Blessing sin: When does it become alright to eat the fruit of the forbidden tree?

Almost half a decade after the “right to privacy “ made its debut into Ghanaian constitutional law, the Supreme Court has finally been presented with an opportunity to pronounce on what exactly the right means and the consequences attached to its breach.

In fact, the apex court had two bites at the cherry within three months, through the cases of Abena Pokua Ackah v ADB (ADB case) and Raphael Cubagee v. Michael Yeboah Asare & Ors(Raphael Cubagee). In an era where the distinction between private life and public life is rapidly blurring due to technological advancement, these decisions could not have come at a more opportune time. In both cases, the court held that secretly recording a phone conversation without the consent of the other party to the conversation amounts to a breach of that party’s constitutional right to privacy.

Further, the court decided that even putting your phone on a loudspeaker to enable 3rd parties to hear your private conversation with another person without first seeking that other person’s consent or at least giving her prior notice is a violation of that person’s constitutional right to privacy. Perhaps, like one of my friends, you are only interested in finding out that the court awarded GHS 100,000 to an Applicant as damages for the violation of her constitutional right to privacy. Well, now you know so you can stop reading here and proceed to court to mount the action you are contemplating. However, if like some of my other friends, you have an application on your phone that you have been secretly using to record conversations with the intention of “gathering evidence for your big day in court” then this article is for you. Prompt me to send you an invoice after you are done reading.

Let’s start with the law. Article 18(2) of the 1992 Constitution reads:

“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 public safety or the economic well-being of the country, 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 seems to guarantee all persons in Ghana a right to privacy in respect of their homes, property, correspondence or communication unless a law makes provision for the interference with this right in a manner which is necessary for, amongst others, maintenance of public safety or the protection of the rights or freedoms of others or the prevention of disorder or crime in free and democratic societies. We could use this as an opportunity to examine the constitutionality of the actions of police officers when they stop you randomly at night, order you out of your car and go through it with a fine-tooth comb under the pretext of “searching for drugs and ammunition”. Is there a law which entitles them to do that without a warrant? I mean, your car is your property so it is covered by article 18(2) also, no? But let’s reserve that topic for another blog post. The point is that the right to privacy is very broad and touches on a lot of matters which affect us in the most direct and personal of ways, so it is essential for the Supreme Court to pronounce authoritatively on the scope of these rights so that we can jealously guard against unwarranted interferences with our personal spaces.

The first case which required the court to consider article 18(2) was the ADB case. Here, Mrs Pokua Ackah (the “Applicant”), a former employee of the Agricultural Development Bank (the “Respondent”), was secretly recorded by a journalist during a telephone conversation they had in which she reportedly complained about the Respondent’s restructuring exercise and the excessive bonuses being paid to its Managing Director. Somehow, this secret recording wound up in the Respondent’s possession and the Applicant was hauled before a disciplinary committee to be tried amongst others for gross and willful misconduct and breach of her oath of secrecy, based on the secret tape. Her lawyer contested the admissibility of the tape at the disciplinary hearings, stating that it amounted to a violation of her constitutional right to privacy and freedom of expression. She was subsequently dismissed based on the contents of the tape so she commenced an action seeking amongst others, a declaration that her dismissal based on the contents of the secret recording was a breach of her constitutional rights to privacy, freedom of expression as well as damages for the said breach.

The Applicant’s lawyers argued that persons who engage in private conversations with others, reasonably expect that those conversations would be kept private. Therefore, those conversations are protected by the right to privacy and this can only be interfered with by prior judicial scrutiny. In other words, a party may only interfere with another party’s right to privacy after she has sought for and received judicial blessing to interfere with that other person’s privacy. The rationale for this approach is that the court would perform a balancing act to determine whether the requested interference with a person’s rights can be justified having regard to public safety, prevention of crime, protection of the rights of others or the other limitations that have been placed on the lawful enjoyment of rights. The Applicant lost in the trial court and in the Court of Appeal, with the Court of Appeal holding that resort to judicial scrutiny before interfering with the privacy of a person’s communications would be “cumbersome and inconvenient”. Upon further appeal to the Supreme Court, it was held that the Court of Appeal’s view would whittle away the rights of individuals as guaranteed by the Constitution. The court stated emphatically that “the reference to “in accordance with law” in article 18 (2) can only be a reference to a prior judicial endorsement” and that it would not countenance “any arbitrary or unilateral curtailment of the rights of individuals in this enjoyment of the said rights without judicial activism”. The court, therefore, concluded that the Respondent’s delivery of the secretly recorded tape was a breach of the Applicant’s right to privacy and she was awarded GHS 100,000 as damages.

