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General News Thu, 3 Mar 2016

Throw out ‘spy bill’ – Samson Lardi

Renowned Lawyer, Samson Lardi Anyenini, has petitioned Parliament against passage of the controversial Interception of Postal Packets and Telecommunication Messages Bill.

Samson Anyenini says instead of passing the widely condemned bill, Parliament should expend the effort to pass the Right to Information Bill.

The Interior Ministry is spearheading a campaign to get the Interception of Postal Packets and Telecommunication Messages Bill passed, suggesting it will help to fight crime and suppress organised crime.

The proposed law would allow security agencies to intercept anybody's telecommunication messages if there are suspicions they are involved in any form of organised crime or terrorism.

However, Samson states in his petition that "if this truly is the purpose, then several existing laws including the Anti-Money Laundering, Anti-Terrorism, Narcotic Drugs, Electronic Communications, Data Protection, Economic and Organised Crime Office, and Security and Intelligence Agencies Acts serve the objective and very well too."

Below is his petition to Parliament addressed to the Speaker, Edward Doe Adjaho

He provides provisions of existing laws that are already serving the objectives of the proposed law.

1ST MARCH, 2016

Hon. Edward Korbly Doe Adjaho

The Right Honourable Speaker

Parliament of Ghana

Accra Ghana

Dear Sir,

PETITION: PROPOSED INTERCEPTION LAW

IS AN UNNECESSARY & DANGEROUS ADDITION

Right Honourable Speaker, please stop processes towards passage of the controversial “Interception of Postal Packets and Telecommunication Messages Bill” (IPPTMB) into law.

I mentioned in an earlier Petition, urging instead a quick passage of the Right to Information Bill, that the purpose of the interception law is already catered for in several legislations in Ghana.

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The Memorandum to the Bill outlines “fighting crime, suppressing organized crime including money laundering, terrorism, narcotic trafficking, identity theft and generally for the protection of national security” as the object of the Bill.

Sir, if this truly is the purpose, then several existing laws including the Anti-Money Laundering, Anti-Terrorism, Narcotic Drugs, Electronic Communications, Data Protection, Economic and Organised Crime Office, and Security and Intelligence Agencies Acts serve the objective and very well too.

I humbly invite you to read the relevant provisions of five of these laws:

i. NARCOTIC DRUGS (CONTROL, ENFORCEMENT AND SANCTIONS)

LAW, 1990 (PNDCL 236)

Section 27—Power to Intercept Communication

1. Notwithstanding the provisions of any other law, a magistrate or a District Tribunal if it or she considers on an application made to him or it that any communication or postal article is likely to contain any information or substance which is likely to be relevant for the purpose of any investigation into an offence under Part I or Part II or subsection (7) of section 31 or any corresponding foreign law, or for a purpose under this Law, may authorise a police officer—

(a) to intercept, detain and open any postal article in the course of transmission by post;

(b) to intercept any message transmitted or received by any telecommunication; or

(c) to intercept or listen to any conversation by any telecommunication.

(2) When any person is charged with an offence under Part I or Part II or subsection (7) of section 31, or when any proceedings are taken under Part III any information obtained by a police officer under subsection (1), whether before or after that person is charged, or before or after those proceedings are commenced, shall be admissible at his trial in evidence, or in those proceedings as the case may be.

(3) An authorisation by a magistrate or District Tribunal under subsection (1) shall be given in writing to a police officer specified in the authorisation.

(4) A certificate by a magistrate or District Tribunal that the action taken by a police officer in pursuance of subsection (1) had been authorised by him or it under subsection (1) shall be conclusive evidence that it had been so authorised and that certificate shall be admissible in evidence without proof of signature.

(5) No person shall be under any duty, obligation or liability or be in any manner compelled to disclose in any proceedings the procedure, method, manner or means or any related matter, with regard to anything done under paragraphs (a), (b) or (c) of subsection (1).

(6) For the purpose of this section— "postal article" has the meaning assigned to it in the Posts and Telecommunication Corporation Decree, 1975 (NRCD 311); and "telecommunication" has the meaning assigned to it in the Posts and Telecommunication Corporation Decree, 1975 (NRCD 311).

i. SECURITY AND INTELLIGENCE AGENCIES ACT, 1996 (ACT 526)

Section 29—Application for Warrant

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1. Where a Director of an Intelligence Agency or an employee designated by him, has reasonable grounds to believe that a warrant is required to enable the Agency perform any of its functions under this Act, the Director or the designated employee may apply for the issue of a warrant.

(2) The application for the warrant shall be made in writing to a Judge, Chairman of a Tribunal or a senior police officer with the rank of Superintendent or above.

Section 30—Matters to be Specified in Application for Warrant.

