Top Story: GJA Heads to Supreme Court Over Use of Cyber Laws Against Journalists

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[00:00:30]Well, tonight Ghana Journalist Association is heading to the Supreme Court over what it calls the abuse of the Electronic Communications Act by security agencies against journalists.

[00:00:43]only section 76 of the act on force for false communications and even the section 76 itself is clear that it's not meant for this act has been used as what as the hunting the association's president argues the trend amounts to backdoor censorship turning civil defamation into criminal cases and undermining constitutional protections This a stop story brought to you by Taylor connecting energies holy insecticide spray and coil enjoy holy sleep and also by short pension trust into the future with you. Uh my name is Samuel Kjo brace. Tonight, the Ghana Journalist Association says, "If you don't like a story, sue us. Don't arrest us." The association is therefore heading to court to stop the security agencies from using cyber laws to arrest journalists, thereby harassing them.

[00:02:13]Now, President Albert Juno says the electronic communications act was never written for newsrooms. Uh but he told national security operatives at a media encounter that security agencies now use quote and unquote false communication charges to threaten reporters. The association calls it quote unquote backdoor restriction on press freedom shifting defamation from civil court to police cells. It wants the Supreme Court to rule on whether the law can be abused or can be used against journalists or not. after the repel of the criminal liel act by president.

[00:02:53]Everybody knows that false news publication uh hate speech and all that were treated as defamation.

[00:03:07]So this elector found itself in the laws of Ghana an enactment by parliament and even the When you read the the the detail the act itself I hope there are lawyers here the act were not made were not made for journalist or individuals but we only picked section 76 of the act on force for false communications and even the section 76 itself is clear that is not meant for this act has been used as what as the hunting what we had in going after journalist.

[00:03:52]When journalists slip, they said false news publication. Even today, even on individual and personal level, if somebody has issue with somebody and attack the person, they said false news publication.

[00:04:08]If I insult my friend and he goes to the police, the police have said force publication, then they they will arrest you.

[00:04:16]The I said and we have said that we are filing we are filing processes in the Supreme Court to review for Supreme Court to give us review of this on this act so that we all be clear as to if the act was made for journalist or it is that the security agencies have now back door they've now they've now found some some some solfort in this act and using it to go after journalist in this country >> is the uh president of GJ Kenneth J has been covering this news conference and join me studio with more Kenneth what more has the president been talking about >> right brace before we even talk about what more he's been talking about this was a a media encounter between journalists and also personnel from the national security we had personnel from the police service prison service uh national fire service the national security themselves of the BNI which used to be called NIB. They were all there sharing their opinions on how to work hand in hand, how journalists and security personnel can work hand in hand. You know, often security personnel accuse journalists of crossing the line and interfering in the work of security personnel. But some journalists also believe that it is their right for Ghanaians to know what is happening wherever it is. So this was the premise of the conversation and we rightly heard the Ghana Journalist Association President Albert Juno who has also been raising alarm over what he calls the weaponization of false communication provisions by security agencies to pursue journalists and individuals and he warned that the trend is undermining constitutional safeguards against censorship.

[00:06:02]We just read chapter 12 article 16 but we forgot that there's also an electronic communications act 2008 at 775 forgot to read that after the rebell of the criminal by president everybody know that first news publication which hat great speech and all that were treated as defamation till this elector found itself in the laws of Ghana enactment by parliament and even the act when you read the the the detail the act itself I hope they are lawyers here that were not made were not made for journalists or individuals. But we only picked section 76 of the act on force force communications and even the section 76 itself is clear that is not meant for general. This act has been used as what as the hunting what we call act in going after Germany.

[00:07:09]This is the tough story. Uh let's now bring in Inosafa Foseni who is a former MP and a lawyer and also N Ba. He is a constitutional and legal affairs committee member of parliament. I'm grateful to you gentlemen for joining us here. Let me start with you uh Mr. Fuseni. Help us understand uh this you heard the GTA president there saying that the act itself was not made for journalists. What was the intent with which this this particular act was was enacted?

[00:07:39]Uh thank you Zoo very much for having me. The purpose of the act is captured in the long title of the act to regulate uh electronic communication.

[00:07:51]And so the the law itself, the purpose of law in society is to constrain behavior is to regulate the conduct of of uh uh people or persons in the exercise of their their rights uh and and also in how they go about their lawful activities. And so uh it is my imagination if if the DJ president says that uh this particular law was not intended to regulate the conduct of journalists. I mean I I simply do not get it. But uh maybe uh he's going to test that is hypothesis in the courts. His point basically is something that should be civil has been turned into criminal that that they keep people in cells for these things. You're a lawyer so you could probably help us here.

