Fundamental human rights – Freedom of expression – Political party – Right to fair opportunity and equal access to state-owned media – Constitution 1992 art 55(11).

Fundamental human rights – Freedom of expression – State-owned media – Duty to grant equal access for presentation of divergent views and dissenting opinions – Constitution 1992 art 163.

Constitutional law – Constitution – Interpretation – Constitution to be interpreted for its word and spirit to exist in harmony – Stated objectives to be observed – Constitution 1992.

Fundamental human rights – Freedom of expression – Enforcement – Violation of article 163 by state-owned media – Whether matter within jurisdiction of Media Commission or Supreme Court - Constitution 1992 art 167.

Practice and procedure – Statement of case – Amendment – Belated amendment to set up new case to be disallowed – Supreme Court Rules 1970 (CI 13) r 49.

Articles 55(11) and 163 of the 1992 Constitution provide as follows:

“55(11). The State shall provide fair opportunity to all political parties to present their programmes to the public by ensuring equal access to the state-owned media.

163. All state-owned media shall afford fair opportunities and facilities for the presentation of divergent views and dissenting opinions.”

Shortly before handing over to the new regime of the 4th Republic the government, the PNDC, presented the 1992 Budget to the nation. The defendant, a state-owned media house, covered a forum organised by the NDC, a political party of the PNDC, to justify the budget. The defendant broadcast the forum on two occasions, each lasting over one hour. The plaintiff requested coverage to ventilate its divergent viewpoint on the budget and the defendant agreed to cover a symposium organised by the plaintiff to this end but failed to do so. The plaintiff then instituted an action in the Supreme Court for declarations that under articles 163 and 55(11) of the 1992 Constitution, the defendant corporation was duty bound to afford the plaintiff fair opportunities and facilities for the presentation of its views; secondly, that the refusal of the defendant to afford the plaintiff equal time on television to present its views on the budget was in violation of the constitution. The plaintiff sought a further order directing the defendant corporation to afford the plaintiff equal time on television to present its views on the budget. The Attorney-General, representing the defendant, denied the plaintiff’s claim and submitted that the defendant had a discretion to determine its modus operandi.

Held, (1) the constitution spelt out clearly its primary objective to make information readily available to allow for valued judgments from all its citizenry. This objective was only possible of fulfilment if there was free ventilation of views, the duty whereof was placed on all state media by article 163. To withhold the right to free ventilation of views was to interfere with the freedom of the people and violate the constitution. There was no discretion in the matter. The defendant, belonging to the state media, had a positive duty to promote the dissemination of alternative views.

(2) Article 55 of the constitution had no relevance to the action. That article dealt with the organisation of political parties, the right to vote, and the responsibility of the State and the state media to provide opportunities to all political parties to present their programmes. In article 55(11) the operative words were fair opportunity to present programmes to the public and equal access to the state-owned media. Programmes could be presented either through public rallies or through the media owned by the state, i.e. newspapers, news agencies, radio and television. Programmes and manifestos were usually launched and presented during elections and referenda. Article 55(12) clearly dealt with presidential elections. Article 55 therefore dealt with an entirely different subject matter and had no application to the plaintiff’s case. The plaintiff’s real constitutional trump card is article 163. That article served the interests of all manner of persons namely, individuals, group or body of persons incorporated and unincorporated. It applied also to political parties. In contrast, articles 55(11) and (12) were restricted to political parties with special requirements for general and presidential elections. Words like “equal access” and “same amount of time and space” were used whereas article 163 had no such words. The plaintiff could only succeed under article 163. Accordingly the plaintiff was entitled to a declaration that it was entitled to equal opportunity but not equal time as claimed in the writ.

Per Bamford-Addo JSC. It is to be noted that in the plaintiff’s writ the declaration sought in paragraph 1(b) and 2 mentioned “equal time” but that is not the same as “equal opportunity”. The plaintiff is entitled not to “equal time” as envisaged under article 55(12) but to “equal opportunity” under article 163. It is for these reasons that I also agree with my brothers that the plaintiff is entitled to the declaration sought in the writ with the variation that the plaintiff is entitled to “equal opportunity” but not “equal time” as stated in 1(b) and 2 of the writ.

(3) A constitutional document must be interpreted sui generis to allow the written word and the spirit that animates it to exist in perfect harmony. Reference must be made to the stated objectives in the constitution so that the emphatic pointers to its spirit are not missed. The constitution itself points the way to its liberal interpretation. It illustrates from the horse’s own mouth the spirit that should guide its construction.

Per Archer CJ. At the time the plaintiff’s writ was issued, there was not in existence a National Media Commission. If there had been one I would have insisted that the plaintiff’s complaint before this court should be referred to that commission which has a constitutional function under article 167 to take all appropriate measures to investigate, mediate and settle complaints made against or by the press or other mass-media including the state-owned media.

Per Amua-Sekyi JSC. In the exercise of such discretion as they have under article 163, the state-owned media are bound to have regard to art 296 and regulations made thereunder. Any abuse or misapplication of the discretionary power given to them may be corrected by the Media Commission or the courts.

Per Amua-Sekyi JSC. How is the state to ensure that all political parties have equal access to the state-owned media? I believe it can do so in two ways, one positively, and the other, negatively. Positively, by inserting in the instruments of incorporation of the state-owned media a requirement that they grant equal access to all political parties: negatively, by refraining from interfering in the day-to-day running of the media. Any complaints about discrimination would then be strictly a matter for the Media Commission set up under article 166.

Per Archer CJ. If the present Constitution had not been enacted, the plaintiff could have sued the defendant in the High Court for breach of statutory duty because the defendant had as one of its “output requirements” under the Ghana Broadcasting Corporation Decree 1968 (NLCD 226) paragraph 9(2), an obligation to allocate and apportion air-time “equitably” between the plaintiff and the other parties. “Equitably” did not connote equality. It means fairness. NLCD 266 was an existing law and there was nothing in it that appeared to be inconsistent with the present constitution. Article 163 was a constitutional re-enforcement of the existing statutory responsibilities of the defendant corporation.

Per Aikins and Hayfron-Benjamin JJSC. While the Supreme Court would not permit technicalities to becloud the necessity to do justice to all manner of parties appearing before it, yet in the exercise of its original jurisdiction, absolute compliance with its essential rules of procedure was necessary for the court to function effectively. The court would not permit an amendment which introduces a completely new case or defence that was diametrically opposed to the former case or pleading.

