- 1. An overview
The present article reflects the growing importance, diversity, and complexity of fundamental human right in Ghana in recent times when government agents are perceived to be secretly engaged in wiretapping or in control of personal information of people without their consent. With the passing of Whistleblowers Act, (720) in 2006 by Parliament, violations of privacy remain a serious concern to Ghanaians. This law provides for the manner in which individuals may, in public interest, disclose information that relates to unlawful or other illegal conduct or corrupt practices of others–dealing with six specific types of impropriety. However, apart from challenges of enforcement it faces challenges from civil and human rights groups that believe the Whistleblower Act violets some fundamental human rights of individuals such as freedom of speech which the 1992 Constitution has guaranteed. Also, many other existing laws have not kept up with the technological development, leaving significant gaps in protections while the enforcement and intelligence agencies have been given exemptions.
Privacy is a fundamental human right recognized in the United Nations Declaration of Human Rights, the International Covenant on Civil and Political Rights and in many other international and regional treaties. Privacy underpins human rights issues of the contemporary time.
Nearly every country in the world recognizes a right of inviolability of the home, property, and secrecy of communication. Most newly-written Constitution such as South Africa’s and Hungary’s include specific rights to access and control one’s personal information. In countries where privacy is not explicitly recognized in the Constitution, such as the United States, Ireland, and India, the courts have found that right in other provisions. In many countries, international agreements that recognize privacy right such as the International Covenant on Civil and Political Rights (ICCPR) 1966, have been adopted into their national laws and Ghana the is not excluded.
Notwithstanding this wide recognition and constitutional guarantees, there are widespread violations of laws relating to surveillance of communications, even in the most democratic countries. The U.S. Department’s annual review of human rights violations finds that over 90 countries engage in illegally monitoring the communications of political opponents, human rights workers, journalist and labor organizers (GILC Report, 2007). Before I turn to examine what the situation is like in Ghana, it is important to look at “privacy” from different perspectives. This is because the various concepts of privacy form the basis of its crystallization into the legal right.
- 2. The concept of “Privacy” as a right
The New Oxford Dictionary of English defines “privacy” simply as the state or condition of being free from being observed or disturbed by other people.
The Calcutta Committee in the UK defines it legally as “the right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information” (Report of the Committee, QC, 1990 London: HMSO, p.7)
Among all the human rights in the international instruments, privacy is perhaps the most difficult to define and circumscribe (See, J. Michael, Privacy and Human Rights, UNESCO 1994 p.1). Privacy has roots deep in history (See, Barrington Moore, privacy Studies in Social and Cultural History, 1984). The Holy Bible has numerous references that affirm privacy and secrecy as a right (see, Thessalonians 4:11, Deuteronomy 29:29; Matthew 24:42). The right to privacy in the Koran demands that believers keep their life and personal affairs out of public view and to do what is right in privacy. The Korean says ‘O Believers, do not enter other houses than your own until you have the approval of the inmates and have wished them peace; this is the best way for you; it is expected that you will observe it” (Qur’an 24:27). There was also substantive protection of privacy in early Hebrew culture, Classical Greek, and ancient China. What I want to show by these examples from the religious perspective is that privacy protections are a moral principle that predates our modern time and mostly focuses on the right to solitude. They all emphasize the importance of respect for one another’s privacy. Hence, interference by government, the media or any other established State institution in the privacy of any individual without consent (even if in public interest) amounts to a violation of his or her fundamental human right. The problem we have today is that there is little respect for truth and everybody thinks they have a right to know everything. The preamble to the Australian Privacy Charter (1994), provides that “A free and democratic society requires respect for the autonomy of individuals, and limits on the power of both state and private organizations to intrude on that autonomy…”
Definitions of privacy vary widely according to context and environment. In many countries, the concept has been fused with Data Protection, which interprets privacy in terms of management of personal information. Outside this rather strict context, privacy protection is frequently seen as a way of drawing the line at how far society can intrude into a person’s affairs (Simon Davies, 1993 p. 23). In his view to which I associate myself, it can be divided into the following facets:
i. Information privacy – which involves the establishment of rules governing the collection and handling of personal data such as credit information and medical records;
ii. Bodily privacy – which concerns the protection of people’s physical selves against invasive procedures such as drug testing and cavity searches;
iii. Privacy of communications – which covers the security and privacy of mail, telephones, email and other forms of communication; and iv
iv Territorial privacy – which concerns the setting of limits on intrusion into the domestic and other environments such as the workplace or public space.
The absence of a single definition does not imply that the issue lacks importance. As one writer puts it “all human rights are aspects of the right to privacy” (see, Volio Fernando, “Legal Personality, Privacy and Family”, in Henkin (ed.), The International Bill of Rights, N.Y, 1981). We can also refer to some other general viewpoints on privacy in order to capture wider perspectives.
