Democracy thrives on divergent opinions and tolerance for opposing views. In cases where people disagree, they do so whilst respecting the rights of people to hold opposing views.

The cardinal organ of society that vents out these opposing views for the purposes of holding government accountable is the media and media practitioners engaged including individual commentators, bloggers, among others. It is for this reason that the Constitution guarantees media independence and freedoms in Articles 161 and 162.

No democracy in the world can do well without a free press and Ghana cannot be an exception. We must realize as a people that the liberties that we cherish can only be guaranteed by the freedom of the press.

That is why Article 21 (1) (a) in our 1992 Constitution guarantees the right to freedom of expression which includes freedom of the press and other media. Our rights to freely express ourselves as individuals are echoed via media outlets. That is why these two are treated together.

Culture of silence, therefore, is a violent violation of our constitutional rights to freely express ourselves and our individual opinions. This also implies that we need to be careful as a people not to allow any individual or state institution to take away that freedom. Article 162 of the 1992 constitution makes it clear that “freedom and independence of the media are hereby guaranteed“.

Article 162 also says “editors and publishers of newspapers and other institutions of the mass media shall not be subject to control or interference by government, nor shall they be penalized or harassed for their editorial opinions and views or the content of their publications. “

It is also provided that “all agencies of the media shall, at all times be free to uphold the principles, provisions, and objectives of this constitution, and shall uphold the responsibility and accountability of the government to the people of Ghana.

Right to Freedom of Expression under International Law

Ghana is a signatory to International Conventions and has undertaken to respect that convention on the subject of human rights. One of such rights in contention now is the right to freedom of expression.

Article 19 of the Universal Declaration of Human Rights (UDHR) provides that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.

This implies that Caleb Kodah who was on a journalistic mission has a right to seek information and freely express it, particularly if that information would be in the public interest.

Again, Article 19(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that “everyone shall have the right to hold opinions without interference”. Article 19(2) of the ICCPR which essentially confirms the provisions in the UDHR provides that “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”

In the African Charter on Human and Peoples’ Rights, Article 9 provides that “every individual shall have the right to receive information and that every individual shall have the right to express and disseminate his opinions within the law”

Limitations to Freedom of Expression

To every rule there are exceptions. In Ghana Article 12(1) guarantees the enjoyment of fundamental human rights and enjoins all state institutions to respect those rights. These institutions include the National Security.

However, Article 12(2) makes it clear that the enjoyments of our rights are limited to the protection of the rights of others and the public interest. In the same vein, the right to freedom of expression is not a blank check for impunity. There are necessary limitations for the purpose of national security, public order, public safety, public health, and sometimes public morals.

Under international law, it is provided by Article 19(3) of the ICCPR that exercise of the rights comes with “special duties and responsibilities” and those rights “may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary for respect of the right or reputations of others.. for the protection of national security or of public order, or of public health or morals.”

In the same way in Ghana, Article 164 provides that the media rights and freedoms as well as the independence of the media can only be limited by national security, public order, public morality and for the rights of others.

It provides as follows “the provisions of articles 162 and 163 of this Constitution are subject to laws that are reasonably required in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights, and freedoms of other persons”.

Apart from these exceptions which by our constitution must be in a law reasonably required for the above-stated purposes, media houses and media practitioners are to freely enjoy their rights to freely express themselves which expression includes gathering information for the purposes of the public space.

The Case of Caleb Kudah, Zoe Abu Baidoo and CITI FM/ CITITV

Facts have clearly emerged confirming that on Tuesday, May 11, 2021, Citi Fm/TV reporter, Caleb Kudah, was assaulted by Police Officers at the Ministry of National Security following his arrest and detention for filming vehicles at the premises of the Ministry. An attempt was also made to arrest his colleague Zoe Abu Baidoo in a Rambo fashion by seven gun-wielding officers at the premises of Citi TV in the company of their superiors Benard Avle and Samuel Atta Mensah.

