<<Print>>The Africa Center for International Law and Accountability (ACILA) has urged Parliament to withdraw the “Spy Bill” to rework it or make substantial changes to the draft Bill to ensure a proper balance between the state’s interest to promote safety and its obligations to protect and respect the fundamental human rights of Ghanaians to the privacy of their communications.
ACILA said that a proper balance is needed to ensure that Ghana meets its obligations under domestic, regional, and international law to promote, protect, and respect an individual’s right to the privacy of his communications. It referred, in particular to the provisions in Article 18(2) of the 1992 Constitution of Ghana which affirms the right to privacy as a fundamental human right as well as continental and international instruments to which Ghana has ratified, including the African Charter on Human and People’s Rights (Article 9) and the International Covenant on Civil and Political Rights (Article 17).
It said that recourse needs to be had to these instruments because a citizen whose right to the privacy of communications is breached may bring an action against the state not only in Ghanaian courts, but also at the African Court on Human and People’s Rights (ACHPR) in Tanzania; the United Nations Human Rights Council; or at the United Nations Human Rights Committee for an effective remedy.
ACILA’s call, which was contained in a memorandum to Parliament on the draft Bill, “Interception of Postal Packets and Telecommunication Messages Bill, 2015”, popularly called the “Spy Bill”, outlined three main reasons why the Bill should be withdrawn, reworked, and reintroduced, if necessary.
It said that one of the reasons it is asking for a withdrawal of the Bill is the pervasive deficiencies in the draft Bill with potential implications for human rights violations without a notification to the person whose right to privacy is violated for an effective remedy.
Another reason, it said, is the lack of a persuasive justification for the enactment of the legislation. “For example, the Memorandum to the draft Bill does not tell us how many arrests, prosecutions, convictions have resulted from interception-related activities. There should be a reference to historical data which is available from warrants which have been granted from the hodgepodge of existing laws.”
A third reason is the lack of adequate time for meaningful and effective consultation with civil society, and, indeed, Ghanaians.
ACILA noted, however, that in the alternative that Parliament decides to go forward with the Bill, then it proposed substantial changes to the Bill to, among other things, replace the current draft provision where the Chief Justice appoints a judge to oversee the implementation of the legislation and instead provide for an independent commissioner to provide oversight, notification to persons whose mails and messages are wrongly intercepted, and provide an effective remedy for such breach.
Another change, it said, is to replace the authorization for the application of a warrant by the National Security Coordinator with a public officer whom Parliament has oversight or in the alternative maintain the status quo that allows agencies to apply directly to the court for a warrant.
On the controversial issue in Clause 3 of the Bill which grants the National Security Coordinator the power to orally authorize interception of a postal packet or telecommunication message without a warrant for 48 hours, ACILA said that the oral authorization without a warrant should be removed.
“Again, no justification was made in the Bill to depart from current practice which does not provide for interception or interception-related activities without a warrant. The Memorandum to the Bill should explain why oral authorization of interception is required taking into account current problems, if any, that agencies face in obtaining a warrant.”
It said that any justification proffered should also overcome a counter argument that obtaining a warrant in emergency situations is always possible even when the courts are not sitting.
“Absent a legally valid justification with safeguards for balancing the state’s interest in promoting public safety and the individual’s right to privacy, the interception without a warrant for 48 hours may be subject to abuse and will not accord with an individual’s right to the privacy of communications under the Constitution of Ghana and under regional and international law, to which Ghana is a party”, it said.
Other recommended changes included providing for a document retention policy to impose the burden of production on the state; requiring that the state bears the cost of the purchase of the equipment for lawful interception, not the person on whom the warrant is served to intercept mails and communications; and expanding the scope of coverage of the Bill to include non-public networks.
Below Is The full Memorandum To Parliament:-
Subject: Interception of Postal Packets and Telecommunications Messages Bill, 2015On behalf of the Africa Center for International Law and Accountability (ACILA), I write toprovide our analysis of the “Interception of Postal Packets and Telecommunication MessagesBill, 2015” draft Bill, which is currently before Parliament.ACILA is incorporated under US law as a 501(c)(3) research and education, non-profit, and non-partisan think tank and also under Ghana law. Our mission is to contribute to African scholarshipthrough enhanced understanding of international law. Our input seeks to provide a comparative international human rights law and internationalstandards perspective to the draft Bill, taking into account Ghana’s own domestic laws and itsobligations under regional, continental, and international human rights law, to which it has ratified.
