Section 208: Criminal Libel By The Back Door?

Rodney Nkrumah-Boateng (rodboat@yahoo.com)

It is common ground among many observers of Ghana’s media landscape that the quality of journalism in the country leaves much to be desired. The crass language, the inaccuracies, the downright deliberate lies and propaganda that pass for news are all a cause for great concern. In the immediate aftermath of press liberalisation about twenty years ago, it was probably understandable that in their newfound excitement at being free, some press houses swiftly and completely swung to the other extreme and fell face down in the gutter. After all, a desperately hungry man wolfs down food that is offered him and may even choke on his zeal. But one would have expected the dizziness of the early heady days to have settled down by now. That it has not is a very sad indictment indeed. Clearly something has to be done to ensure proper standards. The question is: what, precisely?

This issue has raised its head in the recent aftermath of the furore surrounding JOY FM and its Acting News Editor, Mr. Ato Kwamena Dadzie, over the GREDA death threats issue. This in turn has led to Ato being charged under s.208 of the 1960 Criminal Code. The question is whether this provision is an appropriate tool to fight alleged falsehoods maliciously peddled in the media.

Section 208 of the Code says a person who publishes “any statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace, knowing or having reason to believe that statement, rumour or report is false’ commits an offence.

From the above, the prosecution first of all has the burden of proving that the defendant knew his report to be false when he publicized it. Alternatively, it must prove the defendant had reason to believe that the said statement/rumour or report was false. The defendant’s refusal or failure to provide the source of the information on which he based his report/statement/rumour does not necessarily mean he knew or had reason to believe his statement was false.

Finally the prosecution has to prove the defendant’s report, rumour or statement, which he knew or had reason to believe to be false, is likely to cause public fear and alarm or disturb the peace. It is for the prosecution to establish that this was the likely outcome foreseeable by a reasonable man. There is no requirement anywhere under this law, in my view, for the defendant to have intended these consequences.

In this case therefore, the state must prove that JOY FM’s news item to the effect that some GREDA executives had faced death threats over the STX deal was known by Ato to be false. Alternatively it has to prove Ato had reason to believe it to be false, and that the likely result of its publication was public fear and alarm/breach of public peace. It is important for the prosecution to prove ALL these elements beyond reasonable doubt in order to secure a conviction. There are insufficient facts in the public domain to establish conclusively whether Ato knew or had reason to believe the story was false. But GREDA’s denial, made public AFTER the news item was published and the police became involved, does not automatically mean the station knew or had reason to believe the story to be false at the time it was broadcast. GREDA’s denial therefore does not take us any further and in my view is insignificant as far as s.208 is concerned.

In my opinion, however, the last test-the likelihood of public fear and panic/breach of public peace due to the alleged death threats on the GREDA executives- provides the greatest difficulty for the prosecution. Most reasonable people, in my view, are unlikely to conclude that public fear/panic or breach of the peace is likely to result from JOY FM’s report, even if it is established that they knew or had reason to believe the story was in fact false.

In any event, if the police believe, as they have stated, that Ato failed to supply information that is crucial for the prevention of serious crime and he is therefore obstructing a police investigation, they are clearly barking up the wrong legal tree by charging him under s.208, which I believe is very poorly drafted anyway for reasons too many to go into here in sufficient detail. In my view therefore, s.208 is rather hopeless in dealing with this particular case.

Some argue that so long as the offence remains on our statute books, we should not begrudge the police for employing it and that we should all wait for due process to take its course and for the state to prove its case or otherwise. After all, we live under the rule of law and the media must not be exempted from the law. Of course, in its general application, this is an unassailable argument. But it is also misguided. Just because a law is in the books does not mean you rush to slam it around willy-nilly. Of course the state has the power to prosecute this case under s.208, but in a democracy its citizens have the right to question whether that power is exercised responsibly and without malice or political bias. If the state is going to bring charges on any individual or corporate body, it is reasonable to expect that the charge is a relevant one and that it has a realistic prospect of success. After all it costs the taxpayer’s money to prosecute.

It is difficult to understand why in the past the police have failed to charge others under this law, given the numerous examples of people making wild claims that could arguably have caused real public fear and panic. This lack of consistency is worrying and cannot be good for the police’s image. It opens them up to the accusation of selective justice and of being the current government’s attack dogs. A public institution that saps public confidence from it through perceived selective prosecution and injustice cannot turn around and insist that the citizenry must allow that institution to work. The argument by the police that they needed the source of the news item so that they could offer the intended victims protection against possible government threats brings a rather wry smile to the lips.

It is important not to take lightly the suspicions that some Ghanaians have of s.208 being used as a backdoor mechanism to bring back criminal libel into our legal dispensation. As a country we have travelled a long way from the dark and stormy days of the brutalization of journalists who did not meet the approval of the government of the day. The press freedoms we enjoy today are too precious to simply shrug the shoulder when the state, via the police authorities, starts hovering over a media outlet and seeks to drag them to court under the criminal law for something said or published. In particular, many of the vilest and crudest hostilities visited on journalists like Tommy Thompson, Kwesi Pratt, Malik Baako and John Kugblenu all occurred under the PNDC, the political parent of the current NDC government. It is perfectly understandable, therefore, that under this particular government, many would feel rather jittery when the police resort to the use of the criminal law when dealing with alleged press falsehoods, because justifiably or not, it raises uncomfortable reminders of past state censorship and victimisation.

The spectre of criminal prosecution with possible incarceration (however remote the chances, as in this case), must weigh heavily on the mind of any defendant. It may well be, as some people speculate, that the state realizes it has a weak case, but prefers to leave the matter lingering as a way of teaching JOY FM and Ato ‘where power lies’, thereby sending a message to unfriendly media houses. I sincerely hope this is not the case. The law is not, and should not be, an instrument of machismo, muscle-flexing or revenge. This issue is much wider than JOY FM or Ato Dadzie, even if one believes the station’s standards have slipped or one dislikes Ato’s style or comments in the past on any particular subject.

I believe that the way forward is for the National Media Commission to be equipped and emboldened to deal better with complaints and to sanction press houses that fail to live up to standards, truly independent of the state. An individual or organization whose reputation is allegedly besmirched by the media can head for the libel courts for civil redress, probably through a fast track mechanism. Of course, the media houses too have to do a lot of introspection and self-regulating, and to realize the enormous responsibility that is reposed in them by virtue of the press freedoms that their various gallant forbears have fought hard to secure, often at risk to their lives.

Press freedom is absolutely crucial in a modern, free society, and we cannot afford to have the state being perceived as tinkering with it by invoking the hated criminal libel law in a roundabout way. We’ve been there, done that and have the ugly scars to prove it.