Though this sounds like a movie and an impossible occurrence under a Constitutional regime, this actually happened.

According to Caleb Kudah, he went to the Ministry of National Security to follow up on an earlier controversy which occurred in 2019 regarding some vehicles belonging to MASLOC. His presence at the premises of National Security on Tuesday was therefore to enquire about the state of those vehicles and whether or not they had indeed been distributed as indicated by some government sympathizers.

Prior to Tuesday, Caleb Kudah shared a picture of the said vehicles which he earlier posted on his Facebook page before the emergence of the coronavirus pandemic. This was in the wake of the #FixGhanaNow campaign and his desire to see matters such as government vehicles being left to rot as witnessed with the case MASLOC vehicles, and as such, one of the varied reasons for which he felt Ghana needed to be fixed. The mission which he undertook on Tuesday was simply to confirm whether or not the vehicles had been distributed as alleged by the government or not.

On his way out from the National Security premises, Caleb took videos of some V8 vehicles which looked abandoned in addition to pictures of the white Chevy vehicles he earlier captured. Whilst capturing the video of the V8 vehicle, Caleb Kudah was spotted by a Police Officer at the Ministry of National Security. After receiving slaps from behind and being kicked in the groin among others, Caleb currently feels pains at his back, side and ribs.

Response by National Security

On 13^th May, 2021, following the incident, the Ministry of National Security in a statement signed by the Chief Director, Lt. Col. Ababio Serebour (Rtd), said it had taken note of claims by the journalist and will initiate investigations into the said allegations. The statement went further to provide the basis for the interrogation of the two journalists.

The National Security essentially justified their action of arrest and interrogation by their statement when they said “Mr. Kudah was detected on the said day, filming within the precincts of a National Security installation contrary to “No photography” rules at such restricted security zones.”

They said further that “upon interrogation, it was revealed that Mr. Kudah had gained access to the premises under false pretense”. They also said that “it was revealed that Mr. Kudah had forwarded the footages he had taken surreptitiously to Ms. Zoe Abu Baidoo”. Finally, they said “upon declining an invitation for an interrogation, Ms. Abu Baidoo was picked up by operatives of the Ministry” and added that the journalists were “released on the same day after the interrogation”.

It almost looks like the National Security does not know their roles or perhaps does not understand the legal regime within which they are operating. Their actions look more like a calculated attempt to reinforce the culture of silence than actually enforce public order.

Three key issues emanate from the response of the Chief Director of the National Security Ministry

Going by the sequence of his narration, these issues appear in the following order:

• Whether the act of taking pictures was criminal?
• Whether the entry unto the premises was unlawful?
• Whether Ms. Zoe Abu Baidoo committed any crime by receiving the forwarded footages.

“No Photography Rule” is not a crime

Given the fact that Police can only arrest upon a reasonable suspicion of a crime, the arrest and invitations were all unlawful. The interrogations were equally unlawful.

The law establishing the NS and its institutions, that is, the Security and Intelligence Agencies Act, 2020 (Act 1030) makes no provisions prohibiting the taking of pictures in or around the premises of the Ministry. Neither does any other law in force in Ghana prohibit the taking of such pictures.

In other words, there is no law at criminal law restricting the intellectual property rights on taking and punishing photographs and videos. Within the intendment of Articles 19(5) and 19(11) of the Constitution 1992, one can conclusively hold that the circumstances of this case do not fall within the scope of criminality and criminal punishment as to justify any crime of taking pictures against Caleb Kudah.

It is the case that the individual’s intellectual property right of taking photography and publishing same may be restricted by privacy laws. What is the effect of a “No photography” sign placed on public property? There is a dearth of legal authority on photography, privacy, and security matters in Ghana. While the statutory regime has not provided any direction on the matter, there has also been no reported judicial pronouncement on the issue.

Be it as it may, the matter can be narrowed down to the determination of the intersection between publishing rights under freedom of expression and privacy rights both in the private and public space.

