ON “OUTLAWING CRIMINAL LIBEL LAWS IN GHANA,” Nana Addo

SPEECH DELIVERED BY NANA AKUFO-ADDO, 2012 PRESIDENTIAL CANDIDATE OF GHANA’S NEW PATRIOTIC PARTY (NPP), AT THE CONFERENCE ON THE TWIN THEMES OF “AFRICAN CONSTITUTIONALISM: PRESENT CHALLENGES AND PROSPECTS FOR THE FUTURE” AND “AFRICAN CONSTITUTIONALISM AND THE MEDIA”, CO-ORGANISED BY THE INSTITUTE OF COMPARATIVE AND INTERNATIONAL LAW AND THE KONRAD ADENAUER STIFTUNG, AT THE UNIVERSITY OF PRETORIA, PRETORIA, SOUTH AFRICA, ON 4TH AUGUST, 2011

	I am honoured by the invitation to participate in this important colloquium on the twin themes of “African Constitutionalism: Present Challenges and Prospects for the Future” and “African Constitutionalism and the Media”, important, at least, for those of us who believe that entrenching the principles of democratic accountability, respect for human
Nana Addo

rights and the rule of law at the very centre of Africa’s body politic is critical to Africa’s chances of meaningful development in this 21st century. Decades of authoritarian rule across the continent in the post independence era not only subverted the promise of the independence movement that freedom would result in good governance, progress and prosperity, but also led to the systematic worsening of the already low living standards of the African people. It is against this background and the collapse of world communism that the continent experienced at the beginning of the 1990s a revival of the democratic aspirations that lay at the heart of the independence movement. Nowhere was this development more in evidence than in Ghana, which had been the torchbearer of the African liberation struggle and which, tragically, after independence, fell into poor governance and authoritarian rule.

The Ghanaian people, just as they had demonstrated in the drive towards independence in the 1940s and 1950s, showed again their determination to live in conditions of freedom and democracy. On 28th April, 1992, they approved by an overwhelming margin in a referendum the adoption of the Constitution of the Fourth Republic, which set up the institutions of a liberal democratic state operating on the basis of the separation of powers, with express guarantees of fundamental human rights, including, naturally, the right to free expression.

In furtherance of this, on 2nd August 2001, the then President of the Republic, his Excellency John Agyekum Kufuor gave his assent to the enactment of the Criminal Code (Repeal of Criminal Libel and Seditious Libel Laws) (Amendment) Act, 2001 (Act 602). By this singular deed, a historic victory was won in the struggle of our people for liberty and, especially, for freedom of expression. This brought to an end more than a century-old regime of laws repressive of free expression. My modest self had a happy and privileged role in this historic process by being the Attorney General who piloted the passage of the repeal through the Parliament of Ghana’s Republic.

Ghana’s laws on free expression have been largely shaped by English law and legal tradition, just as they have been deeply influenced by our colonial experience. Suffice it to say that the criminal libel and seditious libel laws, which were the object of the repeal legislation of 2001, can be traced to the first Criminal Code, the 1892 Criminal Code Ordinance and its subsequent amendment in 1934.

As is well-known, in Ghana, as elsewhere, the press played a significant role in the anti-colonial struggle, mobilising nationalist consciousness and exposing the oppression and inequities under colonialism. These laws were, thus, in the main, passed in response to emerging nationalist agitation and used rather cynically in an attempt to deter nationalist newspapers and publicists from exposing the ills of colonialism. Indeed, the provisions of the 1892 Criminal Code Ordinance on criminal libel and sedition and the 1894 Newspaper Registration Ordinance were both enacted to respond not only to the emerging nationalist press of the time, but also to the broad agitation of Gold Coasters against the infamous 1894 Crown Lands Bill, which sought forcibly to expropriate the people of Gold Coast of their ancient right to the land of their birth, as was done in apartheid South Africa and other systems of settler colonialism in Southern Africa generally. A positive outcome of the agitation was the establishment, on the seminal date of 4th August, 1897, of the Aborigines Rights Protection Society, the first of the great nationalist organisations of the Ghanaian people, which successfully mounted opposition to the Bill, and, together with the mosquito, saved our country from some of the seemingly intractable problems confronting many nations of southern and eastern Africa.

