Criminal Code Amendment Bill Before Parliament

The Attorney General and Minister of Justice, Nana Akufo-Addo, has placed before parliament a bill to abolish the criminal Libel aspect of Ghana's criminal code. This represents one of the most liberal government actions of post independence Ghana.

Criminal libel has been used by governments since colonial times to criminalise the freedom of expression and the media. The government of the PNDC/NDC employed it on several occasions to silence journalists, with some of them even suffering jail terms.

Once criminal libel goes, immense pressures would be brought to bear on journalists to be more circumspect in the way they approach their profession.

The Accra Mail presents below the draft bill presented to parliament on Tuesday, June 27 after which it was referred to the Select Committee on Subsidiary Legislation and Constitutional Affairs.

THE CRIMINAL CODE (REPEAL OF CRIMINAL LIBEL AND SEDITIOUS LAWS) (AMENDMENT) ACT, 2001

An Act to amend the Criminal Code, 1960 (Act 29), as amended, by the repeal of Chapter 7 of Part II on libel; section 182A on power of the President to ban organisations; section 183 on power to prohibit importation or publication of newspaper and sedition; section 183A on defamation of the President and section 185 on communication of false reports injuring the reputation of the State, in order to bring the laws on expression and the media into conformity with the provisions of the Constitution; and to provide for related matters.

Act 29 amended

1. The Criminal Code, 1960 (Act 29), as amended, is further amended by the repeal of sections 112 to 119, sections 182A, 183, 183A and 185.

Abatement of Existing Proceedings

2. Upon the coming into force of this Act, any prosecution instituted under any of the repealed sections, the proceedings of which are pending before any court or tribunal shall cease and proceedings shall not be instituted in respect of the same facts, and any person accused of an offence under any of those sections shall be deemed to have been discharged.

MEMORANDUM

The main body of legislation regulating freedom of expression, including media freedom, is colonial in origin. The history begins with the 1884 Ordinance on the Jurisdiction of Native Courts, which gave the Native Courts the power to try "slanderous" or "seditious" words. Eight years later, the first criminal code, the 1892 Criminal Code Ordinance, set out most of the criminal libel laws which are still with us today. In 1894, the Newspaper Registration Ordinance was promulgated. Forty years later, in 1934, an expansion in the reach of the offence of sedition necessitated the passage of the Criminal Code Amendment Ordinance (No. 21), which provides the basis for the current law, These specific colonial laws operated within the overall context of English statutes of general application such as the Sedition Act of 1661 and the Libel Act of 1843.

' It can thus be seen that our law on expression and the media has been largely shaped by English law and legal tradition. It has also been deeply influenced by our colonial experience. Invariably the passage of the laws was in response to the development of the nationalist movement and the heightening of nationalist consciousness, for the intent and purpose of these laws were clear. They were meant to be weapons in the armoury of British imperialism in its attempt to stifle and suppress the growth of Ghanaian nationalism. So the 1892 Criminal Code Ordinance, and the 1894 Newspaper Registration Ordinance, were both enacted to respond not only to the emerging critical nationalist literature in the plethora of African-owned newspapers of the late nineteenth century, but also to the agitation mounted against the infamous 1894 Crown Lands Bill, which sought to sequestrate our lands in the same manner as happened to the lands of the indigenous peoples of Eastern and Southern Africa. These agitations culminated in the formation on 4th August 1897 by the immortal John Mensah Sarbah of the Aborigines Rights Protection Society, the first of the great nationalist organisations, which successfully defended indigenous control of our lands. Sarbah's immeasurable contribution to the birth of modern Ghana involved also the establishment of a newspaper, 'The Gold Coast People', financed with the fees earned from leading the attack of the Society on the Lands Bill.

