The Media and the Offence of Criminal Libel in Ghana Sankofa
What is criminal libel law in Ghana? Criminal Libel: Criminal libel can serve the purpose in some countries to silence the press and its ability to publish stories about a particular person or. prospects of the repeal of the criminal libel law in Ghana for journalism. Criminal libel is the offence of making a malicious defamatory statement in a permanent form (Concise Oxford English Dictionary, ). According to the Reporters Committee for Freedom of the Press (), libel occurs when a .
Log In Sign Up. Download Free PDF. Olivia Anku-Tsede. Download PDF. A short summary of this paper. IntroductionIn the recent past there were invocations of the criminal libel law against most media practitioners and this course was upheld by fhana Courts in Ghana stating that any person, not only public officers, can libsl a complaint of criminal libel under section of the Criminal Code of Ghana, Act This provision in the Criminal Code was subsequently repealed by Parliament after what is criminal libel law in ghana public uproar and how to beat window tint meter debate.
Some what disney movies are on youtube practitioners have since taken advantage of the repeal of the criminal libel provisions in the Criminal Code and are circulating various malicious publications about their victims in the media, with some even imputing the commission of criminal offences such as murder, rape and possession of illicit drugs.
As a result of the above, appeals are being made by some media practitioners and the public including some members of Parliament for the re-instatement of the criminal libel law. In their view criminal libel laws would restrain mischievous persons from making malicious and false publications. Having regard to oaw above and the Ghanaian Constitutional provisions, it is important that the following issue be critically examined to determine whether criminal libel laws is crucial and can be supported in modern times:Whether criminal libel law as provided for under the repealed 1 sections and h ghanz the Criminal Code, Act 29are consistent with or in contravention of the spirit and letter of the Ilbel of Ghana, particularly Articles 21 1 a and 1 and 4.
Whilst section 1 sets out instances where a defamatory publication is absolutely privileged, subsection 1 h prescribed that a publication is absolutely privileged "if the matter gahna true and if it is found that it was for the public benefit that the matter be published". Central to this article is the lxw that free and independent media are a fundamental premise of a democratic society.
This proposition is wholly endorsed by the Committee of Experts on the Proposals for a Draft Constitution for Ghana, whose proposals formed the basis of the Constitution. A close reading of Chapter Twelve 12 of the Constitutionas a whole, brings out some salient points such as the guarantee of the freedom and independence of the media as a fundamental principle of the Constitution Art. To that end, Article 2 proscribes censorship and, in particular Article 4 unambiguously prescribes that editors and publishers of newspapers and other institutions of mass media shall not be "penalized or harassed for their editorial opinion and crimlnal, or the content of their publications".
The Constitution under Articles and established a National Media Commission to ensure the freedom and independence of the mass media and also serve as a check on any attempt by the Executive to control, direct or manipulate the mass media.
All these provisions reveal the manifest intendment of the framers of the Constitution to ensure that citizens enjoy the widest possible expanse of free and independent media, which are consistent with democratic principles and traditions.
It is not in dispute that sections and h of the Criminal Code what is a dot matrix limitations on the freedom of the media. Thus, to be constitutionally valid these sections must seek protection under the ambit of the restrictions on the freedom and independence of the media sanctioned by the Constitution.
The only limitation on the constitutional ambit of media freedom and independence is in Article of the Constitution which subjects the provisions of Articles and to "laws that are reasonably required in the interest of national security, public order, public morality and for the purpose of protecting the reputation, rights and freedom of other persons". The defining question in this reference is thus as follows: Are how much to get house valued criminal libel provisions in sections and h of the Criminal Code "reasonably required in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of others"?
In determining this question, it is necessary to make a fundamental procedural point. In accordance with sectionsand of the Criminal Code which respectively define cases in which a person is guilty of libel and what a defamatory matter isit is self-evident that the offence of criminal libel is aimed at protecting the reputation of persons, its object is clearly not to defend national security or protect public order or morality.
If sections and h are to be justified in terms of Article of the Constitution, it must be because of the object of protecting the reputation of persons.
The question is thus reduced to, whether or not sections and h of the Criminal Code are reasonably required for the protection of the reputation of persons. To answer this question, it is almost imperative to examine the historical origins of criminal libel legislation, its evolution in time, and its present status in jurisdictions that recognize the enforcement of fundamental human rights as constitutional imperatives.
