Introduction

In 2015, Ghana's judiciary was shaken to its core when investigative journalist Anas Aremeyaw Anas released an explosive documentary titled "Ghana in the Eyes of God". The film exposed widespread “corruption” among judges and court officials, revealing a web of bribery and extortion that undermined the very fabric of the justice system.

Anas Aremeyaw Anas and his team at Tiger Eye Private Investigations had spent two years going undercover, using hidden cameras to capture court workers, clerks, and bailiffs conspiring with judges to influence court decisions in exchange for money, goats, sheep, and foodstuff. 

Rather than simply exposing the judicial officers voluntarily engaging in acts of corruption, the undercover operation actively created scenarios where judges were offered bribes, like cash and gifts, to influence their rulings and judgement. 

This raises concerns about whether the targeted individuals would have engaged in alleged corrupt acts without being induced to do so.

The fallout was immediate and intense. A disciplinary committee was established by the Judicial Council to investigate the allegations, and 14 Circuit Court judges challenged the committee's investigation procedure in the Fast Track High Court. Over 100 members of the Judicial Service were investigated, and the affected judges were suspended pending the outcome.

In December 2015, the Judicial Council removed 20 out of the 21 judges and magistrates cited in the petition from office, with some receiving benefits and others not[1].

The documentary sent shock waves through the Ghanaian society, sparking widespread outrage and calls for reform. Anas' investigation and the subsequent fallout highlighted the need for increased transparency and integrity in Ghana's institutions. 

The scandal led to multiple lawsuits initiated by those caught in Anas’ investigative work and brought Anas’ methods of investigation under scrutiny. This article will examine the concept of investigative journalism, particularly the use of entrapment in light of the COMMUNITY COURT OF JUSTICE, ECOWAS’s decision in Re HIS LORDSHIP JUSTICE PAUL UUTER DERY & 2 ORS VRS THE REPUBLIC OF GHANA[2].  

The case originates from an investigative piece which relied heavily on entrapment. As stated earlier, it resulted in multiple lawsuits in various Ghanaian courts and ultimately at the COMMUNITY COURT OF JUSTICE, ECOWAS. I submit that although the applicants were unsuccessful in their application before the court, a successful application could have resulted in a court-ordered award of damages or compensation to the applicants payable by the Republic of Ghana. 

This potential liability for significant financial awards among other things is precisely what makes the use of entrapment in investigative journalism so concerning.

I am clear in my mind that the use of entrapment in investigative journalism is unacceptable, as it is inherently illegal, unethical, and potentially harmful. It undermines the integrity of journalism and can result in wrongful convictions and damage reputations. 

The reasons for my submission above are as follows:

1. Investigative journalists using entrapment undermines individual autonomy.
2. Erosion of Trust in Journalism
3. Entrapment makes it difficult to prove intent and establish the criminal liability of a person.

At this point I will examine the following:

1. The COMMUNITY COURT OF JUSTICE, ECOWAS’s decision in Re HIS LORDSHIP JUSTICE PAUL UUTER DERY & 2 ORS VRS THE REPUBLIC OF GHANA.
2. The Relationship between investigative journalism and the public interest.
3. The Right to Privacy
4. Admissibility of evidence obtained from violating the Right to Privacy.
5. The use of entrapment in investigative journalism.

APPLICANTS’ CASE

  The Applicants contended that:

On 10th September 2015, they were informed via a letter dated 9th September 2015, signed by the Chief Justice of the Supreme Court of the Republic of Ghana, notifying them of a petition written by one Tiger Eye PI which had been sent to the President of Ghana seeking their removal from office as Justices of the Superior Court.

The Chief Justice requested that they submit their responses to the allegations by 14th September 2015. The 1st and 2nd Applicants contested the validity of the action of the Chief Justice and therefore filed a writ of summons at the Supreme Court of the Republic of Ghana against the petitioner, Tiger Eye PI, the Chief Justice, and the Attorney General. 

They prayed to the Court for a declaration that the petition to the President be declared null and void on the grounds of public disclosure of the evidence on which the petition was based.

The Supreme Court, in its judgment, agreed that the public disclosure of the evidence on which the petition was based and the subsequent publication of their names by the Chief Justice, violated the provisions of Article 146(8) of the 1992 Constitution but took the view that the violation did not automatically result in vitiating the petition as to render it void against them.

The 3rd Applicant, who responded to the petition as requested by the Chief Justice, was suspended after a purported prima facie case was made against him.

The Chief Justice, having purportedly made a determination of a prima facie case against the 3rd Applicant amongst other indicted Justices, brought the matter before a Judicial Disciplinary Committee pursuant to Articles 146(3), (4), and (5) of the 1992 Constitution. 

The Chief Justice, in making the said determination, relied on audio-visuals and transcripts of various discussions and other acts that allegedly took place between the petitioner, the judges concerned, and the Court staff, which the petitioner produced in support of the petition as evidence. 

The 3rd Applicant subsequently caused a writ of summons to be issued at the High Court against the petitioner, Tiger Eye PI, and 8 others contesting the validity of the determination of a prima facie case against him.

