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 Feature: Is freedom of speech absolute in Ghana?
Speech is God's gift to mankind. Through speech a human being conveys his thoughts, sentiments and feeling to others. Freedom of speech and expression is thus a natural right, which a human being acquires on birth. It is, therefore, a basic right. "Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media and regardless of frontiers" proclaims the Universal Declaration of Human Rights (1948).
Man as rational being desires to do many things, but in a civil society his desires have to be controlled, regulated and reconciled with the exercise of similar desires by other individuals. The guarantee of each of the above right is, therefore, restricted by the Constitution in the larger interest of the community. The right to freedom of speech and expression is subject to limitations imposed under the Criminal Code, 1960 (Act 29).
Article 21(1) (a) of the 1992 Constitution of Ghana says that all citizens have the right to freedom of speech and expression which shall include freedom of the press and other media. Freedom of Speech and expression means the right to express one's own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of one's idea through any communicable medium or visible representation, such as gesture, signs, and the like. This expression connotes also publication and thus the freedom of press is included in this category. Free propagation of ideas is the necessary objective and this may be done on the platform or through the press. This propagation of ideas is secured by freedom of circulation. Liberty of circulation is essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value. The freedom of speech and expression includes liberty to propagate not one's views only. It also includes the right to propagate or publish the views of other people; otherwise this freedom would not include the freedom of press.
On a more practical plane, freedom of speech serves many functions. One of its most important functions is that decision-making at all levels is preceded by discussion and consideration of a representative range of views. A decision made after adequate consultation is likely to be a better one which less imperfectly mirrors the opinions, interests and needs of all concerned, than a decision taken with little or no consultation. Thus freedom of speech is important at all levels in society. Yet it is most important for government. A government which does not know what the people feel and think is in a dangerous position. The government that muzzles free speech runs a risk of destroying the creative instincts of its people.
Freedom of speech is also important to governments because when criticisms of a government are freely voiced, the government has the opportunity to respond to answer unfair comments and criticisms about its actions. On the other hand, when freedom of speech is restricted, rumours, unfair criticisms, comments and downright falsehoods are circulated by word of mouth. These have a habit of spreading across the length and breadth of the country through conversation and surreptitiously circulated writings. The government is in no position to answer these views, because they are not publicly stated. It is in a government's interest to have criticisms in the public arena where it can answer its critics and correct its mistakes. The government generally has access to electronic and printing communication far in excess of individuals and groups. It is able to present its view only if the opposing views are in the open and known.
Finally, the freedom of speech is the single most important political right of citizens, although private property is required for its operation. Without free speech no political action is possible and no resistance to injustice and oppression is possible. Without free speech elections would have no meaning at all. Policies of contestants become known to the public and become responsive to public opinion only by virtue of free speech. Between elections the freely expressed opinion of citizens help restrain oppressive rule. Without this freedom it is futile to expect political freedom or consequently economic freedom. Freedom of speech involves toleration of a great deal of nonsense, and even of matters which are in bad taste.
The right to know, 'receive and impart information has been recognized within the right to freedom of speech and expression. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose. The right to know has, however, not yet extended to the extent of invalidating The State Secret Acts, 1962 (Act 101) which prohibits disclosure of certain official documents. One can conclude that right to information is nothing but one small limb of right of speech and expression.
When one looks at the general situation of the freedom of speech and expression environment in Ghana, one is tempted to believe that there are no restrictions regarding the way opinions are expressed without recourse for the right way. However cozy it may look, there are some restrictions which act on the freedom of speech and expression in Ghana. These are broadly categorized into three namely the criminal law, the tort of defamation, and contempt of court especially by scandalizing the courts or prejudicing a fair trial.
There are some specific areas where restrictions take full force and journalists are not to tread on. One such area is where the security of the state is involved. The term "security of state" refers only to serious and aggravated forms of public order e.g. rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray. Thus speeches or expression on the part of an individual, which incite to or encourage the commission of violent crimes, such as, murder are matters, which would undermine the security of State.
'Public order' is an expression of wide connotation and signifies "that state of tranquility which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established."
Public order is something more than ordinary maintenance of law and order. 'Public order' is synonymous with public peace, safety and tranquility. The test for determining whether an act affects law and order or public order is to see whether the act leads to the disturbances of the current of life of the community so as to amount to a disturbance of the public order or whether it affects merely an individual being the tranquility of the society undisturbed.
Anything that disturbs public tranquility or public peace disturbs public order. Thus communal disturbances and strikes promoted with the sole object of causing unrest among workmen are offences against public order. Public order thus implies absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation of life. Public order also includes public safety. Thus creating internal disorder or rebellion would affect public order and public safety. But mere criticism of government does not necessarily disturb public order.
Restriction on the freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit and amounts to contempt of court. 'Contempt of court' may be either 'civil contempt' or 'criminal contempt.'
A statement, which injures a man's reputation, amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt. The civil law in relating to defamation is still uncodified in India and subject to certain exceptions.
From the above expose, it can be easily concluded that right to freedom of speech and expression is one of the most important fundamental right. It includes circulating one's views by words or in writing or through audiovisual instrumentalities, through advertisements and through any other communication channel. It also comprises of right to information, freedom of press etc. Thus this fundamental right has a vast scope.
It can also be comprehended that public order holds a lot of significance as a ground of restriction on this fundamental right. But there should be reasonable and proper relationship between the restriction and achievement of public order. The words 'in the interest of public order' include not only utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder.
(2010-06-18 / Chana New)
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