Address by Ambassador Kabral Blay-Amihere on occasion of 10th anniversary of repeal of criminal libel law and media foundation for West Africa

I consider it a privilege and honour to be asked by the Media Foundation for West Africa to join in the double celebration of its 10th Anniversary and that of the repeal of the Criminal Libel Law and to be asked to deliver an address on “CONSTITUTIONAL CHALLENGES OF FREEDOM OF EXPRESSION: SIGNIFICANCE AND CHALLENGES.

I readily accepted the kind invitation of the Executive Director of MFWA, Professor Kwame Karikari, not only because this invitation is a duty I must honour as Chairman of the NMC, but more importantly because I belong to that generation of journalists who fought for media freedoms and have seen the two sides of the coin, what it is to be a journalist or a citizen living under a CULTURE OF SILENCE,  and under a CULTURE OF FREEDOM.

But firstly I wish on behalf of the National Media Commission and on my own behalf to congratulate the Media Foundation for West Africa for its first decade which has seen the organization championing free expression and press freedom in West Africa and even beyond.

In addressing my assigned topic-CONSTITUTIONAL GUARANTEES FOR FREEDOM OF EXPRESSION: SIGNIFICANCE AND CHALLENGES; permit to invite you to the memory lane and read a letter written in 1936 by the then Governor of the Gold Coast, Arnold  Weinholt Hodgson to the Colonial Office in London about a Sierra Leonean Journalist, I.T.A Wallace Johnson:

I DO WISH THAT YOU COULD SUGGEST SOME WAY WHEREBY I COULD GET RID OF WALLACE JOHNSON. HE IS IN THE EMPLOY OF THE BOLSHEVIKS AND IS DOING A CERTAIN AMOUNT OF HARM BY GETTING HOLD OF YOUNG MEN FOR HIS YOUTH LEAGUE. HE JUST KEEPS WITHIN THE LAW BUT ONLY JUST.AT MANY OF HIS MEETINGS HE SAYS OUTRAGEOUS AND CRIMINAL THINGS, BUT THE LAW OFFICERS TELL ME THAT IS ALMOST IMPOSSIBLE TO GET A CONVICTION ON THE SPOKEN WORD”.

I quote this letter written 75 years ago to show a common concern and reaction that political authorities in Ghana and elsewhere have displayed in the wake of publications that they consider a threat to their power and glory.

The charge of corrupting the minds of the youth is what was used to convict and execute Socrates in Ancient Greece.

The colonial office might have pitied poor Governor Hogdson and dispatched a cable to him that might have read-‘WHY DO YOU LAMENT WHEN THERE IS THE 1892 CRIMINAL CODE ORDINANCE passed to deal with “rascals” like Wallace Johnson”.

A few months after this letter, in June 1936 the Governor did the right colonial thing. Wallace Johnson and Dr. Nnamdi Azikwe, the First President of Nigeria were charged with Sedition under the Criminal Code Ordinance for an article in their newspaper, the African Morning Post titled-HAS THE AFRICAN A GOD- a mere critique of Western Civilization, Christianity and colonial rule.

But Governor Hodgson was not the first and last authority to fall on such laws to deal with journalists. The introduction of newspaper licensing laws, censorship and sections of the  Criminal Code have been used at various epochs in our history, the most recent case been the REPUBLIC VRS TOMMY THOMPSON BOOKS and others and the REPUBLIC VRS NANA KOFI COOMSON. The last case involving Kofi Coomsoon only ended at the start of the Kufuor Regime in early 2001 when the new Attorney General, Nana Addo Dankwa Akufo indicated to the courts that the new government was not interested in prosecuting the case.

Months later, in July 2001, Parliament voted to repeal the Criminal Libel Law and on August 9, 2001, President John Kufuor completed the burial of the law with his signature.

It is important to recall here that but for the decision of the Kufuor regime to repeal the Criminal Libel Law, Ghanaian journalists would have continued to be fodder for the law since an unanimous Supreme Court Decision in July 1996 ruled that the Criminal Libel Law or Section 112 of the Criminal Code, 1960 (Act29) is not inconsistent with the 1992 Constitution.

And so on a day like this that we celebrate the repeal of the Criminal Libel Law, it is only proper that we render credit to President John Agyekum Kufuor for his courage to repeal the century-old law and to Nana Addo Dankwa Akufo Addo, then Minister of Justice and Sttorney General who shepherded the bill through. We must equally pay homage to members of the Third Parliament of the Fourth Republic who put partisanship aside and voted for the repeal.

Preceding that historic act of course, was the adoption of the 1992 Constitution that recognizes the fundamental right of all Ghanaians to free expression and free press.

