Friday, March 04, 2016


By William Yaw Owusu
Friday, 04 March 2016

Former Attorney General and Minister of Justice, Martin A.B.K. Amidu, has waded into the controversial phone tapping Bill currently before parliament and called on the leadership of the house not to pass it into law in its current form.

 “My perusal of the Bill led me to the conclusion that it has the tendency to interfere with the fundamental human rights and freedoms guaranteed under the Constitution and needs a critical bi-partisan examination and analysis to ensure that it secures civil liberties recognized in free and democratic societies,” he said.

In a memo to the Speaker of Parliament, entitled “Interception of Postal Packets and Telecommunication Messages Bill, 2015,”the former AG popularly called Citizen Vigilante due to his anti-corruption crusade, said the memorandum accompanying the Bill does not comply with Article 106 (2).

“I bring my long experience in government and particularly in the Attorney General’s Office to a consideration of the Bill in the hope that it will assist parliament, the Attorney General and the Minister of the Interior to have a second and more critical look at the Bill to the end that when it is eventually enacted into law it will contribute to securing maximum civil liberty for the individual under the Constitution.”

Memo To The Bill
He said that the fundamental human rights and freedoms provisions in the Constitution “show that the Bill, which is intended to intercept communications of any form, will in a way interfere with the right to privacy and general freedoms under the Constitution.”

He said the Memorandum to the Bill “presents the Bill without explaining any policy or principles underpinning it that justify the limitations sought to be placed on the Constitutional guaranteed freedoms and rights, let alone to comply with the other requirements of Article 106(2) of the Constitution.

“The Memorandum to the Bill does not even deal with the existing laws on interception of communications which are spread in various laws such as the Narcotic Drug (Control Enforcement and Sanctions) Act, 1990 (PNDCL 236), Security and Intelligence Agencies Act, 1996 (Act 526), the Anti-Money Laundry Act, 2008 (Act 748), the Anti-Terrorism Act, 2008 (Act 762), the Economic and Organised Crime Office Act, 2010 (Act 804) and the Mutual Legal Assistance Act, 2010 (Act 807), as amended to show the defects of the existing law and the necessity for introducing this Bill.”

Selected Provisions
The former AG asked: “What are the criteria for the ordinary citizen and indeed the judge who is to grant the interception warrant to determine whether or not ‘protecting national security’ includes communications by opposing political parties that are perceived to threaten the governing regime’s continued stay in Government within the multiparty democratic political process?

“Will the interception and interference with the communications of political opponents as happened in Uganda during their recent elections not pass the test of ‘for the purpose of protecting national security?’” he queried further.

Interception Procedures
According to Mr. Amidu, the Bill is silent on why the legislative scheme adopted by parliament in those other similar legislations must give way to a centralization of power in the National Security Coordinator or his office over and above service and agency commanders.

He argued that in other democratic jurisdictions oral applications must also be made to the judge in chambers to safeguard rights and said Section 4(3) of the Bill, which permits the National Security Coordinator to orally authorize interception in urgent situations, must be looked at again.

Receipt Of Application
He said the Constitution demands that the government should “transparently and accountably establish agencies under the authority of law and not to clandestinely seek to use covertly existing organizations to snoop upon the citizens of Ghana.”

Interception Capability
Mr Amidu also said that a careful reading of the provisions of the Bill on interception capability “leaves one in no doubt of the necessity for the formal establishment by law of a Government Agency for interception of communications and related matters.”

Court Supervision
He said aside the role entrusted to the National Security Coordinator, “Section 18 of the Bill is badly drafted and does not even meet the democratic standards of similar Acts internationally, such as those of South Africa, Trinidad and Tobago and Jamaica, to mention but a few.”

 “Consideration ought to be given to whether the title of the Bill should not be changed to meet the international best practice in this area of interception of communications,” he suggested.

Mr. Amidu urged, “It is important that this Bill obtains bi-partisan support in its eventual constitutional journey through parliament to vindicate the trust we the people have placed in parliament to protect our fundamental rights and freedoms guaranteed under Chapter 5 and 6 of the 1992 Constitution. Let us put Ghana First!

“I conclude my examination and analysis of the Bill with the conviction that the civil liberties of Ghanaians may require that the Bill be withdrawn to enable it meet the constitutional precondition for it to be properly introduced in parliament and to give the Minister of the Interior and the Attorney General more time to harmonize the Bill with existing legislation.”

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