The use of the criminal justice system to penalize individuals for making derogatory, inflammatory, or hateful comments has stirred up a heated debate, bringing the age-old question of freedom of speech to the forefront once more. It raises a crucial question: where do we draw the line between expressing one’s thoughts and being held accountable for the impact those words have? Some passionate advocates view such arrests and prosecutions as a chilling violation of fundamental human rights, harkening back to the days of criminal libel laws – a system many believed had been a relic of the past. For them, the ability to speak one’s mind, even if unpopular or offensive to some, is a cornerstone of a truly free society. They argue that stifling speech, no matter how unsavory, paves the way for a more authoritarian society where dissent is quashed and critical voices are silenced. It’s a fear rooted in history, a worry that the state wielding such power over expression could easily be abused to suppress legitimate criticism and maintain control. The human element here is the deeply ingrained desire for self-expression, the fundamental belief that we should be able to articulate our ideas without fear of reprisal from the government.
On the other side of this complex issue are those who wholeheartedly embrace these actions by the authorities. For them, it’s not about stifling free speech but about creating a healthier, more respectful public sphere. They see these prosecutions as entirely just and necessary tools to “sanitize” public discourse, ensuring that certain types of harmful speech – hate speech, incitement to violence, deliberate falsehoods – don’t go unchecked. They argue that genuine freedom doesn’t mean freedom from consequences, especially when words cross the line into actively harming others or threatening national security. Their perspective is rooted in a concern for the vulnerable, for those who might be targeted by hateful rhetoric, and for the overall stability and peace of a nation. They believe that irresponsible speech can have tangible, damaging effects on individuals and society at large, and that the law has a role to play in mitigating those harms. From a human perspective, this viewpoint stems from a desire for order, safety, and mutual respect within a community, recognizing that unchecked speech can lead to real-world suffering and societal breakdown.
This fundamental disagreement truly came to light in a recent discussion with the Daily Graphic, featuring three legal minds: Martin Kpebu, Samson Lardy Anyenini, and Albert Quashigah, who also teaches law at the University of Professional Studies, Accra (UPSA). Their varied perspectives vividly illustrate the complexities of this debate. Samson Lardy Anyenini, an award-winning journalist himself, passionately advocated for the complete abolition of Section 208 of the Criminal Offences Act, 1960 (Act 29), which criminalizes false publication. His reasoning is deeply human: he sees it as a tool that has been indiscriminately used to silence people, functioning as a modern-day gag order. He argues that its broad application makes it dangerously susceptible to abuse, particularly against those who dare to criticize power. Martin Kpebu echoed this sentiment, suggesting that Section 208, in its current form, is simply too wide-ranging and often weaponized to silence dissent and gain political advantage. He believes it needs to be replaced with a more narrowly defined law that specifically targets genuinely harmful false information. Their concerns reflect a deeply held belief in the power of free expression to hold power accountable and to foster democratic dialogue, fearing that overly broad laws stifle this essential function.
However, Albert Quashigah presented a compelling counter-argument, emphasizing that “free speech does not equate to irresponsible speech.” He firmly believes these laws are a crucial safeguard against reckless communication that could, in his view, jeopardize national security and endanger lives. For him, the human cost of unchecked, irresponsible speech is too high. He suggests that while freedom of expression is undeniably important, it must exist within a framework of responsibility. His stance is rooted in a desire to protect the collective good, to ensure that the pursuit of individual expression doesn’t come at the expense of societal stability and personal safety. He envisions a society where individuals are free to speak, but also held accountable when their words cross a line into incitement or defamation that could lead to tangible harm. This perspective highlights the tension between individual liberties and collective well-being, suggesting that a balance must be struck to maintain a functional and secure society.
The specific legal provisions at the heart of this contentious debate are Sections 207 and 208 of the Criminal Offences Act, 1960 (Act 29), and Section 76 of the Electronic Communications Act, 2008 (Act 775). Imagine Section 207 as the “peacekeeper law”: it criminalizes anyone who, in a public space, uses words or behaves in a way that’s meant to provoke a breach of the peace, or is likely to cause one. Think of someone deliberately shouting insults in a crowded area, aiming to start a fight. This law seeks to prevent such volatile situations. Then there’s Section 208, the “false news” law. This one targets individuals who publish or spread statements, rumors, or reports they know (or should know) are false, especially if these falsehoods are likely to cause public fear, alarm, or disturb the peace. The human element here is the damage that easily spread misinformation can cause – panic, social unrest, even violence. What’s particularly striking is that under this law, you can’t just say “I didn’t know it was false” as a defense; you’re expected to have taken reasonable steps to verify the accuracy of what you’re sharing. The penalties for violating these sections can be significant: a fine or up to three years in prison. Section 76 of the Electronic Communications Act is the modern-day equivalent, applying these principles to the digital realm. It specifically criminalizes knowingly sending false or misleading information via electronic communication that could jeopardize emergency services or endanger people’s safety. This speaks directly to the human impact of online disinformation – imagine someone falsely reporting an emergency, diverting critical resources, or spreading rumors that lead to real-world danger. A conviction here could mean a hefty fine of up to three thousand penalty units, up to five years in prison, or both. These laws, while seemingly technical, touch on very human fears: the fear of chaos, the fear of manipulation, and the fear for one’s safety and well-being.
The ongoing controversy surrounding these laws is particularly poignant given their history. Despite the much-celebrated repeal of the Criminal Libel Law in 2001 – a move intended to foster a more open and democratic media landscape – Sections 207 and 208 of Act 29 have continued to be employed against social commentators, politicians, and ordinary citizens for their public utterances under successive governments. This creates a deeply frustrating cycle, a feeling of “déjà vu” for many. What adds to the human drama and irony of this situation is the political hypocrisy often observed. The two major political parties, the governing National Democratic Congress (NDC) and the opposition New Patriotic Party (NPP), seem to perform a dance of shifting principles: when in opposition, they loudly condemn such arrests as assaults on democracy and free speech. Yet, once in power, they often find no issue with these same actions, sometimes even applauding them. This inconsistency highlights a very human tendency to prioritize political expediency over consistent principle. A vivid example occurred in 2022, during current President Nana Addo Danquah Akufo-Addo’s term. John Dramani Mahama, then the opposition leader, penned a powerful open letter decrying the wave of arrests targeting journalists, commentators, and activists, branding it a threat to the nation’s democracy. More recently, in May of this year, Dr. Mahamudu Bawumia, the NPP’s flag-bearer and former Vice-President, also spoke out against the arrests and what he termed the “harassment” of NPP members and their allied commentators. These instances underscore the universal human desire for fairness and consistent application of justice, yet also reveal the often-disappointing reality of political maneuvering. The constant flip-flopping leaves many ordinary citizens feeling disenfranchised and questioning the sincerity of their leaders’ commitment to fundamental rights, creating a climate of cynicism and distrust.