Contents

1. Summary
   1. Facts
   2. Holding
2. Comment
3. Further resources
4. The Decision

Summary

Francis Kwarteng Arthur sued Ghana Telecom, MTN, Kelni GVG, and the National Communications Authority over the President's directive (EI 63) to release personal data for Covid-19 tracing. The High Court awarded Arthur damages for privacy violation and struck down parts of EI 63. The Court of Appeal upheld the damages but overturned the timeline for amending EI 63, affirming separation of powers.

Facts

The Applicant/Respondent, Francis Kwarteng Arthur, was a communication network subscriber to Ghana Telecom Co. Ltd. (1st Respondent) and Scancom PLC (MTN Ghana, 2nd Respondent).

On 23rd March 2020, during the Covid-19 pandemic, the President of Ghana issued an Executive Instrument, the Establishment of Emergency Communications System Instrument 2020 (E1 63), under section 100 of the Electronic Communications Act, 2008 (Act 775).

EI 63 directed all Communication Network Operators or Service Providers to cooperate and make available certain personal information in their possession to the President.

The 4th Respondent/Appellant, the National Communications Authority, as the statutory body regulating communication services, was responsible for ensuring compliance with this Executive Instrument.

The Applicant/Respondent filed an Amended Originating Motion on Notice on 23rd July 2020 for the enforcement of his fundamental human rights. He claimed that the procurement of his personal information without his consent violated his rights to administrative justice, privacy, and equality or non-discrimination. He sought reliefs including orders of certiorari to quash the President’s directives in EI 63 and injunctions to restrain the Respondents from relying on EI 63 to procure or disclose his personal information.

The 1st Respondent (Ghana Telecom Co. Ltd.) stated that the 3rd Respondent (Kelni GVG Ltd.) was designated by the government to manage the common platform hosting the requested information under EI 63. It argued that the circumstances necessitated prompt action to achieve the objectives of EI 63 and that it had to adhere to laws protecting personal data while complying with the directive. It claimed the information was for contact tracing and identifying places visited by infected persons and that EI 63 gave the President the power to request such data for national security or law enforcement. It denied violating the Applicant’s fundamental human rights.

The 2nd Respondent (Scancom PLC - MTN Ghana) averred that it respects the laws of Ghana and the privacy of its subscribers and would only disclose personal information in accordance with the law. It stated it had a duty to cooperate with the government during the pandemic and engaged the 4th Respondent to implement EI 63 while protecting subscriber privacy, providing guidelines as per Exhibit M1.

The 3rd Respondent (Kelni GVG Ltd.) contended that EI 63 was proportionate and did not obliterate the Applicant’s right to privacy. It argued that the Applicant had not demonstrated a violation of his rights and that any interference was justified under the Constitution.

The 4th Respondent/Appellant (National Communications Authority) argued that EI 63 was made under the powers conferred on the President by section 100 of Act 775 to address a public health emergency and was justified under Article 18(2) of the Constitution. It claimed the Applicant’s claims were misplaced.

The 5th Respondent (The Attorney General) the judgement did not explicitly detail the specific arguments made by the Attorney General, but as the principal legal advisor to the government, their position would likely align with the justification for EI 63 being lawful and necessary in the context of the pandemic.

The Court found that: