The National Democratic Congress’s Communication Officer, Sammy Gyamfi, says the state is behind a widely-circulated secret recording of an alleged National Democratic Congress (NDC) meeting. He insists the state is acting in breach of the rights to privacy of the NDC.

Related: leaked NDC audio, legal implications and conflicting responses from the party

The government, through the Minister of Information, has denied the allegation.

 The questions of law are: To what extent is the right to privacy of communication guaranteed under Ghanaian laws? Under what circumstances can these rights be lawfully violated – and assuming the contents of the tape are confirmed – would they fall under these circumstances?

The following are the views of law lecturer Justice Srem-Sai on the subject. He is Executive Fellow at the Institute of Law & Public Affairs (ILPA) and Lecturer at GIMPA Faculty of Law.

The general rule

The Constitution grants us a right to privacy in a manner that is comparable to any leading democracy. Article 18(2) of the 1992 Constitution tells us that “no person shall be subjected to interference with the privacy of his home, property, correspondence or communication …”

This provision is powerful because it assures us that the things we say or do in private and which we intend to remain private will not be made public.

But even most importantly, the provision tells us that should anyone, be it an agent of the State or a private person, breach our privacy, the State is obliged to deal with that person in a manner that will restore our injury. This is the general position of the law.

The limitation

However, like many rights, the right to privacy is not absolute. There are limitations on how much we can do in private without losing the guarantee that the law gives us should our deeds be disclosed or discovered.

Therefore, Article 18(2) goes on to say that the only way our right to privacy can be limited is when such disclosures or discoveries are done “… 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.”

A less accurate view of the limitation

Very often, many of us, even lawyers, tend to have an overly broad understanding of this carefully-drafted limitation sentence.

Some often interpret the limitation sentence to mean that any person can invade your privacy if they believe that you are doing something which may involve or lead to a crime or put the security of the public in jeopardy.

 For example, this interesting view of the law makes a person who bugs your office to feel that the bug falls under this exception so long as he is able to get a recording of a discussion or an action which may be a crime if done.

To put it rather bluntly this interpretation of the limitation sentence misses the point completely. It misses the point because it allows a person to feel free to invade your privacy while hoping to have evidence of a crime; thereby, making nonsense of the protection offered by law.

A more accurate view of the limitation

A more nuanced interpretation of the sentence may be had immediately one notes that the limitation sentence begins with the requirement that the intrusion of privacy (even “for the prevention of disorder or crime”) be done “in accordance with law.”

 The ultimate question, then, is – which law empowers a person, private or public, to invade another’s privacy (for example by bugging his office)?

A thorough reading of our laws tells us that there is only one category of persons who are generally empowered to interfere with a person’s right to privacy in such a manner – officials of those State agencies that are charged with security and intelligence. Specifically, the police and the officers of the BNI. Even these persons would need a court warrant in most cases to do so.

The next requirement is that such a law (which limits privacy and allows for intrusion) should be only as is “necessary in a free and democratic society.”

This means that it is not enough to just pass a law which permits privacy to be intruded. That law must, itself, meet the standard of “being necessary in a free and democratic society.” This requires us to look at the practices in leading democracies.

 When one looks to these leading democracies, one will immediately notice that what we celebrate here as “leaked tapes” are severely frowned upon there with violators facing severe legal consequences.

The Ampofo tape

Recently, the courts have been very stern in enforcing the right to privacy and in so doing have been bringing our practice of the law in line with the leading democracies.

It used to be the case that evidence gathered through a breach of the right to privacy was not inadmissible at trial. Now, however, they may be inadmissible.

Therefore, the question to be asked (should Mr. Ampofo be confirmed as the maker of the statements on the tape) is whether the tape itself was obtained in violation of his right to privacy. This question will send us back to the explanation given above. It may be a tall order.