SUNESIS POLICY INITIATIVE

DEFENDING FREEDOM OF SPEECH

GHANA’S DANGEROUS ROAD TO
CRIMINIALIZING
‘INAPPROPRIATE’ SOCIAL MEDIA CONTENT

SOLOMON APPIAH

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DEFENDING FREEDOM OF SPEECH
GHANA’S DANGEROUS ROAD TO CRIMINIALIZING ‘INAPPROPRIATE’ SOCIAL MEDIA CONTENT

WHO ARE WE?

Ordinary Ghanaians interested in a better future for us and our children.

November 2019

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TA B L E O F C O N T E N T S
INTRODUCTION ..............................................................................................................................................1
GHANA LAW ALREADY CRIMINALIZES PORNOGRAPHY AND INDECENT EXPOSURE ......................................... 2
CRIMINALIZING ‘INAPPROPRIATE’ SOCIAL MEDIA CONTENT ...........................................................................4
WHAT DOES THE CONSTITUTION SAY?............................................................................................................ 6
FREE SPEECH AND THE CONSTITUTION OF THE REPUBLIC OF GHANA ...............................................................................6
DANGER OF CURTAILING FREE SPEECH ...........................................................................................................7
INTERNATIONAL STANDARDS ON FREEDOM OF EXPRESSION .........................................................................8
UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR) ................................................................................8
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR) ........................................................9
AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS ...............................................................................9
RESOLUTION 169 ON REPEALING CRIMINAL DEFAMATION LAW IN AFRICA BY THE AFRICAN COMMISSION
ON HUMAN AND PEOPLES’ RIGHTS - 24 NOVEMBER 2010 ...........................................................................9
EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ..10
AMERICAN CONVENTION ON HUMAN RIGHTS ...........................................................................................10
ASEAN HUMAN RIGHTS DECLARATION .......................................................................................................11
DISCUSSION OF LAWS SAFEGUARDING FREEDOM OF EXPRESSION AND SPEECH ..........................................11
RESTRICTION ON FREEDOM OF EXPRESSION AND SPEECH .............................................................................................12
REPRESSIVE VERSUS LIBERATING LAWS .....................................................................................................................13
EXPANDING VERSUS RESTRICTING FREEDOM OF SPEECH OVER THE INTERNET .................................................................13
BEST PRACTICE .............................................................................................................................................14
RECOMMENDATIONS ...................................................................................................................................15

III
INTRODUCTION

T here is a worrying trend in sub-Sahara Africa. Some governments are making moves

to restrict freedom of speech on social media. Ghana and Nigeria are the most recent to do so.
There is a petition on change.org that quotes:

“There is a bill that has passed the second stage of the Senate. This bills aim is to
curb our use of social media with the reasoning that the Senate wants to curb the
spreading of false information when in reality they want to limit our freedom of
speech and our right to criticize them. They are representatives of Nigerians and have
no right to do anything contrary to our wish because this is a democracy and they are
to exercise our wishes. This is not our wish”

The language is similar to Ghana’s. The Ghana Minister of Communications, Mrs. Ursula
Owusu-Ekuful, has stated that the government would soon make laws to criminalize the
sharing of “inappropriate social media content." The purported idea behind this move is
child online protection, development and welfare. It is directed at protecting the human rights
of children.

The challenge with this policy position is the definition of “inappropriate social media
content”. Who deems what inappropriate? What then does criminalizing inappropriate social
media content mean, especially right before the election year 2020? There are different types
of speech, such as:

“HATE SPEECH: This is speech that offends or attacks people on the basis of race,
ethnicity, national origin, religion, gender, sexual orientation, disability, disease, or
other traits.

OBSCENITY: Obscenity is famously hard to define, but in general refers to content

that strongly offends the prevalent morality of the time.

MISINFORMATION: Misinformation is false or inaccurate information. Examples

of misinformation include false rumors, insults and pranks, while examples of more
deliberate disinformation include malicious content such as hoaxes, spearphishing and
propaganda. Also referred to as fake news.