On 16th December 2015, the Judicial Council of Ghana, at its meeting, deliberated on the said petition and decided to pay the Applicants half of their monthly salaries while suspending the payment of all allowances. The Applicants were never invited and hence made no presentation at the meeting of the Judicial Council.

Upon receipt of the said decision, the 1st and 3rd Applicants commenced proceedings at the Supreme Court challenging the legality and constitutionality of the actions taken by the Judicial Council, which was dismissed by the Supreme Court.

Even though the Chief Executive Officer of Tiger Eye PI, one Anas Aremeyaw Anas, disclosed via social media its identity as a company registered in accordance with the laws of Ghana and licensed by law to carry out private investigations, a search conducted at the Registry of Companies of Ghana revealed that the petitioner was not a registered company in Ghana.

Tiger Eye PI Media Limited was founded with Anas Aremeyaw Anas as its sole shareholder. The search further disclosed that Tiger Eye PI Media Ltd became defunct in September 2012 and was replaced by Stallion Tiger Company Limited, which was incorporated on 12th September 2012.

Based on the search report, and in light of the fact that the Defendants in Suit No. J1/9/2016 (Tiger Eye PI, the Chief Justice, and the Attorney-General) referred to the petitioner in their Statement of defense as Anas Aremeyaw Anas and not Tiger Eye PI, the Applicants instituted another action at the Supreme Court challenging the legal capacity of the Petitioner, Tiger Eye PI, to submit a petition to the President seeking their removal from office.

On 27th October, 2016, the Supreme Court gave the judgment wherein it noted that there was evidence to show that the said Petition was indeed signed by Anas Aremeyaw Anas in his personal capacity as a citizen of Ghana and not as Tiger Eye P1. 

Whilst all these cases were pending, the Director General of the Criminal Investigations of the Ghana Police Service commenced an investigation into the allegations levied against the Applicants by Tiger Eye PI. 

In response, the 2nd and 3rd Applicants wrote a protest letter against the said investigations but the 1st Applicant caused a writ to be issued in the High Court challenging the validity of any such investigation by the Ghana Police Service. 

 Following from the above facts, the Applicants filed an application on 8th December, 2016 and sought the following reliefs:  

1. A DECLARATION that every individual within the territorial jurisdiction of the Republic of Ghana is entitled to the internationally recognized human rights enshrined in the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; and the African Charter on Human and Peoples’ Rights. 
2. A DECLARATION that the Republic of Ghana has an obligation to respect, protect and fulfil within the territorial jurisdiction of the Republic of Ghana the internationally recognized human rights of every individual enshrined in the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; and the African Charter on Human and Peoples’ Rights. 
3. A DECLARATION that the Republic of Ghana has violated and continues to violate the Applicants’ rights to fair hearing and administrative justice, enshrined in Article 10 of the Universal Declaration of Human Rights; Articles 5(2); and 14(1) of the International Covenant on Civil and Political Rights; and Article 7(1) (a) of the African Charter on Human and Peoples’ Rights. 
4.  A DECLARATION that the Republic of Ghana has violated and continues to violate the Applicants’ rights to equality before the law and freedom from discrimination enshrined in Articles 2 and 7 of the Universal Declaration of Human Rights; Articles 2; 14(1); and 26 of the International Covenant on Civil and Political Rights; and Articles 2 and 3 of the African Charter on Human and Peoples’ Rights. 
5. A DECLARATION that the Republic of Ghana has violated and continues to violate the Applicants’ rights to privacy enshrined in Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights. 
6. A DECLARATION that the Republic of Ghana has violated and continues to violate the Applicants rights to work enshrined in Article 23 of the Universal Declaration of Human Rights; Article 6 of the International Covenant on Economic, Social and Cultural Rights; and Article 15 of the African Charter on Human and Peoples’ Rights. 
7.  AN ORDER prohibiting the Republic of Ghana from continuing with the impeachment and investigation of the Applicants based solely on evidence unlawfully procured by Tiger Eye PI in violation of the Applicants’ rights to privacy enshrined in Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights. 
8. AN ORDER directed at the Republic of Ghana to pay with interests the salaries and allowances of the Applicants which it unlawfully suspended since January, 2016 arising out of a petition by Tiger Eye PI/Anas Aremeyaw Anas for their removal from office. 
9. AN ORDER directed at the Republic of Ghana to pay compensatory damages to the Applicants who are victims of human rights violations by the Republic of Ghana.
10. Costs including legal fees on full indemnity basis. 
11. Any other order(s) or direction(s) as the Court deems appropriate for giving effect to or enabling effect to be given to the declarations made herein.

THE APPLICANTS’ LEGAL ARGUMENTS IN SUPPORT OF THEIR CASE.

RIGHT TO FAIR HEARING AND ADMINISTRATIVE JUSTICE 

The Applicants invoked the following Human Rights Instruments: Article 10 of the Universal Declaration of Human Rights, Article 14(1) of the International Covenant on Civil and Political Rights, and Article 7(1)(a) of the African Charter on Human and Peoples’ Rights, and submitted that their right to a fair hearing had been breached.