[00:08:54]>> It's not it's not a civil matter that hasn't turned into a criminal matter.

[00:08:59]Okay. It's not a civil matter that hasn't turned into a criminal matter.

[00:09:02]Okay. So when the criminal library law was abolished or was repealed, the only option left for uh label publications in the media uh were now to be taken in the civil courts.

[00:09:22]Now uh the electronic communications act came with false publication. I mean intentionally publishing a matter that is false that has no factual basis. I mean how do we treat that? I mean and I have had a look at the electronic communications act of many other countries and they treat intentional false publications as crimes.

[00:09:57]Now I look at a 763 or let's start from two. It says that a person is taken to know that a communication is false or misleading if that person did not take reasonable steps to find out whether the communication was false, misleading, reckless or fraudulent. Then three says subsection two does not apply to the operator or provider of a network or service over which a communication is sent.

[00:10:26]Can't we be falling in that category?

[00:10:28]>> So, so, so, so they are they are insulating the operator. So, you are working for Joy FM. Joy FM or Joy News Multimedia is the operator and they holding you personally liable for publishing information that you knew to be false. that has no verifiable factual basis. So that's these are two different things.

[00:10:59]So if you want put another way, what the law is seeking to do is to say that we will not hold the operator multimedia vicariously responsible for the the commission of an offense by its I mean one of its agents or workers and in this case the worker is the journalist. So if a journalist falsely publishes a matter which he knows not to be truth, multimedia should not be held vicariously liable. That's what is telling you.

[00:11:42]>> Okay. Uh let let me bring in a buff. But please stay with me now. I mean, if you listen to the chronology of events that the DJ president gave about how today the journalists are being harassed for quote publishing false information, is it time for us to look at the law again and to look at how we can really get it to suit the the times we are in?

[00:12:05]>> Okay. So, thank you very much. Um, good evening to honorable Hussein.

[00:12:10]>> Thank you. Thank you. Thank you. I listening to the president of the GJ, I I think that is is my humble opinion that he seems to be misunderstanding the issues and what is actually happening.

[00:12:29]What is actually happening is not the law. What is actually happening is the abuse of the persons. abuse of the law by the persons who are supposed to enforce the law. Right? And in certain instances, in certain instances, the taxit the tax support they get from the persons who are supposed to or the institution who is supposed to stand between the law enforcement agencies, right, and the citizen. That is where the problem really, really and truly is.

[00:13:13]You see when you have to when it comes to law enforcement, it is often times the exercise of the police and law enforcement agencies a certain degree of discretion to determine whether or not an offense has been committed. And whether or not an offense has been committed is dependent on the facts at play, right? when that fact is you know um put against the law and so the law enforcement agent you are likely to have very good law enforcement agents who will look at it and say genuinely there's no offense that has been committed but you can also have within the community people who are who are bad people or persons law enforcement agents who will use the law for their own purpose and not for the benefit or purpose of the society and the general objective of the law. And so we like to have such persons. It is for the it is for such persons because of such persons that the court exist so that you in the assertionary case of people abusing the law for their benefit to the detriment of the ordinary person the court would say stop it.

[00:14:36]But in this instance where whereas the law of you have if you like bad cops let me use the phrase bad cops in society acting the court is not necessarily defending the interest of the ordinary society in set ordinary citizen in certain instances and I'll give you an example when you look at the law the law uses the words knowingly >> knowingly >> knowingly The law says knowing or having reasons to believe that a statement, rumor or report is false.

[00:15:14]>> That is section 208 of the criminal and offenses act.

[00:15:20]>> Right? And then when you look at section 76, it also says a person who by means of electronic communication service knowingly sends knowingly sends a communication which is false. So you must know that the communication you are sending is false, misleading and likely to prejudize the efficiency of life saving service or to endanger the safety of any person. So these are the facts. So it is not merely the sending of the communication. It is not merely the publication or repeat reproduction of a statement or rumor which is false. You should know now who determines whether or not the person knows. It is the law enforcement agent.

[00:16:11]You are likely to have a law enforcement agent as I said who is genuinely doing his work and may think that in this particular case he thinks that a primacy case has been established. The person did this knowing that it is false. You are also likely to have a a law enforcement agent who might want to use the law to settle scores.

[00:16:34]Right now the person that is supposed to make sure that the citizen does not become a victim of score set score settlement is the court but in these instances that I have become aware of in some of the courts when you go it's a part for the law enforcement agents that is where the problem is for instance let's look at circuit court 9 that was where aba was sent And we all saw that the basis upon which the judge remanded at one year was not law. Was pros was literature. It was not law. Right now a judge is promoted to the high court.