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 HARASSMENT: Harassment refers to unwanted behavior that makes someone feel
degraded, humiliated or offended. We do not define it to include true threats of
violence, which are banned by all of the platforms below and are not protected by the
First Amendment”.1

Which of the above does the government want to criminalize? They have not specified. One
example used for inappropriate social media content by the Minister was posts containing
sexual images. Is she by this explaining that the criminalizing of inappropriate social media
refers to obscenity such as pornographic content? Is the law limited to a child online
protection act alone? The vagueness of her speech does not allow one to answer conclusively.
However, if it is obscenity she is referring to, then that is already criminalized under various
laws of Ghana such as the Criminal Offences Act, 1960 (Act 29) and Criminal Offences
(Amendment) Act, 2012 Act 849. The next section covers extensively the laws that
criminalize obscenity, indecent exposure and pornography. There is thus no need to make
new laws to criminalize what is already criminalized. But the government probably wants
extra laws because the foregoing may not truly be the focus of ‘inappropriate’ social media
content. If already familiar with the laws against obscenity, please skip to the next section.

GHANA LAW ALREADY CRIMINALIZES PORNOGRAPHY AND

INDECENT EXPOSURE
Ghana already criminalizes pornography and indecent exposure so if this is the purpose of
the new law, then there is no need for it. The laws that criminalize the foregoing are
compiled below.

Section 101A – Definition of SEXUAL EXPLOITATION

(1) Sexual exploitation is the use of a person for sexual activity that causes or is likely to
cause serious physical and emotional injury or in prostitution or pornography.
(2) A person who sexually exploits (a) another person other than a child commits an
offence and is liable on summary conviction to a term of imprisonment of not less
than five years and not more than 25 years; or (b) another person who is a child
commits an offence and is liable on summary conviction to a term of imprisonment of
not less than seven years and not more than 25 years.

Section 278 – Gross indecency

A person who publicly and willfully does a grossly indecent act commits a misdemeanour.

1 h=ps://www.freedomforuminsLtute.org/first-amendment-center/primers/free-expression-on-social-media/

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Section 278A – Immoral or indecent customs or practices, bereaved spouses
A person who compels a bereaved spouse or a relative of that spouse to undergo a custom or
practice that is immoral or grossly indecent in nature commits a misdemeanour.

Section 282 – Indecent inscriptions

A person who affixes to, or inscribes on, a place or thing so as to be visible from a public
place, or affixes to, or inscribes on, a public urinal, or delivers to a person in a public place,
or exhibits to public view from a building, a picture or printed or written matter of an
indecent or obscene nature, commits a criminal offence and is liable to a fine not exceeding
twenty-five penalty units.

Section 283 – Getting others to do the acts punishable under section 282
A person who gives or delivers to any other person a picture or printed or written matter
mentioned in section 282 with the intent that it be affixed, inscribed, delivered or exhibited as
mentioned in that section commits a criminal offence and is liable to a fine not exceeding
twenty-five penalty units.

Section 284 – Advertisements as to venereal disease declared indecent

An advertisement relating to venereal disease, nervous debility, or any other complaint or
infirmity arising from or relating to sexual intercourse, and an advertisement claiming
aphrodisiac properties for a preparation is, for the purposes of this Act, of an indecent or
obscene nature.
Subsection (1) does not apply to an advertisement relating to venereal disease published by or
with the authority of the Minister responsible for Health.

ELECTRONIC TRANSACTIONS ACT, 2008 (ACT 772)

Section 136 – Child pornography
(1) A person who intentionally does any of the following acts (a) publishes child
pornography through a computer; (b) produces or procures child pornography for the
purpose of its publication through a computer system; or (c) possesses child
pornography in a computer system or on a computer or electronic record storage
medium, commits an offence and is liable on summary conviction to a fine of not
more than 25 penalty units or a term of imprisonment of not more than10 years or to
both.
(2) In this section—
“child” means a person below 18 years;
“child pornography” includes material that visually depicts a child engaged in
sexually explicit conduct; a person who appears to be a child engaged in sexually
explicit conduct; images representing a child engaged in sexually explicit conduct;
and unauthorised images of nude children;

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 “publish” means
a) distribute, transmit, disseminate, circulate, deliver, exhibit, lend for gain,
exchange, barter, sell or offer for sale, let on hire or offer to let on hire, offer in
any other way, or make available in any way;
b) have in possession or custody, or under control, for the purpose of doing an act
referred to in paragraph (a); and (c) print, photograph, copy or make in any
other manner whether of the same or of a different kind or nature to carry out
an act referred to in paragraph (a).

