Ghana's free speech debate: Where should the law draw the line?

Ghana has long had a vibrant media landscape and a reputation for robust political debate.

However, a series of cases involving statements made online is fuelling a fresh debate over freedom of expression and how far the state should go in responding to speech it considers unlawful.

This has become highly relevant due to an incident which happened last week when officers from Ghana's Economic and Organised Crime Office (EOCO) attempted to arrest opposition Member of Parliament and lawyer Nana Agyei Baffour Awuah at the Accra High Court.

The confrontation, which became a viral moment on across socials, happened shortly after Baffour Awuah had appeared in court for Salomey Awiti Baffoe, a senior nursing officer charged with abetting the publication of false news.

However, beyond the dispute over the attempted arrest lies a larger question confronting Ghana: where should the line be drawn between tackling potentially harmful or false information and protecting freedom of expression?

A case over online speech

Baffoe, 40, is accused of playing a role in the circulation of material connected to a social media account - TikTok known as "Ghana Jollof".

Prosecutors allege that she acted as a liaison for one Barbara Asantewaa Kodua, who is associated with the account, and helped recruit people to redistribute videos on social media.

Baffoe has pleaded not guilty.

On 24 September, the High Court in Accra refused her application for bail, citing concerns about possible interference with electronic evidence while investigations continue.

The court stressed that its decision did not imply guilt and that Baffoe remained entitled to the presumption of innocence.

Her lawyers have said they intend to appeal.

The case comes amid growing scrutiny of how Ghana deals with allegedly false or offensive statements made online. This is not the first time such an incident is happening in Ghana.

The debate has also drawn a response from President John Dramani Mahama, who has questioned some arrests linked to comments made about him.

Speaking at an event on the sidelines of the UN General Assembly in New York, Mahama said he was not aware of many of the arrests before they happened.

“A lot of these arrests, I don’t even know about them, I also hear them on the media,” he said.

One provision attracting attention is Section 208 of the Criminal Offences Act, which makes it an offence to publish or reproduce a statement, rumour or report likely to cause fear and alarm to the public or disturb the public peace, where the person knows or has reason to believe it is false.

The state therefore has legal powers to pursue certain forms of speech.

The debate is increasingly about how those powers are being used.

Lawyer becomes part of the story

Baffour Awuah, the MP for Manhyia South, became part of that debate after EOCO officers attempted to arrest him at the High Court on 23 September.

EOCO said he had twice been invited in February to assist with an ongoing investigation but had failed to attend.

It said the attempted arrest was one of the lawful steps taken to secure his attendance and stressed that membership of Parliament did not place anyone beyond the reach of the law.

Baffour Awuah disputes EOCO's account.

He told Africanews that an initial letter from EOCO was addressed to the senior partner of his law firm rather than to him personally. He said representatives of the firm later met investigators on three occasions and provided information and a written statement.

He also alleged that the timing of the attempt to arrest him was linked to his representation of Baffoe.

"The only issue is because I'm representing Salomey Baffoe. That's the only issue," he told Africanews.

There has been no judicial finding establishing a connection between his representation of Baffoe and EOCO's attempt to arrest him, and EOCO says its actions relate to an ongoing investigation.

Baffour Awuah nevertheless questioned why officers approached him at the court when, he said, he had remained publicly accessible for months.

"If EOCO really and truly needed me, wouldn't they have picked me on a Saturday morning at Joy FM for Newsfile?" he told Africanews, referring to one of his media appearances.

Concern over a 'chilling effect'

The incident has also drawn concern from the Ghana Bar Association.

In a statement dated 24 September, the association said that while no individual was above the law, enforcement action involving lawyers, particularly while representing clients, must comply with constitutional guarantees, established legal procedures and respect for professional independence.

It warned that attempts to circumvent those safeguards could create a perception of intimidation and have a "chilling effect" on the legal profession.

The controversy is significant because Ghana's Constitution guarantees freedom of speech and expression, including freedom of the press and other media.

Those freedoms are not absolute, however, and Ghanaian law provides for restrictions and criminal offences in certain circumstances.

That leaves the country grappling with a question increasingly familiar to democracies around the world: how should the law respond to potentially harmful misinformation without unnecessarily restricting legitimate criticism, political debate or dissent?

Baffour Awuah argues that the way such cases are handled could have consequences beyond the current political moment.

"The risk is that if care is not taken, we may see retribution in the event of change of power," he told Africanews.

"If we are not careful, in the event of change of government, people may want to demand retribution."

His comments represent his own assessment of the political consequences, rather than an established finding.

However, they touch on a wider concern in a country that has experienced repeated peaceful transfers of power between its two dominant political parties since the return to constitutional rule in 1992: whether powers exercised by one administration could become precedents for another.

There is another dimension to the debate.

Baffour Awuah has himself turned to the courts over statements he says were falsely made about him.

On 28 September, he announced civil action against Akwatia MP Bernard Bediako Baidoo and broadcaster Abubakar Alhassan, popularly known as Blakk Rasta, alleging that they had made defamatory statements about him.

He said he had chosen civil proceedings rather than seeking criminal prosecution for alleged false publication.

For Ghana, the debate is therefore becoming less about whether speech should have limits than about where those limits should lie, and how they should be enforced without unnecessarily narrowing the space for legitimate criticism and political debate.