[00:17:23]There's no way in the world that a judge would do such a thing and be promoted to the high court.

[00:17:30]Subsequently, Baba Amando is sent to the same circuit court 9. The question that we all have to ask ourselves is that why are all these cases going to circuit court 9?

[00:17:44]Okay. When it went to circuit court 9 this time, this time before a different judge, why did the same jud Why did this different judge treat Amando's case like Abra's case was treated?

[00:17:59]So these are the questions we need to ask ourselves and these are the this is the kind of understanding the GTA president needs to have and so in thinking that he's going to the Supreme Court in my humble view is it's an exercise in futility we must take this matter up with the chief justice we must begin to have a certain understanding of what is happening in our system why is circuit court 9 the destination for such cases why are different judges acting in the same manner. Is there a certain is there a certain design? We must begin to have a certain understanding. These are questions I'm asking and they are legitimate question based on the facts at play. Now why is it that generally our judges are quick to act in the interest of law enforcement agencies? I agree with them. They must be predisposed to making sure that you know there's law, there's order, there is peace and so on and so forth.

[00:19:02]>> But but let me ask this. When it comes to the working of a journalist, mustn't there be a threat constitution?

[00:19:09]>> Mr. M, are you with me?

[00:19:11]>> Yes sir, I'm with you.

[00:19:12]>> Great. So I want to find out from you.

[00:19:14]When it comes to the working of journalist, mustn't there be a threshold before a security agency can say that you've spewed falsehood and therefore we have to pick you up and and and and and question you?

[00:19:25]>> Boss, the threshold is article 23.

[00:19:28]>> The threshold is article 23 because the security agency is exercising a discretion and that discretion who determines whether or not article 23 is being complied with. It is the court who determines whether or not an arrest is consistent with law and due process of it. Con, you know, in accordance with article 14 of the 1992 constitution, it is the court. But when the courts give our security agencies the path as though when a security agent arraigns you before court, you are guilty. That is where the problem is. And so in this instance I'm saying that in specific cases that we have witnessed what is at play is our courts very respectfully specific courts that have handled this matter. I I've said that in my I'm not going to generalize and bastardize the judiciary. I will focus on the courts specific courts that do such things and we have to deal with it.

[00:20:35]>> Okay. for specific courts that have done it. The problem is that they have failed. They have failed not just the citizens but the constitution of Ghana.

[00:20:45]>> Okay. All right. U let me bring in Mr. again. Mr. So when you listen to Naf you seem to have uh you know some proposal as to how to how to deal with this. Um, how do we handle this sort of confusion between when the generals feel that the security agencies are trying to abuse us and and even gag us from doing our work?

[00:21:08]How do we deal with it?

[00:21:10]>> First of all, I think that Ghana journalist association should be the executive of Ghana Journalist Association should be work organizing workshops to educate the east members on responsible journalism is very important. How what are the steps that a journalist has to take to verify an information given to him or information that has come to his attention to ensure that he will be within the ambit of the law. It's very important. If you know if you don't have that standard, that education, that knowledge, journalists might be flying with yellow journalism just publishing what comes to them for transitionalism.

[00:21:56]>> So is your advice is your advice that GJ must not head to the court, but rather must train its members.

[00:22:04]>> No, the that's the first step. I mean that's why you have an association.

[00:22:08]>> Okay, I get it. That's why there is Ghana Journalist Association. That is why there is Ghana Bar Association.

[00:22:15]That's why there is Ghana Bankers Association. So that our members, the members of the various associations are brought up to the requirements of the law in conduct that is acceptable in society.

[00:22:30]It's very important.

[00:22:30]>> But if you leave it as a fight for all, I mean for individual.

[00:22:35]>> Okay. We are not >> that standard must and then >> you look at the cause because if you don't build that journalist will be operating or members of professional associations will be behaving as if there is no law and where there is impunity members will individually be held responsible.

[00:22:58]>> Okay. All right. and the the executives of the various associations will be failing in their duties to protect those members.

[00:23:06]>> But you support but you support going to court, right?

[00:23:09]>> I mean proactive I mean activities taken by the executives or members to safeguard themselves and prevent themselves from falling foul of the law.

[00:23:18]>> But you support a DJ going to the Supreme Court.

[00:23:22]>> Well, I would not I will not beef with them if they want to go to the Supreme Court. But why do they why is the Supreme Court are they saying that the provisions of the electronic communications act violates certain foundational principles in the constitution and particularly the relevant articles they have mentioned?

