Two Ghanaians, Ms Sara Asafu-Adjaye and Mr Maximus Ametorgoh, have filed a suit at the Human Rights Division of the High Court, praying the court to prevent the Ministry of Communications and other defendants from allowing a third party, Kelni GVG, to have access to their private data.
Also joined to the motion on notice to enforce the fundamental human rights of the applicants as defendants are the National Communications Authority (NCA), the Ghana Revenue Authority (GRA), the Attorney-General, the Ghana Chamber of Telecommunications, Airtel Ghana, MTN Ghana, Tigo Ghana and Vodafone Ghana
Reliefs
The applicants are seeking a declaration that the plans of the Minister of Communications, the NCA and the GRA to implement the common platform (CP) by connecting real time to the entire switch of the physical network nodes of Airtel Ghana, MTN Ghana, Tigo Ghana and Vodafone Ghana under the $179-million Kelni GVG contract constitutes an infringement on the applicants’ fundamental human right to privacy.
Another relief being sought by the applicants is a further declaration that the conduct of Airtel Ghana, MTN Ghana, Tigo Ghana and Vodafone Ghana to grant access to the Minister of Communications, the NCA and the GRA to implement the common platform by connecting real time to the entire switch of their physical network nodes constitutes an infringement on the applicants’ fundamental human right to privacy.
They are seeking a further declaration that the implementation of the common platform by the Minister of Communications, the NCA and the GRA by connecting real time to the entire switch of the physical network nodes of Airtel Ghana, MTN Ghana, Tigo Ghana and Vodafone Ghana is in breach of Section 7 of the Communications Service Tax (Amendment) Act, 2013 (Act 864).
A further declaration that the implementation of the common platform by the Minister of Communications, the NCA and the GRA by connecting real time to the entire switch of the physical network nodes of the Airtel Ghana, MTN Ghana, Tigo Ghana and Vodafone Ghana is in breach of Section 73 of the Electronic Communications Act 2008 (Act 775) is also being sought.
Perpetual injunction
The applicants are praying the court to grant an order of perpetual injunction against the respondents by restraining them from implementing the common platform through connecting real time to the entire switch of the physical network nodes or in any other way which will infringe on the applicants’ fundamental human right to privacy.
Case of applicants
An affidavit in support of the application for interlocutory injunction deposed to by Ms Asafu-Adjaye said having followed public discourse on the matter, the Minister of Communications, the NCA and the GRA, who are primarily responsible for the implementation of the CP, intended to carry out the exercise in a manner which would be in breach of the applicants’ fundamental human right to privacy.
It said the architecture of the CP to be implemented by the Minister of Communications, the NCA and the GRA was such that instead of connecting to only billing node, as stipulated in the Communications Service Tax (Amendment) Act, 2013 (Act 864), the connections would be made to all physical nodes.
The applicants are, therefore, arguing that the intended connection to the CP is in breach of Act 864 and ultimately the applicants’ fundamental human right to privacy of their correspondence and communication, as protected by Article 18 (2) of the 1992 Constitution.
According to the applicants, Airtel, MTN, Tigo and Vodafone had a statutory duty under Section 73 of the Electronic Communications Act, 2008 (Act 775) to ensure that their correspondence and communications on their networks were not intercepted or interfered with.
They are further arguing that Kelni GVG, having access to their data without a court order, will be able to intercept their correspondence and communications, including voice calls, text messages, etc.
The applicants believe that the intended implementation of the CP constitutes a real threat to the enjoyment of their fundamental human right to privacy, for which reason they commenced an action against the defendants.
“Applicants are advised and verily believe to be true that the implementation of the CP and its attendant breach of the applicants’ right to privacy will be irreparable,” the affidavit in support noted.
The applicants are arguing that their case discloses a serious question of law in response to which the court ought to grant the instant application.
Interlocutory injunction
Meanwhile, the applicants have filed an application to grant an order of interlocutory injunction restraining the respondents and their agents from implementing and operationalising the CP for call monitoring until the final determination of the suit.
They are, accordingly, praying the court to halt any move to implement the CP until the matter is finally settled in court.
Mr Eddie Maccarthy is the lawyer for the applicants.
The application for interlocutory injunction will be moved on June 22, 2018.
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