Again, the 1934 Criminal Code Amendment Ordinance (No. 21), which extended the remit of sedition to cover expression hitherto not covered under the offence, was passed as an instrument to stem the rising tide of nationalist consciousness and agitation in the mid 1930s, known in Ghanaian history as “the stormy thirties”. It produced the most notorious application of the law of sedition and one of the most celebrated cases in our constitutional and legal history in 1936: I am referring to the case of Rex v. Wallace Johnson and Nnamdi Azikwe, which travelled all the way, through the West African Court of Appeal, to the British Privy Council The case itself is testimony to Ghana’s reputation as the hub of West African nationalist consciousness of the times. Wallace Akunor Johnson was a fiery, anti-colonial agitator and West African nationalist. A Sierra Leonean by birth, he lived in the Gold Coast in the heady 30s when anti-colonial agitation and nationalist consciousness were on the rise. Nnamdi Azikwe, on the other hand, as we all know, was a Nigerian nationalist and pan Africanist, who became the first President of independent Nigeria and who was also living in the Gold Coast at the time. They had published an article critical of European colonialism. Azikwe was the editor of the newspaper and Wallace Johnson a columnist of the paper.

That the law of sedition has been aptly described as a tool of colonial repression is amply justified by this case. The offending article read thus:

“Personally, I believe the ‘European has a God in whom he believes and whom he is representing in his Colonies all over Africa. He believes in the god whose law is ‘Ye strong, you must weaken the weak. Ye “civilized” Europeans you must ‘civilize’ the “barbarous” Africans with machine guns. Ye “Christian” Europeans you must ‘christianize’ the “pagan” Africans with bombs, poison gases etc.”

They were charged, tried and convicted on two counts of publishing seditious material and possession of a document containing seditious material. Dissatisfied with his conviction, Wallace Johnson appealed to the West African Court of Appeal, which dismissed the appeal. On further appeal to the Privy Council, the Council dismissed the appeal. After the dismissal of the appeal, the British colonialists refused to permit this son of West Africa to return to the Gold Coast.

To be sure, a considerable number of other prominent leaders of our nationalist movement, who were at the same time publicists and associated with the nationalist press of the time, also fell victim to the criminal libel and seditious libel laws in our Criminal Code. Thus, in the case of Ako Adjei and William Samuel Johnson v. The King 2 G & G 73, Ako Adjei, the man who introduced Kwame Nkrumah to Ghanaian politics, and William Johnson, two leading nationalists and publicists, were charged with the offence of sedition contrary to section 326 (2) of the Criminal Code (Cap. 9). They had published in the African National Times an article critical of Syrians in the Gold Coast, especially of their sharp commercial methods. They were tried and convicted by the trial court and on appeal the conviction was upheld. This was in 1951. The Court, delivering its judgment per Coussey Ag. C.J., made a somewhat muted protest against the law of sedition. He observed as follows:

“The law of sedition is in many respects a hard one, but it is the duty of the Courts to administer the law as it is decided and not as any particular individual would wish it to be”

It is to be noted, however, that there was very little use of these laws after independence until the Constitution of the Fourth Republic came into force in January 1993. The post-colonial history of Ghana had largely been that of one form of dictatorship or the other. We have had our share of one-party political system between 1960 and 1966 (the Convention People’s Party (CPP) one-party state), and recurrent military dictatorships – 1966 to 1969 (National Liberation Council); 1972 to 1979 (National Redemption Council, Supreme Military Council and Armed Forces Revolutionary Council regimes); 1981 to 1993 (the Provisional National Defence Council).

Thus, until the Fourth Republic, Ghana had experienced approximately only 9 years out of the 36 years of its post independence history in conditions that could be described as relatively democratic. For the most part of the remaining 27 years, the repressive nature of the political system made the deployment of the arsenal of criminal and seditious libel laws superfluous. This was because the various press licensing laws and the general climate of repression allowed only such press as could be relied upon to reproduce the monolithic propaganda and praise-songs of the ruling regime.

But for a few exceptional cases, such as Mensah Gyimah v. The Republic, a 1969 case, there was therefore no pressing need to bring in aid of such regimes the provisions of criminal libel and seditious libel laws which have their origins in colonial rule. Mensah Gyimah was a politician whose political activism dated back to the anti-colonial struggle when he was a young man. By 1969, he had become a prominent political leader in the country. In the Mensah Gyimah case, the accused was charged with negligent libel and sedition under the Criminal Code and convicted on both counts at the trial court. On appeal against conviction, the Court of Appeal held that there was enough evidence to support the charge on sedition, but upheld the appeal against conviction on the charge of negligent libel as, in the opinion of the Court of Appeal, the trial judge had misdirected himself as regards the defence of justification under that offence. What had Mensah done to be convicted on a charge of seditious libel? He had simply published a matter of public notoriety - an article alleging that members of the Border Guards branch of the Ghana Armed Forces connived at certain illegal importations and exportations of goods and customs duty evasion and, further, that they took bribes from smugglers around Ghana’s borders with neighbouring countries. Archer JA, a future Chief Justice, in his judgment given as far back as 1971, observed as follows:

“I venture to suggest that the time is now ripe for the whole law of criminal libel, intentional libel, negligent libel and seditious libel, to be thoroughly reviewed and reformed for the benefit of the lawyer and the layman, what is the use of the law if its language cannot be understood”.
 

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