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Protecting Ghanaian
employees of foreign missions in Ghana
Dr. G. Kweifio-Okai
Melbourne, Australia
March 22, 2017
I made a
Freedom of Information (FOI) request to the Australian
Department of Foreign Affairs (DFAT) in December 2015 for
release of all documents relating to any information the then
Australian High Commission in Accra may have on me.
The
purpose of my FOI request was to seek legal redress under the
ACT, such as “amending a personal record (that) involves
updating the information it contains so that it is no longer out
of date, misleading, incorrect or inaccurate. Or annotating a
personal record (that) involves attaching a note to the record
outlining --- objections to the information it contains”.
DFAT refused to release any documents worthy of my FOI
application. The reasons DFAT gave for the refusal have prompted
me to call on Ghana to take a leadership role in getting the UN
to amend the 1961 Vienna Convention on Diplomatic Relations to
include granting full diplomatic immunity to domestic employees
of foreign missions. Or else, to unilaterally do so!
There have been tentative efforts in the past at protecting
domestic employees in foreign missions based on general notions
of human rights e.g. see Sefriani, 2015, Legal Protection on
Local Employee Rights Related with Foreign Mission Immunity in
Indonesia, International Journal of Social Science and Humanity,
5 (11), 976-9). Or on the discretion of host countries such as
in the case of the Ghanaian spy who entrapped an American CIA
agent into releasing a CIA database to the Ghanaian Government
which formed the view that Ghanaians working for the US mission
in Accra, even if remotely associated with the case, were worthy
of full diplomatic immunity as their American counterparts in
their removal from Ghana – see USA swaps Spy for 8 Ghanaians who
aided CIA at http://articles.latimes.com/1985-11-26/news/mn-1944_1_cia-training
However I base my suggestion here on equity and on equal
opportunity employment that employment privileges under the same
employer for one category of employees should not be different
from that of other employees based on nationality.
My
recommendations are at para 7 below and the texts in italics
from here on are quoted passages.
The Australian Freedom
of Information Act of 1982 and as amended (The ACT)
1.
The ACT gives Australian citizens and residents the right to
information. As far as I am aware the ACT does not question the
purpose to which sought information would be put. Nor that an
applicant under the ACT loses the right to information merely
because the applicant has other avenues of obtaining it. In my
view the right to information under the ACT is absolute, subject
to categories of exemptions (e.g. substantial adverse effects or
public interest against disclosure) that are not meant to
disturb the right to information.
The Australian
Information Commissioner (AIC)
2. AIC reviews decisions
of Australian Government agencies claiming exemption of
documents from release under the ACT. So when DFAT refused to
release my sought documents, I appealed to the AIC for review of
the access refusal decision
3. In response DFAT made a
first submission, which the office of the Australian Information
Commissioner (OAIC) found unsatisfactory and therefore on 28
July 2016 requested more and better particulars as follows:
“ -- The OAIC would be assisted with further submissions
from DFAT in relation to the exemption of staff names and
contact details from the email chain under s a7E(c) of the FOI
Act.
“ -- The applicant’s statement to
DFAT in his email of 10 December 2015 that ‘since this request
"may be used for legal redress, it would be helpful to have
access to the names and contact addresses of the officials
involved. Accordingly, I would be grateful if DFAT could please
provide further submissions by close of business on 11 August
2016 elaborating on previous submissions that the disclosure of
names and contact details of DFAT staff to the applicant would
or could reasonably be expected to affect the willingness of
staff to carry out work of the nature in the emails in question.
In particular, it would be of assistance if the submissions
addressed:
“Cultural, political, social and/or security
issues in Ghana specific to DFAT officers at the High Commission
and other vulnerabilities particular to local staff;
“The
nature of the potential risk posed by the applicant to DFAT
officers — for instance whether the risk is one of potential
violence, subjecting staff to some form of potential malicious
private prosecution, being ostracised from the community/society
due to the applicant’s status within Ghanaian society; and
“Whether and why DFAT is of the view that this ‘predicted
effect is reasonably likely to occur.”
4. In
response to the prompting by AIC in 3 above, DFAT made a second
submission on 10 August 2016 as follows:
“On the
basis of Dr Kweifio-Okai's extensive actions to date, DFAT is
strongly of the view that the personnel involved would likely be
subject to direct harassment, defamation, spurious criminal
charges or civil litigation by Kweifio-Okai should their details
be disclosed:
“DFAT notes that it is on the public record
that Dr Kweifio-Okai is litigious in the Australian context e.g.
Kweifio-Okai v RMIT university [L999] FCA 1686], and submits
that it is likely that he would engage in similar activities,
including in Ghana.
“DFAT notes that full diplomatic
immunity does not extend to local staff, nor would they be able
to avail themselves of the same protections or avenues of
redress available under Australian laws. DFAT cannot possibly
guarantee the same degree of protection - from any harassment or
other detrimental actions that may eventuate - to LES in Ghana
as it can offer to other staff in Australia”.
“DFAT
submits that exposing local staff in Accra to defamation
(including potential denunciation as 'spies' acting for the
Australian Government) and/or litigation would diminish their
status and their ability to use such networks, and thereby have
a significant adverse impact on the effectiveness of the High
Commission as a representative post for Australia in Ghana”.
5. To allay the fears of DFAT, I responded thus:
“I certainly intend to take legal action for detriment I
have suffered. Any such legal action would be taken against
Australian staff - not against local staff; and in Australia -
not in Ghana; for offenses prosecutable under Australia law even
if committed overseas.
