In the wake of the COVID-19 pandemic, states have had to resort to all manner of measures in fighting the virus and Ghana does not stand as an exception to this.
There has been the need to activate and make laws with some speed in this regard. Quintessential of such laws newly made is the Imposition of Restrictions Act, 2020 (Act 1012) and the Establishment of Emergency communications instrument, 2020 (E.I. 63).
In the case of E.I 63, the state through this law seeks to establish an emergency communications system with the particular aim of contact-tracing all persons who may potentially be infected through contact with an infected person. The preamble of the instrument reads in part as; “Whereas there is an urgent need to establish an emergency communications system to trace all contacts of persons suspected or actually affected by a public health emergency and identify the places visited by persons suspected of or actually affected by a public health emergency;” Although well-intentioned and a shot in the arm in the government's fight against the pandemic and any other health emergency after the COVID-19 pandemic, this instrument is wrongly planted. It has no legal basis. It is ultra vires of its mother law. It is thus an illegality. The danger with this illegality is that it is incursive of the right to privacy of all Ghanaians.
The task to be delivered by this article will, therefore, be to identify the source of power of the instrument, establish the illegality so claimed and prescribe a cure for same.
Source of Power
Article 18(2) of the 1992 constitution provides for the right to privacy of correspondence or communication. In a harmonious fashion with article 12(2), the provision allows for clawbacks “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 for the protection of the rights or freedoms of others ” [Emphasis mine].
A restriction under Article 18(2) cannot, therefore, be in vacuum. There ought to be a legal framework prescribing the means and extent by which such a restriction can be validly made.
With inspiration from this provision, article 18(2) of the 1992 constitution, parliament in 2008 passed the Electronic Communications Act, (Act 775). Section 100 of the Act empowers the President by way of an “executive instrument to make written orders to operators or providers of electronic communications network or services requiring them to intercept communications, provide any user information or otherwise in the aid of law enforcement or national security.”
The preamble to E.I 63, therefore, points to its powers under section 100 of Act 775. A careful reading of the law-making requirement under article 18(2) and the grounds for incursions provided in section 100 of Act 775, that is, law enforcement or national security gives no legs for E.I 63 to stand on. The range of information permissible under section 100 makes E.I 63 an overreach of powers therein conferred. Herein lie the illegality and danger it portends for privacy to correspondence or communication.
Illegality of E. I 63
The grounds for an order by the president under section 100 of the Electronic Communication Act is dual; law enforcement or national security. It does not mention public health emergency. Law enforcement and national security cannot be deemed to encapsulate a public health emergency. Act 775 does not offer any interpretation to law enforcement or national security. Recourse can safely be had to the Interpretation Act 2009, (Act 792) which points in section 10 to external sources for interpretation. Law enforcement according to
Black's Law Dictionary mainly refers to the enforcement of criminal laws. National security from the meaning of security at page 1084 of the dictionary is the state of being secure especially from danger or attack. The canon of interpretation section 100 lends itself to is expressio unius exclusio alterius. The express mention of law enforcement and national security as grounds for the issuance of an executive instrument implies the exclusion of all other grounds permissible under article 18(2) of the 1992 constitution. How then does an order issued on grounds of public health emergency purport to have a grounding in section 100 of Act 775?
Overreach of powers/range of information
Section 100 of the Electronic Communication Act allows the president to order for the interception of communication or provision of user information. Not information of all users. Paragraph 1(2) of the Establishment of Emergency Communication Instrument, 2020, however, requires that a service provider provides to the government all caller and called numbers among others. This cannot be congruent with section 100 of Act 775. Section 100 suggests that upon law enforcement or national security grounds, a criminal or criminal syndicate's communication or information can be intercepted or provided or that of an individual, group or groups of individuals can have their information provided or communication intercepted. It does not allow same for all individuals in one fell swoop. It is therefore not in the power of the president under E.I 63 to demand this gamut of information from service providers.
The danger of the instrument in its present form is that it places our privacy in the hands of the president; both affected, suspected to be affected by the public health emergency and the non-affected. The instrument empties our rights as provided under Article 18(2), specifical privacy of communication or correspondence. Indeed, it is a reincarnate of the much-criticized Interception of Postal Packets and Telecommunications Messages Bill, otherwise called the Spy Bill. All the information of subscribers lodged with telecom operators and any other information requested by the minister of communication are at the disposal of the government. The obvious and potential abuse existing under such circumstances is anybody's guess.
The cure will be an amendment of section 100 of Act 775 to accommodate a public health emergency. Article 18(2) allows for the restriction of the right to privacy of communication or correspondence under public health grounds. This ground should be just added to grounds as found in section 100 of Act 775. Additionally, the range of information allowable under the E.I 63 should be same as permissible under the Act. The gamut of information of telecom operators as identified in E.I 63 cannot be at the disposal of the state. That of specific individuals and groups on grounds as mentioned supra can be so made available as and when needed and not the reverse. Privacy rights are negative rights which require protection from the state. E.I 63 dangerously provides a fertile ground for its breach and removal of the cover of protection against the state.
This article has abundantly made demonstration of the illegality of the Establishment of Emergency Communications Instrument, 2020 (E.I. 63). The portents to human rights abuse relative to the privacy of communication has been identified.
The fight against COVID-19 and any other public health emergency will not suffer damage if the law in its present form is altered to attain symmetry with section 10 of the Electronic Communication Act, (Act 775). The illegality, therefore, has to be cured to safeguard the rights to privacy of communication of all.