Cases referred to:

CBS v Democratic National Committee 412 US (1973).

Kuenyehia v Archer dated 25 May 1993, SC.

Tuffuor v Attorney-General [1980] GLR 637, SC.

ACTION in the Supreme Court for declarations by the plaintiff, a political party, against the defendant, a state-owned media house.

Anthony Forson, Attorney-General, for the defendant, with him, Mrs Adusah-Amankwa.

Peter Adjetey for the plaintiff, with him, Sam Okudzeto, Nana Akufo-Addo, Asiedu, Miss Gloria Akuffo, Philip Addison, Alex Quaynor  andWilliam Addo.

ARCHER CJ. I have had the opportunity of reading the reasons embodied in the opinion of my brother Francois and I agree with the reasons. However, by way of emphasis I wish to add a few words.

First, I wish to stress that although the plaintiff relied on article 55 of the constitution, I do not think that that article has any relevance to the action. One has to read the whole of article 55 to appreciate its import. That article deals with the organisation of political parties, the right to vote, and the responsibility of the State and the state media to provide opportunities to all political parties to present their programmes. Article 55(11) reads:

“The State shall provide fair opportunity to all political parties to present their programmes to the public by ensuring equal access to the state-owned media.”

Article 55(12) reads:

“All Presidential candidates shall be given the same amount of time and space on the state-owned media to present their programmes to the people.”

In article 55(11) the operative words are fair opportunity to present programmes to the public and equal access to the state-owned media. Programmes can be presented either through public rallies or through the media owned by the state, that is,

 newspapers, news agencies, radio and television. Programmes and manifestos are usually launched and presented during elections and referenda.

Article 55(12) clearly deals with presidential elections and is very clear. The state-owned media is to give each presidential candidate the same amount of time and space for the presentation of each candidate’s programmes. It seems to me that article 55 deals with an entirely different subject matter and has no application to the facts of the plaintiff’s case.

The plaintiff’s real constitutional trump card is article 163 which states that:

“All state-owned media shall afford fair opportunities and facilities for the presentation of divergent views and dissenting opinions.”

This article serves the interests of all manner of persons namely, individuals, group or body of persons incorporated and unincorporated. It applies also to political parties. In contrast, articles 55(11) and (12) are restricted to political parties with special requirements for general and presidential elections. Words like “equal access” and “same amount of time and space” are used whereas article 163 has no such words. The plaintiff can only succeed under article 163.

The other matter I wish to deal with is that between 1962 and 1966, this country was a one-party state. When the former National Liberation Council enacted the Ghana Broadcasting Corporation Decree 1968 (NLCD 226), the Council was planning a return to civilian rule under multi-party system and therefore provided in paragraph 9 the following:

 “9(1) In its public service broadcasting, the Corporation is expected to provide for—

(a)   Government pronouncements, that is, speeches by members of the National Liberation Council and Commissioners responsible for departments of State consisting of statements of fact or explaining the policies and actions of Government;

(b)   Party political speeches dealing with the views and policies of the various political parties (when they come into being);

(c)   Speeches expressing different points of view on matters of controversy;

(d)   matters of any kind (including religious services or ceremonies) representing the main stream of religious thought or belief in the country.

(2) In its broadcasting of the items mentioned in sub-paragraph (1) of this paragraph the Corporation shall allocate and apportion air-time equitably between the parties, points of view and religious bodies according to their respective claims upon the interest of members of the public of Ghana.”

The substance in section 9(2) is the allocation and apportionment of airtime equitably between the parties. Equitably does not connote equality. It means fairness. NLCD 266 is an existing law and there is nothing in it that appears to be inconsistent with the present constitution.

If the present Constitution had not been enacted, the plaintiff could have sued the defendant in the High Court for breach of statutory duty because the defendant has as one of its “output requirements” under paragraph 9(2) an obligation to allocate and apportion airtime equitably between the plaintiff and the other parties. Article 163 is a constitutional re-enforcement of the existing statutory responsibilities of the defendant corporation.

Finally, I wish to remark that at the time the plaintiff’s writ was issued, there was not in existence a National Media Commission. If there had been one I would have insisted that the plaintiff’s complaint before this court should be referred to that commission which has a constitutional function under article 167 to take all appropriate measures to investigate, mediate and settle complaints made against or by the press or other mass-media including the state-owned media.

FRANCOIS JSC. On 22 July 1993 this court gave its ruling with accompanying orders in the above matter, reserving its reasons to a later date. I now give my reasons.

In construing the provisions of the constitution, the primary duty of the Supreme Court is to interpret the fundamental law. There is a presumption that there are no serious disagreements on the facts requiring straightening up or settling, before that major task is begun. The court’s endeavours consequently proceed untrammelled by any considerations or distractions attendant on the accuracy of facts. The ideal was not obtained in this case.

The few but important facts in controversy appear in two paragraphs in the plaintiff’s claim. The plaintiff urged in paragraphs 3 and 4 of its statement of case, that on 23 and 24 February 1993 the defendant corporation gave media coverage to a forum organised by the National Democratic Congress (NDC) “to justify the budget of 1993 presented by Dr Kwesi Botchwey”. The plaintiff urged that the broadcast extended over a period of an hour and featured Dr Botchwey and prominent members of the NDC.

The plaintiff complained that similar facilities were denied the New Patriotic Party to disseminate its contrary views on the budget, and claimed this constituted a serious violation of its constitutional rights for which it sought redress.

The defendant-corporation denied the plaintiff’s averments at first, but by an amended defence filed on 7 July 1993, it urged that

 adequate opportunity had been granted the plaintiff to articulate its views. The clear disagreement of the protagonists herein on the accuracy of the facts, led the learned Attorney-General to seek opportunity by way of adjournment to supply proof of the defendant’s stand.

Unfortunately, what followed was an innovative attempt to present fresh evidence which would have bogged down the court’s interpretative machinery and turned it into a fact finding and fact evaluation tribunal. The attempt consequently failed. Nevertheless, facts of which judicial notice could be taken disclosed that parliament had extended to the plaintiff a welcoming ear to ascertain its position on the budget - a scenario that was inconceivable and irrational if the plaintiff’s views had already been sufficiently aired.

