Feature: Protecting Ghanaian employees of foreign missions in Ghana

I made a Freedom of Information (FOI) request to the Australian Department of Foreign Affairs (DFAT) in December 2015 for release of all documents relating to any information the then Australian High Commission in Accra may have on me.

The purpose of my FOI request was to seek legal redress under the ACT, such as “amending a personal record (that) involves updating the information it contains so that it is no longer out of date, misleading, incorrect or inaccurate. Or annotating a personal record (that) involves attaching a note to the record outlining --- objections to the information it contains”.

DFAT refused to release any documents worthy of my FOI application. The reasons DFAT gave for the refusal have prompted me to call on Ghana to take a leadership role in getting the UN to amend the 1961 Vienna Convention on Diplomatic Relations to include granting full diplomatic immunity to domestic employees of foreign missions. Or else, to unilaterally do so!

There have been tentative efforts in the past at protecting domestic employees in foreign missions based on general notions of human rights e.g. see Sefriani, 2015, Legal Protection on Local Employee Rights Related with Foreign Mission Immunity in Indonesia, International Journal of Social Science and Humanity, 5 (11), 976-9). Or on the discretion of host countries such as in the case of the Ghanaian spy who entrapped an American CIA agent into releasing a CIA database to the Ghanaian Government which formed the view that Ghanaians working for the US mission in Accra, even if remotely associated with the case, were worthy of full diplomatic immunity as their American counterparts in their removal from Ghana – see USA swaps Spy for 8 Ghanaians who aided CIA at http://articles.latimes.com/1985-11-26/news/mn-1944_1_cia-training

However I base my suggestion here on equity and on equal opportunity employment that employment privileges under the same employer for one category of employees should not be different from that of other employees based on nationality.

My recommendations are at para 7 below and the texts in italics from here on are quoted passages.

The Australian Freedom of Information Act of 1982 and as amended (The ACT)

1. The ACT gives Australian citizens and residents the right to information. As far as I am aware the ACT does not question the purpose to which sought information would be put. Nor that an applicant under the ACT loses the right to information merely because the applicant has other avenues of obtaining it. In my view the right to information under the ACT is absolute, subject to categories of exemptions (e.g. substantial adverse effects or public interest against disclosure) that are not meant to disturb the right to information.

The Australian Information Commissioner (AIC)

2. AIC reviews decisions of Australian Government agencies claiming exemption of documents from release under the ACT. So when DFAT refused to release my sought documents, I appealed to the AIC for review of the access refusal decision

3. In response DFAT made a first submission, which the office of the Australian Information Commissioner (OAIC) found unsatisfactory and therefore on 28 July 2016 requested more and better particulars as follows:

“ -- The OAIC would be assisted with further submissions from DFAT in relation to the exemption of staff names and contact details from the email chain under s a7E(c) of the FOI Act.

“ -- The applicant’s statement to DFAT in his email of 10 December 2015 that ‘since this request "may be used for legal redress, it would be helpful to have access to the names and contact addresses of the officials involved. Accordingly, I would be grateful if DFAT could please provide further submissions by close of business on 11 August 2016 elaborating on previous submissions that the disclosure of names and contact details of DFAT staff to the applicant would or could reasonably be expected to affect the willingness of staff to carry out work of the nature in the emails in question. In particular, it would be of assistance if the submissions addressed:

“Cultural, political, social and/or security issues in Ghana specific to DFAT officers at the High Commission and other vulnerabilities particular to local staff;

“The nature of the potential risk posed by the applicant to DFAT officers — for instance whether the risk is one of potential violence, subjecting staff to some form of potential malicious private prosecution,

being ostracised from the community/society due to the applicant’s status within Ghanaian society; and

“Whether and why DFAT is of the view that this ‘predicted effect is reasonably likely to occur.”

4. In response to the prompting by AIC in 3 above, DFAT made a second submission on 10 August 2016 as follows:

“On the basis of Dr Kweifio-Okai's extensive actions to date, DFAT is strongly of the view that the personnel involved would likely be subject to direct harassment, defamation, spurious criminal charges or civil litigation by Kweifio-Okai should their details be disclosed:

“DFAT notes that it is on the public record that Dr Kweifio-Okai is litigious in the Australian context e.g. Kweifio-Okai v RMIT university [L999] FCA 1686], and submits that it is likely that he would engage in similar activities, including in Ghana.

“DFAT notes that full diplomatic immunity does not extend to local staff, nor would they be able to avail themselves of the same protections or avenues of redress available under Australian laws. DFAT cannot possibly guarantee the same degree of protection - from any harassment or other detrimental actions that may eventuate - to LES in Ghana as it can offer to other staff in Australia”.

“DFAT submits that exposing local staff in Accra to defamation (including potential denunciation as 'spies' acting for the Australian Government) and/or litigation would diminish their status and their ability to use such networks, and thereby have a significant adverse impact on the effectiveness of the High Commission as a representative post for Australia in Ghana”.

5. To allay the fears of DFAT, I responded thus:

“I certainly intend to take legal action for detriment I have suffered. Any such legal action would be taken against Australian staff - not against local staff; and in Australia - not in Ghana; for offenses prosecutable under Australia law even if committed overseas.

