The Human Rights Division of the Accra High Court has refrained from taking a decision on the injunction application filed against the National Communications Authority (NCA) and six telecom operators seeking to restrain them from implementing the interconnect clearing house policy (ICH).
The court neither granted nor refused an order of perpetual injunction against the NCA and the six telecos.
Rather, it ordered the expeditious trial of the case on the grounds that the issues raised in the interlocutory injunction were similar to the ones in the substantive case.
“The court should be careful not to pre-judge the issues in controversy since the final verdict must be pronounced in the substantive suit,” the court, presided over by Mr. Justice Kofi Essel Mensah, said.
ICH policy
The ICH is being set as a private monopoly to manage the interconnect traffic on behalf of the telecom operators, verify incoming international traffic on behalf of the NCA and also do domestic traffic verification for the Ghana Revenue Authority pro bono.
With the court’s decision, the NCA can continue with the implementation of the ICH policy until the final determination of the case slated for May 28, 2015.
Injunction
The injunction, filed by the Member of Parliament for Obuasi East, Mr. Kwaku Kwarteng, and a Development Researcher, Mr Elijah Adansi-Bonah, prayed for an order to restrain the NCA, the six telecos, their agents, servants, assigns and privies from implementing the ICH policy.
They had argued that as subscribers, they had the direct contracts with their respective telecom service providers but they had no such contract with the ICH whose activities could constitute a breach of their right to privacy.
The applicants had filed the injunction on March 18, 2015 for the court to stop the telecom industry regulator, NCA, from selecting Afriware Telecom Ghana Limited (ATGL) as the operator of the ICH, pending the final determination of the substantive case.
Substantive case
In the substantive suit, the applicants sought a declaration that the NCA’s decision to constitute ATGL as the operator of the ICH policy is “unlawful, unreasonable and in breach of the NCA’s constitutional obligation to them (applicants) to act fairly, reasonably and in accordance with the law.
They also sought a declaration that the NCA’s decision to constitute ATGL as the operator of the ICH on behalf of the telecos “unjustifiably interferes with their fundamental human rights to freedom from interference with their communication and correspondence.”
Reasons for ruling
In its ruling, the court said the prayer for perpetual injunction had been couched in restrictive terms to compel the six telecos to disobey the policy directive of the NCA in appointing the ATGL as the operator of the ICH on one hand.
On another hand, the injunction also stifled and stultified the ATGL from proceeding to execute the obligation assigned to it by the NCA, it stated.
The court said Article 33(1) of the 1992 Constitution gave a person the unbridled right to bring an action to enforce his or her fundamental human rights and freedoms when those rights and freedoms had been, or were likely to be contravened.
It added that the applicants had an unfettered right deeply anchored in the Constitution to commence an action to challenge the administrative acts of the NCA, “if they have a good cause of action and a right of action.”
Argument and counter argument
According to the court, from the onset, the counsel for the NCA, Mr Yonny Kulendi, had doubted the capacity of the applicants to commence the injunction action.
“The counsel argues that the substantive application is caught by the statute of limitation on the grounds that it was filed more than three months after the applicants had become aware of the alleged infringement of their rights.
“Counsel submits that the applicants became aware of the infringement of their rights when on November 5, 2014, the NCA published on its website a document informing the public of the setting up of ICH,” it stated.
It added that the mere declaration of intent to constitute an ICH did not occasion any violation of rights as the NCA, in its affidavit of opposition, only published on its website notice of its intention of introducing the ICH policy.
It, however, held the view that the applicants’ right of action accrued when the ATGL was selected as the operator of the ICH, saying “the action has, therefore, been brought within time and I so hold,” the court said.
The court said while the applicants had the right to privacy, such right was not absolute and was subject to exceptions.
“However, in this case, the NCA is to show that there is a justification for the breach,” the court added.
Source: Graphic