Dear Mr. President,
I bring you warm compliments. As you are obviously aware, in the last two weeks, a number of radio presenters and some activists have been arrested by the police and put before the law courts. In nearly all the cases, the arrests and ongoing prosecution are for the offence of publication of false news and offensive conduct.
Your Excellence, last week, I wrote an article titled: “Ghana’s Journalism and Media Freedom Crisis” in which I expressed serious concerns about the wave of reckless conduct in the media and by the media. I indicated in that article that such reckless conduct had a great potential to undermine media freedom and emasculate the value and critical role of the media in our budding democracy. I went on to condemn such reckless acts for their potentially serious consequences for our dear nation.
Apart from highlighting the challenges that reckless, unprofessional media conduct poses for our democracy, I also indicated that another main challenge for our democracy has been a high level of intolerance and autocratic tendencies by your government as far as media freedom and free expression is concerned.
The purpose of writing to you is to point to you the basis of my claim and accusation that you and your government are being intolerant and exhibiting autocratic tendencies when it comes to media freedom and free expression.
Mr. President, my accusation stems from two principal reasons:
- Evidence of increased incidents and gravity of media rights violations with impunity under your regime and 2. My firm affirmation and strong conviction of your position on matters of free expression and free speech while you were seeking to be President of our dear country.
Your Excellency, I will touch briefly on the incidents of media rights violations and the culture of impunity over such violations.
Under your first term of four years, there were over 55 individual incidents of violations of media rights in the country. The number exceeds what was witnessed over any four years since President John Kufuor’s government. But what is even more significant is the gravity of the violations that occurred during your first four-year tenure.
During the period, we witnessed the murder of a journalist, Ahmed Suale; the storming of the offices of Modern Ghana, arrest and blindfolding of journalists and confiscation of the equipment of the arrested journalists by national security officers; Selective and politically-motivated closure of opposition-aligned radio stations; brutal, life-threatening assault on several journalists; and a journalist having to leave the shores of the country for some time, after serious threats to his life. These are just to highlight some of the serious incidents of violations that have occurred.
In all these and the many other cases, we have not seen any serious action on the part of the state or government towards ensuring justice for victims of violations. We have not seen any strong signal to the perpetrators about the government’s abhorrence for acts of media rights violations. What we have witnessed has been impunity and impunity for every violation.
I will say more about the incidents of violations in another letter. In this letter, I want to dwell more on the second reason why I say your government has been intolerant and why I am getting convinced that you have changed your principles on the value of free expression in a democracy, since you became President.
Mr. President, I believe you will agree that we have seen more arrests and prosecution of persons on the charges of publication of false news and offensive conduct under your government than any other government in the Fourth Republic. In fact, in one instance, the police ambushed and arrested the publisher of WhatsApp News, for publication of false news that was yet to be published. Isn’t that incredible?
Your Excellency, I am surprised about what is happening under your leadership because, in 2011, you spoke strongly against the use of the same laws (publication of false news and offensive conduct) in President Atta Mills’ administration.
On August 4, 2011, you expressed your opposition to the application of the obnoxious laws when you spoke eloquently, on the topic: “Outlawing Criminal Libel Laws in Ghana” at a Conference that had as part of its theme: “African Constitutionalism And The Media.” The conference was co-organised by the Institute of Comparative and International Law and the Konrad Adenauer Stiftung, at the University of Pretoria, South Africa.
In your speech, you described the laws on publication of false news and offensive conduct as “arcane” and their application as a threat to media freedom.
Here is what you said against the laws and their application by the then government: “Despite the repeal of these laws [Criminal libel and Seditious libel], 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.”
Your Excellency, you continued your accusation against the then government for using the Criminal Code by citing an incident that had happened at the time. You said: “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.”
Mr. President, I agree with your position at the time. At the time, the government, acting through the police, was desperate to keep in check a robust media. That was certainly bad.
But we are witnessing the same things at even an alarming rate under your government. The police seized on the same offences to storm Accra FM recently to arrest a journalist. The reason for storming the station in that incident you referred to in your 2011 speech, was about an allegation against former President Rawlings. In the case of the incidents under your government, are in relation to an allegation against your wife and a separate one (the arrest, detention and prosecution of Mensah Thompson) about your family. Just as you correctly stated in 2011, my conviction is that your government is also using the obnoxious laws because it is desperate to hold in check, a robust media.
You also mentioned in your 2011 speech that at the time, when the police arrested the radio panelist, there was public outcry and the police, “shamefaced, responded by changing tack,” by claiming that they had taken the radio panelist to the police station for his own protection. You concluded on that point by confirming that the charges were never pursued.
Mr. President, unlike what happened in the incident you cited in 2011, in the cases happening under your government, the charges have not been dropped. They are being pursued.
Your Excellency, in that speech of yours, you further accused the then government and the police in a manner that makes it safe for one to conclude that, perhaps, after becoming President, you have changed your principles and convictions on matters of free expression in a democracy. This is because what is happening under your watch are worse forms of the acts you complained about while in opposition.
You said at the time that: “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.”
You went on to cite two instances in which the law on publication of false news was invoked. You narrated that “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 traveling 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.”
Mr. President, what is different from what you condemned at the time and what is happening under your government? In fact, you mentioned that public outcry led to the dropping of the cases. In the cases happening under you, are there no public outcries? Have the charges been dropped?
You also accused the government at the time of applying the law in a selective manner and said there were also instances of abuse and use of the laws in cases where they should not even apply. Your Excellency, I wouldn’t want to go into the matter of the selective application of the laws at this time.
Your Excellency, what is even more cardinal in your speech at the time in relation to the ongoing developments in our country, was your position on the validity of the law on publication of false news.
You said: “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.”
You continued: “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.”
Mr. President, you then went on to diagnose the problem with our law on publication of false news by saying that: “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.”
Mr. President, has the law changed? Is the law being applied under your watch different from what you diagnosed as being problematic? The obvious answer is no. What has changed is perhaps your position and convictions.
After your brilliant diagnosis, you proceeded to make an emphatic and very significant pronouncement on the law at the time. You stated eloquently:
“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.”
Mr. President, the law remains the same, so why is it being used so rampantly under you?
With these reminders, Mr. President, I urge you to remain loyal to the principles you held in high esteem in 2011, as far as free expression is concerned. The actions against free speech that you strongly condemned while in opposition are happening at an alarming rate under your leadership.
We cannot love media freedom in opposition and oppress it when in power. We cannot love democracy and hate free speech. When free speech dies, democracy dies.
Your good friend,
The author is the Executive Director of Media Foundation for West Africa.