Bounded Freedom; A Test Case For Free Speech – By Emmanuel Asare

“Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears”Justice Louis D. Brandeis

In every vigorous and discerning marketplace of ideas such as the one we have in the country, the right of rejoinder is afforded anyone who feels hurt or harmed by a false publication. Where this option appears inadequate, a party may bring a civil action in a court of law against authors/publishers of false information. If as a people, we do not find these time tested processes satisfactory–in curing the malice fraught in false publications–let us refine and build on them instead of attempting to give free speech a bad name.

It must be pointed out that as a country we have come a long way. Yes a long tortuous path from criminalizing speech particularly political speech. From the days of the Great Kwame Nkrumah’s preventive detention act (PDA) (where the slightest expression of disagreement with the beloved leader resulted in long prison sentences) through pernicious military regimes (which had little regard for dissent) through to the criminal libel days of the fourth republic.

Thankfully, reason prevailed and the criminal libel law was yanked from our statute books. This has ensured the liberalization of the media and political landscape to heights unprecedented in our country’s history. Today in Ghana, people speak/write freely, assemble freely and the number of media outlets continue to up. This is how things must be in any civilized democracy but the threats to free speech appear to be rearing its ugly head at us again.

Beginning 2010, security personnel in the country under the auspices of a moribund law—the law against causing fear, panic and alarm—have arrested and prosecuted scores of political operatives for one comment or other. And whiles reasonable minds can agree to the fact that some of these comments are indeed distasteful; the question is must the police use arrest and criminal prosecutions to make sanity prevail? And must they be involved in sanitizing our airwaves at all?

As already pointed out there are CIVIL remedies in our current constitutional arrangement that take care of such excesses. For one, persons harmed by slanderous or libelous statements have the right to a rejoinder. Which to the best my knowledge is widely in use. The fact is several instances abound where rejoinders have being employed by the state and individuals alike to successfully clear the air. The affected may want to also take their chances in a court of law by filing for civil damages.

Are the police therefore saying to Ghanaians that the people on whose behalf they purport to act through their arrest cannot avail themselves to these tested processes? or might it be the case that somehow they have convince themselves that the only means of taming recklessness on our airwaves will be through wanton criminal arrest and prosecution. This is incredible!!

A little digression reader: it appears to this author that the Ghana police service or sections of it enjoy dabbling in civil matters. Because how else can one fathom and explain the continued involvement of the police in debt collection for instance. This unprofessional attitude unbecoming of our police force must cease!!! In any case are there not weightier matters–arm robbery, fraudulent land acquisitions, money laundering and the like–that should arrest and engage the attention of the Ghana police service or the Bureau of National investigation (BNI) for that matter rather the conscientious activation of moribund laws appears to be what they prefer.

I am not holding brief for people who make unsubstantiated pronouncements or supporting the recklessness on our airwaves for that matter. Far from that. Indeed I believe as many Ghanaians do that, freedom of speech comes with responsibilities and that people who have the opportunity to speak and write in the media ought to do so in decorum. But I do not think the use of criminal sanctions as punishment for bad commentary on our airwaves does our nascent democracy any good. Doing so only lead us into a suffocated atmosphere where the twin evil of suppression and repression reigns.

Quite clearly, Ernest Owusu Bempah went overboard with his comment about the First Lady (Mrs. Naadu Mills, equally Nana Darkwa’s comment about former president Rawlings was unwarranted as it was false. But on the whole I think the police and the BNI instead of arresting these people for their unsavory comments could have done something better with their time. This is because as justice Louis Brandeis noted decades ago: no DANGER flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is an opportunity for full discussion. Only an emergency can justify repression. A word to the wise is enough.

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