Further, the Applicants argued that there was no provision in the 1992 Constitution of Ghana which empowered the Judicial Council to take the decisions on 16th December 2015 to pay the Applicants half salary and suspend the payment of all allowances to them as a result of the Tiger Eye PI petition without giving them the opportunity for a fair hearing.

The Applicants submitted that the Republic of Ghana, by the above actions and decisions as to the identity of even the Applicants’ accuser, showed how unfairly the Applicants had been treated.

This constituted a violation of the Applicants’ rights to a fair hearing as enshrined in Articles 10, 14(1), and 7(1)(a) of the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; and the African Charter on Human and Peoples’ Rights respectively.

EQUALITY BEFORE THE LAW AND FREEDOM FROM DISCRIMINATION 

The Applicants argued that they had not been treated equally before the law contrary to Articles 2 and 7 of the Universal Declaration of Human Rights, Articles 2 and 26 of the International Covenant on Civil and Political Rights, and Articles 2 and 3 of the African Charter on Human and Peoples’ Rights, all of which guarantee equality before the law and freedom from discrimination. 

The Applicants submitted that the Human Rights Committee, in its General Comment No. 18 at its thirty-seventh session in 1989, defined the term “discrimination” in paragraph 7 as follows: 

“…any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on equal footing, of all rights and freedoms.”

The Applicants argued that their case was treated differently from that of Agyei Twum v. The Attorney-General and Bright Akwetey [2005-2006] SCGLR 732 despite sharing similar situations. The Applicants submitted that in the Agyei Twum case, the petition was aborted for failure to make a prior determination of a prima facie case before appointing the committee to investigate and also for breach of the in-camera proceedings by the petitioner. 

This was in line with Article 146(2), (3), (6), and (8) of the Constitution. The Supreme Court declared that the petition was still valid despite the breaches of Article 146(8) of the Constitution by the Chief Justice and the petitioner.

The Applicants therefore submitted that the decision of the Supreme Court, by which it declared the petition still valid, was in violation of the Applicants’ right to equality before the law and freedom from discrimination in contravention of the above-stated provisions of the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; and the African Charter on Human and Peoples’ Rights.

RIGHT TO PRIVACY

The Applicants canvassed a legal argument on the violation of their right to privacy by invoking Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights.

The Applicants submitted that what constitutes interference with privacy in the context of digital communications and the meaning of “arbitrary and unlawful” use of private data was most relevant to the instant case. The Applicants argued that, in the instant case, the petitioner, Tiger Eye PI, or Anas Aremeyaw Anas, by secretly filming and recording their conversations, amounted to interference with their privacy and violated the law on the collection and retention of personal data as regulated by the Data Protection Act, 2012 (Act 843), law of Ghana.

The Applicants further argued that the report of the United Nations Office of the High Commissioner on Human Rights Committee; General Comment No. 16, which was adopted at its thirty-second session on 8th April 1988, had explained the right protected in Article 17 of the International Covenant on Civil and Political Rights to include unlawful and arbitrary use of data, which constitutes interference with privacy in the context of digital communications.

The Applicants further submitted that paragraph 2 of Article 17 of the International Covenant on Civil and Political Rights deals with the right to the protection of the law against unlawful or arbitrary interference with their privacy, and that it was also emphasized in the General Comment report. 

Therefore, the Applicants submitted that the Office of the United Nations High Commissioner on Human Rights, in paragraph 20 of its report to the Human Rights Council and the General Assembly, stated that: 

“…any capture of communications data is potentially an interference with privacy and, further, that the collection and retention of communications data amounts to an interference with privacy whether or not those data are subsequently consulted or used…”

It was the submission of the Applicants that for a person to lawfully obtain, process, hold, use, or disclose personal information, the person must register under Act 843. 

Therefore, the collection of the communication data of the Applicants by Tiger Eye PI or Anas Aremeyaw Anas in the instant case was unlawful and a violation of the Applicants’ rights to privacy as provided for in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, as well as the Data Protection Act of Ghana (Act 843) and Article 18(2) of the Constitution of Ghana.

RIGHT TO WORK

The Applicants argued the violation of their right to work by invoking Article 23(1) of the Universal Declaration of Human Rights, Article 6 of the International Covenant on Economic, Social and Cultural Rights, and Article 15 of the African Charter on Human and Peoples’ Rights.

The Applicants submitted that their suspension from work was an attempt to unfairly deprive them of their freely chosen employment and violated their right to work.

The Applicants relied on Article 23(1) of the Universal Declaration of Human Rights, which provides as follows: “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.”

This is also provided in Article 6 of the International Covenant on Economic, Social and Cultural Rights and Article 15 of the African Charter on Human and Peoples’ Rights.