A more serious fact that could not be glossed over, was the unceremonious withdrawal by the defendant of a programme in mid-air, so to speak, in which a spokesman for the plaintiff sought to present its stand on the budget. The act of withdrawing the programme was in itself condemnatory enough to expose the defendant’s lack of veracity and good faith and was at odds with the pleaded averments. It is obvious the facts controverted by the defendant bore no true relationship with the events on the ground.

The facts aside, the gravamen of the defence was the challenge to the plaintiff’s assertion of a constitutional entitlement to equal opportunity or facility for the dissemination of divergent views.

Additionally it was the defendant’s understanding of its national role, that exigencies in the nature of intervening important engagements had priority over any agreement with the plaintiff on airtime. An example was what transpired on 9 February 1993 when the agreed time allotted to the plaintiff to broadcast its statement on the budget was cavalierly cancelled.

Closely allied to this stance, and which was the crux of the defence, was the view that the granting of media facilities involved the exercise of discretion which reposed solely on the defendant-corporation. Put differently, the corporation was claiming the exclusive right to determine what was appropriate for broadcasting and vigorously defending that position as being outside any constitutional remit.

Consequently, the issue for debate was whether the plaintiff was entitled under the new constitutional dispensation which the 1992 fundamental law ushered, to demand that the defendant provide airtime for the dissemination of its views on controversial national matters similar in extent and scope as was accorded the government spokesman of the 1993 budget; and as a corollary, for the court to declare whether a failure to grant those facilities constituted a violation of the constitution.

The plaintiff founded its contention under articles 163 and 55(11) of the 1992 Constitution. Article 163 states:

“All state-owned media shall afford fair opportunities and facilities for the presentation of divergent views and dissenting opinions.”

Article 55(11) requires the state to “provide fair opportunity to all political parties to present their programmes to the public by ensuring equal access to the state-owned media”.

The plaintiff buttressed its stand with article 55(1) and (3) which guaranteed the right to form political parties which should be “free to participate in shaping the political will of the people to disseminate information on political ideas, social and economic programmes of a national character, etc”.

While the whole of article 55 deals with political parties and their programmes, article 163 ensures the fair dissemination of divergent views. It is my view that article 55(11) in the context of the current debate, lacks relevancy, being at best only illustrative of a schematic pattern in the new constitutional order, to ensure an equitable balance on the political campaign trail.

It seems clear, that the constitution spells out unambiguously a primary objective of making information readily available to allow for valued judgments from all its citizenry. This desired result, is only possible if there is a free ventilation of views, which the imperative “shall” in article 163 places as a duty on all state media. Clearly, there is no discretion in the matter. To withhold this right is an interference with the freedom of the people and a violation of the constitution.

A contrary conclusion would mean a right given to persons, bodies or institutions, to exercise a censorship which could block avenues of thought and foreclose the citizen’s right of choice. Article 162(2) forbids this. It emphatically states “there shall be no censorship in Ghana”.

Some pedagogic sophists may argue that the imposition of a duty often has, as a correlated concomitant, discretion in its discharge. This may be conceded to the extent that the ultimate duty remains unchanged and the discretion, if indeed it qualifies as one, affects only the procedure or route by which the duty is to be accomplished.

To argue that the discretion enables the corporation to reject attempts to make it a party to crime or an accomplice to treasonable enterprises, or a conduit pipe for the dissemination of defamatory material, is to misapprehend entirely the constitutional injunction, for these are not left at large for the application of any discretion.

The constitution, in article 164, clearly spells out essential limitations for the achievement of the democratic goal. It states that the freedoms are “subject to laws that are reasonably required in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of other persons”.

But to set the picture straight and remove any ambiguity, it goes on in article 165 to warn that the above exceptions should not “limit the enjoyment of any of the fundamental human rights and freedoms guaranteed under Chapter 5 of this Constitution”.

The issue really is not whether party A is allowed to score over party B, in a political broadcast; it is not a debating exercise. The issue is whether the people of this country have been given adequate opportunity to know and evaluate viable alternatives.

The defendant, belonging to the state media, then has a positive duty to promote the dissemination of alternative views. If it fails in this duty and proceeds further to deny the articulation of alternative views, its transgression becomes two-fold: as a state media house, and contrary to what was expressly required of it by the constitution, it has refused to feed the citizenry of this country with all the facts, and has mischievously denied the citizens the knowledge which was being offered on a silver platter.

During argument counsel were invited to reflect on the constitutional imperative that would sustain the citizen’s choice as against those designed to grant partisan advantage. I link this with what obtains elsewhere. It is pertinent to observe that in the comity of nations where the democratic order secures the highest place of honour in the social fabric, the freedom of exchanging information and ideas appears to occupy the noblest point in the social scheme and serves as an essential pivot.

Some random views expressed on this theme elsewhere, would not be out of place here. Justice White of the US Supreme Court has said:

“It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. It is the right of the public to receive suitable access to social, political, aesthetic, moral and other ideas and experiences which is crucial here.”

The US Supreme Court has also said: “Speech concerning public affairs is more than self-expression; it is the essence of self-government”. Justice Cardozo, an eminent jurist of the US Supreme Court, has stated: “of that freedom one may say that it is the matrix, the indispensable condition of nearly every other form of freedom”.

The conclusion then is that debate cannot be stifled in a democratic society. This does not mean that freedom of speech should be extended to unbridled excesses. The loud licence of the market place has no acceptance here. There are constitutional safeguards reflected in our laws to curb libel and other violations of the law as alluded to before. These should suffice. It is noteworthy the US Supreme Court should hold that: “A society prefers to punish the few who abuse rights of speech after they break the law than throttle them and all others beforehand. It is always difficult to know in advance what an individual will say and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.” Accordingly the US courts have declared:

“Any system of prior restraints of expression comes to this court bearing a heavy presumption against its constitutional validity.”

Those words should be underscored. They should be observed by the state media as a constant guide, and constitute their creed and testament.

The excerpts from decisions of the US Supreme Court are culled from the Jerusalem Post Law Reports, 1993. While acknowledging my indebtedness I would plead that the lack of adequate library facilities in this country should be attended to immediately to save the humiliation of borrowing elsewhere at second-hand.

