The right to privacy is fundamental to human rights.
Under article 18 clause 2 of the 1992 Constitution, it provides that, “no person shall be subjected to interference with the privacy of his home, property, correspondence or communication except with law and as may be necessary in a free and democratic society for public safety or to 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 of freedom of others.”
Although this right is entrenched, nevertheless, it is not absolute in respect of the above provision, i.e., it can be derogated for the purposes of prevention of crime and protection of the rights or freedom of others. But then again, in my opinion, it appears that unless as otherwise in respect of a criminal offence a court warrants the infraction of a person’s right to privacy, the right to privacy of a person under criminal proceedings subsists.
The article focuses in greater detail the right to privacy in criminal matters, particularly the court's admissibility of evidence in breach of the privacy of a person charged with a criminal offence.
Interpretation of right to privacy
In view of the 1992 Constitution, there is no specific provision on the exclusion of evidence obtained in breach of a constitutional right to privacy. That notwithstanding, in the case of Raphael Cubagee v Michael Asare, the Supreme Court in the interpretation and enforcement of article 18(2) answered the question of whether courts ought to exclude evidence obtained in violation of the rights of a person. Accordingly, the court rejected the policy of automatic exclusion of evidence for breach of constitutional right and adopted the discretionary exclusionary rule.
Pwamang JSC observed:
“Enforcement of human rights is not a one-way street since no human right is absolute. There are other policy considerations that have to be taken into account when a court in the course of proceedings is called upon to enforce human rights by excluding evidence and that explains why more jurisdictions have now adopted the discretionary rule approach”
Here, the court considered the need to balance public interest and human rights in adopting the discretionary exclusionary rule, i.e., it held that enforcement of human right, particularly the constitutional right to privacy is to be exercised on a case-by-case basis, not automatically. For this reason, what then is the position of the court on the admissibility of evidence obtained in violation of a person’s constitutional right, more specifically, the right to privacy in criminal proceedings?
Right to privacy in criminal proceedings
In the case of Edmund Addo v IGP & A-G, the police seized the applicant, Edmund Addo’s electronic gadget without a court warrant. They forced the applicant to provide his passwords but he refused. They later engaged the service of some IT experts to access the phone and the laptop with the purpose of using the evidence gathered to prosecute the applicant. The applicant brought an action to the High Court to seek the court to declare that his rights to privacy, property and fair trial were been violated. Counsel for the applicant argued that the police, having already taken custody of the gadgets, had no power to access their content without a court warrant authorizing them to do so. On the other hand, the A-G argued that crime was ground for suspending the right of a person to privacy. The court held that the conduct of the police amounted to a violation of the rights to privacy and fair trial. Consequently, the court ordered the police to submit the said gadgets to the court within 14 days.
In light of this, it appear that the position of the courts support my argument that unless as otherwise warranted by a court, the constitutional right to privacy of a person under a criminal proceedings in respect of a criminal offence is inviolable, as it was also held in the case of Okorie v The Republic, In that case, the police procured the statement of the appellant and charged him of murder without informing him of right to counsel. The court held that the statement was obtained in violation of the appellant’s constitutional rights, therefore, it was inadmissible in evidence at the trial of the appellant though there were evidence abound to support his conviction.
So, as it may seem that a person who has been charged with a criminal offence is void of his constitutional right to privacy; however, the Ghanaian criminal jurisprudence maintains under article 19(2) of the 1992 Constitution that, a person charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty. Article 18(2) provides that “except with law” the right to privacy is derogable for the purpose of public safety and prevention of crime. Thus, the violation of the right to privacy ought to follow law, which in my considered view, except a court warrants it, since the accused person has not been proved or has not pleaded guilty. And contrary to that may amount to a civil remedy for the accused person, as well as the evidence obtained in breach of the privacy of an accused person may not be admitted by the court automatically, but discretionary.