DEVELOPMENT AND CLASSIFICATION OF FILM ACT, 2016 (ACT 935)

Section 20 – Pornographic films
The Board shall not approve for exhibition, a film which it considers to be pornographic.

Section 28 – Forfeiture of equipment

(1) Where a person… (b) exhibits a pornographic film, the Board shall seize the film and
the equipment used for the exhibition without limiting criminal proceedings that may
be instituted against the exhibitor and apply to the High Court for forfeiture to the
State of both the film and the equipment.
(2) A seizure of the film and equipment is not a bar to any criminal proceedings that may
be instituted against the exhibiter.

POSTAL AND COURIER SERVICES REGULATORY COMMISSION ACT, 2003

(ACT 649)
Section 29(1) – Prohibition on sending certain articles by post or courier
A person shall not send by post… (d) an indecent or a pornographic printing, painting,
photograph, lithograph, engraving, book, card or any other indecent pornographic article in
whatever form; [or][ (e) a postal article that bears on the cover of it words, marks or designs
of an indecent, pornographic, scurrilous, threatening or grossly offensive character.

The above laws were compiled by Ace Ankomah in The Finder Online.

CRIMINALIZING ‘INAPPROPRIATE’ SOCIAL MEDIA

CONTENT
As technological communications advance, the battleground for freedom of speech is social
media. Governments in the sub-region including Ghana should be careful at stifling the
human right called free speech, “including attempts at censorship by government actors
critical of comments on social media, the shifting standards of private platforms to censor

4
online expression and the rise of hate and extremist speech in the digital world”.2 The
Government of Ghana intends to restrict free speech on social media but by how much, we do
not know. Even the definition, scope or nature of “inappropriate content” is unclear. This
touches on fundamental human rights of citizens whether you look at it from the perspective
of international, regional or national laws. Will the process of coming up with a definition for
inappropriate social media content be transparent, subject to public scrutiny and approval?
Will the scope of the definition expand and extend beyond sexual depictions to whoever
writes something unfavorable or critical about the government or its officials? None of these
has been clarified by those crafting the laws without extensive consultation of stakeholders—
the most important being the ordinary citizen.

The government has not shared these answers with citizens for now. And for this reason,
Ghanaians must interrogate the issue because history confirms that this same government
administration tried to implement policies without public consultation that the overwhelming
majority of the public did not agree with when it was eventually leaked. A recent example is
the Comprehensive Sexuality Education (CSE) policy from kindergarten to university
without public consultation. Another was the 2018 “Agreement between The Government of
the United States of America And the Government of the Republic of Ghana On Defence
Cooperation, the status of United States Forces, And Access to and use of agreed facilities
and areas In the Republic of Ghana”.

Transparency with the public was not a strong suit of this government’s predecessor either,
the National Democratic Congress, as seen with Ghana’s agreement with the USA to host two
former Gitmo detainees. Here too, the public was initially kept in the dark. This opaque
governance style is what gives rise to people wondering what the true intention behind
criminalizing social media content is—especially when much research the world over frowns
against such a policy stance. Furthermore, this policy stance is being undertaken just before
an election year.

Summarizing the forgone, one has to wonder:

1. the scope of activities or content to be criminalized?