Criminal Libel GenerallyCriminal libel legislation has id historical origins in the ancient English offence of scandalum magnatum. As Robertson and Nicol, put it: "The arcane offence of scandalum magnatum was created by a statute of designed to protect 'the great men of 2 See the whole of Chapter Six of the Report of the Committee of Experts against discomfiture from stories that might arouse the people against them. The purpose of paw libel was to prevent loss of confidence in government.
It was, what is criminal libel law in ghana, a public-order offence, and since true stories were more likely to result in breaches of the peace, it spawned the aphorism 'the greater the truth, the greater the libel. Most of its historical anomalies survive in the present offence. Truth is not a defence, unless the defendant can convince a jury that publication is for the public benefit. The burden of proof lies on the defendant, who may be convicted even though he or she honestly believed, on reasonable grounds, that what was published ia true and a matter of public interest.
Breach of the peace is no longer an essential element: all that is required is a defamatory statement of some seriousness, and seriousness' may be inferred from the public position of the person about whom it is made. The victim, of whxt, is permitted to seek rehabilitation through damages in civil action at the same time as the libeler faces retribution in the criminal courts".
The judge must be satisfied that there is an exceptional strong prima facie case, that the libel is extremely serious and that the public interest requires the institution of criminal proceedings". The necessity to seek leave of the Court as a condition precedent to criminal prosecution in respect of libelous publications in how can i convert videos to ipod format newspaper or periodical was prescribed by section 8 of the Law of Libel Ni Act,which provided that:"No criminal prosecution shall be commenced against any proprietor, publisher, editor or any person responsible for the publication of a newspaper for any libel published therein without the order of a judge at Chambers being first had and obtained.
Such application shall be made on notice to the person accused, who shall have an opportunity of being heard against such application" Clearly, this amendment of English Criminal libel law was to give ,aw protection to the media in their indispensable role in a democratic society to inform the public and to act as watchdog of the public interest.
It was aimed at checking the obvious "chilling effect" that the threat of criminal libel prosecutions could have on the media and the wanton harassment and persecution that media practitioners could be subjected to in the absence of such a provision. As paw noted, the requirement of leave of the Court in order to initiate prosecution in respect of libelous publications in newspapers and periodicals is not the only restriction on criminal libel under even English Law.
In the most authoritative statement of the English Law on the matter in the House of Lords decision in Gleaves v Deakin  ACboth Lord Edmund-Davies what is criminal libel law in ghana Lord Scarman agreed libell the sole task of examining justices in committal proceedings for criminal libel was to determine whether the ghaana was sufficiently serious as to justify, in the public interest, the initiation of the criminal process. At page thereof, Lord Scarman indicated that: "To warrant prosecution the libel must be sufficiently serious to require the intervention of the Crown or the public interest".
Further at pagethe law lord concisely put the matter as;"The essential feature of a criminal libel remains as in the past gana publication of a grave, not trivial, libel"Even Viscount Dilhorne, who did not seem to fully share this view, nonetheless admits at page that: "When an 29 application is made for leave to institute the prosecution of a newspaper for criminal libel, a judge has to consider whether the public interest requires a prosecution".
He further at page whag that: "A criminal libel must be serious libep. Lord Diplock who agreed with the opinions of Lord Scarman and Viscount Dilhorne, proceeded in his judgment to observe that the offence of criminal libel continued to retain anomalies which in his view "involved serious departments from accepted principles upon which the modern criminal law of English is based" and which are "difficult to reconcile with international obligations which this country England has undertaken by being a party to the European Convention for the Protection of Human Rights and Fundamental Freedom"!
The abolition of these offenses is significant and serves as a land mark for most common law countries, including Ghana. This lwa mainly because the crimibal law offense of criminal libel originated in England and was subsequently adopted by other countries in the course of their colonization by the British. According to the UK's Justice Minister Claire Ward the abolition was necessary as "Sedition and seditious what is criminal libel law in ghana defamatory libel are arcane offences -from a bygone era when freedom of expression wasn't seen as the right it is today".
In her view the right to freedom of speech serves as how to make bubbles with dish soap and water "touchstone of democracy" enabling individuals to criticise the state which is crucial to maintaining freedom in any state.