“The reasons are: I live in
Australia; local staff are victims whose justiciable actions, or
actions in the line of duty, would have been a result of a need
for employment in a country with high unemployment; and the
Ghanaian judiciary is tainted with corruption and can be
influenced.
“ No action of mine would subject any staff
to ‘harassment, defamation, spurious criminal charges or civil
litigation – should their details be disclosed’ to me, as DFAT
stated. Australian courts are competent in dealing with
litigious litigants; they respect the legal rights of all
parties to a case; certainly, they do not entertain nor
encourage ‘spurious criminal charges or civil litigation’ ”
The Australian Administrative Appeals Tribunal (AAT)
6. AAT reviews merits of AIC decisions. Because AIC upheld
the decision of DFAT to withhold the documents from me, I
appealed to the AAT on 26 October 2016
6.1 In my appeal
to AAT, I wrote thus:
“The AIC devoted an
extraordinary number of paragraphs on the protection of email
address and contact -- and in the process gave the impression I
was seeking the details for improper purpose. My submission was
of a general nature that identities of those who have done wrong
or caused damage should not automatically be concealed without
regard to the circumstances as independently adjudged.
Nevertheless I withdraw the request for the details and
identities of those whose details and identities were denied to
me subject to DFAT taking responsibility for the actions of its
employees/delegates and damage caused to me and mitigate my
circumstances”.
6.2 In its statement of
contentions and facts to the AAT in response to my application
for review of the AIC decision, DFAT wrote the following in
6.2.1, 6.2.2 and 6.2.3 below:
6.2.1 Under the Work Health
and Safety Act 2011, which has extraterritorial application, the
Department has a duty to ensure the health and safety of its
employees, including providing a safe workplace for locally
engaged staff, as far as practicable. This means providing a
workplace where staff are not unnecessarily or unreasonably
exposed to harassment, threats or intimidation, including
members of the public.
6.2.2 The Department’s
work health and safety obligations extend to its officers in
overseas posts. Locally engaged staff can be particularly
vulnerable as they often do not enjoy the same protections (for
example, immunity from jurisdiction as provided in the Vienna
Convention on Diplomatic Relations 1961) or have access to
avenues of redress that are available to staff under Australian
Law.
6.2.3 The locally engaged staff member whose name
and contact details was not disclosed was employed by the High
Commission in Accra as (NB I have deleted). The High Commission
in Accra no longer employs this individual. However, the
Department maintains that disclosure of their name and contact
details could lead to harassment and threats either from the
applicant or those connected to the applicant in Ghana. Should
such conduct occur there would be no basis or ability for the
Department to protect this individual who was simply doing their
job and is now an ordinary member of the Ghanaian general
public. This could also adversely impact the Department’s
ability to attract suitably qualified local staff in the future.
7. Recommendations
7.1 What I know
about the activities of the Ghanaian employees in the Australia
High Commission in Accra with respect to me during the active
period of my FOI request was that they were “simply doing their
jobs”. But the persistence of DFAT in refusing to provide any
information whatsoever on tasks they may have performed in
relation to me, gives me the impression that tasks they may have
been assigned in relation to me may be questionable in law or
administrative practice. In such circumstance, and by the
admission of DFAT in 4 above that “full diplomatic immunity
does not extend to local staff, nor would they be able to avail
themselves of the same protections or avenues of redress
available under Australian laws”, I believe the Ghanaian
employees in the Australia High Commission in Ghana should be
entitled to full diplomatic immunity and protections as their
Australian line managers who assign tasks to them.
7.2 The diplomatic immunity of Ghanaian employees of
foreign diplomatic missions in Ghana must include granting of
asylum or voluntary migration if and when those employees run
into bother in the discharge of tasks as directed.
7.3
The obligations of employers to occupational health and safety
of employees rely on appropriate assessment of risks. From the
DFAT own submissions above, it would appear to me that DFAT’s
own estimation is that Ghanaian employees of foreign missions
are at a greater risk than their Australian counterparts. Quote,
as in 6.2.2 above: “Locally engaged staff can be particularly
vulnerable as they often do not enjoy the same protections -- or
have access to avenues of redress that are available to staff
under Australian Law’. And since whatever they do there is
always, as DFAT puts it in 4 above, “the likelihood of their
potential denunciation as 'spies' acting for the Australian
Government”. I must add though this latter DFAT allusion is
illusionary; nevertheless if it is a DFAT view that portends
higher risks for this category of employees and provides
justification for my recommendations in 7.1 and 7.2 above.
7.4 It is noteworthy that even though I had
intimated in 6.1 above that I was prepared to forgo my request
for names and email addresses of Ghanaian employees of the
Australian High Commission in Ghana during the active period of
my FOI request, DFAT still identified one of her Ghanaian
employees in the Ghanaian mission as in 6.2.3 above.
Ghanaian employees in foreign missions in Ghana should
therefore entertain the possibility that activities they
undertake under line management for foreign missions in Ghana
could be exposed in FOI applications in source countries.
7.5 For all the above reasons, Ghanaian employees
of foreign diplomatic missions in Ghana must insist on employer
foreign missions to provide them with the same protections and
diplomatic immunity as those missions extend to their citizens
in their missions.
Dr. G.
Kweifio-Okai
Melbourne, Australia
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