A few days ago, I was at home speaking with one of my cousins. She was unhappy with the government. There was nothing remarkable about the scene: two citizens, in a private home, discussing those who govern them. She was explaining what frustrated her and why she thought some things were going wrong.

My grandmother overheard us.

She came out, asked my cousin to lower her voice and then said, with the instinctive anxiety of someone trying to protect her family: Why are you talking like this with everything that is going on? I don't want any trouble in this house.

Nobody had threatened my grandmother. No police officer had visited her. No government official had telephoned her. Nobody had instructed her that criticism of government was forbidden.

That is precisely what troubled me. 

The instruction to be silent did not come from the State. It came from inside the home. The State did not need to enter the room. Fear had arrived before it.

One conversation in one household cannot establish that Ghanaians generally are afraid to criticise their government. It would be irresponsible to turn an anecdote into a national diagnosis. But the incident illuminates something constitutional law has long understood: freedom of expression may be diminished without a censor ever issuing an order. Sometimes the most effective restraints are anticipatory. People observe what happens to others, calculate the possible cost of speaking, and begin regulating themselves, and one another.

Lawyers call this the chilling effect.

It is why the case of Salomey Awiti Bafoh deserves attention beyond the immediate question of whether she committed the offence with which she has been charged. The central question is not whether the State may ever investigate speech. Plainly it may. The harder question is where lawful investigation ends and disproportionate deterrence begins, and whether the manner in which speech-related offences are enforced can itself alter the willingness of other citizens to participate in democratic debate. That distinction matters in Salomey's case. Even a lawful investigation, and even a judicially authorised detention, can have consequences beyond the individual accused.

In Ghana Independent Broadcasters Association v Attorney-General, the Court described freedom of expression as central to democratic self-government and recalled that Ghana's constitutional settlement emerged against the background of a “culture of silence” in which citizens were reluctant to express themselves. But the Court also recognised that expression can be subject to constitutionally justified restrictions and specifically referred to sections 207 and 208 of the Criminal Offences Act as statutory restrictions capable of operating within Article 164.  That balance is important. There is a difference between defending free expression and claiming an absolute freedom from legal responsibility for speech. But there is another distinction that is just as important: the fact that the State may legitimately investigate speech does not answer the separate question of how it investigates it.

And that is where the Salomey case begins to raise broader concerns.

Article 21(1)(a) of Ghana's Constitution guarantees freedom of speech and expression, including freedom of the press and other media. Ghana's constitutional system consequently begins with freedom, even while permitting restrictions that can be justified within the Constitution. At the international level, Article 19 of the International Covenant on Civil and Political Rights similarly permits certain restrictions on expression, but only where they are provided by law and necessary for specified legitimate purposes. The UN Human Rights Committee has cautioned States to exercise particular care when national-security concepts are invoked against expression and has made clear that criticism of government cannot, by itself, justify penalisation.

The African Commission's 2019 Declaration of Principles on Freedom of Expression and Access to Information in Africa requires restrictions on expression to be clear, precise and foreseeable. Principle 22 calls upon States to review criminal content restrictions and expressly states that laws criminalising sedition, insult and the publication of false news should be repealed. It further provides that national security or public order cannot justify restrictions unless there is a real risk of harm to a legitimate interest and a close causal connection between the expression and that harm. Principle 23 recognises that genuinely dangerous incitement may be prohibited, but treats criminalisation as a last resort for the most serious cases and directs attention to intent, context, reach, likelihood and imminence of harm. This creates a significant legal tension in Ghana. Section 208 remains part of Ghanaian criminal law and continues to be enforced. Yet the African Commission's contemporary interpretation of Article 9 of the African Charter calls for the repeal of false-news offences.

Salomey's guilt or innocence therefore does not exhaust the human-rights inquiry.

A chilling effect arises because citizens do not experience criminal law merely through eventual convictions. They experience it through the possibility of investigation, arrest, detention, transportation, legal expense, reputational damage and prolonged uncertainty. A person may ultimately be acquitted and yet everyone watching may have learned something from the process. The lesson they learn may not be, Do not commit this precisely defined offence. It may instead become: Do not get too close to controversial speech.That distinction is fundamental.

International jurisprudence recognises it. In Kankanamge v Sri Lanka, the UN Human Rights Committee considered criminal defamation proceedings that had remained pending against a journalist for years. The prolonged uncertainty and intimidation, it held, created a chilling effect upon his exercise of freedom of expression. The Committee later incorporated that principle into its general guidance on fair-trial rights: the administration of criminal proceedings may itself impair rights beyond the courtroom when delay, uncertainty or intimidation deter expression.

