MFWA-NCA case: A judgment that monetises our fundamental right to information

The June-17 mid-morning judgement by Justice Gifty Agyei Addo on the MFWA-NCA RTI case was the second time the high court judge was dealing with a ‘ghost’ that is likely to haunt again in the near future.

The Right to Information Law Act 989 was brought to life two years ago but without some enabling parts that must ensure the Act functions as the ‘living document’, which the law is. These missing parts are tending to be a haunting ghost.

A year ago, on July 21, 2020, Justice Gifty Agyei Addo ruled on a case on the law brought to her by a lawmaker.

Ernest Norgbey, MP for Ashaiman, had written to the Electoral Commission under the RTI law requesting information on the procurement procedure used by the commission to hire the services of two consultants—Dr Ofori-Adjei, an IT Consultant and Mr A. Akrofi, a procurement consultant. The two were noted to be very instrumental in the EC’s purchase of a biometric voter management system (BVMS). Mr Norgbey wanted to know whether the hiring of the services of the two consultants was in line with the Public Procurement Act, 2003 (Act 663), if indeed the EC hired them.

The EC agreed to provide the information, in principle. But it hedged, in practice. The election management body prevaricated with one of the disabling parts of the RTI law—fees and charges for providing information to applicants.

“As ready and willing as our client is to provide the information requested by your client, it is not immediately able to do so because the fees and charges applicable are yet to be determined in accordance with law,” the EC lawyer, Justin Agbeil Amenuvor, wrote to Martin Kpebu, Ernest Norgbey’s lawyer, who had requested the information on the lawmaker’s behalf.

It was a clever move by the EC to uphold the law and undermine it at the same time. Ernest Norgbey would call the move “bogus”, adding “it just shows clearly that the EC wants to hide behind some technicalities and perpetuate the illegality.”

Escape window on the law expected to be air-tight to ensure transparency 

The passage of the RTI law was hailed by many anti-corruption campaigners to be the perfect instrument to strengthen the call for transparency and accountability in public service. It was going to enjoin public servants to disclose information proactively, first; and reactionary, second. But the law, which is expected to be an air-tight legal instrument for ensuring transparency, has come with escape windows that may be sealed with time. One of such windows is the fees and charges.

Section 75(1) of the law states:

“An applicant seeking access to information under this Act shall pay the fee or charge approved by Parliament in accordance with the Fees and Charges (Miscellaneous Provisions) Act, 2009 (Act 793).”

However, Parliament is yet to approve the fees and charges under the Law. This was the window the EC attempted to jump away through. The same is what National Communication Authority (NCA) absconded through against the Media Foundation for West Africa (MFWA).

The Judge deals with the Ghost

The MFWA had requested four pieces of information from the media regulator, National Communication Authority, NCA.

1. The full list of all authorised FM stations as of the second quarter of 2020, indicating the dates of first authorisation, dates of last authorisation renewals, locations, and operational status (on air or off air).
2. The full list of all authorised television stations as of the second quarter of 2020, indicating dates of first authorisation, dates of last authorisation renewals, locations and operational status.
3. An explanation for the recent replacement of your published 2020 second quarter report titled: “List of Authorised VHF-FM Radio Stations in Ghana as it Second Quarter 2020” which contained columns for date of first authorisation and date for last authorisation renewal, with one that now excludes the dates of first authorisation and dates of last authorisation renewals.
4. The full list (name of company, name of radio station, location and frequency number) of all FM radio stations that were shut down following the 2017 FM spectrum audit and in line with the 2018 decision of the Electronic Communications Tribunal.

Like the EC, the NCA invoked the ghost of fees and charges, this time justifying it with one of its enabling statutes, Electronic Communications Act, 2008, Act 775.

“Please be informed that you are required to pay an amount of Two Thousand Ghana Cedis (GHc2000), as per Section 82 (1) (b) of the Electronic Communications Act, 2008, Act 775 to enable us to generate the search report,” the NCA letter, dated August 20, 2020, and signed by its acting director of legal, Dr Poku Adusei, stated.

The MFWA disagreed and filed a suit on November 27, 2020, challenging the decision of the NCA. The suit averred that the NCA’s decision was “unconscionably, unjustifiably, unreasonably, unfairly and arbitrarily in breach of specific provisions of Act 989”.

The case would be adjourned to 31st March 2021, and be heard at the Human Rights Court 1.

At the same Human Rights Court a year before, Tuesday, July 21, 2020, Justice Gifty Agyei Addo dealt with the ghost of fees and charges on the Ernest Norgbey vrs EC matter. The court ordered the EC to release the information to its registry within 30 days for the benefit of Mr Norgbey, but the MP should pay Ghs 1,500.

“The inaction of parliament should not prevent the realization of constitutional rights of a person,” the judge said.

Yesterday, June 17, 2021, on the MFWA vrs NCA case, Justice Gifty Agyei Addo emphasised that specific legislation overrides general provisions of a law and the specific legislation on the matter of fees and charges is the RTI Act 2019, Act 989, section 75. She reiterated her July-21-2020 ruling.

 “In the absence of any amount specified by parliament in respect of fees payable by an applicant who seeks access to information, I will refer to my earlier decision in the case of Ernest Norgbey and the Electoral Commission,” the Judge ruled.

But the treatment by the judge is only temporary. The window of fees and charges still remains gapingly opened for any public institution willing to jump. Until the parliament makes the enactment, it is the easiest and perhaps the commonest escape plan for public offices to deny citizens’ fundamental right to information under the law. The only change now is that the RTI Commissioner’s office is functioning and able to address such matters even before the need for the intervention of the court.

