A private legal practitioner, Francis Kwarteng Arthur, has gone to court to challenge the directives of President Nana Akufo-Addo as contained in E.I. 63, the Establishment of Emergency Communications System Instrument, 2020.
As a result of the E.I. 63, a private liability company, Kelni GVG Limited, 3rd respondent in the case, has directed the telecommunication network operators, to release to them the personal information of subscribers.
These include but not limited to the subscriber database, subscriber cell reference data, uncashed subscriber mobile money transfer data, mobile money merchant codes and addresses.
Mr Arthur, in an application filed on Monday, 6 April 2020 before the Human Rights Division of the High Court, is, however, arguing that his personal information, which is in the possession of the 1st and 2nd respondents, Vodafone and MTN, respectively, is protected by the 1992 Republican Constitution of Ghana and may not be given out to a third party by the 1st and 2nd respondents without recourse to law or laid-down procedure or without his express permission or consent.
The application also contends among others that the Electronic Communications Act, 2008 (Act 775) contains a Condition Precedent for the President’s invocation of his power in section 100.
“The condition precedent is that the President should have first declared a State of Emergency under Article 31 of the 1992 Constitution, as stated in section 99 of Act 775.”
According to Mr Arthur, since the condition precedent has not been triggered, the President in signing E.I. 63, acted illegally.
The application also states further that the President’s directive contained in the E.I. 63 and its implementation by the respondents have violated, are violating or are likely to violate his fundamental human rights to administrative justice, privacy, equality and non-discrimination.
The 3rd respondent, Kelni GVG Limited, on or about March 27, 2020, acting on behalf of the President wrote to all communication network service operators directing them, to put the applicant’s personal information and that of other subscribers at their disposal. This information includes subscribers address, time of calls and/or text messages and call content as well as personal information on address, bank details etc.
The applicant is, therefore, asking the Courts to adjudge or declare the conduct by the 3rd respondent, Kelni GVG Limited, and the 4th respondent, the NCA, or any other person to procure his personal information from the 1st and 2nd respondents without following due process as a violation of his rights.
Further it is the argument of the applicant that there is no logical correlation between mobile money transfer data in particular or telecommunication data of a person in general and their exposure to the COVID-19 disease.
“It is, therefore, not surprising that governments the world over (including other less developed countries and countries that are having extensive cases of public health emergency) are not adopting this strange measure in fighting the disease or contact tracing. Indeed, it is only Ghana and Ghana alone which is adopting this strange measure,” the applicant contends.
In another development, the applicant is petitioning the Chief Executive of Vodafone Group Plc in the United Kingdom to impress upon its Ghana office not to succumb to the President of Ghana’s pressure in breach of customers’ fundamental human rights and the High Court’s orders. A similar petition would be sent to MTN international as well.