The Ghana Constitution is very unique when one considers the extent to which it goes  on to state and define in clear and concise terms the democratic space Ghanaians are entitled to which no government can interfere with.

Thus in Article 21(1) (a) the Constitution grants all persons the right to FREEDOM OF SPEECH AND EXPRESSION, WHICH SHALL INCLUDE FREEDOM OF THE PRESS AND OTHER MEDIA.

It is of course in Chapter 12 of the 1992 Constitution correctly titled FREEDOM AND INDEPENDENCE OF THE MEDIA, where we see and feel clearly the foundations of press freedom in Ghana. In article per article, the 12 Articles of the 12 Chapter guarantee the freedom and independence of the media that few Constitutions in Africa do.

There have been eras in our history when there have been censorship, where there has been licensing of newspapers and governments have dismissed, and harassed journalists of the state owned media at will.

To ensure that these things will never happen in our history Article 162 states as follows that:

(1) Freedom and independence of the media are hereby guaranteed

(2) Subject to this constitution and any other law not inconsistent with this constitution, there shall be no censorship in Ghana

(3) There shall be no impediment to the establishment of press or private media, and in particular, there shall be no law requiring any person to obtain a license as a prerequisite to the establishment of, or operation of a newspaper, journal or other media for mass communication or information.

(4) Editors and publishers of newspapers and other institutions of the mass media shall not be subject to control or harassed for their editorial opinions and views, or the contents of their publication.

And to ensure that the provisions for freedom of the press are truly guaranteed, the Constitution established the National Media Commission as the symbol and custodian of these freedoms with a clear mandate to insulate the state-owned media from governmental control and also take all appropriate measures to ensure the maintenance of the highest journalistic standards in the mass media.

Today’s generation of journalists like the younger generation in Southern Africa which did not witness the bitter years of Apartheid and settler rule may take these provisions and the freedoms we enjoy today for granted but my generation cannot do so.

I worked as Editor of the Free Press between 1984 and 1986 and within that short period, the publisher Tommy Thompson and Research Writer, Kweku Baako Jnr. were arrested and detained without trial for months. Tommy Thompson, his editor, John Kugblenu and Columnist Mike Adjei had earlier on, in 1982 been arrested and detained for one year. John Kugblenu could not suffer the strain of detention and died two weeks after his release. Tommy Thompson’s health equally suffered.

I also recall this sad day when Kwesi Pratt, Jnr. for asking a harmless question at a budget briefing at the Ministry of Information, was arrested and sent to Navrongo Prison where he spent months in detention. He missed the birth of his twins and the subsequent outdooring.

Kwesi Pratt Jnr., Tony Akoto Ampaw, Ralph Kugbey, Kwame Karikari, and Kweku Baako  Jnr.were again all detained in April 1986 for exercising their fundamental human right to speak on national issues. Their arrest was the last straw in the positive defiance of the FREE PRESS which folded up with a famous last edition, THE LAST TANGO, crying out about how low Ghana had sunk in press freedom.

On March, 29 1989 when a Newspaper Licensing Law was introduced ostensibly to stop The Independent which I had established on March 6; three newspapers, the Sporting Guide published by  Freddy Blay, the Sporting Concorde published by Kweku Baako Jnr and Kabral Blay-Amihere and the Independent were denied a license, although they met all the criteria for a licence.

Today, by a twist of history, thanks to the 1992 Constitution, I  am the one who signs on the average, 50 certificates for newspapers every quarter, with no impediment placed in the path of those who wish to establish a newspaper or journal.

And for those who do not know or did not witness it, there have been periods in our history when men and women lost their voices and could not discuss politics or express opinions for fear of harassment and detention, seasons when editors of the state-owned media were arbitrarily dismissed, periods when there could be no private press or private radio. Just GBC.

And having worked through three military regimes as a journalist and under constitutional rule, I can testify that human societies thrive and flourish when there is a free press and free expression guaranteed by Constitutions.

Without such guarantees as we have in the 1992 Constitution and what the USA has  in the First Amendment, which simply states that-CONGRESS SHALL MAKE NO LAWS ABRIDGING FREEDOM OF SPEECH OR OF THE PRESS, governments can resort to dictatorial measures to punish and criminalize free speech and thus kill the human spirit.

