FREEDOM OF SPEECH: THE 1992 CONSTITUTION VS. CONVENTIONS

The fundamental rights and freedoms on speech and expression is explicitly enshrined in the 1992 Constitution of Ghana. This is clearly stipulated in the Chapter five (5) of the Constitution.

Article 12 Clause (1) of the 1992 Constitution states that “all persons shall have the right to-

(a) freedom of speech and expression, which shall include freedom of the press and other media;

(b) freedom of thought, conscience and belief, which shall include academic freedom”.

In a more elaborative way in relation to the rights and freedoms of the operations of the media, Chapter 12 of the 1992 in details, defines the expressive powers of the media without any interference.

These provisions have some similarities (if not the same) with Article 19 of the Universal Declaration on Human Rights, Article 10 of the European Convention on Human Rights, Article 13 of the American Convention on Human Rights and Article 9 of the African Charter on Human and Peoples’ Rights.

To start with, the Universal Declaration on Human Rights in Article 19, states that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.

The unrestrained communication of thought or opinions being one of the most precious rights of man was provided with no limitations in the aforementioned Article of Universal Deceleration on Human Rights.

The provision seeks to liberally allow persons to share their opinion without any form of interference, whether the opinion shared is of grievous consequence to the society or not.

Again, the Article do not specifically detract persons from hate speeches or speeches, having the tendency to infringe on the rights of another person.

On the contrary, the freedom of expression guaranteed in the 1992 Constitution has been controlled and limited to a level that ensures harmony.

In the case of the general right to freedom of speech, Article 21 in Clause (4)(e) of the Constitution allows the right to be restricted by “a law” if that law is “reasonably required” “for the purpose of safeguarding the people of Ghana against the teaching or propagation of a doctrine, which exhibits or encourages disrespect for the nationhood of Ghana, the national symbols and emblems, or incites hatred against other members of the community” and “is reasonably justifiable in terms of the spirit of this Constitution.”

Concerning the media specifically, Article 164 also allows restrictions to be imposed on them by “laws that are reasonably required in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of other persons.”

In continuation from the above, the European Convention on Human Rights in Article 10 in Clause (1) states that “everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.”

Clause (2) of the same Article provides that “the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

These provisions mean that one has the right to hold and express opinions; to receive and share information and ideas and to express opinions which others might find offensive or shocking.

Article 10 is a “qualified right”, which means one’s right to freedom of thought, conscience and religion can lawfully be interfered with if it is in the interests of, for example, public safety or the protection of rights and freedoms of others.

This therefore can be explained that the rights and freedoms guaranteed under these provisions are not absolute, thus one cannot act ultra vires under the disguise of freedom of speech.

The Convention has similarities with Articles 21(4) (e) and 164 of the Constitution. These provisions again, allow the right to be restricted by ”a law” if that law is “reasonably required.”

Concerning the media specifically, Article 164 also allows restrictions to be imposed on them by “laws that are reasonably required in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of other persons”.

Each of these limitation clauses has three elements.

First, any restriction of a right must come in the form of “a law”.

Second, the restriction must be “reasonably required” to accomplish certain specified purposes. The key principle here is one of proportionality and necessity.

This means that, in terms of its effect or impact on the right at stake, the purported restriction must not go beyond what is required or needed to protect or achieve the stated objects or interests.

Restrictions that are disproportionate or go too far are not constitutionally permissible.

Third, there are only a limited number of legitimate grounds or reasons for which the restriction may be employed.

Restrictions that are employed for reasons other than those specified in the limitation clause are not constitutionally permissible.

With respect to Article 13 of the American Convention on Human Rights, right to freedom of expression and thought is guaranteed.

Clause (1) of Article 13 of the elaborated above stipulates that “everyone has the right to freedom of thought and expression.

This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice”.

Clause (2) of the same Article explains how the exercise of the right provided for in the abovementioned is not subject to prior censorship.

However, the same Clause reiterated that there is some limitation in the provided right and freedom, which shall be expressly established by law to the extent necessary to ensure; respect for the rights or reputations of others; or the protection of national security, public order, or public health or morals.

Again, Clause (3) of Article 13 establishes that the right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.

There is a conditional statement in Clause (3), which states “may”. The provision did not give instructive direction on the avoidance of restriction either by a government or an entity.

This therefore, explains that there can be restrictions to the rights of expression if the need be. Other Clauses of the same Article such as Clause (4) and Clause (5) clearly establish the limitations and reasons for the limitations of right to expression.

Clause (5) of Article 13 indicates that any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.

This Clause even makes it offence for certain utterances that cause or likely to cause mayhem in a particular jurisdiction.

Finally, Article 9 of the African Charter on Human and Peoples’ Right also establishes the right and freedom of speech and expression.

Clause (1) of Article 9 states that “every individual shall have the right to receive information” while Clause (2) of the same Article also espouses that “every individual shall have the right to express and disseminate his opinions within the law”.

The right and freedom of expression under the African Charter on Human and People’s Right explains that the right should be exercised within the law. This provide some level of control and restrictions against reckless statements.

The 1992 Constitution of Ghana, like most modern democratic constitutions, first enumerates and guarantees certain specific rights.

It then states, often in a separate provision (called a “limitation clause”), the limited grounds and the specific ways by which a guaranteed right may be restricted.

A common error is to read constitutional rights narrowly and the permissible limitations broadly, thereby treating the limitations as practically eviscerating the rights.

This, of course, would make nonsense of the very idea of constitutionally protected rights. But modern limitation clauses are not to the read like the “clawback” clauses of old.

When a modern constitution guarantees a right but allows certain limitations, the rights represent the “rule” and the limitations present the “exception”; the rule applies generally, while the exception may be used only in very limited instances and only under certain specific conditions.