The next question that the court had to grapple with was whether the tape which was obtained in breach of the Applicant’s rights could be admitted as evidence in proof of matters against her. Stated alternatively, the question was whether unconstitutionally obtained evidence is admissible in court in proof of matters in dispute between parties? This question has long vexed many legal minds in Ghana because the general rule of evidence is that all relevant evidence (evidence which is capable of proving the matters in dispute) is admissible, except as otherwise provided by an enactment.[3] The rule postulates that the test for admission is relevance, thus the only evidence which is inadmissible is irrelevant evidence and all relevant evidence is admissible.[4] However, judges have a discretion to exclude relevant evidence if its ability to prove a fact in dispute is outweighed by considerations such as causing substantial danger of unfair prejudice to the party against whom it is offered or that a party who had no reasonable grounds to expect that the evidence would be offered would be unfairly surprised by its admission. Prior to this decision, one school of thought posited that these are the only rules which govern the admissibility of evidence in Ghana, thus evidence obtained in breach of constitutional provisions would still be admissible. The proponents of this position supported it with the fact the constitution does not expressly invalidate evidence obtained in breach of constitutional rights. Also, the proponents suggest that these rules originate from the (English) common law where its application has demonstrated that so far as evidence is relevant, the courts would admit it, regardless of how it was obtained.[5] So, where the police suspected a man of dealing in heroin and obtained evidence to that effect by secretly planting a listening device on the outside wall of his home, the court rejected Counsel’s objections to the admissibility of the evidence because it was obtained in breach of the man’s right to privacy by stating that to allow an objection to relevant evidence on those grounds would be to introduce a new principle into English law which neither the proper protection of private rights nor public policy requires.[6] On appeal to the House of Lords, Lord Nolan observed that the right to privacy exists in the European Convention on Human Rights (ECHR) but not under domestic English law and stated that evidence obtained in breach of privacy may only be inadmissible if persons enjoy a right of privacy under English law which is similar in terms to the right provided by the ECHR. He finally decided that there is generally, nothing unlawful about a breach of privacy under domestic English law therefore a judge cannot exclude relevant evidence because it was obtained in breach of a person’s privacy.[7] In contrast, the other school of thought posited that since the right to privacy is guaranteed by the 1992 Constitution of Ghana, which is the supreme law of Ghana, the rule that all relevant evidence is admissible has been made subject to the Constitution, making evidence obtained in breach of this constitutional provision inadmissible. The Supreme Court in this case seemed to favour the second school of thought and did not belabour the point much, holding rather tersely that the rule that all relevant evidence is admissible is subject to the constitutional provisions.

One would have thought that the matter was therefore definitively settled and that after decades of legal debate, the Ghanaian path had finally been charted. However, the Supreme Court revisited the subject again within three months of the first decision, through the case of Raphael Cubagee.[8] This time, the suit related to a land dispute at the district court, where the Plaintiff sought to tender into evidence, an audio recording of a private telephone conversation he had with one of the Defendants to prove that the said Defendant had admitted his side of the case. There was however a small problem. He had recorded the conversation without the said Defendant’s consent or knowledge and the Defendant’s lawyer dutifully objected to the admissibility of this recording, claiming that it violated the Defendant’s constitutionally guaranteed right to privacy. The Magistrate considered this as a novel matter which required constitutional interpretation and referred the matter to the Supreme Court, where the issues for resolution were a) whether on a proper interpretation of the constitution the secret recording was a violation of article 18(2); and b) whether the secret recording was inadmissible as evidence if it was found to have been made in breach of the Defendant’s right. Following the rules set out in our constitutional jurisprudence relating to the Supreme Court’s interpretative jurisdiction, one would have expected the court to simply refer the magistrate to its earlier decision on the matter. However, the court took this as an opportunity to re-examine the right to privacy and its consequences on admissibility of evidence.

This time the court had much to say and its statement on the right to privacy is so potent that it bears repeating:

“Privacy is so broad a constitutional right that it defies a concise and simple definition. It comprises a large bundle of rights some of which have been listed in the article as privacy of the home, property, and correspondence or communication. This list is not exhaustive and the full scope of the right of privacy cannot possibly be set out in the text of the Constitution. However, under the right to privacy is covered an individual’s right to be left alone to live his life free from unwanted intrusion, scrutiny and publicity. It is the right of a person to be secluded, secretive and anonymous in society and to have control of intrusions into the sphere of his private life”

…

“It guarantees personal autonomy for the individual and without it public authorities would easily control and manipulate the lives of citizens and undermine their liberty. It is one of the most widely demanded human rights in today’s world for the simple reason that advancements in information and communication technology have made it extremely easy to interfere with privacy rights.”

The court held that “it is up to the individual, subject of course to statutory laws made for the public good as stated in Article 18(2) itself, to decide if there should be any intrusion into, scrutiny or publicity of his private life including his communication. It is further up to the individual to determine the extent and manner of such permitted intrusion, scrutiny or publicity.” The problem is that these laws have not been passed in Ghana, while other states have passed legislation on the circumstances under which a person’s privacy rights may be interfered with and the persons who may interfere with those rights. Considering this, the court concluded that secretly recording a telephone conversation is to interfere with the privacy rights of the other party to the conversation beyond what she has consented to. In similar fashion, the court concluded that even putting your phone on loud-speaker to allow third parties to secretly listen to a private conversation between you and another person is a violation of that person’s rights.