Again, in what historians have called "the stormy thirties", when there were clear signs that the nationalist movement was making considerable strides, the 1934 Criminal Code Amendment Ordinance (No. 21) was enacted as a tool in the anti-nationalist campaign of the colonial power. It led to one of the most celebrated cases in our legal history in 1936, The King v. Johnson & Azikiwe, in which the fiery Sierra Leonean and West African nationalist, Wallace Akunor Johnson, a newspaper columnist, and the newspaper's editor, the Nigerian nationalist and future President of the Federal Republic, Nnamdi Azikiwe, were tried for seditious libel.

In the nineteenth and twentieth: centuries, the Ghanaian media played a most prominent, patriotic part in championing the cause of freedom and democracy, and, as in the other parts of the world, was very much in the van- guard of the struggle against political oppression, dictatorship, authoritarianism and other forms of abuse of power for liberty, popular democratic change and accountable governance. The contribution to the success of the nationalist struggle of newspapers such as 'The Times of West Africa', the first daily paper of our history founded by J.B. Danquah, 'The Evening News', the vibrant nationalist voice founded by Kwame Nkrumah, 'The Statesman', founded by Edward Akufo-Addo, and 'The Pioneer', founded by John Tsiboe, was inestimable. The coming of independence did not diminish the vigour of the media.

In the authoritarian conditions of the First Republic, The Pioneer stood out as a shining example of fearless, intrepid journalism, just as The Spokes- man did in the more open atmosphere of the Second Republic. The tradition of courageous journalism saw its finest manifestation in this decade with the remarkable display of tenacity and dedication exhibited by the private media in the face of seemingly insuperable odds, which helped to usher in the multi- party state of the Fourth Republic and bring into being the system of democratic accountability which the nation at long last enjoys today.

It is against this background that the New Patriotic Party, whilst in opposition, declared emphatically its philosophical and ideological hostility to laws that criminalise expression, and called for their repeal. It took the position that the coming into force of the Constitution of the Fourth Republic, with its extensive provisions guaranteeing freedom of expression and media independence, has wrought a significant transformation in the legal regime, making these laws offensive to the letter and spirit of the Constitution.

These laws, many of which, as already noted, have been on our statute books since colonial times, but which, until lately, had fallen largely into disuse, have been in recent times systematically employed to harass and Criminal Code (Repeal of Criminal Libel and Seditious Laws) (Amendment) Bill browbeat media practitioners, the most notorious example being the case of The Republic v. Tommy Thompson/Kofi Cosmos/Eben Quarcoo, in which 3 prominent journalists were prosecuted for publications critical of the leadership of the erstwhile NDC government.

The laws have come to symbolise authoritarian, anti-democratic, anti- media impulses within our body politic. The media has been virtually and vociferously unanimous in demanding their repeal. Indeed, that demand has also been articulated by representatives of broad 'segments of civil society. There is thus strong national support for their repeal. The general expectation is that the repeal of these laws will assist in the process of consolidating and deepening the hold of democracy in our Country, which must be the primary object of contemporary public policy.

The purpose of this Bill is to fulfill the promise of repeal, and thereby to demonstrate the Kufuor Government's determination to make good on its promises to the nation. It is further evidence of the sincerity of the NPP Government's commitment to the process of democratic consolidation in our country, It was in anticipation of this Bill that I discontinued the prosecution in the Tommy Thompson case by entering a nolle prosequi pursuant to the powers conferred on the Attorney General by section 54 of the Criminal Procedure Code, 1960 (Act 30).

The Bill seeks to repeal Chapter 7 of Part II of the Criminal Code, 1960 (Act 29), that is sections 112 to 119, which deals generally with criminal libel. These are the provisions which were held by the Supreme Court, in a decision of dubious constitutional validity, as constitutionally regular in the Tommy Thompson case reported in 1996-7 SCGLR 404. It repeals section 182A, which gives the President power to ban organisations at his discretion. It also repeals section 183 which provides for the offence of sedition; section 183A that deals specifically with defamation of the President and, finally, section 185 which criminalises communication in whatever form to any other person of a false statement or report likely to injure the credit or reputation of the country.

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 multiparty 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.

NANA AKUFO-ADDO
Attorney-General and Minister for Justice
DATE: 7th June 2001.
Accra.