Before I turn the pages on this aspect of freedom of expression, a comment may not be out of place.

People wielding excessive power often deflect criticism of their autocratic excesses with reflections on the impracticability of pursuing absolute freedom. They warn of anarchical results if pure, unalloyed freedom is sought. They are the apostles of the discipline that dictates that the enjoyment of freedom is always at a price; and only strictly regulated freedom with the surrender of a substantial portion of it, can rationally safeguard what remains for its full and wholesome enjoyment.

Alas, how often is falsehood dressed in plausible garb. The curbs and fetters to freedom are well known. They have been expounded by philosophers in scholarly treatises through the ages. There is no warrant for contracting further the frontiers of restraint to suffocatingly imprison our natural birthright. The safeguarding of our national security or of public order and public morality is restated in article 164 of the constitution as referred to before. The parameters should not be expanded outside the limits of the constitution.

Turning to a practical and common sense point of view, the free exchange of views is necessary to give the electorate an opportunity to assess the performance of the government in power as against the potential of the opposition in the wilderness. It keeps a government on its toes and gives the neutral, apolitic citizen an opportunity to make up his mind either to consign the disenchanted noises he hears around, to mere rabid ranting that proceed from electoral defeat or give it the evocative distinction of demonstrating the quality that unfortunately missed the boat through bad electoral judgment, and therefore deserving a second chance at the next ballot. In a truly democratic environment this testing ground is a sine qua non to the survival of a free, pluralist society.

The plaintiff makes an impassioned plea that in construing the provisions of the constitution, we should observe the spirit and philosophy that animate it. Tuffuor v Attorney-General [1980] GLR 637, SC is urged as the refreshing fount from which we should constantly and copiously drink.

In our judgment in Kuenyehia v Archer, SC dated 25 May 1993, this court stressed the importance that the spirit of the constitution shared with the actual letter of the constitutional provisions, in the ascertaining of legislative will and intent. If those sentiments are now belatedly appreciated one can only sigh a welcome relief. It only underscores an eternal truism, that in the fullness of time, truth will prevail.

A constitutional document must be interpreted sui generis to allow the written word and the spirit that animates it to exist in perfect harmony. In the Kuenyehia case, supra, this aspect of constitutional interpretation was addressed at length. I find no need to go over the beaten track which would only over-stretch this statement of reasons.

However, reference to stated objectives in the constitution must be made so that the emphatic pointers to its spirit are not missed. I proceed therefore on this brief but necessary journey. The 1992 Constitution itself points the way to its liberal interpretation. It illustrates from the horse’s own mouth, the spirit that should guide its construction. Thus in articles 165 and 33(5) we are required not only to go by the written letter, but to adopt as well the known criteria which attach to the democratic process and are inherent in any democratic environment, so that the fundamental human rights guaranteed under Chapter 5 of the constitution, are not curtailed.

Again in article 17 clause 4(a), parliament is enjoined when it enacts laws to take care that the provisions of its laws are not “inconsistent with the spirit of this Constitution”. Turning then to the fifth chapter of the constitution which deals with fundamental human rights and freedoms, we note that the organs which must sustain the fresh, invigorating wind of freedom, are enjoined to respect and uphold fundamental human rights. The executive, legislature and judiciary, among others, receive this charge which is expressly stated in article 12(1) as follows:

“The fundamental human rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies and, where applicable to them, by all natural and legal persons in Ghana, and shall be enforceable by the courts as provided for in this Constitution.”

In article 21(1)(f), we note that:

“21(1). All persons shall have the right to—

 (f) information, subject to such qualifications and laws as are necessary in a democratic society…”

It would seem therefore that where a media created as a public agency, to secure for the citizens of this country information, rather withholds it, contrary to the abjuration in articles 163 and 21(1)(f), it is wilfully violating the constitution.

The measure of reprehensibility becomes more gravely acute when such suppression betrays a partisan motive. The constitution demands that a broad and liberal spirit of democratic pluralism should prevail in this country. It in effect accepts previous failures in the constitutional experiment and consequently attempts an all embracing liberal framework that would include all possible shades of freedom not specifically or expressly mentioned, but which are essential cogs to enhance the driving capacity of a truly freewheeling democracy. The constitution pithily expressed this in article 33(5) referred to earlier as follows:

“33(5). The rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man.”

The framers of the constitution, in their wisdom, attempted to make the resurgence of a one-party state an impossibility. It declared the unconstitutionality of parliament enacting any law to establish a one-party state; see article 3(1).

An attempt to abrogate or suspend the constitution in whole or in part would be visited with the sanction of death for high treason; see article 3(3).

My reading of the spirit of the constitution suggests these as safeguards to preserve the integrity of the constitution and sustain democracy. Consequently any acts which are not in accord with these aspirations, would constitute steps in the violation of the constitution.

A denial of opportunity for the expression of opposing views, inherent in a democracy, would amount to moves which may culminate in the creation of a monolithic government which is only one step embodied from a one party government. There is historical precedent of such a retrogressive descent. Obviously any state agency which fosters the situation that would lead to the creation of a one party state, is seriously out of step with the spirit and constitutional realism of today. It would be sailing too closely for comfort to the winds of a treasonable enterprise.

Homespun wisdom may not be out of place here. An incipient boil starts from the tiniest of pimples. The gargantuan size of some ailments which afflict our society today, had stealthily grown from small, and undetected beginnings. So in political life, be they revolutionary or evolutionary, except that in the former, speed is of the essence and the latter, restraint.

It is clear that the dictates of experience have compelled the constitution makers to draw on the amplitude of our past history, to lay down strictures that would arrest the slightest deviations from constitutionalism. Manifestations that would have the potential of burgeoning into intractable evils which would ultimately undermine the constitution and toll the knell of the fourth brave democratic effort, must be placed under the judicial microscope.

It is the court’s constitutional duty in upholding the fundamental law to strike down tendencies towards one-party state or a dictatorship, however minuscular the blot may first appear. This is in keeping with the spirit.

Consequently, any act of the state media that smacks of party bias or fits the description of unexamined adulation, would be the incipient pimple which this court must view with the gravest suspicion if our duty as defenders of the constitution is to be honourably discharged.