2. whether the intentions for such criminalization are pure
3. whether the criminalization process will be transparent to the entire public unlike
some previous policies
4. whether sufficient stakeholder consultation with traditional leaders, CSOs, religious
bodies, political parties, academics and the general public will be carried out

2 h=p://www.abajournal.com/magazine/arLcle/social-clashes-digital-free-speech

5
WHAT DOES THE CONSTITUTION SAY?
The 1992 constitution states that, “The Sovereignty of Ghana resides in the people of Ghana
in whose name and for whose welfare the powers of government are to be exercised in the
manner and within the limits laid down in this Constitution." The power of government
enjoyed by any government administration in Ghana is derived from the people, and they are
to act to “secure for ourselves and posterity the blessings of liberty, equality of
opportunity and prosperity.” Their job includes “the protection and preservation of
Fundamental Human Rights and Freedoms, Unity and Stability for our Nation”3

One of such freedoms is what may be potentially threatened by this move to criminalize
social media content— freedom of speech and expression, which shall include freedom of the
press and other media. It would be good for the government to assure the public that the
intended criminalization of social media content will not affect this or any other freedoms
guaranteed by Ghana's Constitution or international law. Being transparent in the process of
originating this law will go a long way to show the international community and Ghanaians
how well-meaning and beneficial this law could be. But is this freedom truly guaranteed by
the Constitution or international law?

Free Speech and the Constitution of The Republic of Ghana

Chapter 5 of the 1992 Constitution of the Republic of Ghana protects the Fundamental
Human Right and Freedoms of Ghanaian citizens. Article 21(1) titled ‘General Fundamental
Freedoms’ specifically protects every citizen’s right to ‘freedom of speech and expression’.

21(1) All persons shall have the right to:

a. freedom of speech and expression, which shall include freedom of the press and
other media;
b. freedom of thought, conscience and belief, which shall include academic freedom;

Any other media in (a) includes social media. It is important to note that these universal
fundamental human rights are rights inherent to all human beings, whatever our nationality,
place of residence, sex, national or ethnic origin, colour, religion, language, or any other
status. In Ghana, there are cases where some of these freedoms in this section of the
Constitution have been abused by those put in office to safeguard them. A clear example is
how law students held a peaceful demonstration dubbed Red Monday to protest the General
Legal Council. This demonstration was met with disproportionate use of force against the
peaceful protestors by the Ghana Police Service. The police alleged agitation by the students,

3." h=p://extwprlegs1.fao.org/docs/pdf/gha129754.pdf

6
but onlookers reported no provocation from the students.4 The Canadian High Commission
became a shelter for Ghanaian Students running from their own Police Service. This was an
infringement on the students’ right to “freedom of assembly including the freedom to take
part in processions and demonstrations” guaranteed under the 1992 Constitution Article 21(1)
(d) and under various international human rights instruments. This is not a lone incident.
When Ghanaian citizens gathered to vote at the Ayawaso West Wuogon Constituency,
government security forces showed up, physically abused and beat up a Minority Member of
Parliament and shot at civilians wounding some.5 According to the Short Report, these
atrocities were carried out by the government's operatives from the National Security
Council. This too is an infringement on “freedom of association, which shall include freedom
to form or join trade unions or other associations, national and international, for the
protection of their interest” guaranteed by Article 21(1)(e) of the 1992 Constitution. An
additional guarantee for the right to freedom of association in the political sphere is found
under Article 21(3) which provides: (3) All citizens shall have the right and freedom to form
or join political parties and to participate in political activities subject to such qualifications
and laws as are necessary in a free and democratic society and are consistent with this
Constitution. What happened in Ayawaso West Wuogon is a taint on Ghana’s democratic
credentials.

No government has the right to give or take these rights and freedoms including the freedom
of speech from their citizens. All peoples are equally entitled to human rights without
discrimination. These rights are inalienable, interrelated, interdependent and indivisible.
Some of them may be taken away only in specific situations and according to due process.
For example, the right to liberty may be curtailed if a person is found guilty of a crime by a
competent court of law.

DANGER OF CURTAILING FREE SPEECH

The justification for controlling free speech or censoring it sometimes is taken from the idea
that there is quite a lot of fake news that needs censoring. But fake news has always existed.
It is known as propaganda. That existence of fake news does not give governments of today
the license to censor or effectively weaken pillars of democracy such as free speech and
expression. The leaders of old did not and there is no reason why leaders of today should
rewrite history in a destructive way. Tinkering with free speech has a way of unravelling

4h=ps://www.scribd.com/document/431234255/Understanding-the-Outcry-Against-the-General-Legal-
Council-Ghana-by-Law-Students-Concerning-Legal-EducaLon?
campaign=VigLink&ad_group=xxc1xx&source=hp_affiliate&medium=affiliate
5h=ps://cdn.modernghana.com/images/content/report_content/919201925357-1j041q5ccw-ayawaso-west-
wuogon-commission-of-inquiry-march-2019.pdf

7
republican democracy. Do not take my word for it. Listen to the ancients—men credited as
founding the most visible republican democracy on the planet—the USA.

