I-CAN-GHANA

Published in Ghanaian Times, Saturday, February 20, 2010 Page 15

208.   Publication of false news
(1)  A person who publishes or reproduces a statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace knowing or having reason to believe that the statement, rumour or report is false commits a misdemeanour.
(2)  It is not a defence to a charge under subsection (1) that the person charged did not know or did not have reason to believe that the statement, rumour or report was false, unless it is proved that, prior to the publication, that person took reasonable measures to verify the accuracy of the statement, rumour or report.

I have been deeply concerned about the tone and quality of discussions in the press generally, and the penchant for certain journalist, discussants, ‘social commentators’ and callers to make wild and unsubstantiated claims and allegations, attacking the integrity of other Ghanaians, and when challenged, limply say “I stand by my story.”

Personally, having been the victim of one such unwarranted attack by a newspaper, I definitely know how angry that makes one feel. I definitely empathize with political leaders who are subjected to such attack on almost a daily basis. But in a liberal constitutional dispensation, a person who is sufficiently aggrieved by such statements should head to the courts and file a civil action in defamation, and not rely on or employ the machinery of state to prosecute the author of the falsehood.

The gentleman is charged under section 208 of the Criminal Offences Act. This offence is not new and existed under section 440 of the Criminal Code, Cap. 9 (191 Rev.) Offences of this nature, just like the repealed criminal libel, have their roots in the old English statutes, namely the Slanderous Reports 1275 “de scandalis magnatum” (3 Edw 1, c 34); Penalty for Slandering Great Men, 1378 (2 Ric Stat 1, c 5) and Penalty for Slandering Great Men, 1388 (12 Ric 2, c 11), which prohibited “telling or publishing any false news or tales whereby discord or occasion of discord or slander might grow between the King and the people.”

Thus in the old English case of R v Harvey (1823) 2 B & C 257 it was held that a publication that King George III was labouring under mental derangement was “an offence on the ground that it tended to unsettle and agitate the public mind, and to lower the respect due to the King.” Thankfully, for the English, these statutes were repealed in 1887 by the Statute Law Revision Act, 1887 (50 & 51 Vict, c 59).

Section 208 of our law has remained intact and renewed notwithstanding the repeal of its English antecedents. However, it has been the subject of some judicial interpretation in Ghana, and it has, for instance been held that merely making a false and highly mischievous statement did not constitute an offence under the section. It must be shown that the statement was (i) published, and (ii) likely to cause fear and alarm to the public or to disturb the public peace.

The test whether the offence is committed, the courts have held, is not even the actual result, but whether the false statement was likely to cause fear or a breach of the peace.

The question that one would have expected to police to have considered in deciding to lay a charge and arraign the gentleman, was not whether some party supporter or supporters of the alleged target of the false statement actually massed up at the radio station; because that can be easily orchestrated. The question is whether such a statement is apt or prone to cause fear and/or a breach of the peace. Thus the character of the persons to whom the false publication was made, i.e. the persons who listen to the relevant radio station, must also be taken into account. The question that one would have expected the police to have asked itself before charging and arraigning the gentleman was whether the reasonable Ghanaian listening to the gentleman’s empty effusions on radio was likely to be put in some fear. What fear? Fear that the target of the false statement is a person prone to committing arson? Or that Ghanaians are so fickle minded that we are likely to disturb the peace on account of the gentleman’s false statements, which were challenged there and then on air, and was it was shown that he had no bases whatsoever to make the allegations?

It is unfortunate that this section did not catch the eye of the government when criminal libel and other related offences were repealed in 2001. Or was it deliberately ignored? Although the section attracted the attention of the Statute Law Revision Commissioner in his recent review of statutes, all he did was to modernize the language of the drafting. For my part, I fully expect that the gentleman will be granted bail either on appeal or renewed application for bail. But I also fully expect the Attorney-General to put an end to this discussion by discontinuing the trial immediate. Then we can begin a discussion and debate whether this section still has relevance in a liberal democratic country.

EDITOR’S NOTE: The author wrote this article before the accused was granted bail.