November 30, 2016
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana, per Benin JSC with a concurring opinion by Dotse JSC and agreement from five other Justices, reviewed the National Media Commission’s National Media Commission (Content Standards) Regulations, 2015 (L.I. 2224) against the constitutional guarantees of media freedom. A company limited by guarantee representing private broadcasters challenged Regulations 3–12 and 22, arguing that the prior content authorization regime and criminal penalties amounted to censorship and impermissible control of editorial functions. The Court emphasized that, while no constitutional right is absolute, restrictions on freedom of expression must be justified under Article 164 and enacted by Parliament, not imposed via administrative prior restraint. It held Regulation 3 unconstitutional as censorship, struck down dependent Regulations 4–11, and invalidated criminal provisions in Regulation 12(5) and Regulation 22 (including vague offences under 22(3)). Regulation 12’s Standard Guidelines were largely upheld. The Court rejected jurisdictional objections and granted reliefs 1–3, partially rejecting relief 4.
BENIN, JSC:
My Lords, this is a matter that touches the heart of our democratic process, talking about freedom of expression in all its facets. In democratic societies it is regarded as the most prominent fundamental right, a lever upon which all other rights hinge. In an article by Harry H. Wellington titled ‘On Freedom of Expression’ 88 Yale L.J. 1105, the author suggests that free speech is preservative of other freedoms. In MURDOCK v. PENNYSLVANIA, 319 U.S. 105, 115 (1943) free speech is given what was described as ‘preferred’ position. In other words, it is afforded more extensive immunity from external interference than most other human endeavours. This fact was not lost on the Committee of Experts who drafted the proposals that culminated in the adoption of the 1992 Constitution. The Committee opened their proposals with a quotation from the renowned John Stuart Mill, who wrote that “if all mankind minus one were of one opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.” It may be recalled that the Committee was set up against the backdrop of what had become known in the country as the culture of silence. Simply put, as a result of the lack of democratic political atmosphere at the time, citizens did not venture to bare their thoughts. The Committee therefore sought to make provisions that would allow the citizenry to express themselves freely, subject only to such limitations as are reasonably required in the interest and progress of society. The Committee was thus mindful of the fact that the country should not transition from a culture of silence, which tends to inhibit the citizenry from participation in governance to a culture of media impunity that might bring about disorder. Thus a careful balance was required, because a culture of impunity by the media, which has the potential to breed chaos and insult public decency and morality, was certainly not an option. In this regard, the establishment of the National Media Commission, 2nd defendant herein, also referred to in this judgment as the Commission, was to insulate the media from governmental interference and to regulate the sector in order to achieve the dual objective of free expression and sanity in media practice. Thus the Constitutional provisions and any other laws that have a bearing on free expression should be interpreted with the history and purpose of the constitutional provisions in mind