The “No photography” sign does not by itself establish a crime and punishment for offenders. A sign, as the name goes is a sign and nothing more than that. It behooves the National Security to take steps to ensure that visitors, licensees and other entrants on the premises comply with this order. Vigilance is key to ensure all attempts to film on the premises are quickly detected and the offender is apprehended.

Where a person violates or is caught violating the order, the NS retains a right to eject the individual at common law and seek an order of court to delete the video. Where the person refuses to leave the premises, a case of criminal trespass arises under section 157 of Act 29 against him.

No case of unlawful entry but liability lies for being on premises for unlawful purpose

Unlawful entry is a crime (2^nd degree felony) under section 152 of the Criminal and Other Offenses Act, 1960 (Act 29) and applies where a person enters a building with the intention of committing a criminal offence.

The required mens rea is the intention to commit a crime within the premises which must be a building. The first question as regards the actus reus is whether the entry to the premises was unlawful. The answer may be positive. As section 153 of Act 29 puts it: “A person unlawfully enters a building if that person enters otherwise than in the exercise of a lawful right, or by the consent of any other person able to give the consent for the purposes for which that person enters.”

Thus, assumed without admitting that the journalist entered the premise by false pretence, the entry may be deemed unlawful. But other observations are made that defeat the establishment of the offence of unlawful entry.

First of all, the journalist was not within the building of the National Security and thus entry is not specifically established. He was outside and in the larger compound.

Secondly, and even assuming that he entered the premises under false pretence, he did not have an intention to commit a crime, since as already established, taking pictures in the public space does not amount to a criminal offence.

Of note, the journalist may not be out of the woods, however, he may be successfully charged with the offence of being on premises for an unlawful purpose under section 155 of Act 29, a misdemeanour.

It reads: “A person who is found in or about a market, wharf, jetty, or landing-place, or in or about a vessel, verandah, outhouse, building, premises, passage, gateway, yard, garden or an enclosed piece of land, for an unlawful purpose, commits a misdemeanour.”

Under this offense, the accused must be on or around the premises for something that is “unlawful”.  As institution rules, regulations, administrative notices, and regulatory notices establish legal norms, they can invalidate otherwise legitimate conducts.

In that regard, the “No photograph” sign may aid in proving the offense of being on premises for unlawful purposes against the journalist. In this case, where it has been established that Caleb was not on the premises for “unlawful” purposes, this provision may not also avail the National Security.

From the above, it is obvious that no photographs regulation does not impose criminal liability and constitutes no breach of ethics by Caleb Kudah, and gaining access to National Security premises under false pretenses is not criminal, particularly when the person is doing a kind of undercover work as a journalist to confirm the story about the use of public funds.

No crime by receiving footages

The arrest of Ms. Zoe Abu-Baidoo remains totally unjustified in law and smacks of abuse of authority and power.

The footage received and the act of possessing it does not establish any criminal offence against her. The video and its content do not establish any security breach. 

The lady had no legal obligation to respond to a police invitation. The police had a number of legitimate options to secure her attendance at their station. By establishing a probable cause and on reasonable suspicion that a person has committed a crime, they could secure a lawful arrest with or without a warrant.

The brain-racking question in this present case is what offense could be projected in law to have been committed by Zoe necessitating her arrest?

Obviously, not conspiracy or abetment of a crime, not the possession of unlawful material. Once again, the National Security could have legitimately sought an order of the court to access the video and delete same if they deemed it a security breach.

If the urgency of the matter demanded prompt action to prevent further circulation of the footage, they could have applied to the court for interim and interlocutory orders. Nothing in law justified the brazen show of power and licentious display of authority on the sovereign civilian body.