[00:23:42]Is that what they are saying? Is that the argument or they are saying that there is a wrong application of the law?

[00:23:49]>> Wrong application.

[00:23:49]>> What are they saying?

[00:23:50]>> Wrong application >> or abuse abuse of the law. So you're saying that what they are doing is ultravar.

[00:23:59]>> Okay.

[00:23:59]>> So you go for a judicial review.

[00:24:01]>> I have the president himself with us on the line. Let me bring in him. Mr. Albert is president of DJ. Mr. I'm grateful to you for joining us.

[00:24:08]>> The so the question is I is it about abuse or you think the the law is being wrongly applied?

[00:24:16]>> Okay. Thank you so much my good brother and good evening to you Lith and uh thanks. I was listening to the last speaker and I feel that he has he has even answered a question because when you talk of judicial review who uh we all know the court in Ghana who has the original and then and exclusive right for when it comes to judicial review. So if you say judicial reason we are going for interpretation of such of certain act uh that has tended to be to be weaponized against media freedom uh uh in terms of it application and everybody knows when you read that it's clearly stated in there uh we are in this country when uh president Kufur repeal the criminal act then we all know that uh you can't you can't you can't even have a defamation was more more more more criminal than it is today. And when the act the criminal act was repelled, we all felt that look now uh the free speech uh hate speech and all other issues of force obation or whatever now can now be treated as defamation and defamation and is now seen to be what civil and not criminal. But then uh just the electronic communication act 2008 actually 5 came in and all of a sudden uh the security services have to now go beyond the window to now uh weaponize start weaponizing this very act against journalists. In fact uh today even when when when uh somebody on individual or private citizens when they make some comment uh about even individuals and it does not have any tendency or impact or affect even the state or uh whatever stated in the in the communication act electronic communication they still be arrested and be charged with false news publications and so I mean what we are saying is that application of the law is what is not right and I believe is the Whatever if you tell us how many how many cases under set under this charges the electoral communication act has survived in court.

[00:26:25]>> They take they take journalists they take uh individuals and all that to court with these charges and what where does it go? It doesn't end anywhere. So we are saying that the application of the law is really the law. They abusing the law. The law was not meant for journalists and we keep we we still stand by it. Let's read the section 76 and all of us will appreciate that this law must relook at we are saying that it's either the law the whole act is repealed or they review that aspect that is which their security agencies are using are weaponizing.

[00:26:56]>> So when so when are you going to court?

[00:26:59]>> We are ready. We know we don't talk and for GJ before we say something we are ready. We have prepared everything. We are ready. Uh I served the notice because today the national security called all stakeholders including um uh public relation officers of the various security services and heads of the of the media stakeholders to have to engage you understand they wanted to they want to build what >> I get but I just wanted to find out from you >> all the parties can work together to ensure that uh we all we all we all achieve a common goal. So, so that is where I serve that notice and I can tell you that this is something we are going to do and uh maybe the coming weeks we will details of it will will be made available to the public.

[00:27:41]>> All right. I'm grateful to you uh for joining us here. Um N you've listened to the president today. What do you make of it?

[00:27:47]>> Yes.

[00:27:48]>> Um I think that very respectfully I really respect them. I respect their views but I seriously think that they need serious guidance to map up very serious strategies to approach this.

[00:28:02]They to say that the law doesn't cover journalist I disagree with them. They will have to appreciate that not every journalist would be a saint. You are likely to have people who are likely to abuse the law. That is why the police will at any given point have to exercise a certain degree of discretion. Right?

[00:28:21]But it is okay for us to look at the law and consider whether or not it's being abused and for which reason certain exceptions would have to be expressly made. It should be okay. But they would have to appreciate that the law as it stands is also applicable to journalist.

[00:28:37]Whether or not Supreme Court should be the forum um I doubt if there is any reason why u uh u this should go to the Supreme Court. But I don't I wouldn't take it away from them if they have looked at it and they think that there's a certain perspective which they take for which reason it should go to the Supreme Court. That that that is also entirely within their right.

[00:28:59]>> No, I'm grateful.

[00:29:00]>> But I think that just as Mr. Instafini said um this matter a workshop may be helpful to to sensitize journalists so that there is more responsible journalism.

[00:29:13]>> I'm grateful to you. J Ba is a member of the constitutional and legal affairs committee of parliament. He had Mr. Fusen's former MP and a lawyer and also Aon who's the president of GJ. Abnest is news tonight.