Samson Anyenini’s take: courts can’t function when lawyers are locked down
It has been known for only about three months, but over a million people are infected with Coronavirus. It has claimed near sixty thousand lives as America alone projects it might lose between 100,000–200,000 people to COVID-19.
Amid the global panic to contain the spread, some wily politicians are consumed with how to get monstrous undemocratic powers to advance their narrow private interests. Elections have been postponed, while some pray for total cancellation of elections citing the far-reaching disruptive nature of the virus of economies.
Many have lost their livelihoods and a great mass of people will be rendered jobless. Yet it is the thought of contracting the virus that scares us most, at least, at present. The legal principles of force majeure and frustration mean businesses, people, including event organisers, may be unable to enforce performance of paid contracts and yet may never get a refund.
The homeless are finding some shelter as the busiest cities turn ghost towns in “stay home” or “lockdown” orders. Remaining in hideouts in market places, in street corners and indulging in crowd and unhygienic practices means hefty court fines and/or long prison terms. Citizens, churches are helping where they can, but governments have a sacred obligation to redirect the uses of public facilities and money in the treasury.
While the UK and other countries worked on COVID-19 detailed specific laws to empower citizens in the collective fight, others including the US and Ghana sought sweeping powers for presidents. It is refreshing though that, at a time when civil society is not getting to participate and lawmakers are not scrutinising bills, opposition lawmakers fought inappropriate and awkward provisions to ensure a level of restraint.
International watchers say “the pandemic may be a boon to governments with an autocratic bent” and that “governments may continue to absorb more power while their citizens are distracted.” They are concerned that “people may not recognise the rights they have ceded until it is too late to reclaim them.”
Citizens have, as expected for their protection and collective wellbeing, given up some of their fundamental human rights. But is it reasonable to set between GHC 12,000 and GHC 60,000 fine or plus 4 – 10 years prison terms for a breach of the restrictions imposed? It is strange why anyone will willfully violate these measures intended for his protection. But are those who fall foul of the law and who are expected to be prosecuted entitled to legal representation when lawyers are not in the category of exempt service providers, while VALCO workers get a specific mention as exempt from the “lockdown” in E.I. 65 signed by the President on 30th March 2020?
Do you recall the “Spy Bill” (Interception of Postal Packets and Telecommunications Messages Bill, 2016)? Citizens, civil societies, the New Patriotic Party (NPP), Telecoms Chamber, the Ghana Bar Association( GBA), and OccupyGhana kicked against it. I was one of some three crusaders who took memoranda to Parliament and appeared before MPs to insist it should be withdrawn because it was a dangerous, unconstitutional and unlawful invasion of privacy.
The President, under the guise of establishing emergency communications system to aid contact tracing, on March 23, 2020, signed an E.I. 63 introducing what, in respect of your telephony transactions, mimics what was collectively rejected on very sound reasons which have not changed even in the face of coronavirus.
All who campaigned actively to get the “Spy Bill” withdrawn, read the new 4-page E.I. 63 and discover an even worse version of the “Spy Bill” and the thing you fought against in KelniGVG smuggled under section 100 of the Electronic Communications Act, without need for parliamentary scrutiny and without safeguard and supervision by any third-party or a court of law.
The bottom line is the President has handed himself (and through those, he will act) general sweeping powers that were never the contemplation of section 100. The law’s requirement is for a specific request at a specific time for state intrusion into a specific suspect’s telephony records over a specific suspected act of criminality by that specific individual and the requested access ought to be for the duration of tracking that individual and gathering evidence of his criminal conduct. The purpose is law enforcement and national security.
The law certainly does not permit this blanket power to have full access to all records, at will, of all customers of all telcos, and for the state to be allowed a permanent presence at the telcos through a central device controlled by the state for unrestrained access to every customer’s record.
All your mobile money data, transaction and wallet details, merchant code, bank details – practically your every private transaction details the telcos are being compelled to disclose to the government. By section 99, if there was war, or the President had declared a state of emergency, as would be supervised by Parliament, then he could “assume direct control” of the telcos and determine their operations.
A section 100 E.I cannot do a section 99 warfare or state of emergency operation of the telcos, so this is clearly an unconstitutional and illegal act that must be stopped immediately! This is clearly intended to get all the government could not in normal times get from telcos, including through KelniGVG, which did not get the support of the central bank.
The Supreme Court, speaking through one of its best minds, Justice Francis Kpegah in the landmark case AWUNI vrs. WAEC in 2004 cautioned that “[a] nation that stands by and looks on while the rights of the individual are slowly pecked at, eventually pays the ultimate price of finding its own rights eroded. Often times, the concept of “public interest” and “national security” has been used to undermine and subvert individual freedoms. These are words, which are not infrequently on the lips of potential dictators and often used as convenient excuses for the violation of individual rights. We may accept some limitation on the fundamental rights of the individual only if it is justified and proportionate.”
Watch! There is no timeline to this E.I. so the government, the state is under no obligation to stop using this president-only made law to do what it seeks. If I understand the technical details correctly, it would seem it could be used including potentially for some checking on political opponents, and that’s what the NPP in opposition feared most in kicking against the “Spy Bill”.
May President Akufo Addo, a man with known democratic credentials, not be added to the list of autocrats in democracies exploiting the coronavirus pandemic for selfish private ends.
In the meantime, stop circulating false or misleading information because, by section 76 of the electronic communications law, you face a fine of up to GHC 36,000 or up to five years in jail for such activities with the potential to impede the fight against the virus pandemic. By section 208 of our criminal code, you also face up to three years in jail if you don’t verify and spread a false statement, rumour or report that can cause fear and panic.
Samson Lardy ANYENINI
April 4, 2020