(1) An application for a warrant shall specify—

(a) the facts relied upon to justify the belief, or reasonable grounds, that a warrant under this Part is required to enable the Intelligence Agency to investigate a threat to the security of Ghana or to perform its duties and functions under this Act;

(b) that the urgency of the matter is such that it would be impracticable to carry out the investigation using other investigative procedures or that without a warrant under this section it is likely that information of importance relating to a threat to the security of Ghana or the performance of the duties and functions under this Act would not be obtained;

(c) where the purpose is to intercept communication—

(i) the type of communication proposed to be intercepted, the type of information, records, documents or things proposed to be obtained and the powers in paragraphs (a) and (b) of this section proposed to be used; and

(ii) the identity of the person, if known, whose communication is proposed to be intercepted or who has possession of the information, record, document or thing proposed to be obtained;

(d) the person or class of persons to whom the warrant is proposed to be directed;

(e) a general description of the place where the warrant is proposed to be executed, if a general description of that place can be given;

(f) the period, not exceeding sixty days for which the warrant requested is to be in force where necessary;

(g) any previous application made in relation to a person identified pursuant to paragraph (c)(ii), the date on which the application was made, the name of the Judge to whom each application was made and the decision of the Judge in respect of the application.

(2) Every warrant authorising the interception of communications shall be issued under the hand of a Judge of the Superior Court.

i. ANTI- TERRORISM ACT, 2008 (ACT 762)

Intercepted communications

34. (1) A police officer not below the rank of an Assistant Commissioner of Police may apply ex parte to a Circuit Court for an order to intercept communications for the purpose of obtaining evidence of commission of an offence under this Act.

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(2) A police officer not below the rank of an Assistant Commissioner of Police may make the application only with the prior written consent of the Minister.

(3) A Judge of the Circuit Court to whom an application is made under subsection (1) may make an order for the prevention of crime upon reasonable grounds to

(a) require a communications service provider to intercept and retain a specified communication or communications of a specified description received or transmitted or about to be received or transmitted by that communications service provide

(b) authorise a senior police officer to intercept or listen to a conversation provided by a communications service provider,

(c) authorise the senior police officer to enter premises and install on the premises a device for the interception and retention of specified communications or communications of a specified description and to remove and retain the device, where there is reasonable suspicion of commission of an offence under this Act, or the whereabouts of a person suspected by the police officer to have committed an offence is contained in that communication or communication of that description.

(4) Despite the Evidence Act, 1975 (N.R.C.D. 323) information contained in a communication which is intercepted and retained in a foreign state in accordance with the law of the foreign state and certified by a judge of that foreign state to have been intercepted, is admissible in proceedings for an offence under this Act as evidence of the truth of its contents even if it contains hearsay but shall be corroborated.

i.ELECTRONIC COMMUNICATIONS ACT, 2008 (ACT 775)

Powers of the President

100. The President may by executive instrument make written requests and issue orders to operators or providers of electronic communications networks or services requiring them to intercept communications, pro¬vide any user information or otherwise in aid of law enforcement or national security.

i. ECONOMIC AND ORGANISED CRIME ACT, 2010 (ACT 804)

Section 25 (5)

(5) The Court shall consider an application without notice which claims that communication in any medium including an article sent by post or through a courier service is likely to contain information or a substance that may be relevant to an investigation into an offence under a law in this Country or a corresponding foreign law, and the Court shall, where appropriate, order an authorised officer of the Office to.

(a) intercept, detain and open the article in the course of trans¬mission by postal or courier service,

(b) intercept a message' transmitted or received by any means of communication,

(c) intercept or listen to any conversation by any means of com¬munication, or

(d) enter premises and install on the premises a device for the interception and retention of communications of specified description and remove and retain the device.

Emphasis added

Sir, my emphasis on “communication in any medium” in Act 804 above is intended simply to demonstrate that a claim that the IPPTMB by resort to “electronic or cyberspace communication services” is to be a more complete and all-embracing as regards all forms of communication cannot be correct. I dare say the Act 804 rendition is preferred as an even more general specific catch-all phrase in legislative drafting.

I noted in my said earlier Petition that “except the introduction of a provision to intercept messages without first procuring a warrant ex parte from the courts” these laws already serve the purpose being sought – the only marked difference being the requirement by these laws for a warrant from the Court before a move to intercept messages.”

But sir, the ingenious drafters of Act 775 were minded to empower the President to cause interception of communication without recourse to the courts, but by the simple act of an “executive instrument make written requests and issue orders to operators or providers of electronic communications networks or services requiring them to intercept communications, pro-vide any user information or otherwise in aid of law enforcement or national security.”

It is argued that the many citizens crying against this proposed law would rather have their elected President exercise this power than have it extended to the National Security Coordinator or any other. But if even the President was required to do so in such a manner, why on earth give the security coordinator power to intercept and detain messages/communications for a period without any supervision, and to do so also orally?

Right Honourable Speaker, you ought to be convinced now that there is no need for the IPPTMB or urgency for it as there is neither lacuna to fill nor mischief to cure.

The safeguards and regard for citizens’ article 18(2) fundamental human rights against invasion/interference with their private communication and correspondence in the status quo ought to be preferred to the obvious dangers/weaknesses of the IPPTMB.

The Defence and Interior Committee should deem service of a copy of this Petition on it as my submission pursuant to its invitation to the general public.

Yours faithfully,

Samson Lardy ANYENINI, Esq.

CC:

THE MAJORITY LEADER

THE MINORITY LEADER

CHAIRMAN – CONSTITUTIONAL, LEGAL & PARL. AFFAIRS

RANKING MEMBER - CONSTITUTIONAL, LEGAL & PARL. AFFAIRS

CHAIRMAN – DEFENCE & INTERIOR COMMITTEE

RANKING MEMBER - DEFENCE & INTERIOR COMMITTEE

Source: Myjoyonline.com