 The Applicants also relied on the treaty body of the International Covenant on Economic, Social and Cultural Rights, that is, the Committee on Economic, Social and Cultural Rights, which explained the State’s obligations as required by the right to work in its General Comment No. 18, adopted on 24th November 2005 at its thirty-fifth session held in Geneva from 7th to 25th November 2005.

The Applicants submitted that the Republic of Ghana had taken steps aimed at violating the Applicants’ right to work through the impeachment processes initiated against them.

THE RESPONDENT’S CASE

 The case of the Respondent was that an investigation was conducted by one Tiger Eye PI into the activities of judiciary officers in Ghana in which various acts of corruption, bribery and unethical practices were uncovered. 

That upon this discovery, the President of Ghana was petitioned for the removal of the superior Justices who were implicated based on which the President of Ghana referred same to the Chief Justice in accordance with the provisions of the 1992 constitution of Ghana. 

The Respondent further averred that upon receipt of the petitions, the Chief Justice reviewed the said petitions together with the evidence which consisted mainly of audio visual recordings and found a prima facie case against the Applicant’s and other Justices of the High Court. 

That the said recordings showed the Applicants’ engaging parties outside their official functions, with the 1st Applicant seen in his official residence accepting monies from both his clerk and alleged relative of the accused person as well as sheep and goat from the said relative. 

That the 2nd Applicant was also seen taking the money from his table and putting it either in his bag or drawer by his side. That in so far as the 3rd Applicant is concerned, the money was brought to him in his house. 

The Respondent claimed that by a letter dated 9th September, 2015, the Chief Justice requested the Applicants to respond to the allegations contained in the petition by Monday, the 15th September, 2015.

 This was to enable the Chief Justice to determine whether or not a prima facie case had been established against the Applicants after taking into account the contents of the audio visual recordings. 

That without responding to the letter of 9th September, the 1st Applicant caused a writ to be issued in the Supreme Court against Tiger Eye PI, the Chief Justice, as well as the Attorney General in a writ numbered JI/29/2015. 

The 1st Applicant prayed the Supreme Court to declare the petition to the President as null and void on grounds of public disclosure of the evidence upon which the petition was based as same amounts to a violation of Article 146 (8) of the 1992 Constitution. 

Though the Supreme Court agreed with the 1st Applicants contention, it took the view that the said violation does not automatically result in vitiating the petition as to render it void against the 1st Applicant.

 The Respondent stated that the 2nd and 3rd Applicants responded to the letter of the Chief Justice denied the allegations in the petition against them. 

A committee was then set up to determine the petition in line with the provisions of Article 146 of the Constitution. The Chief Justice made a determination that a prima facie case has been made against the 2nd and 3rd Applicants.

 The 1st Applicant failed to respond to the letter from the Chief Justice but caused a writ to be issued in the High Court on the 17th November, 2015, challenging the petition brought against him as well as finding of a prima facie case against him by the Chief Justice. 

The Respondent averred that the 1st Applicant remained on duty, while the 2nd & 3rd Applicants were suspended in accordance with Article 146 (2) of the Constitution. That the 1st Applicant on the 14th of October, 2015, applied for administrative leave which was approved by the Chief Justice. 

However, on the 16th of December, 2015, the Judicial Council decided to place the Applicants on half salary for the period upon which they were on interdiction. That this position was communicated to the Judges through letters dated 8th and 11th January, 2016, by the Council in compliance with the provisions of Regulation 8 of the Labor Regulations on the conditions of service of employee Justices. That the council further suspended the payment of allowances of the Applicants’ with the exclusion of their rent pursuant to Article 158 (2) of its Constitution.

The Respondent further stated that the 2nd and 3rd Applicants then commenced proceedings in the Supreme Court of Ghana challenging the legality and constitutionality of the actions taken by the Judicial Council and same was dismissed by the Supreme Court. 

 The Respondent claimed that in an attempt to investigate the allegations which was now of public knowledge and interest, the Director-General of the Criminal Investigations of the Ghana Police Service invited the Applicants given that bribery and corruption is an offence in Ghana. 

While the 2nd and 3rd Applicants wrote a protest letter against the said investigations, the 1st Applicant caused a writ to be issued in the High Court challenging the validity of any such investigation by the Ghana Police Service. However, the application was struck out on grounds that the Court cannot stop the police from investigating a matter where it has reasonable grounds to believe that a crime has been committed. 

The Respondent further stated that in another writ, the Applicants challenged the legal capacity of Tiger Eye PI to investigate the subject matter of the petition on the grounds that it is not a legal person. This application was dismissed by the Court on grounds that the Applicants’ submission that Tiger Eye PI is an unincorporated body and therefore incompetent to submit a petition to the President is not only disingenuous, but also a ruse to sway the Supreme Court from the real issues. 

 The Respondent stated that in yet another Application before the Supreme Court, the Applicants argue that upon a true and proper interpretation of the 1992 Constitution of Ghana, the Chief Justice lacks the jurisdiction to enquire into the petition as the said petition made criminal allegations against the Applicants. 

