Opinions Fri, 2 Oct 2015

Not in defense of the judges: not even my bro…,

By Cletus D Kuunifaa

Let’s borrow a quotation from George Orwell’s famous novel, “Nineteen Eighty Four”, where he states, “There was of course no way of knowing whether you were being watched at any given moment…it was even conceivable that they watched everybody all the time.”

This novel, as readers would attest to, was perpetuated through coercion and deception and the setting was in Britain as a ruse to emphasize that it was not an attack on communism and fascism alone, but a warning that totalitarianism, if not fought against, could triumph anywhere.

Of course, Ghana is not a dystopia, but drawing on Orwell’s quotation, the intent for this piece is for us as a nation, to delve into the appropriate balance between liberty and security and privacy which have long been held contentious in political history.

Matters have come to a head and legal brains and information policy experts must speak up on this case. Will the law hold Anas Aremeyaw Anas accountable for intruding lawfully or unlawfully on the privacy of individuals or will the judges be condemned for their enticed bribery culminating in their low morale, if proven guilty?

My unfettered belief is that Justice Paul Uuter Dery’s case against Tiger Eye PI et al, will offer a clear , thoughtful and incisive analysis of the long standing tension between civil liberties on the one hand, and the security and privacy of citizens on the other hand.

Surely, while this case begins the legal and political debate over the proper balance between liberty and privacy and security, the revolution in technology and communication has even aggravated the discussion of privacy and security issues.

ICT counted as advancement, has fueled this debate leaving a lot of work to information policy experts and legal luminaries to strike a reasonable balance between defending freedoms without sacrificing liberty. This case borders on the trade-off between privacy and security.

But, on a more subtle note, this piece, as the title suggests, is not in defense of the judges, but rather intended to highlight on the need to pass the Right to Information (RTI) bill into law. The bill has languished for far too long on the shelf of parliament that it is only imperative now for it to become law with this case in focus.

I have argued severally that passing the law is good policy to do so. It’s good politics to pass it. It’s good for our democracy. Since there already exist a constitutional right to information under article 21(1) f of the 1992 constitution, the passage of an RTI law would only operationalize the constitutional right to information under the said provision.

Yet, it’s sad that an individual right to privacy is not explicitly addressed under the provisions of both the constitution and the draft RTI bill, and journalists face a difficult balancing act. They have to respect privacy and they must also be rigorous and robust in their investigation into issues that are of public interest. It means that in some cases it will be necessary for a journalist to carry out an investigation that interferes with someone’s privacy. In cases such as crime and anti-social behavior and incompetence or neglect.

It’s equally instructive for journalists to note that the most important rule is that they must treat people fairly and with respect. They must also be clear about their own motives. They must have no personal interest in an investigation that invades a person’s privacy. The only justification is that it is in the public interest and they are genuinely trying to expose wrongdoing.

The judges right to privacy versus the public’s right to know will stretch the history of constitutional law in Ghana. Am glad that this case will be tested in court and it would be interesting to see the established stares decisis, which is the doctrine of precedent and courts would cite to stares decisis, when an issue has been previously brought to the court and a ruling already issued.

From a purely academic point of view, it would not surprise me if the pendulum in this case swings in favor of greater protection of personal privacy.

Cletus D Kuunifaa

TMC Group

Can be contacted at dipnibe@yahoo.com or Follow him on twitter @ckuunifaa
Columnist: Kuunifaa, Cletus D