«Report of the Findings Commissioned by: Commonwealth Human Rights Initiative (CHRI) Consultant: Editors: Dr. Kwadwo Appiagyei-Atua Venkatesh Nayak & ...»
AUDIT OF KEY LEGISLATION IN GHANA
INFORMATION ACCESS OPPORTUNITIES
Report of the Findings
Commonwealth Human Rights Initiative (CHRI)
Dr. Kwadwo Appiagyei-Atua Venkatesh Nayak &
Senior Lecturer, James M Ferguson with Faculty of Law Ms. Laura Halligan University of Ghana Access to Information Legon, Accra, Ghana Programme, CHRI, India
People’s Access to Information: West Africa Regional Workshop Hotel Shangri-La, Accra 19-20 January 2009
TABLE OF CONTENTSACRONYMS
LIST OF CASES
Areas of Focus
RIGHT TO INFORMATION – INTRODUCTION
Sources of Law in Ghana and the Place of RTI
Judicial Review/Interpretation of the Constitution
Information Relating to Arrest of a Suspect
Disclosure or otherwise of Official Document in Court
Proactive Disclosures: States of Emergency
Enforcement of Rights before the High Court
Action against a Police Officer
BUDGETARY AND LEGISLATIVE PROCESSES IN PARLIAMENT
Stage One: Budget Formulation
Stage Two: Enactment
Stage Three: Implementation
Auditing: Public Accounts Committee (PAC)
Auditing: The Courts
Information from the President in Relation to the Budget
DECLARATION OF ASSETS AND LIABILITIES OF POLITICAL LEADERS AND PUBLICOFFICIALS
Commission of Inquiry
Availability or otherwise of Information as Evidence
Privacy versus Public Interest
THE LOCAL GOVERNMENT SYSTEM
The District Assembly (DA) Common Fund
ECOWAS Economic Community of West African States GPRS Ghana Poverty Reduction Strategy IGP Inspector General of Police LGA Local Government Act LI Legislative Instrument MDAs Ministries, Departments and Agencies
MTEF Medium Term Expenditure Framework NDPC National Development Planning Commission PAC Public Accounts Committee PIPS Police Intelligence and Professional Standards RTI Right to Information SMTDP Sectoral Medium Term Development Plans
Case #2: Appiah v The Republic [1997-98] 1 GLR 219 (SC)
Case #3: Republic v Mensa-Bonsu And Others; Ex Parte Attorney-General [1995-96] 1 GLR 377 (SC)
Case #4: New Patriotic Party v Inspector-General of Police [1993-94] 2 GLR 459 (SC)
Case #5: New Patriotic Party v Attorney-General [1993-94] 2 GLR 35 (SC)
Case #6: New Patriotic Party v. Ghana Broadcasting Corporation [1993-94] 2 GLR 354 (SC)
The focus of this research is to examine existing Ghanaian sources of law relating to access to information. While article 21(1)(f) of the Constitution of the Republic of Ghana guarantees every person “the right to information subject to qualifications and such laws as are necessary in a democratic society,” there is no enabling legislation relating to the subject of access to information yet. At the time of writing this report, a Right to Information (RTI) Bill is under consideration by Parliament. In the absence of such an enactment, however, there are sources of law that support, facilitate or grant access to certain government documents, and information on public officials and political figures, etc. These are found in the Constitution itself, Acts of Parliament, subsidiary legislation, etc. It is hoped that a collation of this information can serve a useful purpose for civil society activists in their efforts to access critical information which may be used to hold government accountable and to make claims and demands on the government as well as relevant non-state actors.
While they can be used in the interim, pending the passage of a RTI law, they can also be used as a standard to measure the access rights that the new law would guarantee Ghanaians. Identifying these provisions is also useful for the purpose of harmonising all access provisions into a uniform access regime when the proposed RTI Bill becomes law.
Areas of Focus
The focus areas for the report are:
Laws governing police functions;
Legislative and budgetary processes in the Parliament of Ghana;
Declaration of assets and liabilities of political leaders and public officials; and Local government systems.
In fulfilment of the above task, the work involved:
1. Research and compilation of information access provisions in the laws and enactments relating to the themes mentioned above.
2. Research and compilation of subordinate legislation in the form of rules, regulations, guidelines, instructions, executive orders, office memoranda, etc. relating to the operationalisation of information disclosure provisions relating to the four themes mentioned above;
3. Research and compilation of the operative parts of any decisions of the Supreme Court of Ghana during the last 10 years relating to disclosure of information on any of the four themes mentioned above;
4. Detailing the systems and procedures established within public authorities for disclosure of information relating to the four themes mentioned above.
5. Preparing a high quality report of the findings of the audit in English targeting civil society actors.
Research Methodology The work involved desktop and library research to identify and review the relevant laws and literature that relate to access to information. This was followed by doctrinal research and analysis of the provisions in the various sources of law identified and the extent to which they could be used to access information. Also, practical ways to access information relying on these provisions were examined, as well as the challenges that lie in the way of using these provisions to access information.
In addition, empirical research through elite interview was conducted. The goal was to obtain information and solicit opinions on the practical application of some of the provisions identified above as well as some administrative procedures which particular institutions of government may adopt to facilitate access to information. Interviewing took the form of verbal conversations and instantaneous writing of notes.1 Information gathered was analysed and conclusions drawn.
Names and or positions of people who were interviewed are directly attached to the particular areas of the report where their views were provided and incorporated.
