determine. As the offence of publishing false news, therefore, currently stands, it is, in my view, inconsistent with the constitutional provisions on free expression, being overly broad and accordingly not proportionate to the legitimate public interest sought to be protected. The offence, therefore, requires substantial review to ensure that it is narrowly tailored to meet the protection of the legitimate public interest sought to be protected.

But the threat to free expression and media freedom does not lie only in laws of colonial origin still to be found in our Criminal Code. There are provisions in a fairly recent Defamation Bill of the late 2000s and which is being currently resurrected that give considerable cause for concern. Its ostensible purpose is to codify common law principles of the law of defamation. The fundamental problem with the Bill, however, is that it is not informed by the far-reaching constitutional provisions guaranteeing freedom of expression. Rather in many respects, the provisions of the Bill fall far short of even those common law principles of defamation in their protection of free expression and, in one instance, regress to medieval times of the English Star Chamber by criminalisation of “blasphemous publication”! Again, even judges under the Bill may be sued in respect of what they say in the course of judicial proceedings if their statements contain “distortions of fact” or are actuated by “malice”. This provision stands in stark contradiction of Article 127 of the Constitution which prescribes the independence of the judiciary and provides that judges “shall not be liable for any action or suit for any act or omission by them in the exercise of judicial power”.

It appears that the Defamation Bill was crafted largely as a response to the repeal of the much discredited criminal and seditious libel laws. It has been described as a means of re-introducing, through the backdoor of civil defamation, some of the egregious provisions of these laws that criminalised free speech and which were repealed in 2001. Indeed, the first draft of the Bill specifically indicated that one of its cardinal purposes was to fill the void left by the repeal of the criminal and seditious libel laws. The wording of some of the provisions is an exact reproduction of the erstwhile section 185 of the Criminal Code, which created the offence of seditious libel. Under the Bill, government through the Attorney General may institute civil defamation suit against third parties to vindicate “the reputation of the people of Ghana (!)”. Even English common law defamation principles, which are not particularly distinguished by their libertarian ethos, do not permit a public or governmental authority or body to sue a citizen for defamation. That would be to stand the whole system of representative democracy (in which the people are sovereign and government servant and agent) on its head. In the circumstance, democratic forces still have their work cut out for them in so far as the review of the Defamation Bill is concerned.

This short review of the history of criminal libel and seditious libel laws in Ghana from colonial times to date, their active use in an attempt to silence the rising tide of nationalist consciousness and anti-colonial agitation and their expression through the press of the time, and their more recent, cynical use to throttle democratic and free expression under the Constitution of the Fourth Republic demonstrate the authoritarian, anti-democratic and repressive nature of these laws. Their repeal in 2001 marked an important watershed in our people’s struggle for freedom and justice and the preservation of their ancient rights and privileges. But developments since the repeal demonstrate that the struggle for liberty is permanent and requires constant vigilance if the gains of past struggles are not to be rolled back. I am confident that the people of Ghana will defend the right to free expression to the very end because of their determination to build a free, open society with accountable governance. That confidence is further reinforced by the fact that Ghana continues to produce intrepid media practitioners such as the late Tommy Thompson, Eben Quarcoo, Kabral Blay Amihere, Kofi Coomson, Haruna Atta, Kweku Baako, Kwesi Pratt, Gina Blay, Gabby Otchere Darko, Egbert Faible Jnr, Ken Kuranchie and Anas Aremyaw Anas, who have demonstrated fearless commitment to media freedom, no matter the cost.

There are some who want to claim that the popular desire for democracy is providing a pretext for the recolonisation of the continent by foreign powers. Nothing could be further from the truth. The surest recipe for the intervention of foreign powers in African matters in a globalised world is poor governance, which leads to grave crises and breakdowns and about which African organisations, national, regional and continental, appear helpless to address or resolve. Our generation of Africans has to be the generation that refuses to be either victim or pawn, and accepts to travel down the path of genuine popular empowerment, which represents the strongest guarantee of our independence and sovereignty. Freedom of expression and media freedom are critical elements of that journey, which we must guard jealously at all times.

Once again, I thank the co-organisers- the Institute of Comparative and International Law of the University of Pretoria and the Konrad Adenauer Stiftung- for this opportunity, and wish the new Institute the best of luck in its work.

Nana Akufo-Addo

Pretoria, 4th August, 2011

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