In conclusion, I must comment on the defendant’s misapplication of the licence which permits it to operate i.e. Ghana Broadcasting Corporation Decree of 1968 (NLCD 226). One notices that a paramount objective of this legislation is to educate, inform and entertain on a broad national basis; see s 2(1)(b) and s 8(1).

There is an attempt not only to ensure neutrality but to insulate the corporation also from governmental authority in the quality of the membership of its board; see s 3(5)(c). Partisan affiliations of board members is forbidden; see s 3(11)(a). The 1992 Constitution in article 167(c) projects this in allowing the National Media Commission to breathe the air of independence into the state media to ensure that they are insulated from governmental control.

Turning again to NLCD 226, facilities for the dissemination of a broad spectrum of political and varied view points are a clear desiderata, and are provided for under s 9(1)(c); and in s 9(2) speeches expressing different points of view on matters of controversy, and an equitable distribution of airtime is prescribed.

It seems therefore, that long before the 1992 Constitution came into existence, the authority which established or continued the existence of the defendant corporation, attempted to ensure that fair and equal opportunity was available for the expression of all shades of opinion to enable the citizenry of this country to evaluate information from a general storehouse of knowledge, on a broad kaleidoscope.

Consequently any institution made up of citizens with equal rights and ostensibly shared ideals, which today arrogates to itself superior powers outside normal legal constraints, and outside the parameters of the constitution, to foist on to the rest of the citizenry, their perception of what is or is not politically digestible, infringes a fundamental right of the citizenry of this country. That act would constitute a flagrant and naked usurpation of the citizen’s rights and a patent violation of the constitution.

If under the directive principles of state policy, in article 35(9), the state is required mandatorily to promote among the people of Ghana the culture of political tolerance, what business has a state agency to subvert this goal?

It is for the above reasons that I acceded to the prayers of the plaintiff on 22 July 1993.

AMUA-SEKYI JSC. Shortly before leaving office in January 1993 the government of the Provisional National Defence Council presented a budget for 1993. The presentation, which was carried on radio and television, was made by the then Secretary for Finance,

Dr Kwesi Botchwey. On 23 and 24 January 1993 Dr Botchwey appeared again on radio and television and, for over two hours, engaged in a spirited defence of his budget proposals which had come under severe criticism from several quarters. His appearance was apparently sponsored by the National Democratic Congress, a political party of which he is a member.

The plaintiff, a registered political party, demanded that they too be given time on radio and television to air their views. The defendants refused to do so. They have accordingly been brought to this court, and the reliefs sought are:

“1. A declaration that (a) by virtue of articles 163 and 55(11) of the constitution, the Ghana Broadcasting Corporation, a state-owned media, has a duty to afford to the New Patriotic Party fair opportunities and facilities for presentation of its views, especially when they are divergent from those of the government or of the National Democratic Congress, the party supporting the government; (b) the refusal of Ghana Broadcasting Corporation to afford the New Patriotic Party equal time on television to present its views of the 1993 Budget, as accorded the National Democratic Congress on 23rd January and 24th January 1993, is a violation and contravention of the constitution.

2. An order embracing the provisions of the constitution, by directing the Ghana Broadcasting Corporation to afford the New Patriotic Party equal time on television to present its views of the 1993 Budget as accorded the National Democratic Congress on 23 January 1993 and 24 January 1993.”

In their statement of case, the defendants denied that Dr Botchwey’s broadcast was sponsored by the National Democratic Congress. When in the course of the argument before us they were confronted with a report in the Daily Graphic newspaper describing the occasion as such they sought to change their position and put in a confession and avoidance in place of the unequivocal denial they had made earlier on. I am afraid, this reflects very badly on the character of the men we have at the helm of affairs at the defendants’ establishment.

As public officers they ought to know that is their duty to assist the court to arrive at the truth in this matter, not to obstruct it. By appearing to take sides in what is essentially a dispute between two political parties, they demean their office and place the independence of their organisation in jeopardy.

The provisions of the constitution with which we are concerned are articles 55 and 163. Article 55 deals with political parties. It guarantees to the people of this country the right to form political parties and, to every citizen of voting age, the right to join a political party. It would be a breach of the constitution to deny to the people of this country, or to any citizen, any of these rights. The article goes on to confer on political parties, when duly formed, the right to participate in shaping the political will of the people, and to disseminate information on the political, economic and social programmes of the party. It is also entitled to sponsor candidates for election to parliament and to the office of President.

To make these rights meaningful and effective, clauses 11 and 12 provide as follows:

“55(11). The State shall provide fair opportunity to all political parties to present their programmes to the public by ensuring equal access to the state-owned media.

(12) All presidential candidates shall be given the same amount of time and space on the state-owned media to present their programmes to the people.”

Article 55(11) defines, with regard to political parties, both the object of state policy and the means to achieve it. The object is that of providing a fair opportunity to all political parties to present their programmes to the public, and the means of achieving this is by ensuring that each party has equal access to the state-owned media. Article 55(12) is more specific and states that each candidate for the office of the President shall be given the same amount of time and space on the state-owned media to present his programme to the people. It is hardly necessary to draw attention to the fact that invariably candidates for the office of President are sponsored by political parties and funded by them, and that the programmes they present to the people are those of their parties.

What, then, is the meaning of the words ‘equal access’? ‘Equal access’ means the same or identical terms and conditions for gaining entry into the state-owned media for the purpose of presenting their political, economic and social programmes to the electorate, and persuading them to vote for them in both parliamentary and Presidential elections. This means that the same time or space must be given to each political party, large or small, and if fees are payable, that they should be the same for all. The officers of the state-owned media have no discretion in the matter.

The reason is simple enough: the state-owned media are national assets; they belong to the entire community, not to the abstraction known as the state nor to the government in office nor to its party. If such national assets were to become the mouthpiece of any one or the combination of parties vying for power, democracy would be no more than a sham.

In a democracy, the right of the individual to form or join political parties, and of the parties to participate in shaping the political will of the people and to disseminate political, economic and social ideas and programmes are not rights which are enjoyed by the people only when elections are about to take place. They are inalienable rights which the constitution guarantees for all and which the courts are required to protect.

As far as our law is concerned, it is irrelevant that the party or its candidate secured only a handful of votes or none at all at the last elections; so long as it remains a registered political party it is entitled to be heard, and the constitution says that, as far as the state-owned media are concerned, it shall have equal access with any other political party.