That this application is still pending before the Court. The Respondent further stated that the suit before this Court is one of a series of proceedings contrived by the Applicants to frustrate their obligation to directly confront the audio visual evidence of their engagement in corrupt and unethical conduct whilst acting as judges of the High Court of the Republic of Ghana. 

LEGAL ARGUMENTS IN SUPPORT OF RESPONDENT’S CASE

THE RIGHT TO A FAIR HEARING 

The Respondent relied on Article 10 of Universal Declaration of Human Rights, Article 14 (1) of the International Covenant on Civil and Political Rights which are in pari-material with Article 7(1) (a) of the African charter on Human and Peoples’ Rights which states that: 

“Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force.”

Respondent argued that Applicants were heard by many Superior court of records in Ghana and lost the cases and that all they should have done was to seek for a judicial review of the Supreme Court decision if they were not satisfied. 

The RIGHT TO PRIVACY 

Respondent noted that the Applicants relied on Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights and Article 12 of the Universal Declaration of Human Rights which provides that; 

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation”. 

The Respondent disagreed with the assertion that they have acted contrary to the provisions of Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights. Respondent submits that Article 29 of The Universal Declaration of Human Rights and submitted that the rights conferred on individuals are subject to limitations placed by law on the exercise of such rights for the purpose of morality, public order and the general welfare in a democratic society.

The issue the court was called upon to determine was whether or not the Human Rights of the applicants have been violated as alleged?

DECISION OF THE COURT

The court in addressing the issue of the alleged breach of the Applicants right to fair hearing noted that the Applicants admitted that they were served with a notice by the Chief Justice to answer within a stipulated time to a petition submitted against them alleging judicial misconduct. The 2nd Applicant responded and was given an opportunity to cross examine the petitioner and upon review was informed that he had a case to answer[3].

 The 1st and 3rd Applicants however failed to respond instead filed an action at the High Court contesting the legality of the investigation. Having failed to respond to the preliminary process of the investigation, and having opted rightfully to lodge an appeal before a competent Court in accordance with Article 7(a) of the African Charter on Human and Peoples’ Rights, the Applicants are estopped from raising the flag of violation of fair hearing[4]. 

Also, there were about six cases the Applicants filed against the Respondent at different times before various national constituted courts which were heard and judgments rendered accordingly albeit against the Applicants. The court noted that failure to secure a favorable judgment was not tantamount to a denial of the right to fair hearing[5].

The court further noted that the right to privacy is not an absolute right but admits of various exceptions. 

Article 29 of theUniversal Declaration of Human Rights which is parimaterial with Article 18(2) of the Constitution of the Republic of Ghana limits the enjoyment of the Right to privacy. Article 29 Universal Declaration of Human Rights provides that: 

“1) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”

The court reasoned that,  the Whistle Blowing Act 2006 (Act 720) of Ghana empowers the disclosure of any information by any person on reasonable suspicion that another person has not complied with a law, is about or likely to break a law which imposes an obligation on that person, therefore the act of filming and recording the Applicants was justified and their right to privacy was not breached.

Furthermore, the court noted that, the right to work envisages the freedom to retain or stay on a job and earn the pay as agreed and not to be deprived of employment unfairly. 

That the concept of suspension is an administrative process which in the course of an investigation into an alleged wrong doing puts the affected officers temporarily on hold (out of work) to enable a fair and transparent investigation devoid of undue influence from the affected officers. This process sometimes comes with unpaid salary, which is not the situation in the instant case. 

The court reasoned that since the suspension is a temporary measure, it contemplates a reversal or confirmation of the suspension with the possibility of a recall of the affected officer and restoration of all allowance if the allegation is unsubstantiated or a dismissal if otherwise proved, therefore the Applicants’ right to work had not been violated by the Respondent.

Also,the court stated that for an action of discrimination to succeed, there must be established a difference of treatment in an identical or similar case.  However, not every difference in treatment will amount to a violation of Articles 2 and 7 of the Universal Declaration of Human Rights, Articles 2 and 26 of the International Covenant on Civil and Political Rights, and Articles 2 and 3 of the African Charter on Human and Peoples’ Rights. 

In distinguishing the application before the court from the Agyei-Twum case, the court observed that, following the establishment of a prima facie case against the Applicants, they were given an opportunity to respond to the allegation which is clearly distinguishable from the Agyei Twum case , where no prima facie case was made against the Plaintiff neither was he invited to answer any allegation based on the initial findings.

The Applicants having failed to establish that the two situations are identical in all ramifications, a difference in treatment is justified and a claim of discrimination fails.               

THE RELATIONSHIP BETWEEN PUBLIC INTEREST AND INVESTIGATIVE JOURNALISM.

Investigative journalism, with its meticulous research and dogged pursuit of truth, serves as a vital instrument in uncovering corruption, abuse of power, and other wrongdoing. This brand of journalism is inextricably linked to the notion of public interest.

Article 295 the 1992 Constitution defines Public interest as  

“includes any right or advantage which enures or is intended to enure to the benefit generally of the whole of the people of Ghana”.