There have been many positive dividends from the 1992 Constitutional provisions for Ghana’s development and democracy:

1. Our democracy is stronger and growing because we have a free press and free speech. Since 1993, the press has consistently exercised its Constitutional Mandate under Article 162(6) to “UPHOLD THE RESPONSIBILITY AND ACCOUNTABILITY OF THE GOVERNMENT TO THE PEOPLE OF GHANA”. In the First Parliament of the Fourth Republic which was virtually one party dominated as a result of the opposition parties in the  1992 parliamentary elections, the few private print press-the Free Press, Ghanaian Chronicle, Ghanaian Voice, The Independent,  The Guide, The Insight and Dispatch courageously and steadfastly filled the void and provided an alternative platform for public debate.

2. There is more citizen participation in public discourse and debate.

3. Ghanaians openly and publicly discuss issues without fear of being arrested by security agents (and where there have been aberrations in security agents arresting people for free speech public outrage has stopped such violations)

4. Ghana has a more diverse, pluralistic media-about 200 Authorized FM stations, 12 Private Television Stations, hundreds of newspapers. It is not a media monopoly of Graphic, Times, GBC and GNA.

5. Journalists can no longer be arrested and detained for their editorial functions.

6. Editors and staff of state-owned media are free from governmental control. The days when Ministers/Secretaries /Commissioners served as Supervising Editors of the State-Owned Media are over and no editor of any of the state-owned can claim to be manipulated  by government. And where such control is found, it is with the full blessing of an editor or journalist who still prefers servitude to freedom.

7. Ghana’s standing in the comity of nations is high as the country with the freest press in Africa. Good for our image, good for investor confidence.

But with all these positives is a flipside of some disturbing trends.

There is public outcry against the media from politicians, pastors, traditional rulers, and even from the Ghana Journalists Association.  The NMC has on several occasions issued statements urging the media to uphold their own code of ethics.

A section of the public disappointed about the performance of the media, is calling for sanctions, restrictions and possible re-introduction and application of laws to deal with the press. Even some journalists have publicly called for restriction to the profession, something that amounts to licensing of journalists. Recent application by the Ghana Police of Acts 107 and 108 of the Criminal Code on expression in public places likely to cause public disorder and the breach of the peace and false news causing fear and panic; and finally the proposal for a law on Defamation are evidence of public frustration with media practice and resort to subtle ways to criminalize free speech and free press.

First of all let me state emphatically that in my view it is neither the 1992 Constitution nor the repeal of the Criminal Libel Law that accounts for irresponsible journalism.

There are many factors accounting for the situation including:

1. The emerging polarization and politicization of Ghanaian society and its extension to the media front and the resultant dog-eat dog political race in which politicians use every means fair and foul to win and control power. Some of the publications guilty of regular violation of the code of ethics of journalism are floated by politicians.

2. The non-judicious allocation of frequencies over the years with no regard for the capacity of the new FM stations to deliver on professional standards. We have more of quantity and less of quality.

3. The lack of adequate preparation, training and mentoring of the 1000s of journalists who work in the expanding media vineyard.

4. Poor remuneration for journalists.

5. Incapacity of media organization like the GJA, PRINPAG, GIBA, Community Radio Network of Ghana and the NMC to fulfill their mandate. Although the NMC is charged to take all appropriate measures to promote high journalistic standards, the state has all these 18 year not provided the corresponding resources.

These are issues that must be tackled and resolved sooner than later but let it be put on record that at the time of the debate on whether to repeal the criminal libel or not, some legislators foresaw the dangers inherent in repealing the law.

Several speakers whilst supporting the bill raised a Caveat as to what measures were going to be put in place to ensure that journalists did not turn out to become terrorists of the word, harassing and intimidating the public, particularly public servants and politicians.

Many lamented that the NMC appeared a toothless bull dog which ought to be empowered to bite with the ferocity of a Wild Bush Dog.

Hear what Hon. Cletus Avoka-MP for Bawku West had to say on the NMC that captured eloquently what previous speakers from both sides of the House felt:

“My colleagues have already made mention of the functions of the National Media Commission (NMC). I agree that it is a toothless bulldog. That is their institution which is supposed to regulate them or mediate, yet there have been cases where they have mediated and authorized or directed press houses or journalists to apologize and they have refused. They have sometimes asked them to retract stories and they have refused, and nothing has happened. So is there any use in having that body, the NMC, if you have a body without teeth that cannot bite? You have a dog in your house that has no teeth. I think it is important that at the end of the day we should amend the law to give it teeth so that it can take care of some considerations we are talking about”.

These words expressed in July 2001 are still being expressed today with a new sense of urgency.

My take on this view yesterday and today is that the NMC is not a toothless bulldog, that the NMC is a very useful institution for our democracy and that its creation has provided a bulwark for the promotion of free press and speech albeit it seeming lack of biting powers which was a deliberate construction of the framers of our constitution.