U.S Supreme Court Justice, Lousis Brandeis articulated a concept of privacy that urged that it was the individual “right to be left alone”. He argued that privacy was the most cherished of freedoms in a democracy and he was concerned that it should be reflected in the American Constitution (see, Samuel Warren and Louis Brandies, “The right to privacy”, Harvard Law Review 4, 1890 pp. 193-220).
According to Edward Bloustein, privacy is an interest of human personality. It protects the inviolate personality, the individual’s independence, dignity and integrity (1964, N.Y U.L.R. 421, at 428). And according to Ruth Gavison, there are three elements in privacy: secrecy, anonymity and solitude. To her, it can be lost, whether through the choice of the person in that state or through the action of another person (Privacy and the Limits of Law, 1964 39 N.Y. U.L.R 926 at 971).
We can conclude that, privacy is a key value which underpins human dignity and other key values such as freedom of association, freedom of movement and freedom of speech. Privacy is a basic human right and the reasonable expectation of every citizen.
- 3. Standards set by the international community
Numerous international human rights treaties, to which Ghana is a party, give specific references to privacy as a right. Article 12 of the Universal Declaration on Human Rights of 1948 provides that:
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attack upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
Article 17 of the International Covenant on Civil and Political Rights (ICCPR) adopted the same language. The obligation under Article 2 paragraph 1, to respect and ensure the rights recognized by the Covenant, has immediate effect for all State parties including Ghana. UN Convention on Migrant Workers also provides in Article 14 for the protection of privacy of migratory workers (A/RES/45/158 25 Feb. 1991). Article 16 of the UN Convention on Protection of the Child (1989) adopt the same language. Ghana is a party to these instruments which it has also domesticated.
At the regional level, the African Charter on Human and People’s Rights (1981/1986) is the pivotal human rights instrument of the OAU/AU. It recognizes individual rights as well as peoples’ rights and duties, and some socio-economic rights, in addition to civil and political rights. Though the right to privacy is not explicitly provided in the Charter, the closest to that is Article 4 which states: “Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right“. Equally, as a duty of the individual, Article 27(2) provides that “the rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest“. The supervisory mechanism created by the Charter is the African Commission on Human and people’s Rights, which is now being supplemented with an African Human Rights Court. Importantly, the Commission has the power to review individual and inter-state complaints. To ensure the fulfillment of obligations under the Charter, Article 1 has enjoined member states to adopt legislative or other measures to give effect to all rights, duties, and freedoms enshrined in the Charter.
- 4. The law and practice in Ghana
Privacy law in Ghana has a political function. It prevents or restricts authorities from keeping too watchful an eye on their opponents’ activities. At the same time, it has a non-political value in preserving, from the interference of the State and its agents, the sphere in which the individual can exercise his or her freedom. The difficulty is in striking a balance between privacy and legitimate invasions of privacy for the purposes of protecting others or the public or for national security.
The 1992 Constitution of Ghana includes a special provision intended to protect individual privacy, though there is no serious movement to adopt a comprehensive privacy charter that will set a frame work for protection. So we basically rely on the Constitution.
Article 18(2) of the 1992 Constitution states:
“No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others”.
The provision implies that no one should be subjected to arbitrary interference with his or her privacy, family, home or correspondence, nor to attack his/her honor or reputation. Everyone has the right to the protection of the law against such interferences or attacks. The Constitution, however, is not very elaborate on this right.
However, there are several enactments in Ghana which include very scanty (barely sufficient) provisions on privacy such as: Public Records and Archives Administration Act, 1997 (Act 535); Security and Intelligent Agency Act, 1996 (Act 526); Security Industry Law, 1993 (PNDCL 333); Labour Act, 2003 (651); Police Service Act, 1970 (Act 350); Children’s Act, 1998 (Act 560); National Media Commission Act, 1993 (Act 449); Whistle Blowers Act, 2006 (Act 720) and the Right to Information Bill, which awaits its passage into law. All these laws required that all government-held information on persons be used for legitimate purposes only. Some of the laws prohibit the publication of private facts or data and set fines for their violation. But most of them contain a number of exceptions which operate to limit this protection in the interest of national security or the prevention of crime. Let us look at some of the exceptional rules that permit legitimate interference of privacy in Ghana.
(a) Secret surveillance by the police and security service
Ghana is no exception with regard to violation of these laws relating to privacy and surveillance of communication. There are cases of illegal monitoring of communication of political opponents, workers in the judiciary, human rights activist, professional associations, the clergy, student leaders, business and industrial tycoons, judges of the Superior Courts, labour movements, civil societies, and any individual or group of private individuals that have the potential capacity to influence society in one way or the other as against government policy or decision.
