From Page One

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years since these words for the laws of criminal and seditious libel not only to be reviewed and reformed, but to be repealed altogether.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 To the extent that they were not repealed or pronounced unconstitutional, the criminal and seditious libel laws in the Criminal Code could become the hunting grounds for any attempt to hold in check a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!

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.

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