“Congress shall make no law respecting an establishment of religion, or prohibiting

the free exercise thereof; or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.” —Amendment I, The U.S. Constitution

“Without Freedom of Thought, there can be no such thing as Wisdom; and no such
thing as public liberty, without Freedom of Speech.”—Benjamin Franklin, Letter
from Silence Dogood, printed in The New England Courant, July 9, 1722

“For if Men are to be precluded from offering their Sentiments on a matter, which
may involve the most serious and alarming consequences, that can invite the
consideration of Mankind, reason is of no use to us; the freedom of Speech may be
taken away, and, dumb and silent we may be led, like sheep, to the Slaughter.” —
George Washington, Address to the officers of the army, March 15, 1783

“In those wretched countries where a man cannot call his tongue his own, he can
scarce call anything his own. Whoever would overthrow the liberty of a nation
must begin by subduing the freeness of speech; a thing terrible to publick traytors.”
—Benjamin Franklin, Dogwood Papers, written by Franklin in 1722, at the age of
sixteen

“Freedom of speech is a principal pillar of a free government: When this support is

taken away, the constitution of a free society is dissolved,” —Benjamin Franklin in
The Pennsylvania Gazette.

INTERNATIONAL STANDARDS ON FREEDOM OF

EXPRESSION
UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR)

Article 19 of the Universal Declaration of Human Rights (UDHR), proclaimed by the United
Nations General Assembly in 1948 (United Nations, 1948) states:

“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."

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Any media here includes social media.

By virtue of the overwhelming rate of treaty ratification and its inclusion in the UDHR,
freedom of speech is now considered to be a norm of customary international law (Triggs,
2011). 6

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)

Article 19
(1) Everyone shall have the right to hold opinions without interference.
(2) 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.
(3) The exercise of the rights provided for in paragraph 3 of this article carries with it
special duties and responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided by law and are necessary:
a) For respect of the right or reputations of others;
b) For the protection of national security or of public order, or of public health or
morals.

AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS

Article 9

(1) Every individual shall have the right to receive information.

(2) Every individual shall have the right to express and disseminate his opinions within
the law.

RESOLUTION 169 ON REPEALING CRIMINAL DEFAMATION LAW IN AFRICA BY THE

AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS - 24 NOVEMBER 2010

(1) Underlines that criminal defamation laws constitute a serious interference with
freedom of expression and impedes on the role of the media as a watchdog,
preventing journalists and media practitioners to practice their profession without fear
and in good faith;
(2) Commending States Parties to the African Charter (States Parties) that do not
have, or have completely repealed insult and criminal defamation laws;
a) Calls on States Parties to repeal criminal defamation laws or insult laws
which impede freedom of speech, and to adhere to the provisions of freedom
of expression, articulated in the African Charter, the Declaration, and other
regional and international instruments;

6 h=ps://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx

9
 b) Also calls on States Parties to refrain from imposing general restrictions that
are in violation of the right to freedom of expression;

EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND

FUNDAMENTAL FREEDOMS

Article 10

(1) Everyone has the right to freedom of expression. This right shall include freedom to
hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This article shall
not prevent States from requiring the licensing of broadcasting, television or
cinema enterprises.
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may
be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the reputation or
rights of others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of the judiciary

AMERICAN CONVENTION ON HUMAN RIGHTS

Article 13

(1) Everyone has the right to freedom of thought and expression. This right includes
freedom to seek, receive, and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing, in print, in the form of art, or
through any other medium of one’s choice.
(2) The exercise of the right provided for in the foregoing paragraph shall not be
subject to prior censorship but shall be subject to subsequent imposition of
liability, which shall be expressly established by law to the extent necessary to
ensure:
a) Respect for the rights or reputations of others;
b) The protection of national security, public order, or public health or morals.
(3) The right of expression may not be restricted by indirect methods or means, such as
the abuse of government or private controls over newsprint, radio broadcasting
frequencies, or equipment used in the dissemination of information, or by any
other means tending to impede the communication and circulation of ideas and
opinions.