Demanding for Ms. Zoe’s phone by the senior officer was in contravention of Article 20(1)(b) of the 1992 Constitution as the necessity for the acquisition of her property (in this case the phone) was not clearly stated. Thus, a right of access should have been granted to the security officers by a High Court as prescribed in Article 20 (2)(b) of the 1992 Constitution. The High Court is also in the best position to determine whether or not the acquisition of the phone is necessary for the interest of defence or public safety, among others as prescribed in Article 20(1)(a) and 164 of the 1992 Constitution.

Restriction of Personal Liberty and Assault

Article 14 of the 1992 Constitution states that “every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law  (g) upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana.

It must be reiterated that the two journalists in question did not commit a criminal offence under the laws of Ghana, hence the restriction of their right to personal liberty under the circumstance was unlawful. 

Again, Article 15 (1) of the 1992 Constitution also states that the dignity of all persons shall be inviolable. Article (15)(2) further states that no person shall, whether or not he is arrested, restricted or detained, be subjected to; (a) torture or other cruel, inhuman or degrading treatment or punishment; (b) any other condition that detracts or is likely to detract from his dignity and worth as a human being.

The beatings and slaps meted out to Caleb Kuda were in clear violation of Article 15 (1) and (2) of the 1992 Constitution. Even if he had committed any offense at all, the National Security Operatives and the police did not have the right to subject him to beatings.

Intolerance of this regime

The Akufo-Addo-led government has been a serious regime of tyranny that does not tolerate divergent views. It is averse to individuals, institutions, journalists, and media houses that are critical of the regime creating what many now describe as the culture of silence.

A regime with the highest borrowings ever, the worse galamsey experience, the worse corruption status, and yet gives the most vicious reactions to divergent views. Anytime an individual or media house expresses their views or opinions about happenings in the State which holds them accountable, the said media House is faced with all forms of intimidation including invitations to the police for questioning, arrests, an invitation to national security, among others.

You can name them from Anas Aremeyaw Anas, to Mannaseh Azure, Kofi Adoma, and in recent times Captain Smart and Caleb Kudah. The overall effect of the above is the ever-increasing culture of silence this nation is facing.

According to senior citizen, Sir Sam Jonah, there is a growing culture of silence under President Nana Akufo-Addo. Mr. Jonah in a recent public lecture with Rotarians in Accra under the theme: Down the Up Escalator: Reflections on Ghana’s Future by a Senior Citizen, bemoaned that many individuals and civil society organizations that used to speak up against social ills have all gone mute under President Nana Akufo-Addo despite wanton corruption, killing and torturing of journalists, and rising moral degeneration in the Ghanaian society.

For the National Security operatives to have the confidence they had to arrest, assault and interrogate Caleb Kudah and the manner in which they invaded Citi TV to arrest Zoe, is only a confirmation of the regime of tyranny that Ghana is currently experiencing.

Our reduction in rank on World Press Freedom Index is further evidence of a regime of tyranny

Whilst it is important to hold our institutions accountable and demand answers from them, we cannot forget the fact that all these institutions work within a framework of existing governance style and structure. This regime under Akuffo Addo is intolerant and vicious.

It is an insensitive and inconsiderate regime. A caring regime would allow people to freely express themselves without intimidation. Today, Ghana’s rank in the World Press Freedom Index reduced from 26th in 2016 to 30th in 2020.

According to the 2019 Human Rights Report issued by US State Department in 2020, significant human rights issues recorded in Ghana included arbitrary or unlawful killings by the government or its agencies; harsh and life-threatening prison conditions, violence against journalists including assaults, death threats, and one journalist shot and killed; censorship of a free press including arrests and the closure of two radio stations for ostensible licensing irregularities; among others.

Most recently is the arrest of Caleb Kudah and colleague journalist Zoey Abu-Baidoo by the National Security operatives in a manner that is condemnable and must not be accepted in any democratic society. The people of Ghana have the right to be angry at the National Security and its operatives for such action.

Conclusion and Recommendations

From the foregoing, it is amply clear that all Ghanaians have the right to freely express themselves under international law and the 1992 Constitution. It is also clear that this freedom of expression also include freedom and independence of the media.

