An Accra high court has ruled that the request by the government for network operators in Ghana to supply subscriber details, for the purposes of contact tracing to help stop the spread of the novel coronavirus, was lawful.
However, the presiding judge, Justice Rebecca Sitte, ruled that a demand that the requested information include mobile money details of network subscribers constituted a breach of network subscribers’ privacy.
The applicant in the case, Francis Arthur, applied to the high court for the enforcement of his fundamental human rights. According to the applicant, by sharing his personal details with the third respondent (Kelni GVG) and fourth respondent (the National Communications Authority), the first respondent (Ghana Telecom) and second respondent (Scancom) had violated his fundamental human rights to privacy and other civil liberties, as had the third and fourth respondents.
The third and fourth respondents contended that Executive Instrument (EI) 63 was made in accordance with law and that, in signing it, the president did not violate any law.
The applicant questioned further that the data required from the first and second respondents and other network operators was to be used to create an emergency communication system.
This was for the purposes of contact tracing of individuals affected by a health emergency as a result of the COVID-19 outbreak, the court found, in accordance with EI 63, and the executive instrument did not violate the rights of the applicant.
Reliefs sought by applicant
The applicant Francis Arthur sought, among other things, the following reliefs from the court:
a. That by procuring or causing to be procured the applicant’s personal information from the first respondent or the first respondent without following laid-down law or procedure and without the applicant’s consent, the president and the government have violated the applicant’s rights to privacy, administrative justice, equality or non-discrimination.
b. By implementing or intending to implement the president’s directive in EI 63 to procure the applicant’s personal information from the first and second respondents, the third and fourth respondents are violating or likely to violate the applicant’s fundamental human rights to administrative justice, to privacy or to equality or non-discrimination; and
c. that by relying or intending to rely on EI 63 to make the applicant’s personal information in their possession available to the president, the government, the second respondent, the third respondent or any other person for that matter, the first and second respondents have violated, are violating or are likely to violate the applicant’s fundamental human rights to administrative justice, to privacy or to equality or non-discrimination.
d. An order of certiorari to quash the president’s directive in EI 63 to the extent that they have violated, are violating or are likely to violate the applicant’s fundamental human rights and freedoms;
e. An injunction to restrain the president, the government, the third respondent and the fourth respondent or their agents, assigns or workmen, howsoever described or named, from relying on EI 63 to procure the applicant’s personal information from the first respondent.
f. An injunction to restrain the first respondent and the second respondent, their agents, assigns or workmen, howsoever described or named from relying on EI 63 to make the applicant’s personal information in their possession available to the president, the government, the third and fourth respondents or their agents, assigns or workmen howsoever described or named, or to a third party.
The court’s decision
After reviewing all the processes filed by the parties, including written submissions in support of their respective cases, the court held that EI 63 was made in accordance with law and, to that extent, the president through the third respondent (Kelni GVG) and fourth respondent (the NCA) had acted within the confines of the law when they requested personal details of network subscribers from network operators for purposes of giving effect to EI 63.
The court further found that the request made by the fourth respondent through tje third respondent for network providers to make unhashed Mobile Money data, including merchant codes, did not accord with EI 63 as the executive instrument did not provide for the collection of such data. That court also argued that outbound subscriber data was not necessary for the purposes of contact tracing and should therefore be expunged from EI 63.
The court further restrained the first respondent (Ghana Telecom) and second respondent (Scancom Ghana Ltd) from sharing unhashed Mobile Money data as well as outbound subscriber data with the third and fourth respondents, and ordered the third and fourth respondents to ensure the retrieval and clearing of all such data already collected.
The court also held that, to the extent that EI 63 did not order the collection of unhashed mobile money data, the applicant’s right to privacy had been breached by the sharing of the unhashed mobile money data. It therefore awarded damages of GHC20,000 each against the third and fourth respondents and GHC10,000 each against the first and second respondents.
The court, however, dismissed the claims for certiorari to quash EI 63 as being unmeritorious. The court further dismissed the claims by the applicant that the president should be restrained from relying on EI 63 to procure the personal details of the applicant.
The court also dismissed the applicant’s claim that the first and second respondents should be restrained from relying on EI 63 to make the applicant’s details available to the president and the third and fourth respondents.
In essence, save for the finding that EI 63 did not require the sharing of unhashed mobile money data, and the finding that the outbound subscriber data was unnecessary for purposes of contact tracing and should therefore be expunged from EI 63, the applicants’ claims were all dismissed.
Wilberforce Asare
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