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 (4) Notwithstanding the provisions of paragraph 2 above, public entertainments may be
subject by law to prior censorship for the sole purpose of regulating access to them for
the moral protection of childhood and adolescence.
(5) Any propaganda for war and any advocacy of national, racial, or religious hatred that
constitute incitements to lawless violence or to any other similar action against any
person or group of persons on any grounds including those of race, colour, religion,
language, or national origin shall be considered as offenses punishable by law.

ASEAN HUMAN RIGHTS DECLARATION

There is no established regional human rights body for Asia. However, the ten countries of
the Association of Southeast Asian Nations (ASEAN) formally established the ASEAN
Intergovernmental Commission on Human Rights (AICHR) on 23 October 2009,
during the 15th ASEAN Summit. The group also adopted a Human Rights Declaration,
which guarantees freedom of expression as follows:

23. Every person has the right to freedom of opinion and expression, including
freedom to hold opinions without interference and to seek, receive and impart
information, whether orally, in writing or through any other medium of that person’s
choice.

DISCUSSION OF LAWS SAFEGUARDING FREEDOM OF

EXPRESSION AND SPEECH
We have established beyond doubt from international law as well as Ghana’s Constitution
that freedom of opinion, expression and speech is a fundamental freedom for every Ghanaian
and the fact that 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” (UDHR, 1948). ‘Any media' here includes social media. By virtue of the
overwhelming rate of treaty ratification and its inclusion in the UDHR, freedom of speech is
now considered to be a norm of customary international law (Triggs, 2011. International law:
Contemporary principles and practices (2nd ed.).

As per the ICCPR Article 19(2), “the right to freedom of expression … 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”. State parties are obligated by International Law to protect these rights, however, not
to the exclusion of others in the society—meaning these freedoms can be expressed so long
as they do not infringe on other people's human rights.

11
“States assume obligations and duties under international law to respect, to protect and
to fulfil human rights. The obligation to respect means that States must refrain from
interfering with or curtailing the enjoyment of human rights. The obligation to protect
requires States to protect individuals and groups against human rights abuses. The
obligation to fulfil means that States must take positive action to facilitate the enjoyment
of basic human rights”.7

Even though states have an obligation to respect, protect and fulfil these fundamental human
rights to freedom of expression and speech, human rights entail both rights and obligations.
This means that rights may be restricted in some circumstances.

Restriction on Freedom of Expression and Speech

The ability to enjoy freedom of expression and speech should not derogate another person’s
ability to enjoy their rights and should not affect national security adversely. For this reason,
the freedom of expression and speech may be subject to certain formalities, conditions,
restrictions or penalties “as are prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity or public safety, for the prevention of
disorder or crime, for the protection of health or morals, for the protection of the reputation
or rights of others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of the judiciary” (Article 19 of
ICCPR & Article 10 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms).

The consequence of the above restrictions to freedom of speech is criminal defamation laws.
But these laws have been observed to impede democracy in nations, and they have been
observed to defeat the purpose for which freedom of expression and speech exist in a
democracy to foster debate. Owing to this, Resolution 169 on Repealing Criminal
Defamation Law in Africa by the African Commission on Human and Peoples’ Rights -
24 November 2010:

(1) Underlines that criminal defamation laws constitute a serious interference

with freedom of expression and impedes on the role of the media as a watchdog,
preventing journalists and media practitioners to practice their profession without fear
and in good faith;
(2) Commending States Parties to the African Charter (States Parties) that do not
have, or have completely repealed insult and criminal defamation laws;

a) Calls on States Parties to repeal criminal defamation laws or insult laws

which impede freedom of speech, and to adhere to the provisions of

7 h=ps://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx

12
 freedom of expression, articulated in the African Charter, the
Declaration, and other regional and international instruments;
b) Also calls on States Parties to refrain from imposing general restrictions that
are in violation of the right to freedom of expression;

It is our hope and trust that the laws to criminalize inappropriate social media content will be
relegated only to obscenity, indecent exposure and pornography as alluded to by the Minister
and will not include caveats that will impose general restrictions that violate the right to
freedom of expression but that it will adhere to the provisions of freedom of expression,
articulated in the African Charter, the Declaration, and other regional and international
instruments.

