Imagine a country where a simple, perhaps even innocent, comment you make online or a story you share could land you in serious legal trouble. Not because you intended to cause harm, but because someone else decided your words were “alarming” or “misleading.” This isn’t a dystopian novel; it’s a very real concern for many in Ghana. Right now, a brave Ghanaian citizen named Austin Kwabena Brako-Powers, with the help of his lawyer Michael Akosah, is standing up to challenge some old laws he believes are holding back his country’s most fundamental freedoms – the right to speak, to express oneself, and for the press to do its job without fear. He’s taken his fight to the highest court in the land, the Supreme Court, arguing that these laws are like handcuffs on the free exchange of ideas, and they need to be broken.
At the heart of Austin’s legal battle are two main pieces of legislation. The first is an old law, the Criminal Offences Act of 1960, specifically a section that makes it a crime to publish anything – a statement, a rumor, a news report – that’s “likely to cause fear and alarm to the public or disturb the public peace.” Think about that for a moment. Who decides what causes “fear and alarm”? What one person finds disturbing, another might find completely harmless or even valuable information. Austin and his legal team argue that this part of the law is far too vague and broad. It’s like a net cast so wide that it can catch anyone for almost anything. He says it’s a direct threat to the freedoms enshrined in Ghana’s own constitution, which guarantees people the right to express themselves freely. It essentially creates a chilling effect, where people become afraid to speak their minds for fear of unknowingly breaking the law.
But it gets even more concerning. This same old law has another twist: if you’re accused of causing fear or alarm, the burden falls on you to prove that you took “reasonable measures” to check if what you published was true. Imagine a journalist working under tight deadlines, or an ordinary citizen sharing something they believe to be true. Under this law, if their information turns out to be inaccurate, even if they genuinely thought it was true, they’re suddenly in deep trouble unless they can prove they thoroughly fact-checked it. Austin argues this directly goes against a cornerstone of justice: the presumption of innocence. In a fair system, it’s the accuser who has to prove guilt, not the other way around. He points out that this provision essentially removes the defense of an “honest belief” in the truth of what was published, putting journalists and ordinary folks at risk of criminal charges even if they weren’t deliberately trying to spread falsehoods. It’s like being guilty until you prove yourself innocent, which feels fundamentally unfair.
Then there’s the newer law, the Electronic Communications Act of 2008, which aims to regulate online communication. Austin is challenging a section that criminalizes sending “false or misleading” electronic communications. Again, the problem lies in the definition – or lack thereof. The law doesn’t clearly define what “false or misleading” actually means, leaving it open to interpretation and potential abuse. This ambiguity puts anyone who communicates electronically – which, in this day and age, is almost everyone – at risk. Austin argues that this lack of precision clashes with another part of the constitution, and he’s urging the Supreme Court to narrow its application significantly. He wants it to apply primarily to deliberately false communications aimed at endangering lives or disrupting essential services, rather than honest mistakes, differences of opinion, or even just careless sharing. It’s about distinguishing between malicious intent and accidental inaccuracies, which is a crucial difference in the digital age.
Just like with the older law, the Electronic Communications Act also includes a problematic provision regarding the burden of proof. It states that if you fail to take “reasonable steps” to verify a communication, you’re presumed to have known it was false. This means if you share something that turns out to be untrue, and you didn’t meticulously verify it beforehand, the law assumes you knew it was false. Austin sees this as a direct violation of the presumption of innocence and a grave threat to free speech. He argues that it unfairly shifts the responsibility onto individuals to prove their mental state – that they didn’t know it was false – which is incredibly difficult to do. It essentially makes innocent mistakes or negligence punishable as if they were intentional acts of deception, which is a very heavy burden to place on individuals engaging in everyday digital communication.
Beyond Ghana’s own constitution, Austin also highlights Ghana’s commitments under international human rights law, specifically the International Covenant on Civil and Political Rights (ICCPR). Ghana is a signatory to this important global agreement, which obliges countries to protect fundamental rights like freedom of expression. Austin points out that Ghana’s own constitution also binds the nation to these international obligations. By referencing these international standards, he’s emphasizing that the freedoms he’s fighting for are not just Ghanaian ideals, but universal human rights that his country has promised to uphold. Ultimately, Austin is asking the Supreme Court to declare these problematic sections of both laws unconstitutional and unenforceable. He wants an end to prosecutions, threats, and investigations based on these vague and burden-shifting provisions, thereby truly freeing the voices of the Ghanaian people and ensuring that genuine freedom of speech isn’t just a promise on paper, but a lived reality.