Public Interest refers to the well-being, welfare, or benefit of society as a whole[6]. It encompasses the common good, general welfare, and well-being of the community[7].

Investigative journalism involves in-depth research and analysis to uncover hidden information, often revealing corruption, abuse of power, or other wrongdoing[8].

Investigative journalism plays a critical role in serving society by detecting and exposing corruption, enhancing transparency, and reinforcing public opinion. It is meant to uncover hidden facts; this means “going after what someone wants to hide”[9]. 

Another defining characteristic of investigative journalism and its variant, undercover reporting is that it seeks to expose unethical, immoral and illegal behaviour by government officials, politicians as well as private citizens[10].

It has the potential to make a worthwhile contribution to society by “drawing attention to failures within society’s systems of regulation and to the ways in which those systems can be circumvented by the rich, the powerful and the corrupt”[11].

According to the Society of Professional Journalists, investigative journalism is essential for a healthy democracy, as it “provides citizens with the information they need to make informed decisions and to hold their leaders accountable”[12]. 

Investigative journalism has led to numerous high-profile exposes, such as the Watergate scandal[13] and the Panama Papers[14], which brought about significant reforms and accountability[15].

Investigative reporting encourages government and corporate transparency, ensuring that those in power are answerable to the public[16].

Investigative journalism provides citizens with accurate information, enabling them to engage in informed discussions and make educated decisions which has led to significant reforms, such as amendment to existing laws, changes in policies and institutional practices[17].

As Bill Moyers, a renowned journalist, notes, “Investigative journalism is the backbone of democracy… it’s the way we hold those in power accountable[18].

As a vital component of a healthy democracy, investigative journalism is essential to creating a more just, transparent, and accountable society.

THE RIGHT TO PRIVACY.

The origin of the right to privacy is derived from the principle of the right ‘to be left alone’ which can be evoked to protect the privacy of an individual from invasion either by a too enterprising press, a photographer, or the possessions of any other modern devices for the recording or reproducing of scenes and sounds[19].

The right to privacy as enshrined in international human rights and protected by numerous national constitutions is a fundamental human right that safeguards individuals from unnecessary intrusions into their private lives. 

Privacy is defined as the state of being free from intrusion or disturbance in one’s personal life or affairs; the right to be left alone[20]. 

Privacy is so broad a constitutional right that it defies a concise and simple definition. It comprises a large bundle of rights some of which have been listed in the article as privacy of the home, property, and correspondence or communication. This list is not exhaustive and the full scope of the right of privacy cannot possibly be set out in the text of the Constitution[21].

Whiles some National Constitutions expressly provides for the Right to Privacy, the Indian Constitution for instance does not contain an express provision on the Right to Privacy. 

In Ghana, the 1992 Constitution protects and provides for the Right to Privacy. Article 18(2) of the 1992 Constitution provides that, 

“No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others”.

The right to privacy protects an individual’s autonomy to live their life free from unwarranted scrutiny, intrusion or publicity, and to maintain secrecy, anonymity, and seclusion in their personal affairs[22].

Article 12 of the Universal Declaration of Human Rights provides that, 

“No person shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour or reputation”. 

It is instructive to note that Article 17 of the International Covenant for Civil and Political Rights is reproduced verbatim et litteratim from Article 12 of the Universal Declaration of Human Rights.

 Section 10 of the Independent Press Standards Organisation editor code provides that 

“i. The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally held information without consent.”

In essence, Section 10 of the Independent Press Standards Organisation editor code prohibits the use of hidden cameras, microphones, or other clandestine devices to obtain information or photos without consent, unless there is a strong public interest justification.

It also prohibits photographing people in private places without their consent, unless justified in the public interest. 

The Right to Privacy under Indian Law

The Constitution of India does not specifically guarantee a right to privacy. However, through various judgement over the years the Courts of the country have interpreted the other rights in the Constitution to be giving rise to a (limited) right to privacy – primarily through Article 21 of the Indian Constitution which provides for the right to life and liberty[23]. In 2015, this interpretation was challenged and referred to a larger Bench of the Supreme Court in the writ petition of Justice K.S Puttaswamy & Another vs. Union of India and Others[24].

The Court in a landmark judgement on 24 August, 2017 unanimously ruled that privacy is a fundamental right, and that the right to privacy is protected as an intrinsic part of the right to life and personal liberty, as a part of the freedoms guaranteed by Part III of the Constitution. The Bench also ruled that the right to privacy is not absolute, but is subject to reasonable restrictions (as is every other fundamental right)[25].

Exceptions to the enjoyment of the Right to Privacy.

The combined effect of Articles 12(2) and 18(2) of the 1992 Constitution is that the right to privacy is not absolute and may be breached in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others and in the public interest.

ADMISSIBILITY OF EVIDENCE OBTAINED FROM VIOLATING THE RIGHT TO PRIVACY.

Under the Common law, evidence is generally not rendered inadmissible by how it is obtained. If it is relevant and has a probative value which substantially outweighs any prejudicial value, it is admissible; irrespective of how it was obtained.