One may ask, how is the state to ensure that all political parties have equal access to the state-owned media? I believe it can do so in two ways, one positively, and the other, negatively. Positively, by inserting in the instruments of incorporation of the state-owned media a requirement that they grant equal access to all political parties; negatively, by refraining from interfering in the day-to-day running of the media. Any complaints about discrimination would then be strictly a matter for the Media Commission set up under article 166.

Article 163 sets out the duties of the state-owned media in promoting the free expression of views. It states:

“163. All state-owned media shall afford fair opportunities and facilities for the presentation of divergent views and dissenting opinions.”

As with article 55(11) both the policy objective and the means to achieve it have been defined. The objective is the presentation of divergent views and dissenting opinions, and that means, the granting of fair opportunities and facilities. The duty is placed fully and squarely on the editors and management of such media who, like those in charge of the privately-owned ones, have been given a measure of protection from control or interference by government.

The word ‘fair’ means ‘free from bias’. It is sometimes synonymous with the word ‘equal’. What the constitution requires of the editors and the management of the state-owned media is that they be impartial, showing neither affection for, nor ill-will towards any particular group in the community, be it political, economic or social. Their facilities being national assets, should be available to all. In the exercise of such discretion as they have under article 163, they are bound to have regard to article 296 and regulations made thereunder. Any abuse or misapplication of the discretionary power given to them may be corrected by the Media Commission or the courts.

The democratic tradition that divergent views and dissenting opinions be given free expression may be summed up in the words Tallentyre used to describe the attitude of Voltaire on the burning of Helvetius’ De L’esprit in 1759: “I disapprove of what you say, but I will defend to the death your right to say it”.

History abounds with examples where those in authority were so sure they were right that they regarded dissent as subversive. The Reformation was preceded by the burning of heretics, and followed by the prosecution of papists. The temptation to ride roughshod over the opinions of others must be resisted; for it is only by the free flow of ideas and discussion that error is exposed, truth vindicated and liberty preserved.

Unlike the rights conferred on political parties and presidential candidates by article 55(11) and (12), which are absolute rights, the rights conferred by article 163 on the people are subject to laws that are reasonably required in the interest of national security, public order, and public morality, and for the purposes of protecting the reputations, rights and freedoms of other persons.

The defendants have not relied on any such laws to justify their refusal to grant the plaintiff fair opportunities and facilities for presenting their views on the budget. What they have said is that they have discretion in the matter and that in their judgment they have already given the plaintiff adequate time on radio and television. They say that they reported a news conference by the party’s candidate at the presidential elections, but, as everyone knows, this was part of a news bulletin and lasted only a few minutes.

They also say that a member of the party took part in a panel discussion on the budget, but, again, as everyone knows, representatives of the governing parties were on hand to defend the proposals and, in any case, the programme was taken off the television screen in the middle of the discussion. Compared to Dr Botchwey’s monologue the plaintiff has had hardly any time at all on radio and television to present their views.

I conceive it to be our duty to tell the defendants in plain terms that even under article 163 they are not free to choose which opinions shall be given a hearing. The law is that all shades of opinion must be given a fair hearing. It is a misconception to see themselves as an adjunct of a political party or as agents of the government.

I am of the opinion that the plaintiff has made out an unimpeachable case. Having given the National Democratic Congress two hours to air their views on the budget, the defendants are required by article 55(11) of the constitution to grant the plaintiff equal time on radio and on television to set forth their divergent views.

It was for these reasons that I concurred in the orders that were made.

AIKINS JSC. It is one of the charms of constitutional rule that every now and then a suit is instituted in a court of competent jurisdiction on alleged abuse of constitutional provisions very much cherished by the people in whose name and for whose welfare the powers of Government are to be exercised, in a manner conducive to peaceful coexistence of the entire populace of the community, more especially people of a third world country having divergent political views in an unfolding political, economic and social development.

So it was in February this year when the New Patriotic Party, one of the leading political parties in this country brought before

 this court the issue as to whether the 1992 Constitution enjoins the Ghana Broadcasting Corporation to afford all political parties fair opportunities and facilities for the presentation of their divergent and dissenting opinions to the public, by ensuring equal access to the state owned  media under its control.

On 22 July 1993 this court unanimously granted the reliefs sought by the plaintiffs, and reserved its reasons. I now proceed to give my reasons for concurring with my brothers and sister in granting the said reliefs.

Shortly before handing over to the new regime of the Fourth Republic, the Government of the PNDC presented to the people of this country the 1993 Budget. On 23 and 24 January 1993 the defendant was alleged to have broadcast to the general public, through the medium of television, a recording of a forum organised by the National Democratic Congress (NDC) to justify the budget. In pursuit of its constitutional rights the plaintiff is said to have addressed a letter to the Director of Television of the defendant requesting this same media facilities to be made available to them to ventilate the party’s divergent views and comments on the 1993 budget.

Subsequent to this a symposium was organised by the plaintiff on 9 February 1993 at about 4.00 p.m. at the premises of the Young Men’s Christian Association (YMCA), Asylum Down, Accra. It was expected that the defendant, having agreed to record the symposium, would turn up but, in the event, it failed to honour the agreement.

It is the case of the plaintiff that “the failure or refusal of the defendant to record and broadcast by television the symposium is a violation and contravention of the constitution, specifically article 163 thereof, which provides that all state-owned media should afford fair opportunities and facilities for the presentation of divergent views and dissenting opinions on their media. As a result the plaintiff is seeking a declaration that:

“(a) by virtue of article 163 and 55(11) of the constitution the Ghana Broadcasting Corporation, as one of the state-owned media, has a duty to afford to the New Patriotic Party fair opportunities and facilities for presentation of its views, especially when they are divergent from those of the government or of the National Democratic Congress, the party supporting the government;

(b) the refusal of the Ghana Broadcasting Corporation to afford the New Patriotic Party equal time on television to present its views of the 1993 budget, as accorded the National Democratic Congress on 23 January 1993 and 24 January 1993, is a violation and contravention of the constitution.”

Also an order was sought to enforce the provisions of the constitution, by directing the Ghana Broadcasting Corporation to afford the New Patriotic Party equal time on television to present its view of the 1993 Budget as accorded the National Democratic Congress on 23 January 1993 and 24 January 1993.