She indicated that the existence of the offense of seditious and defamatory libel in the UK had given grounds for other countries to retain similar laws and use them to suppress political dissent and restrict press freedom.
Thus the abolishing of these offences will enable the UK to take a lead in challenging similar laws in other countries Press Gazette The need to encourage media freedom and reduce government interference of the media and their right to freedom of expression through non-government regulation, including non-criminalisation of libel, amongst others, was emphasised by the Lord Justice Leveson when he remarked that:"A free press in a democracy holds power to account.
But, with a few honourable exceptions, the UK press has not performed that vital role in the case of its own power. None of this, however, is to conclude that press freedom in Britain, hard won over years ago, should be jeopardised. But let me say this very clearly. Not a single witness proposed that either Government or politicians all of whom the press hold to account, should be involved in the regulation of the press.
Neither would I make any such proposal The press needs to establish a new regulatory body which is truly independent of industry leaders and of Government and politicians.
It must promote high standards of journalism, and protect both the public interest and the rights and liberties of individuals. It should set and lw standards, hear individual complaints against its members and provide a fair, quick and inexpensive arbitration service to deal with civil law claims…" The Leveson Enquiry, The Ghanaian SituationIn Ghana, however, there were no safeguards available to an accused person in the event of a prosecution for criminal libel.
The scope of criminal libel under our criminal law is accordingly very wide. Once a person publishes a libelous matter of, and concerning another, the person is potentially liable to criminal prosecution. This straightaway raises questions about how reasonable or proportional the law is to the offence and how justifiable it is, if at all. Their persuasive effect is particularly germane, as there is considerable convergence in human rights conventions or bill of rights legislation worldwide and they are all animated by the UN Declaration on Human Rights.
An examination of the approach of the European Court criminap handling restrictions on the right to freedom of expression indicates some similarities between the European and Ghanaian provisions. It is thus necessary to reproduce the relevant provisions in the European Convention on freedom of expression to demonstrate the similarity in the formulation of the European whatt Ghanaian provisions.
These can substantially be found in Article 10 of the Convention. Article 10 1 reads as follows:"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". The restriction clause under What port does hp printer use 10 2 also states that:"The exercise of these freedoms, since criiminal 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 interest 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".
Effect of Article 10 of the European Convention on Human RightsIn giving life and meaning to these human rights provisions, the European Commission and European Court have developed an extensive and commendable body of jurisprudence elaborating a consistent approach in their interpretation of the key phrases "prescribed by law" and "necessary in a democratic society" and of the relationship between Article 10 1 and its permissible restriction in Article 10 2.
The European Court, in the celebrated case of Sunday Times v United Kingdom , at paragraph 65, stressed that in determining the constitutionality of a restrictive clause in relation to the substantive clause guaranteeing freedom of expression; "The Court is faced not with a choice between two conflicting principles but with a principle of freedom of expression that is subject to a number how to make a stilt house model exceptions which must be narrowly interpreted".
The European Court is not unique in this wwhat. The Supreme Court of India, in the seminal case of Rangarajan v. There does indeed have to be a compromise between the interest of freedom of expression and social interest.
But one cannot simply balance the two interests as if they were of equal weight. Our commitment to freedom of expression demands that it cannot be suppressed unless the restrictions created by allowing the freedom are pressing and what to clean oven with community interest is in danger".
Rosenthal, ;Hustler Magazine, Inc. Falwell, ;Zeran v. America Online, Inc. Robert Welch, Inc. According to the Committee, the criminalization of libel violates the Freedom of expression and is inconsistent with Article 19 of the International Covenant on Civil and Political Rights.
Accordingly, the Committee sought to encourage state parties to decriminalize defamation and indicated that what is a good backup software in such instances is never an appropriate remedy Pinlac This right to freedom of expression is such that it is fundamental to the existence of human rights.
It has thus been given prominence in most human rights declarations. In accordance with Article 19 e of the ICCPR "everyone shall have the right to hold opinions without interference" and "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".
These rights may, however, be subject to certain restrictions, especially where the rights or reputation of others may be adversely affected or where it is necessary to protect national security, public order, public health or ls.
It thus contradicts the spirit of Article 19 for any party state to suppress these freedoms or criminalize them without a clear indication as to whether the enjoyment of such rights endangers national security or any public or community interest or infringes on the rights of laww.