As noted by Crompton J, 

“it matters not how you get it if you steal it even, it would be admissible in evidence”[26].

Section 51(1) of the Evidence Act 1975 (NRCD 323) provides that 

"All relevant evidence is admissible except as otherwise provided by any enactment."

Ghana has adopted the discretionary rule for the exclusion of evidence obtained in violation of human rights guaranteed under the 1992 Constitution. In proceedings, whether criminal or civil, and an objection is taken, the court has to exercise a discretion as to whether on the facts of the case the evidence ought to be excluded or admitted[27].

As to the grounds upon which evidence obtained in violation of human rights guaranteed in the 1992 constitution may be excluded, the Supreme Court[28] noted that 

“where on the facts of a case a court comes to the conclusion that the admission of such evidence could bring the administration of justice into disrepute or affect the fairness of the proceedings, then it ought to exclude it”.

Furthermore the Supreme Court[29] reasoned that in

“determining whether impugned evidence could bring the administration of justice into disrepute or make proceedings unfair, the court must consider all the circumstances of the case; paying attention to the nature of the right that has been violated and the manner and degree of the violation, either deliberate or innocuous; the gravity of the crime being tried and the manner the accused committed the offence as well as the severity of the sentence the offence attracts. The impact that exclusion of the evidence may have on the outcome of the case, particularly in civil cases where establishment of the actual facts is of high premium. These factors to be considered in determining whether to exclude or admit evidence obtained in breach of human rights are not exhaustive but are only to serve as guides to courts”.

I submit that, although the 1992 Constitution of Ghana protects the right to privacy, it also permits instances where this right can be lawfully infringed upon.

Furthermore, case law has established that evidence obtained through a breach of the Right to Privacy may still be admissible in court. The nuance of this approach acknowledges the importance of balancing individual privacy rights with competing interests such as National Security, Public Safety, and the pursuit of justice.

THE USE OF ENTRAPMENT IN INVESTIGATIVE JOURNALISM

Entrapment is the act of inducing someone to commit a crime or engage in illegal activity, often using deception or coercion[30]. 

Entrapment involves the act of luring individuals into committing offenses they would not have otherwise engaged in, primarily to expose their wrongdoings.

Anas Aremeyaw Anas' investigative process often starts with reports of corruption in a specific organization. A Tiger Eye representative then joins the organization undercover, initially to verify these suspicions. Operatives from Tiger Eye might take on roles like cleaners, laborers, or administrative staff, positioning cameras in key areas for surveillance[31].

They may help other team members infiltrate the organization to deepen the investigation. This approach usually leads to setting up a situation where the individual under investigation is offered a bribe or similar inducement, serving as an integrity test to see if they will engage in corrupt activities. The goal is to determine whether the person will succumb to the temptation presented[32].

CRITIQUE OF USING ENTRAPMENT IN INVESTIGATIVE JOURNALISM

Entrapment undermines individual autonomy.

Entrapment in investigative journalism undermines personal autonomy by manipulating individuals into committing crimes or engage in unethical behaviors, often through deception or creation of non-existent scenarios. This compromises human free choices. 

Autonomy refers to the capacity of individuals to make informed, uncoerced decisions about their own lives. It is a fundamental principle in both ethical theory and human rights law. Philosopher Immanuel Kant emphasized the importance of autonomy, arguing that respecting individuals' capacity for self-governance is essential to treating them as ends in themselves rather than as means to an end[33].

Personal autonomy refers to the ability to make decisions and act upon them without external influence or coercion[34].

 The Ethical Journalism Network (EJN) outlines principles for ethical journalism, including accuracy, independence, impartiality, humanity, and accountability. Entrapment conflicts with several of these principles, particularly those of humanity and accountability. By creating deceptive scenarios, journalists fail to treat their subjects with the dignity and respect they deserve as autonomous individuals.

Entrapment often creates Non-Existent scenes or situations by inducing individuals into committing crimes. This can be achieved by staging scenarios. 

It is my submission that in the interest of justice and fairness, a person cannot be fully accountable for an act that is a product of his right to free choices being compromised.

Entrapment makes it difficult to prove intent and establish the criminal liability of a person.

Underpinning our criminal jurisprudence in Ghana is the Right to fair trial as enshrined in Article 19 of the 1992 Constitution. In criminal cases, the prosecution must adduce sufficient evidence to satisfy the ingredients of the specific offence an accused person is charged with, after which an opportunity is afforded to an accused person to be heard.

In the determination of the criminal liability of a person except in strict liability offences which requires the establishment of only the actus reus, the prosecution is required to prove the actus reus and the mens rea. A combination of the both leads to the establishment of a crime.

The actus reus is the prohibited act and the mens rea is the guilty mind of the accused person at the time the actus reus was committed.

In R v Tolson[35], where the defendant who was charged with bigamy remarried whilst her husband was still alive, believing on reasonable ground that her husband was dead, in quashing her conviction since her belief was an honest one Stephen J noted that, 

“The full definition of every crime contains expressly or by implication a proposition as to a state of mind. Therefore, if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed; or, again, if a crime if fully defined, nothing amounts to that crime which does not satisfy that definition”.