Nana Akufo-Addo, one of the learned counsel appearing for the plaintiff, argued that in the context of article 55(11) of the constitution, fairness means equality for all political parties, and that this is stated in clear, unambiguous and unequivocal terms. He submitted that the constitution envisaged a democratic state in which all political parties are allowed to express their individual and divergent opinions on any issue prevalent in the country, a situation which was not only portrayed by the framers of the constitution, but also endorsed by the sovereign will of the people of this country when they voted massively for the constitution. However, he expressed regret that the converse is what prevails in this country whereby the views of a functionary of the ruling party is highlighted in the media while those of the opposition are shelved into total oblivion.

Counsel further stressed that clauses (1), (2) and (4) of article 162 which deal with freedom and independence of the media must be read in the context of article 55 with respect to fairness, and submitted that the media as the principal agent for maintaining the political order of this country should not be controlled by the party in power or the government, otherwise the other political parties will gradually be phased out.

In view of the foregoing, counsel submitted, the opposition has an automatic right of reply as far as the recording of the forum organised by the NDC to justify the budget is concerned.

In reply to these submissions the Attorney-General argued that by the combined effect of articles 55(11) and 162, the defendant-corporation has a discretion in determining its modus operandi, and that equal opportunity could be equated to equal time. He submitted that the suit is frivolous and deserves to be dismissed.

At this stage the Attorney-General got himself in a bad fix and inextricably entangled by a series of questions flowing from the bench. He was unable to state precisely what time was given to the NPP to air its views on the budget as against the two hours allocated to the NDC on the television to defend the budget. He heaved a sigh of relief when the President of the court came to his rescue by granting him adjournment till the following day to put his house in order. This quickly brought the leading counsel for the plaintiff to his feet to protest that the adjournment was strange. But he was overruled.

On the next adjourned date the Attorney-General attempted to move the court to amend the defendant’s statement of case under rule 49 of CI 13 but this did not find favour with the court as the proposed amendment sought to set up an entirely new case for the defendant, especially at a time when the plaintiff had closed its case without calling any witness. Leading counsel for the plaintiff had urged that since by the proposed amendment the defendant had told a lie it should not be allowed to enjoy the discretion of the court in its favour.

The constitutions of this country dating as far back as 1969 contain provisions that ensure freedom of expression of the individual, i.e. “freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence”. Provisions are also made to ensure that persons responsible for any national medium for the dissemination of any kind of information to the public afford equal opportunities and facilities for the representation of opposing or differing views; see clauses (1) and (2) of article 22 of the 1969 Constitution and clauses (1) and (2) of article 28 of the 1979 Constitution.

The same basic framework is contained in the current constitution. Clauses (1) and (4) of article 162 of the 1992 Constitution guarantees freedom and independence of the media, and protects editors and publishers of newspapers and other institutions of mass media from control or interference by Government as well as any harassment or punishment for their editorial opinions and views, or the content of their publications.

These are the outcome of the cogent and edifying report of the committee of experts that formed the basis of the constitutional proposals of the Consultative Assembly. The committee, aware of the fact that there was a direct governmental (ministerial) interference in or control of the operations of the press, submitted in paragraph 188 of its report:

“…the public sector media financed by public taxes must operate in such a way that they truly reflect the diverse shades of public opinion existent in the country as whole.”

It continued:

“Editors and reporters are appointed by the Ministry of Information, and they see themselves as civil servants and feel constrained in carrying out their professional function consistent with the highest professional standards possible. This ministerial power of appointment and dismissal of reporters and governmental interference in the media activities have greatly contributed to the erosion of the freedom and independence of the press and media in Ghana.”

And “to reverse this erosion, and ensure the growth and strengthening of press and media freedom and independence in the Fourth Republic” the committee recommended an independent Press Commission to be set up to perform the functions hitherto discharged by the Minister of Information with respect to the public sector press.

During the course of debate on this issue a number of the members of the Assembly echoed the sentiments of the committee. One of the comments will suffice:

“We want to give all kinds of freedom to the press but at the same time we want them to be controlled and also to be responsible. So it is the courts which have the power to control the media and not the Government or the politicians…”

and,

“But the state-owned media, since it is publicly owned must seek to protect the interest of the generality of the public so that all types of views or divergent views must find expression in the public media because they are all members of the public and it is not to be exclusive propagation of the views of the Government.” See the official report of the proceedings of the Consultative Assembly dated 26 November 1993, pages 983 and 997.

Indiscriminate control of the mass media by the government of the day may contribute a serious obstacle in the full realisation of the objective of the media in achieving its freedom and independence which is effectively guaranteed by the constitution.

The defendant did not seem to have an effective answer to the contention of the plaintiff that the GBC refused to afford the NPP equal time on the television to present its views of the 1993 budget as it accorded the NDC. In fact under section 9 of the Ghana Broadcasting Corporation Decree 1968 (NLCD 226), which created the defendant corporation, it is expected to allocate and apportion airtime to party political speeches dealing with the views and policies of the various political parties, and speeches expressing different points of view on matters of controversy, equitably between the parties according to their respective claims upon the interest of members of the Ghanaian public.

The combined effect of articles 55(11) and 163 imposes on the defendant the duty to afford to the NPP fair opportunities and facilities for presentation of its views, and in this respect it is my view that the defendant has no discretion to operate in any manner it deems fit as the Attorney-General seems to urge before us. How can the populace boast of effective political pluralism when some institutions refuse or think they are entitled to refuse, to abide by clear constitutional provisions and hide behind the concept of discretion in situations where it is abundantly clear that they have no right to exercise any discretion in the matter? I think the Attorney-General rightly abandoned this inept theory of discretion.

Selective responses to constitutional norms in violation of clear and literal meaning of the constitution to suit particular whims and caprices will definitely discredit the noble cause of uncontaminated democratic principles and constitutional development to which we are all committed. The courts are in duty bound to respond to any violation of the objectives of our constitutional era, and the welfare of the Ghanaian public is the sole concern and motivation of the courts.

The responsibility of the media must be matched by comparable support by the government for the realisation of the political, economic and social rights of the parties in opposition. The dissemination of divergent views of all parties must be encouraged, as well as the interdependence of such views.

