Ghana notably decriminalized criminal libel and sedition in 2001. Under the previous Act 29 (Sections 112 to 119), defaming an individual, particularly a public official, was regarded as a crime against the state, punishable by imprisonment.
Under the amended Act 29, these provisions have been repealed. Consequently, defamation of a person, especially a public official, is no longer considered a crime against the state. Such defamation is now classified as a tort (i.e., a civil matter), whereby the defamed individual may seek damages through litigation.
Nevertheless, speech can still be criminalized and may result in custodial sentences under specific provisions of the Criminal Offences Act, 1960 (Act 29), and the Electronic Communications Act, 2008 (Act 775).
It is well established that the right to freedom of speech is protected under the 1992 Constitution of Ghana. Article 21(1)(a) affirms that all persons shall have the right to freedom of speech and expression, including freedom of the press and other media. However, constitutional rights in Ghana are not absolute; they are qualified. The Constitution provides the legal mechanisms for criminalizing speech through several clawback clauses.
Article 12(2) states that every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed, or gender shall be entitled to the fundamental human rights and freedoms, provided they respect the rights and freedoms of others and the public interest. This provision supports the principle that one’s rights end where another’s rights begin, emphasizing that freedom of speech should not infringe upon another’s freedom of thought, conscience, or belief [Article 21(1)(b)].
Furthermore, Article 21(4) stipulates that these rights are subject to laws reasonably required in the interests of defense, public safety, public order, public morality, public health, or for the protection of others’ rights and freedoms, as long as such restrictions are consistent with the Constitution.
Additionally, Article 164 clarifies that freedom and independence of the media are subject to laws reasonably required in the interests of national security, public order, public morality, and for the purpose of protecting the reputations, rights, and freedoms of other persons.
Pursuant to these clawback clauses in the 1992 constitution on freedom of speech, Criminal Offences Act, 1960 (Act 29), and the Electronic Communications Act, 2008 (Act 775), criminalize certain forms of speech.
Section 207 addresses offensive conduct conducive to breaching the peace: “Any person who, in any public place or at any public meeting, uses threatening, abusive, or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach is likely, shall be guilty of a misdemeanour.”
Section 208 relates to the publication of false news: “Any person who publishes or reproduces any statement, rumour, or report which is likely to cause fear and alarm to the public or to disturbance of the public peace, knowing or having reason to believe that the statement, rumour or report is false, s guilty of a misdemeanour.”
Section 296(4) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), states that where a crime, not being a crime is declared by any enactment to be a misdemeanour and the punishment for the crime is not specified, a person convicted thereof shall be liable to imprisonment for a term not exceeding three years. Therefore, any person found culpable of the aforementioned crimes of speech is liable to imprisonment for a term not exceeding three years.
Section 76 of the Electronic Communications Act, 2008 (Act 775), stipulates: “A person who by means of electronic communications, knowingly sends a communication which is false or misleading and likely to prejudice the efficiency of life saving service or to endanger safety of any person, ship, aircraft, vessel or vehicle commits an offence and s liable, on summary conviction, to a fine of not exceeding three thousand penalty units or to a term of imprisonment of not more than five years, or both.
Therefore, if speech actively threatens public order, national security, public peace, or the safety of others, the speaker can be criminally charged and sentenced to a term of imprisonment.
By : Sir Wazy (Level 400 LLB student at Wisconsin)