Failure of the prosecution to adduce evidence as to the intent of the accused person if required in establishing the offence will lead to the acquittal of the accused person.

The use of entrapment in investigative journalism raises a critical question: 

Can an accused person be said have the requisite intent to commit an offence when that offence is instigated, precipitated or staged by another person?

I answer the question above in the negative.

Unless proven that the accused person voluntarily without influence, inducement and coercion would have committed the offence, I submit that, an accused person cannot be said to have the requisite intent to commit an offence.

Erosion of Trust in Journalism

The use of entrapment can lead to a broader erosion of trust in journalism. When the public becomes aware that journalists use deceptive practices to obtain stories, it can lead to skepticism and cynicism about the media's motives and integrity. This erosion of trust can have long-term consequences for the credibility of the press and its ability to hold power accountable.

Alternatives to Entrapment in Investigative Journalism

Ethical Investigative Techniques

Journalists can employ a range of ethical investigative techniques that do not compromise individual autonomy. These include thorough research, interviews, and the use of public records. By relying on these methods, journalists can uncover wrongdoing without resorting to deceptive practices.

Whistleblower Protections

Strengthening protections for whistleblowers can also reduce the perceived need for entrapment. Whistleblowers play a crucial role in exposing corruption and unethical behavior from within organizations. By ensuring that whistleblowers are protected from retaliation, journalists can encourage the flow of information without compromising ethical standards.

Conclusion

The use of entrapment by investigative journalists undermines individual autonomy and raises significant ethical and legal concerns. By creating artificial scenarios that induce individuals to engage in unethical or illegal behavior, journalists violate principles of trust, manipulation, and coercion. The erosion of public trust in journalism and the personal harm to subjects of entrapment further highlight the negative consequences of such practices. Instead, journalists should employ ethical investigative techniques and support whistleblower protections to uphold the integrity of their profession and respect for individual autonomy.
 

[1] M Mark and M Monica, ‘Ghana’s top undercover journalist masters disguise to expose corruption’ (The Guardian, 24 September 2015) citinewsroom.com 

[2]SUIT NO: ECW/CCJ/APP/42/16 JUDGMENT NO: ECW/CCJ/JUD/17/19

[3] Ibid page 18

[4]  page 19

[5]  ibid

[6] Dicey, A.V. (1885). Introduction to the Study of the Law of the Constitution

[7] Sullivan, R. (1989). The Public Interest and the constitution. Harvard Law Review.

[8] Ettema, J.S, & Glasser, T.L. (1998). 

[9] (H. de Burgh, 2008, p. 15).

[10] Kovach and Rosentiel (2014). 

[11] (H. de Burgh, 2008)

[12] Society of Professional Journalists (SPJ). (2022). Code of Ethics

[13] The Washington Post . (1972). Watergate Investigation

[14] International Consortium of Investigative Journalists (ICIJ). (2016). Panama Papers.

[15] The Washington Post . (1972); ICIJ,2016

[16] Transparency International. (2020). Corruption Perceptions Index.

[17] Pew Research Center. (2019). State of the News Media

[18] Moyers, B. (2019). The Importance of Investigative Journalism. 

[19] Prince Albert Vs Strange; (1849) 47 ER 1302

[20] Black’s Law Dictionary, 11th ed., 2019, p. 1374

[21] PWAMANG JSC in Re RAPHAEL CUBAGEE VRS. MICHAEL YEBOAH ASARE & 2 ORS REFERENCE NO. J6/04/2017, 28TH FEBRUARY, 2018.

[22] Madam Abena Pokua v Agricultural Development Bank Unreported Judgment of Supreme Court dated 20th December, 2017 in Suit No CA/J4/31/2015.

[23] India. Stakeholder Report, Universal Periodic Review, 27th Session on "The Right to Privacy in India"

[24][Writ Petition (civil) No. 494 of 2012] 4

[25] Mainstream Weekly, Vol LV No. 37 dated 2 September, 2017

[26] R v. Leatham (1861) 8 Cox CC 498 at 501

[27] S.Y. Bimpong-Buta; “The Role of the Supreme Court in Development of Constitutional Law in Ghana” (2007) at page 471

[28] ibid 2 at page 16

[29] ibid

[30] Merriam-Webster Dictionary (11th edition).

[31] https://doi.org/10.1007/s11572-017-9436-7 accessed 2 August 2023. 37 Isaac Boaheng, Assessing Anas’ Methodology of Undercover Investigative Journalism in the Light of the Doctrine of Free Will, E-Journal of Humanities, Arts and Social Sciences (EHASS) Volume 1 Issue 6 – October 2020, 228-233

[32] ibid

[33] Kant, I (1785), Grounding for the Metaphysics of Morals

[34] Beaucoup, T. L. & Childress, J. F. (2013). 

[35] (1889) 23 QBD 168