Moving Forward. It is argued that a similar approach should be taken in determining the relationship between Article as well as Article of the Ghanaian Constitution, and the restrictive Article Article is clearly, in its own words, an exception limiting the freedoms how to recover data without any software in Articles and and must accordingly be construed narrowly to give full effect to the media.
This approach is in conformity with the pre-eminent status that the Committee of Experts envisaged for freedom of expression, including the freedom and independence of the media. The Committee stressed in paragraph of its proposals that:"The experience of modern states has demonstrated convincingly that in the absence of freedom of press and thought, and an enlightened and vigilant public opinion, a safe future for democracy and its success cannot be ensured anywhere.
Ghana: The History and politics of Criminal Libel Law in Ghana (II)
May 06, · As of July , Ghana’s parliament unanimously repealed the Criminal Libel and Seditious Laws, which had been used to incarcerate a number of journalists in the past, according to the West African Journalists Association (WAJA). With the amendment, any person accused of committing an offense under the repealed sections will be discharged. Since Ghana repealed the Criminal Libel Law (July, ), libel cases in Ghana will now come under the aegis of civil torts action. The Media and Criminal Libel Law in Ghana Section of the Criminal Code created the offence of negligent and intentional libel. Under Act 29 the maximum penalty for negligent libel was a fine not exceeding forty Ghanaian Cedis (?), while that for intentional libel. Ghanaian Chronicle (Accra) By H. Kwasi Prempeh Accra — The Basic Content of English common law, which is where our criminal libel laws come from, was developed in the era of absolute monarchy, when.
Accra — The Basic Content of English common law, which is where our criminal libel laws come from, was developed in the era of absolute monarchy, when Kings and Queens ruled by "Divine Right" and the doctrine of monarchical infallibility "the King can do no wrong" reigned supreme. Because the King saw himself then as "God's anointed one," criticising or, worse still, insulting him was considered sacrilegious. Thus, it became criminal to say or write anything about the King or about his rule that was deemed to "injure" his reputation.
It was, in fact, equivalent to blasphemy. And because the King saw himself as the embodiment or personification of the State as France's Louis XVI put it, "L'etat c'est moi" - I am the State , any alleged affront to the person of the King was also regarded automatically as damaging the reputation of the State and, thus, punishable criminally as seditious.
This, in a nutshell, is how the notion of criminal or seditious libel came into being. The criminalisation of libel in English common law is associated originally with one of the darkest chapters in English legal history - the era of the Court of the Star Chamber. The Star Chamber was established in to dispense swift and harsh justice according to the King's pleasure.
Described as "the most iniquitous tribunal in English history," the Star Chamber was abolished by the English Parliament in but, the English monarchy and aristocracy retained some of the Star Chamber's pro-monarchical inventions, among them the crime of seditious libel and a host of related offences designed to punish unwelcome commentary and news about the powers that be.
Such laws were subsequently exported to the colonies in order to keep troublesome "natives" in line, which is how it became part of our criminal law. Yet, even though the tradition-loving English theoretically still have such laws on their books, they have been wise not to use them in their country or against their citizens since the s just about the time they introduced the same laws to the then Gold Coast.
In effect, criminal libel is no longer a valid law in England, because, under the principle of "desuetude", a law, such as the criminal libel law, that has fallen into prolonged disuse cannot suddenly be revived and used selectively, especially in a criminal proceeding.
Yet, we in Ghana continue to be saddled with the legal anachronism called criminal libel, thanks to a judicial elite that continues to take its jurisprudence from the era of the Star Chamber and a ruling political class that is as authoritarian in its ways and as anti-democratic in its conception of power as the colonialists of old.
Defenders of criminal libel often portray opponents of the law as advocating a journalistic culture in which journalists would be free to destroy the reputation of others with impunity. Nothing could be farther from the truth. Those of us who object to criminal libel object to the criminalisation of libel, not to libel law itself though "unreasonably" large civil damages are practically no different from criminal fines.
One reason for our objection is that, the tag or label of "criminal", as well as criminal punishment generally, should be reserved for the likes of murderers, rapists, arsonists, coup plotters and robbers both "street" and "white collar" - in other words, for those whose conduct inflicts public harm or endangers the public safety or the lives and limbs of others - not for journalists whose only "crime" is to have allegedly printed a story that injured the reputation of some government- favoured public figure.
