Case Summary and Outcome

The High Court of Accra, Ghana, ordered the disclosure of documents concerning a controversial contract to brand buses with photos of current and past presidents. A group of citizens had applied for an order granting disclosure in the absence of a national freedom of information law. The Court reasoned that every person, including journalists, has a human and constitutional right to information “even in the absence of further legislation” and that while disclosure could be refused where necessary in a democratic society such as for reasons of national security or other national interest, it was of “overriding importance” that “the free and unrestricted marketplace for the free exchange of ideas and public debate is the heartbeat of democracy as well as the assurance of probity and accountability”.

Facts

In December 2015, the media reported on alleged corruption in the branding of public busses. The reports stated that the government, acting through the Ministry of Transport, had paid GH¢31,000 for branding each bus although the artist responsible for the branding stated he had charged only GH¢1,600. Lolan Kow Sagoe-Moses and six other individuals brought an application before the High Court in Accra, acting as a Human Rights court, seeking access to the information held by the Ministry of Transport concerning the bus branding contract. Sagoe-Moses stated that Article 41(f) of the Constitution placed a civic duty on individuals to “protect and preserve public property and expose and combat misuse and waster of public funds and property”. He applied for an order directing the Minister of Transport to provide them with copies of the branding contract, all other documents relating to the contract and to make full disclosure on the contract.

Decision Overview

Yeboah J delivered the judgment of the Human Rights Court.

The central issue before the Court was whether Sagoe-Moses had a right to access the information held by the Minister for Transport despite the lack of freedom of information legislation. This was a purely constitutional matter as Sagoe-Moses sought to exercise his constitutional rights and duties before making a request for the information from the Ministry of Transport.

Sagoe-Moses argued that in order to discharge his duties under Article 41(f), which obliges citizens to expose misuse of public funds, he was entitled to exercise his rights under Article 21 which protects the right to access to information. Article 21(a) and (f) state that “[a]ll persons shall have the right to (a) freedom of speech and expression, which shall include freedom of the press and other media; [and] (f) information, subject to such qualifications and laws as are necessary in a democratic society” (p. 4).

The Minister for Transport argued that Sagoe-Moses had not requested the information from him before making the application to court, and that, in any event, the right to information is subject to qualifications and laws necessary in a democratic society.

Yeboah examined the nature of the right to information given that the Minister of Transport’s defense was that the right was not absolute. He stated that “[e]very person in Ghana has the inalienable right to information including official information”. He explained that this right is “primarily inherent in the person as a human being”  which meant that “[i]t is not the legislation that vests the right in the individual; the individual has the right to information as both a human right and a constitutional right”. In other words, Yeboah said, “it is not the law that in the absence of a freedom of information legislation, a person in Ghana is bereft of the right to information … [i]n Ghana, every person, including journalists, is entitled to a human and constitutional right to information even in the absence of further legislation”. Accordingly, “[A]rticle 21(f) is enforceable as a human right without more”. Yeboah added that the State cannot avoid its obligations under the right to information simply by failing to implement access to information legislation (pages 6-7).

Yeboah explained that the purpose of legislation governing freedom of information is merely administrative and is designed to regulate the flow of access to information requests and identifying the responsible officials.

He undertook a detailed analysis of comparative jurisprudence from the European Court of Human Rights (ECtHR) and Australia. He referred to the European Court of Human Rights decision in Tarsasag a Szabadsagjogokert v. Hungary Application No 37374/05, and said that Article 10 of the European Convention on Human Rights was analogous to Article 21(1)(f) of the Ghanaian Constitution. He highlighted the identification by the ECtHR that the right to freedom of expression imposed positive obligations on states and that the right protects the right of individuals to seek information.

Yeboah also referred to the European Court of Human Rights decision in Guja v. Moldova Application No. 14277/04 which had held that “the public interest in having the information about undue pressure and wrongdoing within the [Prosecutor General’s] office was so important in a democratic society that it outweighed the interest in maintaining public confidence in the office”.

In discussing the Australian case of Director of Public Prosecutions v. Smith  [1991] 1 VR 63, Yeboah explained how there is a distinction made between information that is in the public interest and that which is merely of public interest as “[i]t may be of public interest for being sensational without being in the public interest understood in terms of national interest, national economy, public order, national security and public morality”. In that case, the Supreme Court of Victoria had also stated that an unreasonable disclosure of personal affairs was not included in the right to information.

Yeboah stated that the “freedom of expression and the right to information are so inextricably intertwined that one can be said to be worthless without the other” because “[t]o participate in the public marketplace of ideas, the citizens need the right to receive information and the freedom to express themselves without illegitimate interference including censorship and exclusion of public information from the reach of citizens”.

Yeboah held that, under Article 21(1)(f) of the Constitution, Sagoe-Moses was “entitled to access public information that is in the custody or possession of the Government upon a request and, where appropriate and lawful, the Government is bound to release the requested information or document”. He set out a non-exhaustive list of factors to be considered by officials in deciding whether to release the requested information which included the national interest, national security and whether the information is available. However, he stated that “of overriding importance is the fact that, in a democracy, the free and unrestricted marketplace for the free exchange of ideas and public debate is the heartbeat of democracy as well as the assurance of probity and accountability”.

In respect of the bus branding contract Yeboah held that it was matter of public interest and that it was therefore legitimate for Sagoe-Moses to request the information. He said that the specific purpose for which Sagoe-Moses sought the information was irrelevant.

Accordingly, Yeboah granted the relief sought by Sagoe-Moses and ordered that the Minister for Transport provide a copy of the bus branding contract. In respect of the other documents relating to the granting of the contract Yeboah said that the Minister was obliged to provide the information unless other factors such as national defense, foreign relations, confidentiality and privilege laws and personal privacy prevented the disclosure of the information. However, he said that any refusal to disclose documents would have to be justified in writing by the Minister for Transport. Yebaoh also ordered that the Minister for Transport provide answers to the questions sought by Sagoe-Moses, namely, whether the award of the contract was done in accordance with the Public Procurement Act, 2003, whether the procurement process was competitive and whether there were any other alternatives to the successful contract-holder.