The European Court of Human Rights reached the same underlying insight in Şahin Alpay v Turkey. It held that pretrial detention imposed in connection with critical expression was capable of producing a chilling effect not merely upon the detained journalist but upon society more broadly, and that the deterrent effect might persist even if the individual were subsequently acquitted.

West Africa has its own important authority. In Federation of African Journalists and Others v Republic of The Gambia, the ECOWAS Court held that Gambian criminal laws on sedition, defamation and false news violated freedom of expression and liberty and required the State to bring its legal framework into conformity with its international obligations. The Gambian provisions and factual circumstances are not identical to Ghana's section 208, and the judgment should not be presented as having decided the constitutionality of Ghanaian law. Its broader principle is nevertheless directly relevant: criminal speech laws must be assessed partly by the deterrent consequences they produce for people beyond the immediate accused.

That concern becomes sharper where criminal liability appears capable of travelling beyond the original speaker. The case alleged against Salomey is not simply that she stood before a camera and personally made every statement attributed to the “Ghana Jollof” account. The prosecution alleges something more diffuse: assistance, recruitment, redistribution and financial facilitation. Police say investigations are continuing into other persons allegedly involved in redistributing the material or financing its dissemination. The criminal responsibility of those persons will depend upon the applicable law and evidence. But for the wider public, a practical question arises immediately:

How far down the chain of digital communication does criminal liability travel?

What is the position of the person who reposts a video? The administrator of a WhatsApp group into which it is forwarded? Someone who helps a creator pay production expenses? A volunteer managing a social-media page? A journalist embedding controversial material to report on it? Someone who forwards a clip to friends with a comment disagreeing with it?

There may be perfectly good legal answers to each question. But citizens should be able to understand those answers before their liberty depends upon them. Otherwise, the rational citizen does not wait for appellate courts to clarify the boundaries. He simply retreats from the boundary altogether. That is one way chilling effects work: uncertainty itself begins regulating speech.

In June 2026, the Ghana Journalists Association warned that the increasing use of false-news provisions against journalists could intimidate media practitioners and encourage self-censorship. The Media Foundation for West Africa says that, according to its own monitoring, it recorded 14 arrests linked to speech-related provisions during the first 16 months of the current administration, compared with eight during the preceding eight-year administration. Those figures are MFWA's own monitoring data and should be treated as such; they do not establish that every arrest was unlawful. They do, however, supply an empirical reason to ask whether criminal process is increasingly being used in the regulation of public expression.

Then, even where investigation is justified, the State must ask whether the means employed are proportionate to the legitimate harm it seeks to prevent.

Proportionality matters because State power communicates.

A request to attend an interview communicates something different from an arrest at night. Reasonable bail conditions communicate something different from prolonged pretrial custody. A prosecution directed at clearly identified conduct communicates something different from an enforcement environment in which citizens cannot confidently tell whether forwarding, association or criticism might expose them to arrest.

It does mean that where the underlying conduct intersects with political expression, authorities should appreciate that the manner of enforcement can affect the expressive freedom of people who are nowhere near the case. The European Court has put the point in terms that travel well beyond Europe: even relatively modest criminal sanctions may chill expression, and State institutions should show restraint where criminal proceedings risk inhibiting public debate. 

This brings me back to my grandmother.

Her intervention was not the product of constitutional doctrine. She had never conducted a proportionality analysis. She had probably never encountered the phrase “chilling effect.” She simply watched events around her and reached a conclusion about risk.

Do not talk like that. I don't want trouble in this house.

The Supreme Court's reference to Ghana's historical “culture of silence” is therefore worth remembering. The framers of the 1992 constitutional order understood something profound: democracy is not secured merely by allowing people to vote every four years. Citizens must feel able, between elections, to speak about those who govern them.

That history should make us especially sensitive to the distance between formal freedom and lived freedom. The real test of freedom is consequently not confined to what appears in the statute book.

It is also found in the newsroom deciding whether to pursue a story; the blogger hovering over the “post” button; the WhatsApp administrator wondering whether to allow a political discussion; the citizen deciding whether to forward a video; the critic deciding whether government is safe to challenge; and, sometimes, in an ordinary Ghanaian home where a grandmother hears her granddaughter criticising those in power.

Government need not agree with its critics. The State is entitled, indeed obliged, to investigate genuine threats, incitement and criminal conduct. Those accused are entitled to due process, not immunity. But a constitutional democracy must also ensure that its enforcement methods do not teach citizens a broader lesson than the law itself intends. Because censorship does not always arrive carrying an official prohibition.

Sometimes its earliest warning is subtle. It is a grandmother hearing her granddaughter criticise the government in the privacy of their home, looking anxiously around the room and saying:

Keep quiet. We don't want trouble here.