GOGO earlier set out the facts of this case, in which the High Court (Human Rights Division), presided over by H/L Nana Brew, held that the journalist’s conduct violated the Applicant’s right to privacy under Article 18(2) of the Constitution. Even if the information was of public interest, the Court held that the journalist ought not to publish it, but should instead report it to EOCO, the Police, CID, or the National Intelligence Bureau. Publication, the Court reasoned, would amount to an “evasion” of the Applicant’s privacy rights. On balance, privacy was said to outweigh public interest.
With respect, the judgment suffers from the following ten fundamental defects.
- The Judgment Does Violence to Supreme Court Doctrine on Prior Restraint
Prior restraint, censorship that stops speech before it occurs, is the most severe violation of media freedom and is heavily disfavored under Ghana’s Constitution.
In New Patriotic Party v. Inspector-General of Police (1993), the Supreme Court held that requiring prior permission before exercising a constitutional freedom renders the right illusory: whoever has the power to grant permission necessarily has the power to refuse it.
In Ghana Independent Broadcasters Association v. Attorney-General & National Media Commission (2016), the Court struck down content-authorization regimes, holding that the Constitution prefers free exercise first, accountability later, and tolerates prior restraint only in exceptional, tightly constrained circumstances clearly justified by law.
This judgment ignores that settled doctrine. A perpetual injunction restraining publication is the paradigmatic form of prior restraint. It imposes a permanent gag order without identifying any imminent or irreversible harm, applying strict necessity or proportionality, or considering less restrictive alternatives.
That is censorship by judicial decree.
- Public Interest Is Acknowledged Then Neutralized
The Court accepts that the information may be of public interest, then concludes that public interest cannot justify publication. This reduces public interest to constitutional nothingness. If public interest cannot justify publication even before publication occurs, it can never justify publication at all.
- Investigative Journalism Is Recast as Quasi-Policing
By holding that a journalist who uncovers possible wrongdoing must report only to state agencies and not publish, the Court recasts investigative journalism as quasi-policing.
That position is constitutionally indefensible. Journalists are not auxiliaries of EOCO, the Police, or the National Intelligence Bureau. Their constitutional role is to inform the public, not to report to state security agencies.
- The “Report to EOCO” Rule Has No Constitutional Basis
Nothing in Article 18 (privacy), Article 21 (expression), or Article 162 (media freedom) requires journalists to submit information to security agencies before publication. This reasoning effectively imposes a licensing and pre-clearance regime for speech, which the Constitution expressly forbids.
- Article 162 (Media Freedom) Is Barely Engaged
Although freedom of expression is mentioned, Article 162’s robust protection of media independence is never meaningfully applied. The Court does not engage with the media’s watchdog role, democratic accountability, or the chilling effect of injunctions on journalism.
Media freedom is treated as an afterthought, not as a constitutional pillar.
- Threatened Publication Is Treated as Proven Harm
The Court grants final reliefs, including a perpetual injunction, without any publication and without assessing imminence, likelihood, or irreversibility of harm. This dangerously lowers the threshold for constitutional censorship and invites speculative injunctions against speech.
- Privacy Is Conflated with Reputation
Much of the Applicant’s concern is reputational, not about intimate private life. Reputation is protected through defamation law, with its defenses of truth, fair comment, and public interest, not through an absolute privacy shield that forecloses publication entirely.
The judgment fails to distinguish the two.
- No Proportionality Analysis Is Performed
When courts limit constitutional rights, they must ask structured questions: Was stopping publication truly necessary? Were less restrictive measures available? Did the response fit the alleged harm?
The Court asked none of these. It simply declared that privacy must prevail. That is not constitutional balancing. That is choosing a winner.
- The Perpetual Injunction Is Grossly Overbroad
The injunction is unlimited in time, unlimited in scope, and applies to all information relating to the Applicant. This far exceeds what is reasonably necessary to protect privacy and violates basic proportionality principles.
- The Judgment Sets a Dangerous Constitutional Precedent
If followed, journalists must seek state permission before publishing, powerful individuals can silence scrutiny through human-rights applications, and courts become gatekeepers of corruption and accountability reporting. That is incompatible with constitutional democracy.
GOGO’s Bottom Line: This judgment is not just wrong. It is dangerous. It misunderstands investigative journalism, subordinates media freedom to privacy in absolute terms, and constitutionalizes prior restraint, the very practice Ghana’s Constitution was designed to abolish and the Supreme Court has repeatedly rejected.
PS: Yɛde post no bɛto hɔ. Yɛnyɛ comprehension consultants.
Da Yie!
By: Kwaku Azar
Kwaku Azar, originally known as Kwaku Asare, is an accounting professor and lawyer.