In response to the question on admissibility of evidence, this time the court decided that the fact that evidence is obtained through unconstitutional means does not automatically mean it cannot be tendered in evidence in legal proceedings. It held that the constitution does have a provision which requires courts to exclude evidence which is obtained in violation of human rights and therefore courts have a discretion to determine whether evidence obtained in breach of a constitutional right ought to be admitted in evidence. In doing so, the courts must consider whether any of the limitations to the right to privacy mentioned under article 18(2) are applicable. For instance, in criminal matters the court held that it would be unrealistic for a court to exclude damning evidence of an accused person’s guilt solely because it was obtained in breach of the accused person’s rights because it is in public interest to prevent crime and punish perpetrators of crime. Similarly, in civil matters there would be competing claims between the litigants and one party may offer relevant evidence which was obtained in breach of the other party’s rights to protect his own rights. The Supreme Court stated that in balancing these competing rights, courts must exclude evidence which is obtained in breach of constitutional rights if admitting the evidence would bring the administration of justice into disrepute or affect the fairness of proceedings. The Supreme Court laid down the guiding principles as follows: the courts must consider all the circumstances of the case; paying attention to the nature of the right that has been violated and the manner and degree of the violation, either deliberate or innocuous; the gravity of the crime being tried and the manner the accused committed the offence as well as the severity of the sentence the offence attracts. Where the offence the evidence is offered to prove is a grievous crime committed in a gruesome manner and the infraction of the accused person’s right by the police was unavoidable, in the absence of countervailing factors, public interest would require that a court leans towards allowing the evidence since it would bring the administration of justice into disrepute in the thinking of the public to exclude such evidence. But where in a civil case, while the case is pending or at the time the dispute was raging, one of the parties with a view to procuring evidence in support of his case in court obtains evidence in violation of the human rights of his opponent, that is conduct that could also bring the administration of justice into disrepute.

These principles seem very sound. However, the decision contradicts not only the earlier position from the ADB case, but also the position from Okorie alias Ozuzu v The Republic[9] (Ozuzu) an earlier decision of the Court of Appeal where it was held that evidence obtained in violation of constitutional rights is inadmissible in evidence because any breach of the provisions of the Constitution carries with it “not only illegality, but also impropriety, arbitrariness, dictatorship, that is to say, the breaking of the fundamental law of the land”. In that case, the accused person’s lawyer successfully objected to the admissibility of cautioned confession statements given by the accused because he had not been informed of his constitutional right to consult counsel of his choice. The Supreme Court considered the principle from Ozuzu but decided that the Court of Appeal’s statement was very broad, especially since the statement was couched to cover both civil and criminal cases when the case itself was a criminal one. The Supreme Court also noted that the cases the Court of Appeal relied on were mainly American, where the courts lean more towards an “almost automatic exclusion rule” than a “discretionary exclusion rule”. The court further observed that even in America the cases apply the rule to criminal cases and not to civil ones. However, I respectfully submit that it bears noting that most of the cited American cases dealt with the fourth amendment to the American Constitution which provides the people with a right to be secure in their persons, homes, papers and effects against unreasonable searches and seizures without a warrant issued upon proof of reasonable cause. Thus, the protection is given against state actors and the related cases would inevitably be criminal. However, in Ghana the constitutional protection has not been limited to civil or criminal matters and therefore Ghanaians have been provided with more beneficial protection.

The decision from Raphael Cubagee is very commendable. However, I cannot help but question if following the decisions from the ADB and Ozuzu cases would not have been better to promote the respect for human rights in Ghana. Especially since as the Supreme Court itself noted in Raphael Cubagee, we are in an environment where people take the rights of their neighbours very lightly. It is in the public interest to promote respect for human rights and the purpose of excluding evidence which is obtained in violation of constitutional rights is to deter – to compel respect for the constitutional guaranty in the only effectively available way – by removing the incentive to disregard it.[10] The courts must make it a matter of principle to ensure that all and sundry- police, state actors and private citizens alike, respect human rights and conduct their affairs according to the rule of law and due process. One question that ought to cross your mind in light of the decisions from these cases is this: If judicial interference or sanction is required before a person’s right to privacy can lawfully be interfered with, and if recording a person without the person’s permission is unconstitutional, how are investigative journalists able to get away with breaching the privacy rights of citizens with pomp and pageantry? Do they obtain prior judicial consent before engaging in these breaches of privacy? Do they require some authorisation to carry out these investigative works? Are these matters that even the Police would require judicial authorisation to engage in? In the absence of laws from Parliament stating the permissible areas of interference with privacy rights, should the Supreme Court not be ensuring that eating the fruits of the forbidden tree is not made attractive to anyone? At least now we know that in some cases we can get away with constitutional breaches and you know you may be sued for damages. But I won’t be surprised if you have probably decided that keeping the phone call recorder app on your phone may still be useful. After all, who knows?