Summary of our Position
Based on our analysis of the draft Bill, we present two nuanced positions. First, we call for awithdrawal of the Bill for the following reasons:1. Lack of a persuasive justification for the enactment of the legislation. For example, theMemorandum to the draft Bill does not tell us how many arrests, prosecutions, convictions haveresulted from interception-related activities. There should be a reference to historical data whichis available from warrants which have been granted from the hodgepodge of existing legislations.
2. Pervasive deficiencies in the draft Bill with potential implications for human rights violationswithout a notification to the person whose right to privacy is abused for an effective remedy.
3. Lack of adequate time for meaningful and effective consultation
Second, in the alternative that the Bill is to go forward, then we propose the following changes:
1. Provide a persuasive legal policy justification for the enactment of the Bill with datademonstrating how interception-related activities have assisted in curbing crime,terrorism, etc.
2. Expand the scope of coverage of the Bill to include non-public networks.
3. Replace the current draft provision where the Chief Justice appoints a judge to overseethe implementation of the legislation and instead provide for an independentcommissioner to provide oversight, notification to persons whose mails and messageswere wrongly intercepted, and provide an effective remedy for such breach.
4. Require that the state bears the cost of the purchase of the equipment for lawfulinterception, not the person on whom the warrant is served to intercept mails andcommunications.
5. Replace the authorization for the application of a warrant by the National SecurityCoordinator with a public officer whom Parliament has oversight or in the alternativemaintain the status quo that allows agencies to apply directly to the court for a warrant.
6. Provide for a document retention policy to impose the burden of production on the state.
7. Remove the oral authorization of interception without a warrant for 48 hours to prevent the likely violation of an individual’s right to the privacy of communications.
As stated earlier, Ghana has obligations under domestic, regional, and international law topromote, protect, and respect an individual’s right to privacy. We refer, in particular to theprovisions in Article 18(2) of the 1992 Constitution of Ghana which affirms the right to privacyas a fundamental human right as well as continental and international instruments to whichGhana has ratified, including the African Charter on Human and People’s Rights (Article 9) andthe International Covenant on Civil and Political Rights (Article 17).
Recourse needs to be had to these instruments because a citizen whose right to the privacy ofcommunications has been breached may bring an action against the state not only in Ghanaian courts, but also at the African Court on Human and People’s Rights (ACHPR) in Tanzania; the United Nations Human Rights Council; or at the United Nations Human Rights Committee foran effective remedy.
We note that although these instruments also provide for a restriction of this fundamental right inthe interest of public safety, among others, and that current international standards requirelegislation for lawful interception of mails and communications where there is none, anyrestriction of this fundamental right must be provided by law; the law must be narrowly tailored,and it must be proportional to the legitimate interest of the state.
In addition, the law must not be arbitrary; it must provide independent oversight, and it must alsoprovide for an effective remedy when there is a breach.
Although Ghana’s draft Bill attempts to balance an individual’s right to the privacy of his communications with the legitimate interest of the state for public safety, some importantchanges need to be made if Parliament is to pass the Bill.
Review of Selected Clauses in the Bill
1. Lack of a Persuasive Legal Policy Justification for the Enactment of the Bill – TheMemorandum to the draft Bill provides a summary of the various clauses and makesbroad statements about the purpose of the draft Bill viz to fight crime, terrorism etc.without providing any evidence in support of its claims. To fix this and provide abetter legal policy justification for the enactment of the draft Bill, the Memorandummay include historical data about the number of arrests, prosecutions, and convictionsthat resulted from the interception of mails and telecommunication messagesreferencing the hodgepodge of intercept-related sections in the existing legislations inthe Narcotic Drug (Control Enforcement and Sanctions) Act, 1990 (PNDCL 236),Security and Intelligence Agencies Act, 1996 (Act 526), the Anti-Money LaundryAct, 2008 (Act 748), the Anti-Terrorism Act, 2008 (Act 762), the Economic andOrganized Crime Office Act, 2010 (Act 804) and the Mutual Legal Assistance Act,2010 (Act 807). In addition, the Memorandum may also make a persuasive case forwhy a standalone Bill is needed instead of the current legal regime with a variety ofintercepts in several parts of the legislations.
2. Limited Scope of the Application of draft Bill – Clause 1 provides that the “Act [Bill]applies only to public postal services and public telephone or other electronic orcyberspace communication services.” This provision leaves out interception of mailsand telecommunication messages on non-public networks, a network source that canprovide information to meet the objects and purpose of the Bill. Indeed, severalcountries, including the United Kingdom, have amended their legislation to includeinterceptions on non-public networks. The Bill must make a provision for lawfulinterceptions on non-public networks in accordance with international standards.