“The reasons are: I live in Australia; local staff are victims whose justiciable actions, or actions in the line of duty, would have been a result of a need for employment in a country with high unemployment; and the Ghanaian judiciary is tainted with corruption and can be influenced.

“ No action of mine would subject any staff to ‘harassment, defamation, spurious criminal charges or civil litigation – should their details be disclosed’ to me, as DFAT stated. Australian courts are competent in dealing with litigious litigants; they respect the legal rights of all parties to a case; certainly, they do not entertain nor encourage ‘spurious criminal charges or civil litigation’ ”

The Australian Administrative Appeals Tribunal (AAT)

6. AAT reviews merits of AIC decisions. Because AIC upheld the decision of DFAT to withhold the documents from me, I appealed to the AAT on 26 October 2016

6.1 In my appeal to AAT, I wrote thus:

“The AIC devoted an extraordinary number of paragraphs on the protection of email address and contact -- and in the process gave the impression I was seeking the details for improper purpose. My submission was of a general nature that identities of those who have done wrong or caused damage should not automatically be concealed without regard to the circumstances as independently adjudged. Nevertheless I withdraw the request for the details and identities of those whose details and identities were denied to me subject to DFAT taking responsibility for the actions of its employees/delegates and damage caused to me and mitigate my circumstances”.

6.2 In its statement of contentions and facts to the AAT in response to my application for review of the AIC decision, DFAT wrote the following in 6.2.1, 6.2.2 and 6.2.3 below:

6.2.1 Under the Work Health and Safety Act 2011, which has extraterritorial application, the Department has a duty to ensure the health and safety of its employees, including providing a safe workplace for locally engaged staff, as far as practicable. This means providing a workplace where staff are not unnecessarily or unreasonably exposed to harassment, threats or intimidation, including members of the public.

6.2.2 The Department’s work health and safety obligations extend to its officers in overseas posts. Locally engaged staff can be particularly vulnerable as they often do not enjoy the same protections (for example, immunity from jurisdiction as provided in the Vienna Convention on Diplomatic Relations 1961) or have access to avenues of redress that are available to staff under Australian Law.

6.2.3 The locally engaged staff member whose name and contact details was not disclosed was employed by the High Commission in Accra as (NB I have deleted). The High Commission in Accra no longer employs this individual. However, the Department maintains that disclosure of their name and contact details could lead to harassment and threats either from the applicant or those connected to the applicant in Ghana. Should such conduct occur there would be no basis or ability for the Department to protect this individual who was simply doing their job and is now an ordinary member of the Ghanaian general public. This could also adversely impact the Department’s ability to attract suitably qualified local staff in the future.

7. Recommendations

7.1 What I know about the activities of the Ghanaian employees in the Australia High Commission in Accra with respect to me during the active period of my FOI request was that they were “simply doing their jobs”. But the persistence of DFAT in refusing to provide any information whatsoever on tasks they may have performed in relation to me, gives me the impression that tasks they may have been assigned in relation to me may be questionable in law or administrative practice. In such circumstance, and by the admission of DFAT in 4 above that “full diplomatic immunity does not extend to local staff, nor would they be able to avail themselves of the same protections or avenues of redress available under Australian laws”, I believe the Ghanaian employees in the Australia High Commission in Ghana should be entitled to full diplomatic immunity and protections as their Australian line managers who assign tasks to them.

7.2 The diplomatic immunity of Ghanaian employees of foreign diplomatic missions in Ghana must include granting of asylum or voluntary migration if and when those employees run into bother in the discharge of tasks as directed.

7.3 The obligations of employers to occupational health and safety of employees rely on appropriate assessment of risks. From the DFAT own submissions above, it would appear to me that DFAT’s own estimation is that Ghanaian employees of foreign missions are at a greater risk than their Australian counterparts. Quote, as in 6.2.2 above: “Locally engaged staff can be particularly vulnerable as they often do not enjoy the same protections -- or have access to avenues of redress that are available to staff under Australian Law’. And since whatever they do there is always, as DFAT puts it in 4 above, “the likelihood of their potential denunciation as 'spies' acting for the Australian Government”. I must add though this latter DFAT allusion is illusionary; nevertheless it is a DFAT view that portends higher risks for this category of employees and provides justification for my recommendations in 7.1 and 7.2 above.

7.4 It is noteworthy that even though I had intimated in 6.1 above that I was prepared to forgo my request for names and email addresses of Ghanaian employees of the Australian High Commission in Ghana during the active period of my FOI request, DFAT still identified one of her Ghanaian employees in the Ghanaian mission as in 6.2.3 above. Ghanaian employees in foreign missions in Ghana should therefore entertain the possibility that activities they undertake under line management for foreign missions in Ghana could be exposed in FOI applications in source countries.

7.5 For all the above reasons, Ghanaian employees of foreign diplomatic missions in Ghana must insist on employer foreign missions to provide them with the same protections and diplomatic immunity as those missions extend to their citizens in their missions.

Dr. G. Kweifio-Okai

Melbourne, Australia