Repressive Versus Liberating Laws

Many laws are man-made and as such, subject to the frailties of men. Laws are made for
man, not man for the laws. Put differently, laws are made to meet the needs of people, and not
people to meet the requirements of the law. Laws can be repressive and retrogressive to
development or liberating and positive for sustainable development. They can lead to the
securing for ourselves and posterity the blessings of liberty, equality of opportunity and
prosperity or they can lead to repression as we saw in Nazi Germany and under the Apartheid
regime in South Africa. The atrocities of Apartheid and Nazi Germany were carried out using
laws.

As the government considers drawing up these cyber laws, they should consider the legacy
that will be left behind. Laws should lead to sustainable, inclusive development and not
something that only profits one political divide or empowers the government unduly against
the citizens.

Expanding versus Restricting Freedom Of Speech Over The Internet

The U.S. Supreme Court Justice Anthony Kennedy “also wrote important opinions protecting
freedom of speech over the internet. [In] Packingham v. North Carolina, he authored a
majority opinion declaring unconstitutional a state law that prohibited registered sex
offenders from being on social media sites where minors might be present. He wrote
eloquently of the importance of the internet and social media for speech: "While in the past
there may have been difficulty in identifying the most important places (in a spatial sense) for
the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic
forums of the Internet' in general, and social media in particular."

Earlier, in 1997, he was part of the majority in Reno v. American Civil Liberties Union,
which struck down key provisions of the Communications Decency Act of 1996, which
restricted "indecent" speech over the internet. He wrote the opinion for the court declaring a

13
subsequent statute, the Child Online Protection Act, to be unconstitutional, in 2004’s
Ashcroft v. ACLU”. 8

It is this same type of Child Online Protection Act the Minister of information seeks to pass
into law in Ghana. Though Justice Kennedy was a champion for expanding free speech
protections, and sometimes dissented from decisions that upheld restrictions on speech, he
also “consistently was with the conservative justices in allowing restrictions on free speech
when the institutional interests of the government were involved”.9 I am not conversant with
the views of Ghanaian Justices on the subject of free speech over the internet so will not say
much here.

BEST PRACTICE
The U.S. is arguably the most prominent beacon of democracy in the free world. George
Washington, a founding father and first U.S. President (1789–97) gave the U.S. and
republican democratic states that followed, precedents still in use today such as the Cabinet
advisory system, the inaugural address, the title “Mr. President”, and the concept of a two-
term office limit.10 Many democracies the world over are adaptations of the American
system. Ghana can learn from them when it comes to freedom of speech and the doctrines
that underpin it. There is no need to reinvent the wheel.

The U.S. Constitution’s First Amendment states, “Congress shall make no law … abridging
the freedom of speech, or of the press; …” “But the case law that, over the course of the
twentieth century, has been built upon this foundation is complex. An extremely abbreviated
outline of the principal doctrines would go as follows:

• If a law gives no clear notice of the kind of speech it prohibits, it's "void for
vagueness."
• If a law burdens substantially more speech than is necessary to advance a compelling
government interest, it's unconstitutionally "overbroad."
• A government may not force a person to endorse any symbol, slogan, or pledge.
• Governmental restrictions on the "time, place, and manner" in which speech is
permitted are constitutional if and only if:
o they are "content neutral," both on their face and as applied;
o they leave substantial other opportunities for speech to take place; and

8 h=ps://www.scotusblog.com/2018/07/anthony-kennedy-and-free-speech/
9 h=ps://www.scotusblog.com/2018/07/anthony-kennedy-and-free-speech/
10
h=ps://governancesoluLons.wordpress.com/2018/09/24/tls-72-leadership-and-values-8-george-
washington/