The point has also been made that there are necessary exceptions to the freedom of expression and freedom and independence of the media. However, the conduct of Caleb Kuda, Zoe Abu-Baidoo, and Citi FM does not fall within the exceptions and hence were very lawful and were in the interest of the public.

The National Security’s concerns were genuine but their approach to dealing with the issue was wrong and further confirms the regime of tyranny that currently exists in Ghana as a confirmation of our culture of silence. The President of the Republic, however, has an opportunity to let the world know that he does not support these lawless acts of the National Security Operatives and willing to do the right thing.

1. Investigation by a Commission of Enquiry or an Independent Institution

I accordingly recommend that investigations should be conducted into the arrest and alleged assault on the journalists. The investigation ought to be undertaken by a Commission of Enquiry or an Independent body other than the Ministry of National Security, particularly, in a matter in which their officers and other senior officials are complicit.

This is because reports on investigations into similar occurrences by the Ministry of National Security, specifically, in the case involving the arrest and assault on modern Ghana journalists have still not been concluded and if so, published for the attention of the general public.

2. Arrest and Prosecution of the officers who assaulted the Journalist

Persons found to have engaged in the said assault must be arrested, charged and prosecuted in accordance with the law to deter such future occurrences.

3. Review recruitment requirements into Security Agencies

The arrest and assault of the journalists have reinforced the need to review recruitment into Security Agencies. Also, the academic credentials of officers within Security Agencies must be revised to applicants having obtained Diploma Certificates as a minimum requirement for enrolment into Security Agencies. There is the need for an introduction of compulsory Human Rights Training for all our Security Agencies.

4. Refresher Programs in Human Rights

Institutions such as the Center for Conflict, Human Rights and Peace Studies, University of Education, Winneba (UEW) and Kofi Annan International Peace Keeping Training Centre (KAIPTC), Accra, must be empowered to build the capacity of officers by providing regular refresher courses in Human Rights and Security in order to improve the knowledge, expertise and skillsets of security officers.

5. Government must exhibit strong Political will to halt impunity by National Security Operatives.

Again, Government must exhibit strong political will to halt impunity by National Security Operatives. This must start with putting a stop to the current practice of recruiting political party members without the requisite qualifications into Security Agencies. Security Agencies must not be used as an avenue to provide automatic and/or protocol recruitment of party card holder and sympathizers who provide various security support services. The standards of our security agencies must be kept in order to safeguard the peace and stability of this nation. 

6. Government must revisit the recommendations issued by the Emile Short Commission

Government must revisit the recommendations issued by the Emile Short Commission of Enquiry following investigations into violence during the Ayawaso West Wuogon By- Election and adopt the Commission’s recommendations as a way of dealing with violence involving members of our security agencies and the framework within which they operate. 

7. Caleb Kudah and Zoe Abu Baidoo must be compensated

The arrest and the assault on this young journalist were unwarranted. Consistent with Article (14)(5) which states that a person who is unlawfully arrested, restricted or detained by any other person shall be entitled to compensation from that other person, the state must take steps to have him compensated.

After all, Caleb Kudah was only going there in the supreme interest of the people of Ghana. Article 19 (2)(d) also states that a person who is arrested, restricted, or detained shall be informed immediately; in a language that he understands, of the reasons for his arrest, restriction or detention and of his right to a lawyer of his choice and Article 19 (5) states that a person shall not be charged with or held to be guilty of a criminal offence which is founded on an act or omission that did not at the time it took place constitute an offence. “No photography rule” as established was not a crime and hence the very basis of the arrest was unlawful.

The writer, Hon. Francis-Xavier Sosu is a private legal practitioner, human rights lawyer, Member of Parliament for Madina Constituency, Member of Appointments Committee and Deputy Ranking Member of the Constitutional, Legal and Parliamentary Affairs Committee of Parliament. The writer can be contacted via: francisxavier.sosu@gmail.com www.madinamp.com