12.04.2022 Feature Article

Oral examination of a witness in Court is not breach of privacy.

Oral examination of a witness in Court is not breach of privacy.
12.04.2022 LISTEN

It is said that privacy underlies the very essence of human dignity. It is a fundamental right that every human being enjoys as a person in his or her own right as a human being. It is an inherent right and it is not given by a State or government. One’s right to privacy can only be taken away under circumstances stated by law, such as for the prevention of crime or safeguarding national security. Each individual has the right to determine which aspects of their life they wish to be in the public domain and what they choose to keep away from the public. This article discusses the Supreme Court’s case in which the Court had to decide whether a court order made for the oral examination of a judgment debtor is an infringement on his right to privacy.

Do privacy rules apply to proceedings in court?

The case under discussion is Martin Alamisi Amidu v Attorney-General, Waterville Holdings, Alfred Agbesi Woyome.[1] What happened in that case was that, Benin, JSC (sitting as a single Justice of the Supreme Court) had granted an ex parte application filed by the 1st defendant (simply referred to as ‘the Attorney-General’), under Order 46 of C.I 47 for the oral examination of the 3rd defendant/judgment debtor (simply called ‘Alfred Agbesi Woyome’ or ‘Woyome’) to find out how Woyome intended to pay the balance outstanding on his judgment debt of about GH₵51 million cedis to the State. Benin, JSC granted the application. In the order paper, some questions were set down for Woyome to answer under the oral examination.

Woyome’s lawyer then filed an application to have Benin, JSC’s order for oral examination of Woyome set aside on grounds that the order for oral examination of his client infringed and violated his client’s right to privacy as provided for under article 18(2)[2] of the Constitution. The Deputy Attorney-General (representing the State as its lawyer) replied that, it was untenable and unmeritorious for Woyome’s lawyer to say that his oral examination as to how he intended to pay his judgment debt violated his right to privacy under the Constitution. He stated further that, all such rights provided for in the Constitution are not absolute rights. They are rights citizens enjoy but could be interfered with when necessary by law as happens in a free and democratic society.

The Deputy Attorney-General added that, the relevant constitutional[3] and statutory provisions[4] state that, all court proceedings are to be held in public unless a law directs that the proceedings in a particular case must be in camera/chambers. He also referred to substituted service of court documents that are published in national daily newspapers and added that, those publications cannot be said to be infringement of privacy rights of the parties involved.

After listening to the incisive arguments by the lawyers, the Supreme Court held that, the orders made by the single Judge for oral examination of the 3rd defendant did not infringe or violate his constitutional right to privacy in article 18 (2) of the Constitution.

This decision by the Supreme Court is most commendable. It is one of the decisions given by the apex Court in recent years, highlighting on the scope and extent of an individual’s right to privacy in Ghana. But it is regrettable that neither the lawyers nor the Court itself referred to the Data Protection Act.[5] The Data Protection Act states clearly that, when a person’s personal data is ordered to be disclosed by a court order, the person cannot refuse to make the disclosure. Simply put, the Act’s provisions on non-disclosure do not apply where a court orders the disclosure to be made.[6]

[1] Civil Motion No. J7/1/2018 dated 31st January, 2018, SC (unreported), Coram: Atuguba, Sophia Adinyirah and Dotse, JJSC.

[2] “No person shall be subjected 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 protection of the rights or freedoms of others.”

[3] Article 126 (3) of the Constitution states: “Except as otherwise provided in this Constitution or as may otherwise be ordered by a court in the interest of public morality, public safety or public order, the proceedings of every court shall be held in public.”

[4] Section 102 (1) and (2) of the Courts Act, 1993, (Act 459) provides as follows: “(1) Except as may be otherwise ordered by a Court … in the interest of public morality, public safety or public order, the proceedings of every Court or … including the announcement of the decision of the Court or tribunal shall be held in public. (2) Nothing … shall prevent a Court … from excluding from the proceedings persons other than the parties to the case or action and their Counsel, to such an extent as the Court … may consider necessary or expedient-

(a) in circumstances where publicity would prejudice the interest of justice or any interlocutory proceedings; or

(b) in the interest of defence, public safety, public morality, the welfare of persons under the age of majority or the protection of the private lives of persons concerned in the proceedings.

[5] 2012 (Act 843).
[6] Section 66 provides thus: “Personal data is exempt from the provisions on non-disclosure where the disclosure is required by or under an enactment, any rule of law or by the order of a court.” (Emphasis supplied)

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