3. Application for Authorization of a Warrant – Clause 5 (1) authorizes the NationalSecurity Coordinator to apply for a warrant for interceptions. This role centralizes theauthorization for the application of a warrant in the office of the National SecurityCoordinator, which departs from current practice that allows the security agencies,including the Police and Narcotics Control Board, among others, to apply directly tothe courts for a warrant. The Memorandum to the Bill did not provide justification forthis change and allowing this change to go forward will likely contravene theNational Security Coordinator’s “coordinating” role in section 19(a) of the Securityand Intelligence Agencies Act, 1996 (Act 526), to “co-ordinate on a day-today basisthe activities of the national, regional and district security councils and the activitiesof the Intelligence Agencies.” Allowing the National Security Coordinator todetermine whether a request for a warrant is needed by a security agency vestsadministrative and supervisory powers in the National Security Coordinator incontravention of his primary function under section 19(a) of the Security andIntelligence Agencies Act, 1996 (Act 526). The promoters of the Bill may have takena cue from the UK, Ireland, and Scotland where the authorization for the applicationof a warrant is done under the hand of the Home Secretary, Minister of Justice, andSecretary of State respectively. However, even in these jurisdictions, the authorizationfor the application of a warrant has been elevated to a ministerial position withoversight by Parliament, the People’s representatives. In Ghana, the status quo maybe maintained by allowing the security agencies to apply directly for a warrant or, ifthe authorization for the application of the warrant is centralized, then it must beelevated to a ministerial position to ensure oversight.
4. Oral Authorization of a Warrant by the National Security Coordinator Clause 3 of the Bill grants the National Security Coordinator the power to orallyauthorize interception of a postal packet or telecommunication message without awarrant but the oral authorization shall be valid for 48 hours to allow the NationalSecurity Coordinator to obtain a warrant from the High Court. Again, no justificationwas made in the Bill to depart from current practice which does not provide forinterception or interception-related activities without a warrant. The Memorandum tothe Bill should explain why oral authorization of interception is required taking intoaccount current problems, if any, that agencies face in obtaining a warrant. Anyjustification proffered should also overcome a counter argument that obtaining a warrant in emergency situations is always possible even when the courts are notsitting. Absent a legally valid justification with safeguards for balancing the state’sinterest in promoting public safety and the individual’s right to privacy, theinterception without a warrant for 48 hours may be subject to abuse and will notaccord with an individual’s right to the privacy of communications under theConstitution of Ghana and under regional and international law, to which Ghana is aparty.
5. Appointment of Independent Commissioner: Clause 18 provides that the Chief Justiceappoints a Justice of the High Court to “supervise the implementation of this Act” andreport back to the National Security Coordinator in 12 months intervals aboutcompliance with the Act. Clearly this presents a conflict of interest situation.Elsewhere, including the UK and Ireland, it is an independent commissioner thatensures oversight. In Ghana’s case, this independent commissioner may notifypersons whose mails and messages were wrongly intercepted and provide an effectiveremedy when there has been a breach.
6. Responsibility for Cost of Interception: Clause 17 provides that the cost of lawfulinterception will be borne by the person on whom the warrant was served. Thisprovision should be changed to require the state to bear the cost of the purchase of theequipment for lawful interception, not the person on whom the warrant is served tointercept mails and communications.
7. Lack of Document Retention Policy: The Bill makes a provision for a person whoseright to privacy has been violated under the Act to bring an action against the state ina court of law. However, the Bill does not make provision for document retention forthe records of the interception to be kept by the state for a specified period and toplace the burden of production of documents on the state. The Bill should make aprovision for retention of documents in a structured format to allow for access to suchdocuments to aid an action for a remedy. A retention policy should also allow for easyretrieval of documents for investigative purposes by the independent commissionerand for oversight purposes by Parliament.
Conclusion:-
Our analysis of the draft Bill has shown that the Bill does not meet Ghana’s own obligations under domestic, regional, and international law, which requires Ghana to promote, protect, and respect an individual’s right to privacy. The restriction of an individual’s fundamental right to theprivacy of communications is not proportional to the legitimate interest of the state, the restriction is not narrowly tailored, and allowing the Bill to pass in its current form will lead to violations of human rights without an effective remedy. The draft Bill needs a comprehensive overhaul and considering the speed with which the promoters of the Bill intend to rush the Bill through Parliament, Parliament may not allocate sufficient time to require a complete rewrite of the Bill. Therefore, we submit that the Bill be withdrawn. However, in the alternative that Parliament decides to go forward with the Bill, then recourse will have to be had to the aforesaid recommended changes to the draft Bill.
Respectfully submitted,