For the past few days, we have been hearing that, following the recent E.I 63 passed by the President of Ghana to help in the fight against COVID-19, some telecommunication companies might have breached customers’ privacy by releasing customer data to the National Communications Authority (NCA).
The E.I 63 is an emergency communication instrument with a preamble that basically gives the government the power to establish an emergency communication system to trace all contacts of persons suspected of or actually affected by the COVID-19 health emergency. This is to also help identify the places listed by persons suspected of or actually affected by the COVID-19 health emergency.
Explaining the basis of the law vis a vis claims of the act breaching the privacy of customers of the various telecommunication companies in the country on the Happy Morning Show was Lawyer Deric Owusu-Boateng, Senior Associate at K-Archy & Company (a Law Firm in Accra).
Speaking to Happy 98.9 FM’s Samuel Eshun, the lawyer indicated that the E.I. 63 is pursuant to an existing act, “what we call the electronic communication act 775. Looking at section 100 of that act, it states clearly that the government can access the data of customers of telcos.” And to do that, there must be an executive instrument.
He indicated that by the executive instrument, the government can write to the telcos asking for the data of their Ghanaian customers or they can even by an order demand for the various communication and user information.
Responding to concerns of breach of privacy and the fundamental human rights, Lawyer Owusu-Boateng mentioned that the privacy of citizens is enshrined in article 12 of the 1992 constitution but there were exceptions to that when it came to issues of public interest and good.
He said, “In that regard, our right of privacy must always be respected and in fact, the 1992 constitution imposes an obligation on the arms of government and governmental organs to respect and uphold these rights and freedoms that are enshrined in the constitution but you see, the same constitution qualifies and places a restriction on the enjoyment of this freedom.”
He divulged that Article 12 of the Constitution provides as follows:
- Protection of Fundamental Human Rights and Freedoms
Section 2): Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest.
On his authority, no person will be subjected to interference with the privacy of his home or his property, his correspondents and communication except in accordance with the law when necessary for the interest of the public. Listing conditions that make it necessary for privacy to be breached on the basis of public interest, he noted that these included issues affecting the economic well-being, public safety and protection of health, most of which the country is currently dealing with under the COVID-19 pandemic.
From the constitutional provisions mentioned above, it is clear that the rights of individual customers by way of protection of their personal data is not absolute at all times. Even though every person in Ghana is entitled to the fundamental human rights and freedoms contained in the constitution, it is subject to among other things the public interest.
Lawyer Deric Owusu-Boateng, however, assured Ghanaians that there is no cause for alarm. He believes the government will not abuse the E.I 63 and will use it appropriately for its contact tracing efforts in the bid to curb the COVID-19 pandemic.
By: Joel Sanco