Paragraphs 1, 2 and 4 upheld, 3 exempted

The court also made a determination on whether the four requests made by the MFWA were admissible under the RTI law which would therefore mean the NCA would be enjoined to respond.

 Justice Gifty Agyei Addo ruled that request numbered 1, 2 and 4 were valid. The 3rd wasn’t.

“I, therefore, conclude that the applicant has the right to be furnished with the information contained in paragraphs 1, 2 and 4 of this request, with paragraph 3 exempted,” she said.

On paragraph 3, Justice Gifty Agyei Addo explained that “from my reading of section 13 (1) [exempt information under the RTI law] vis-à-vis paragraph 3 of the applicant’s request, it is clear that what the applicant seeks is not an information but rather an explanation on the basis of the respondents change in operation.”

“This to my mind does constitute eliciting for an opinion with regards to the internal operations of the respondent and access to information within the context of Article 21 (1)(f) of the 1992 Constitution.”

The explanation needed was not an opinion. The NCA had deleted two columns from its report that suggested an unfair application of the law that led to the closure of some radio stations. The MFWA wanted to know why those columns were taken off after the NCA deleted a report that initially had those columns.

The ultimate victory which cannot be celebrated

The plaintiff, Media Foundation for West Africa, arrived at the courts on the wheels of principle and not necessarily practice. The arrival of the MFWA at the courts was going to cost the organisation more than the $350 (GHs 2,000) the NCA was demanding. But it was a matter of principle and setting a good precedent.

The MFWA emphasised in a statement that it was “convinced that the amount the NCA is demanding is prohibitive and liable to set a bad precedent, and a breach of the fundamental right to access information.”

It, therefore, went to the court to ultimately pray the court declares the NCA’s request for GHs 2,000 as inconsistent with the RTI law, and that the media regulator cannot arbitrarily use their own law to charge fees under the RTI.

“A declaration that the amount demanded is not only unlawful but unconscionably exorbitant in breach of the letter and spirit of Act 989 and Applicant’s fundamental rights to information,” the writ said.

Justice Gifty Agyei Addo granted the plaintiff’s request, in principle.

“Clearly the framers of Act 775 did it [Electronic Communication Act, 2009 (Act 775)] not intend it to be the Right to Information Act. That is why specific legislation was provided for in the Right to Information Act, Act 989,” she ruled.

“The respondent has therefore misconceived the applicability of fees and charges intended for the objects of their enabling statutes as if it is also applicable to request for information under Act 989.”

But the plaintiff wanted more than that. The MFWA wanted the court to establish a fee that would cover only the cost of reproducing the information.

“A declaration that the information requested by the Applicant is not subjected to a charge/fee; or in the alternative, a declaration that if Applicant were liable to a charge/fee, same ought to be an ascertainable amount to cover the actual cost of reproduction or photocopy of the information sought only,” the MFWA averred in its suit.

On this, the court ruled:

“So I come to the conclusion that, the fees payable cannot be under section 82 [Electronic Communication Act, 2009 (Act 775)] but under section 75 of Act 989 [Right to Information Act, 2019]. In any event, there are no prescribed fees as they are supposed to be provided by parliament. Their inaction cannot however deny somebody’s right to information. Therefore, going by the precedent in the Norgbey case, I state that the applicant pays 1,500 for the production of the information it seeks.”

Thus, Justice Agyei Addo scrapped the NCA’s justification of Ghs 2,000 which the regulator had based on section 82(1) of the Electronic Communication Act. She thereafter instituted another fee—one guided by the precedent of the Ernest Norgbey’s case—Ghs 1,500.

In effect, the MFWA has won a principled victory. But the organisation is worried that a 25% reduction of the original cost requested by the NCA is not the good precedent they sought to set for the new law.

“While we can pay the GHC1,500 fees decided by the court, it is important to underline the fact that the right to access public information under the RTI law accrues to all Ghanaians including the lowest income earners. This precedent, can, therefore, discourage or disenable a certain class of Ghanaians from exercising this,” the MFWA registered their displeasure in the ruling.

From this case, it is clear the NCA wanted to use its own law to dictate the fees, which the MFWA should pay. That law, according to the judge, does not apply to the RTI so the NCA lost.

The MFWA is however not happy that in using her discretion, the judge still stated a fee that defeats the purpose of the RTI law. Not many people or institutions can pay so much to request information from public institutions.

The ghost haunts again

They say lightning does not strike the same place twice, but that’s just lighting. The ghost of fees and charges does. Before Justice Gifty Agyei Addo could deal with the second appearance of the ghost of fees and charges between MFWA and NCA on June 17, the ghost came haunting again—this time with more ferocity.

The Minerals Commission replied The Fourth Estate’s (of the MFWA) request for information under the RTI Law with a letter, dated June 7, 2021, signed by the acting CEO, Martin K. Ayisi.

“Kindly be informed that in accordance with section 75 of Act 989, Section 103 of the Minerals and Mining Act, 2006 (Act 703)…the application fee payable is the Ghana Cedi equivalent of five hundred US Dollars (US $500) per request. Thus, the applicable fee payable for the above information is the Ghana Cedi equivalent of one thousand US Dollars (US$1000),” the letter stated.

The Fourth Estate had requested information on companies licensed to undertake mining in Ghana between January 2013 and May 2021, and companies whose licenses have been revoked or suspended within the same period.

Until Parliament comes out with the right fees and charges, this ghost will continue to haunt and render the RTI law meaningless.