In the past few weeks, there have been some arrests of persons including journalists for the publication of false news.

Within a period of two months, the Ghana Police Service has arrested and charged four Ghanaians for publication of false news and offensive conduct conducive to breaches of the peace under Sections 207 and 208 of the Criminal Offences Act, 1960 (Act 29).

Power FM presenter, Oheneba Boamah Bennie, was jailed over his claims against President Akufo-Addo and judges.

An Accra FM presenter, Kwabena Bobie Ansah was also picked up by the Police after his evening programme on February 10, 2022. He was also charged with the publication of false news and offensive conduct but was later granted a GH¢50,000 bail by the Kaneshie District Court. 

Also, the Executive Director of the Alliance for Social Equity and Public Accountability (ASEPA), Mensah Thompson, was detained at the Teshie District Police Command in Accra and charged with the publication of false news.

The Bono Regional Chairman of the New Patriotic Party, Kwame Baffoe, also known as Abronye DC, was also arrested and charged for publication of false news and offensive conduct.

These arrests have engendered mixed reactions. Some people who approve of the arrest say it is a way to ensure others are careful about the information they share.

However, the majority of people are worried about the arrests. They believe these arrests smack of a re-introduction of the repealed Criminal Libel Law into the country's jurisprudence.

Discussing the matter on The Law on JoyNews, on Sunday, some lawyers shared their opinions on whether Criminal Libel Law is 'alive' in Ghana.

Private Legal Practitioner, Justin Pwavra Teriwajah disagreed with the section of the public who, he says, misconstrue Sections 207 and 208 to be the same as the repealed Criminal Libel Law.

According to him, the Criminal Libel Law had a particular objective and focus, which is clearly missing in Sections 207 and 208 of Act 29. He added that the Criminal Libel Law clearly concerns the defamation of a public officer whereas the Criminal Code is a general law that can protect any Ghanaian.

He explained that whereas the Criminal Libel Law purposely protected public office holders from libel and defamatory comments, Sections 207 and 208 of the Criminal Offences Act, 1960 (Act 29) can be used for everyone.

He said in this case, no public holder receives special treatment over the ordinary Ghanaian in terms of how the law is applied.

"Now the President as we speak today is the number one public officer, so, if the Criminal Libel Law were still in force, then clearly, that could have been used to protect him. But the provisions that we are talking about today, Sections 207 and 208, there is no requirement of protection of a public officer from being defamed. So in the first place, clearly, when you compare the two, there is a very clear difference," Mr. Teriwajah said.

He added that, Sections 207 and 208, do not only apply when people publish false news or defame, but it can also be used to ensure that people do not create fear and panic.

“While I was in the Police Service, we used these provisions (Sections 207 and 208) a number of times. Sometimes some people just misbehave in certain public places to cause trouble, and it may not even concern public officers like we are talking about today.”

“Those people had to be charged for that type of conduct that would encourage more people to fight in a public place. It is a law that can be put to good use, but it being abused is another thing," the law practitioner stated.

Also speaking on the show, Law Lecturer Afia A. Amponsah-Mensah noted that there are differences between the repealed Criminal Libel Law and Sections 207 and 208 of the Criminal Code.

She explained that whereas people are considered guilty as long as they publish material that is considered defamatory, there are some factors that are considered before a person is considered guilty when it comes to the application of Sections 207 and 208.

“Now 207 and 208 have certain elements. So we have the fact that a person makes threatening abusive or insulting words or behaviour, this person does so at a public place or a public meeting, and then the words, comments or actions are likely to cause, as it were, a break of the peace. And (with) criminal libel, strictly, is as soon as you publish it, you are guilty of criminal libel once it is defamatory, whether you intended to do so or not.”

Madam Afia A. Amponsah-Mensah further explained that these sections go a step further beyond just the publications to ensure that there are not only insulting words, but these words have the capability of breaching the peace, provoking a break of peace or causing fear and alarm.

Hence, she explained that if a person makes defamatory comments against someone, public official or not, there are other avenues available to them. They have the civil remedy, which is to sue the person for defamation.

“The issue here really, is the fact that it is being criminalised.  Why are you criminalising something that can be done in a civil suit? Is it because the person may be from a certain field, the person is the public figure or it is something you said that we are criminalising?”

“So the difference between the repealed law and 207 and 208 is the addition of the fact that it is likely to cause some public dissonance, or cause fear and alarm or occasion a breach of the peace,” the Law Lecturer added.

Meanwhile, Prof Kweku Asare believes that the repealed Criminal Libel Law clearly differs from Section 207, which is a law to protect public peace and Section 208, which is a law to prevent people from using false information to cause fear and panic in the public.

However, there is no difference between the application of the repealed Criminal Libel Law and the misapplication of Sections 207 and 208 of the Criminal Offences Act, he noted.

“The Police when they have invited journalists for saying something that was false, they have always said they invited them because they are inducing fear and panic in the public, this is palpably false. This is not the reason why we have Section 208.”

“We have that to prevent situations like we witnessed in 2010 when someone sent a text message that an earthquake was imminent and people went out to sleep on the street," he stated.

Prof Asare explained that, such hoax incidents disrupt public life, takes valuable resources away from law enforcement to deal with the situation, and should not be countenanced, adding every country has a version of that law to maintain public order.

“So, I have no problem with Section 208 and 207 as written, but as the Police are currently applying it, I have a problem because it is a back-door introduction of the criminal libel,” he added. 

Citing an example, he stated that the Police released a statement to deny claims by Abronye DC that the IGP had personally invited him to the Police prior to his arrest.

“Under the misapplication of Section 208, he would have been invited, arrested, detained and put on charge for violating Section 208, but the Police did the right thing. In that case, they didn't invite him, they stuck to the law and Constitution and came out with a rebuttal so that the public can decide on who is speaking the truth,” Prof Asare noted.

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Section 207 and 208 of the Criminal Offenses Act, 1960 (Act 29) reads:

207. Offensive conduct conducive to breaches of the peace

A person who in a public place or at a public meeting uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or by which a breach of the peace is likely to be occasioned, commits a misdemeanour.

208. Publication of false news

(1) A person who publishes or reproduces a 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 the statement, rumour or report is false, commits a misdemeanour.

(2) It is not a defence to a charge under subsection (1) that the person charged did not know or did not have reason to believe that the statement, rumour or report was false, unless it is proved that, prior to the publication, that person took reasonable measures to verify the accuracy of the statement, rumour or report.