14
 o they "narrowly serve a significant state interest."
• On state-owned property that does not constitute a "public forum," government may
restrict speech in any way that is reasonable in light of the nature and purpose of the
property in question.
• Content-based governmental restrictions on speech are unconstitutional unless they
advance a "compelling state interest." To this principle, there are six exceptions:

1. Speech that is likely to lead to imminent lawless action may be prohibited.

2. "Fighting words" -- i.e., words so insulting that people are likely to fight back --
may be prohibited.
3. Obscenity -- i.e., erotic expression, grossly or patently offensive to an average
person, that lacks serious artistic or social value -- may be prohibited.
4. Child pornography may be banned whether or not it is legally obscene and
whether or not it has serious artistic or social value, because it induces people to
engage in lewd displays, and the creation of it threatens the welfare of children.
5. Defamatory statements may be prohibited. (In other words, the making of such
statements may constitutionally give rise to civil liability.) However, if the target
of the defamation is a "public figure," she must prove that the defendant acted
with "malice." If the target is not a "public figure" but the statement involved a
matter of "public concern," the plaintiff must prove that the defendant acted with
negligence concerning its falsity.
6. Commercial speech may be banned only if it is misleading, pertains to illegal
products, or directly advances a substantial state interest with a degree of
suppression no greater than is reasonably necessary.”11

RECOMMENDATIONS
“The government is not supposed to know a lot about us. That’s why we’re called
private citizens. Public officials are supposed to be transparent: We’re supposed to
know a lot about them because they wield privilege, influence, and power to the most
extreme degree within society. Privacy is intended not for these people; privacy is for
the powerless. And if we do not protect it, we will not have it” (Edward Sowden).12
1. The government should come up with privacy laws that protect the rights of users of
social media platforms in line with international standards to balance any perceived
restriction of restricting of freedom of speech in any way.

11 h=ps://cyber.harvard.edu/ilaw/Speech/
12 h=ps://lithub.com/edward-snowden-on-why-we-must-protect-our-privacy/

15
 2. Follow best practice internationally in coming up with criminalizing social media
content
3. A poorly crafted cyber policy for censoring social media with poor stakeholder
consultation and perceived to be a gag tool for political activists could backfire.
Therefore, the government must make the process for coming up with said
criminalizing laws transparent, inclusive and democratic—by engaging in wide
stakeholder consultation, especially with people or groups who don’t want such
restrictions.
4. The government must let the public know the definition of “inappropriate social
media content”.
5. The government must let the public know the scope of the definition—what it covers
and what it does not.
6. There should be wide stakeholder consultation with traditional leaders, religious
bodies, CSOs, political parties, academics, and others.
7. The government should be careful NOT to engage in “arbitrary or unlawful” attack on
people’s privacy and hence violate their freedom of expression that is enshrined in the
International Covenant on Civil and Political Rights”.13
8. The government should shy away from increasingly using repressive provisions from
penal codes and security laws to criminalize and discredit people who may be critical
of government. This is how democracy works. People have a right to dissenting
opinions.14
9. The government should be guided by Resolution 169 on Repealing Criminal
Defamation Law in Africa by the African Commission on Human and Peoples’ Rights
- 24 November 2010 just in case their definition of inappropriate social media content
extends to insult and criminal defamation laws. Resolution 169:
I. Underlines that criminal defamation laws constitute a serious interference
with freedom of expression and impedes on the role of the media as a
watchdog, preventing journalists and media practitioners to practice their
profession without fear and in good faith;
II. Commending States Parties to the African Charter (States Parties) that do
not have, or have completely repealed insult and criminal defamation laws;
a. Calls on States Parties to repeal criminal defamation laws or insult laws
which impede freedom of speech, and to adhere to the provisions of freedom
of expression, articulated in the African Charter, the Declaration, and other
regional and international instruments;

13h=ps://www.amnesty.org/en/latest/research/2019/10/morocco-human-rights-defenders-targeted-with-nso-
groups-spyware/
14h=ps://www.amnesty.org/en/latest/research/2019/10/morocco-human-rights-defenders-targeted-with-nso-
groups-spyware/

16
b. Also calls on States Parties to refrain from imposing general restrictions that
are in violation of the right to freedom of expression

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