There are wiretaps conducted by government agencies or by private parties on their behalf. The Police service still maintains extensive files on citizens who are not accused of any wrongdoing or not even suspected of any crime. Also companies regularly flaunt the laws, collecting and disseminating personal information. Search orders by the courts and immigration decisions may to some extent interfere with the privacy of people and may be used for unauthorized purposes if not properly controlled.
(b) Private information held by public authorities
Private information held by public authorities awaiting usage or after its usage has the tendency of falling into the hands of unauthorized persons which will be a violation of the privacy right. This is envisaged by Whistle Blowers Act, 2006 (Act 720) but no adequate mechanism of control or procedures have been provided to safeguard the violations. Individual harm, public trust damage and threat of national security are three categories of harm that may come to both the whistleblower and their victim. Revealing whistleblower identities automatically puts their life in harm’s way.
Employers of certain public institutions require medical examination from their employees and the results are not communicated to the employees which are not one of the conditions provided by the Labour Act 2003, though it does not prohibit it. Some of this personal information and data could easily get into the hands of people with criminal and vindictive motives or people who would want to take unfair advantage of their opponents in a political race or in business competition.
- 5. Technological invasion of privacy
A number of technologies are causing new concern about the protection of privacy in Ghana. These include: (a) Identity systems such as ID cards with enormous functions; (b) biometrics, which process and store details of a person’s physical characteristics for the purpose of identification and authentication (e.g. finger prints, voice recognition, DNA identification and digitized photographs); (c) surveillance of communication (wiretapping capability over telephone, fax and telex and video surveillance cameras also called Closed Circuit Television). (d) internet and email interception which is becoming an important tool for communication and research in Ghana. The technology is growing at an exponential rate, with thousands of new users going on line every year. All these are abused and the abusers invariably affect anyone “of interest to the government”.
Ghana is the first African Country to include a breach notification obligation in its law, the Data Protection Act, 2012 (Act 843), which makes it obligatory for the government to inform the individual and regulator on any breach of privacy protection. (See, Cynthia Rich, Privacy Law in Africa and Asia, 2011). The reality of this provision will depend on the political will of government and integrity of all stakeholders.
It is often argued that government interference in the privacy of individuals is necessary for “public interest”, without which individuals may take to acts that are injurious to one another. On that basis, governments argue for the principle of full-disclosure which requires that information important enough to influence decisions of an informed user should be disclosed (e.g. in financial statements). It is for the same reason that we have national and international legal regimes on “nondisclosure” of information. Hence, the power for final determination of legal discovery in Ghana (i.e. a procedural device employed by a party to a civil or criminal action, prior to trial, to require the adverse party to disclose information that is essential for the requesting party’s case) is vested in the Supreme Court. There is equally no gainsaying the fact that monitoring will no doubt go beyond the limits of the law if not effectively controlled.
- 6. Models for privacy protection
In the opinion of the European Commission of Human Rights (in its first decision on privacy in the case of X v. Iceland, 19760), the right to respect for private life does not end there. It comprises, to a certain degree, the right to establish and develop relationships with other human beings, especially in the emotional field for the development and fulfillment of one’s own personality.
The key concept in the European model is “enforceability”. The EU directive imposes an obligation on member states to ensure that the personal information relating to European citizens is covered by law when it is exported to, and processed in, countries outside Europe (an excellent analysis of these laws is found in David Flaherty, “Protecting privacy in surveillance societies”, University of North Carolina, 1989).
There are currently several major models for privacy protection and in some countries, several models are used simultaneously. All these cannot be discussed in the present article. The regulatory model adopted by Europe, Australia, Hong Kong, New Zealand and Canada is that of a public official who enforces a comprehensive data law. This official, known as a Commissioner, or Ombudsman, or Registrar, monitors compliance with the law and conducts investigations into breaches of privacy laws. The official is also responsible for public education and international liaison in data protection and data transfer. This is the preferred model for a country like Ghana adopting data protecting law but requires adequate resources for enforcement.
- 7. Conclusion and recommendations
We can conclude by stating that, placed against the spirit and letter of the Constitution, and against all standards and norms, Ghana has done very little to achieve the goal of protecting privacy right to win the confidence of the people in the management of private information. There is the need for Ghana to adopt comprehensive privacy and data protection laws. The reasons for this are: to remedy privacy violations that occurred under previous authoritarian regimes (particularly under the military regimes); to serve as part of a package of laws intended to facilitate electronic commerce by setting up uniform rules; to ensure that our international trade will not be affected by the requirements of Europe, US and other major partners but are consistent with their laws; to close all significant gaps in privacy protection. However, this initiative will require a bold, forward-looking legislative framework. Whether the government can deliver this framework will depend on its willingness to listen to the pulse of the emerging global digital system and to recognize the need for strong protection of privacy. If Ghana refuses to adopt meaningful privacy law it may find itself unable to conduct certain types of information flows with the developed nations, particularly if they involve sensitive data.