RIGHT TO INFORMATION – INTRODUCTIONRight to Information (RTI) is an important and critical component of the right to freedom of speech and expression. Ghana’s Fourth Republican Constitution recognises the right of “all persons to freedom of speech and expression, which shall include freedom of the press and other media.”2 Further to that, the Constitution expressly recognises, for the first time in Ghana’s constitutional history, the right of all persons to enjoy “the right to information, subject to such qualifications and laws as are necessary in a democratic society.”3 Though it seems to be a recent addition or extension of freedom of expression, in practice, RTI has been and is considered one of the ingredient rights which makes the attainment and enjoyment of freedom of expression possible. In other words, one has to have access to the needed information before he/she can form an opinion around it and express it beyond the self to reach a recipient or audience. Also, an expression of opinion involves simultaneous impartation of information to another entity. Thus, without RTI, an idea cannot be developed and expressed. In a nutshell, RTI is inherent in the right to freedom of expression.
It is of interest to note, in this context, that John Humphrey groups together the various nomenclatures relating to freedom of expression, such as freedoms of opinion, communication and the press together as “freedom of information.”4 However, freedom of information, strictly speaking can be defined loosely as the right to be informed, to scrutinize information, and know what an entity (in most cases, the government) is doing, has done or is likely to do and why. Seen in this light, RTI serves as the bedrock to ensuring transparency, openness and accountability in the society, particularly on the part of government. Its separate and specific recognition is to reinforce the fundamental importance of freedom of expression and to facilitate its enjoyment.5 Sources of Law in Ghana and the Place of RTI Article 11(1) of the Constitution of Ghana identifies five main sources of law for the country in
(a) the Constitution;
(b) enactments made by or under the authority of the Parliament established by this Constitution;
(c) any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution;
(d) the existing law;6 and (e) the common law.7 Article 21(1)(a).
J. Humphrey, “Political and Related Rights”, in Theodor Meron, ed., Human Rights in International Law, (Oxford: Clarendon Press, 1984), 171 at 183.
See, for example, Republic v Mensa-Bonsu and Others; Ex Parte Attorney-General [1995-96] 1 GLR 377 SC, discussed below where a journalist had to seek and obtain the judgement of a particular Supreme Court judge and used it to criticise the judge in his newspaper. Unfortunately for him though, it was held that the information was not properly obtained. Also, by a thin majority it was decided that the journalist overstepped the limits of freedom of expression.
Existing laws “comprise the written and unwritten laws of Ghana as they existed immediately before the coming into force of this Constitution, and any Act, Decree, Law or statutory instrument issued or made before that date, which is to come into force on or after that date.” (Article 11(4) of the Constitution).
Embedded in these laws of the land are provisions which relate to RTI. As the Constitution is the supreme law of the land, it provides the foundation for the exercise and enjoyment of RTI by expressly recognising this right under article 21(1)(a). Therefore where the laws of the land provide for the society to contribute to governance through participation (voting and standing for office, staying informed, making elected government accountable, etc), it is indirectly referring to a reliance on RTI which will serve as the vehicle to providing the conducive, facilitative means to perform these functions and duties.
Article 11(2) of the Constitution stipulates that “[t]he common law of Ghana shall comprise the rules of law generally known as the common law, the rules generally known as the doctrines of equity and the rules of customary law including those determined by the Superior Court of Judicature. Article 11(3) provides a definition for customary thus: “For the purposes of this article, “customary law” means the rules of law which by custom are applicable to particular communities in Ghana.
POLICE FUNCTIONSThe Police Service is established under article 200(1) of the Constitution. Article 200(3) provides that the Service “shall be equipped and maintained to perform its traditional role of maintaining law and order” in the country. The functions of the Police Service are spelled out under section 1(1) of the Police Service Act, 1970 (Act 350),8 which are, “to prevent and detect crime, to apprehend offenders, and to maintain public order and the safety of persons and property.”9 The Police Service is considered part of the public service.10 Police officers are also public office holders or public officers.11 Therefore, apart from specific provisions relating to the Police, other provisions referring to “public service” or “public office” generally are also applicable to the Police.
Among the legal provisions and customary norms that relate to police functions and access
to information are the following:
1. The Constitution, 1992
2. The Police Service Act, 1970 (Act 350) (Codes & Conducts);
3. Legislative Instruments (LIs) attached to Act 350;
4. Police Service Instructions;
5. Police Intelligence and Professional Standards (PIPS).12 Judicial Review/Interpretation of the Constitution Article 2 of the Constitution confers a right on any citizen of Ghana to access the Supreme Court to demand an interpretation of the Constitution where an act by a person or authority, or an enactment, is alleged to have been made ultra vires the Constitution. The declaration made by the Supreme Court is a vital source of information. More directly, where, for example, a Police Officer, as a public officer, is under a duty to provide some information and fails to do so, any citizen can go by way of articles 2 and 130, to among others, compel the officer to perform his legally-assigned job.
Of the various pieces of legislation, the single most important legislation governing the police service is the Police Service Act, 1970 (Act 350). The Act deals with the functions of the police, the structure and conditions of service, misconduct and unsatisfactory service, complaints and offences, the Volunteer Police Reserve, etc.
Further discussion on the functions of the Police Service under the Police Service Act, 1970 is provided in the sections that follow.
According to article 190(1)(a) of the Constitution, “public service” includes service in any civil office of Government, the emoluments attached to which are paid directly from the Consolidated Fund or directly out of moneys provided by Parliament and service with a public corporation.