The framers of the 1992 Constitution were careful not to replace one set of authoritarian regime over the media with a new one even if it would be much more benevolent. The First NMC headed by Professor Kofi Kumado held the view that Article 167(b) in its broad interpretation empowered the NMC to take appropriate measures that could include Legislative Instruments to put in place a regime of sanctions against the media but sided with the restraint and caution of the framers of the Constitution.

The Attorney General and Minister of Justice in the debate on the bill had this to say about the NMC, when pressed to include in the bill provisions that would give the NMC some teeth to bite.

“The NMC is an independent body. It knows what it has to do to augment the power it has--------Let the NMC take whatever steps it thinks necessary for it to fulfill its mandate; and it knows what to do.”

On the need to fill any gaps, Nana Akufo Addo had this to say-“I for myself, I do not see any gap to be filled other than those already available under the Constitution and civil remedies”.

It is important to note that the work of the Settlements and Complaints Committee of the NMC should never be the sole yardstick to judge the NMC since that facility is an arbitration process that depends on the goodwill of two parties.

Complainants against the media have every right under the law to seek their redress in the courts when journalists refuse to take advantage of the cheaper and soul-uplifting mediation process. Indeed some Ghanaians have resorted to the Courts and won heavy damages against the press.

But having said that let me use this occasion to advise my friends in the media that the bell is tolling for a new regime of sanctions that will remove the carpet of freedom under their feet of clay.

The same society that voted for their freedoms is speaking out loud today that journalists have to be held in check.  Some contributors to the Constitutional Review Commission made a passionate appeal for a sanctions regime against the media.

Many people are advocating that there should be strict educational qualifications for entry into journalism; such as a first degree or post-graduate qualification in journalism. Hundreds of journalists in Ghana, including very fine ones, will lose their right to practice if such a law was passed in Ghana.

I do not share that view and hold dearly the view as expressed in Article 19 of the UN Universal Declaration of Human Rights and Article 21 of the Ghana Constitution that the right to free speech that includes the right to a free press is a fundamental human right open to all citizens.

But I tell my friends in the media who may feel so powerful and immune from all attacks because the Criminal Libel Law was repealed, because we have a Constitution that guarantees free press,  that the bell is tolling for a new regime of sanctions.

And when it comes, It will not come from the barrel of a gun, from a military dictatorship, but could well come from the people themselves through their representatives in Parliament; through the ballot box if need be.

I shudder at the thought of such a day because you lose your humanity, any time you surrender your right to free speech to any group of individuals.

I dread the day when the NMC will become just another regulatory body which shall not defend our freedoms but become a Police over what we write and what we say.

Some will love that day as they loved it in the past. Some of us remain opposed to a return to the dark days of media practice in Ghana.

But only journalists can save the day of sanctions that is coming.

My message to journalists or all those who use the medium of the press is that let us not create conditions that can justify any clamp down on media freedoms.

Media Owners through their associations, the Ghana Journalists Association, the Ghana Independent Broadcasters Association, the Private Newspapers Publishers Association of Ghana, the Guild of Editors, the Ghana Community Radio Network, Talk Show Hosts and Presenters must embark on a campaign of education of their members about the dangers of irresponsible journalism. They must begin to put their houses in order, to self-regulate  or be regulated in a manner that will take the daylight out of their practice.

Our talk-show host must have the courage to play an effective gate-keeping role and not allow their media to be used by organized serial callers and panelists who indulge in hate speech, insults and abuses.

The Ghana Independent Broadcasters Association which wields such enormous power in particular must consider that their business and profits  can only endure if there is press freedom and must therefore begin on their own to engage in serious discussions about self-regulation.

And because there is a political link to the phenomenon of abuse, insults and violation of ethics in the media let media owners who are politicians commit their media to higher standards.

The proposed Broadcasting Bill must also take into account the new realities of broadcasting in the many private FM stations, public oncerns and address the crucial issue of ensuring greater adherence to ethical conduct through measures that will force FM stations to use wisely the scarce national frequency space and boldly deny oxygen to those who want to plunge Ghana into chaos and disorder.

The NMC for its part must position itself to meet the challenges of the media landscape and boldly take all the appropriate measures to meet the challenges as allowed by the Constitution. After 18 years in existence there must be a self-examination and public discourse on the role of the NMC.

And when all has been said, the Republic of Ghana through the Executive and Legislature must enhance the capacity of the NMC and related organizations whose activities fuel the democratic process. I have repeatedly said that  there is no way that the NMC can efficiently monitor and regulate the expanded media landscape when it is the least resourced of all the governing institutions; and must because of the importance of media in a democracy probably do more on a daily basis throughout the 365 calendar days.

It is still a long march, but we shall and should get there.

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