For that kind of "crime" namely, saying bad things about big people , the "reasonably required" remedy in a modern constitutional democracy should take the form of a civil remedy, which would include but, not limited to causing the offending journalist to retract the erroneous story and render public apology to the victim.
We should use our scarce law enforcement and prosecutorial resources to hound down killers, rapists, coup-makers and corrupt officials, not journalists. Besides civil liability in the form of a reasonable amount of monetary damages , the Constitution provides other imaginative remedies for dealing with offensive journalism.
First, the Constitution, in Article 62 6 , recognises the right to a rejoinder in favour of any person who believes himself to have been misrepresented or unfairly characterized in a published story. Second, the Constitution establishes a Media Commission, the functions of which includes "the investigation, mediation and settlement of complaints made against or by the press or other mass media. Of course the availability of such conciliatory remedies does not preclude a person from seeking relief in a court of law if he thinks he or she has been defamed by a publication.
However, by making available these out-of-court alternatives as remedies for inaccurate or offensive journalism, the Constitution sends a message that we must endeavour to resort, first and foremost, to these conciliatory remedies before we beat the path to the courthouse. If these remedies fail to check reckless and offensive journalism, then, of course, we could have our day in civil court.
Irresponsible Government Breeds Irresponsible Journalism. In the end, the one lasting cure for "irresponsible journalism" is responsible government, which means, government that is transparent, accessible, honest and accountable. So, long as government is conducted in secret and behind closed doors, so long as our political culture continues to be characterised by the politics of exclusion, and so long as public and media requests and queries for information are met with official silence and "No comment", the journalism of rumour, half-truths, speculation and fabrication will persist.
Indeed, in the absence of a Freedom of Information Act, which would shine the light of public scrutiny on the conduct of public officials and the government, a law of libel that expects news reports to be virtually error-free is plainly unrealistic and practically a form of entrapment.
If government and public officials persist in their doublespeak, evasiveness and opportunistic silence, our journalists will have no choice but to rely on speculation, leaks and the grapevine for their newsworthy stories. Conversely, such recourse to rumour and half-truths would be unnecessary if the business of the State was conducted transparently, rather than in secret, and if public officials answered queries forthrightly and in a timely fashion, rather than indulge in foot-dragging or seek shelter repeatedly behind the unaccountable "No Comment".
Irresponsible government breeds "irresponsible" journalism; and between the two, it is the former, not the latter, that is the greater threat to our national development. In convicting Mr. Quarcoo and the Free Press, Judge Ofoe stated, apparently in defense of the use of the criminal law in cases of defamation, that Ghanaian society is still "largely gullible and ignorant.
However, we must examine Judge Ofoe's sociological observation critically to see if the judge allowed myth to pass for fact and unduly influence his judicial reasoning. This is not the first time I have heard the supposed "gullibility and ignorance" of the "average" Ghanaian invoked as an excuse for why journalists must be criminally punished for libel.
But is the Ghanaian so peculiarly gullible and ignorant that he or she would believe any story that is published by a newspaper or media organization? We often make the elitist mistake of supposing that those of our fellow citizens who do not have the benefit of a certain level of formal education are necessarily gullible and ignorant.
They are not. For most of their lives these same Ghanaians whom we are quick to deride as gullible and ignorant were treated to news only from the state-controlled media both print and electronic. Yet, even in the era when Ghanaians could read nothing but what the Ghanaian Times and the Daily Graphic were made to publish, the so-called gullible and ignorant Ghanaian knew better than to trust everything that appeared in print or was broadcast over the airwaves.
In any case, the remedy for public gullibility and ignorance is not criminal libel! We cannot, as a society, give the majority of our citizens a poor and uneven education if at all and then turn around to say that, because we have failed to provide our citizens with adequate education they have become gullible and, therefore, our journalists deserve to go to jail for peddling half-truths and falsehoods to these supposedly gullible citizens.
If public gullibility and ignorance are indeed the dangers we must guard against, then the cure lies in better, accessible and adequate education for every Ghanaian, not in the criminal law. Sadly, the government continues to allow public education to deteriorate and become more and more inaccessible to the majority of Ghanaians, even as it uses the gullibility and ignorance of the Ghanaian as justification for criminal libel.
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