Article 163 is clear and unambiguous in its language. It says:

“163. All state-owned media shall afford fair opportunities and facilities for the presentation of divergent views and dissenting opinions.”

The responsibility of state-owned media whereby they are obligated to afford fair opportunities and facilities for the presentation of divergent views and dissenting opinions must be effectively brought into focus so that all political parties are provided fair opportunities to present their programmes to the public by being given equal access to the state-owned media. The courts must not only condemn any practice of discrimination, but also insist on the observation of the principle of fair opportunity and equality of access to the media.

The media is the pivot of public information, and through them the people must be appraised of economic and social issues of the day by the political parties without any control of one party over the other in the context of enjoying more privileges under the constitution. A party in government must not be held to enjoy absolutist power over the state media.

It is necessary for Ghanaians to realise that in the governance of a country there is an alternative point of view to be canvassed. Equity requires that in all these things the opposition should be given as much attention within the framework of the political scenario. If the people are to be given opportunity to decide on the basis of some of the analysis contained in the PNDC/NDC budget statement the opposition must have equal access and equal opportunity to put their side of the opinion across.

Good budget is the lifeblood of the economy of a country, and in a third world country like ours a good budget will lead to successful investment growth that will in turn buttress its infrastructure in good linkage between the local businessman and his foreign counterpart. A good economic climate will encourage the business entrepreneurs both local and foreign to structure their combined skills for the benefit of the common man at the grass roots. That is the more reason why the budget must be subject to scrutiny by both the party in power and those in opposition.

If there is equal access for these parties to the state print and electronic media, the common people who hold the sovereignty of Ghana and in whose names and for whose welfare the powers of government are to be exercised in accordance with the constitution will become more informed of the divergent views of the parties on this all important subject. This will nurse a stable democracy and an independent judiciary to protect the property and civil rights of the people with a view to providing an intelligent and competitive workforce and rehabilitation of the essential elements and operations of this country.

It is for the foregoing reasons that I found myself in full agreement with my learned brothers and sister that the plaintiff succeeds and that judgment should be given in its favour and the reliefs sought granted.

WIREDU JSC. I have had the advantage of reading beforehand the reasons just read by my brother Francois JSC in support of the conclusions and the orders made by this court on 22 July 1993.

I am of the considered view that the reasons as read by him, ably and comprehensively touch and answer all matters in controversy and raised for consideration in this action between the parties and that I am in entire agreement with him. I do not, therefore, intend to add or contribute anything to this except to concur in his reasoning, which I do accordingly.

BAMFORD-ADDO JSC. I agree with the reason given by my brother Francois JSC for the following reasons. A political party, has invoked the original jurisdiction of the Supreme Court under article 2(1)(a) of the 1992 Constitution and is asking in the endorsement of the writ of summons for declarations as follows:

“(1a) By virtue of article 55(11) and 163 of the constitution, the Ghana Broadcasting Corporation as one of the state-owned media, has a duty to afford to the New Patriotic Party, fair opportunities and facilities for presentation of its views, especially when they are divergent from those of the government or of the National Democratic Congress (NDC) the party supporting the Government; and

(b) The refusal of the Ghana Broadcasting Corporation to afford the New Patriotic Party “equal time” on television to present its views on the 1993 Budget as accorded the National Democratic Congress on 23 January 1993 and 24 January 1993 is a violation and contravention of the constitution.”

The plaintiff is also asking in paragraph (2) for an order enforcing the provisions of the constitution by directing the Ghana Broadcasting Corporation to afford the New Patriotic Party “equal time” on television to present its views of the 1993 Budget as accorded the National Democratic Congress (NDC) on 23 January 1993 and 24 January 1993.

The defendant is a state-owned corporation established by the Ghana Broadcasting Corporation Decree 1968 (NLCD 226) to undertake inter alia sound and television broadcast to the general public.

The facts as contained in the statement of the plaintiff’s case are briefly that on 23 and 24 January 1993 the defendant, through television, broadcast to the general public a recording of a forum organised by a political party, the National Democratic Congress

(NDC), to justify the budget of 1993 presented by Dr Kwesi Botchwey. On each occasion the broadcast lasted over one hour and featured not only Dr Kwesi Botchwey but other prominent members of the NDC.

The plaintiff, in pursuit of its constitutional rights, wrote to the Director of Television on 26 January 1993 requesting the same media facilities of the defendant to be also made available to the NPP in order to ventilate the party’s divergent views and comments on the said budget, as had been made available to Dr Kwesi Botchwey for the NDC, but the defendant, having agreed to record a symposium to be organised on 9 February 1993 by the NPP, failed to do so; that up till time of the hearing the defendant, the Ghana Broadcasting Corporation had failed in its constitutional duty under article 163 of the 1992 Constitution to afford the NPP “fair opportunities and facilities” for the presentation of divergent views on the 1993 budget and that this is a violation and contravention of the 1992 Constitution, specifically article 163 thereof.

The defendant, represented by the Attorney-General, denied that the plaintiff is entitled under the 1992 Constitution to be afforded by the defendant the same amount of television time as was given to the NDC and argued that in any case the NPP, as well as various groups and individuals, had already been afforded “fair opportunities” for the presentation of divergent views and dissenting opinions on the 1993 budget.

The defendant referred to a press conference held on February 1993 by the opposition parties at which the presentation on behalf of NPP was undertaken by the plaintiff’s presidential candidate, Professor Adu Boahen and also to a TV programme, “Talking Point” carried on TV on 17 January 1993 as well as to another programme on 22 January 1993 in which the Trade Union Congress criticised the 1993 budget and other programmes.

According to the defendant, the GBC, it had exercised its discretion in accordance with constitutional requirements for affording “fair opportunities and facilities” to the plaintiff, and therefore the plaintiff was not entitled to any of the reliefs sought.

The issue to be decided by this court is whether on the facts the defendant is in breach of article 163 or not. It is therefore necessary to find the meaning of this article. In this exercise, article 163 cannot be read in isolation; it must be read together with articles 21, 55(3) and (11) so as to arrive at the correct interpretation.

The plaintiff’s counsel, Nana Akufo-Addo, in his submission invited us to interpret article 163 in accordance not only with the letter but also with the spirit of the constitution and cited the case of Tuffuor v Attorney-General [1980] GLR 637. In that case Sowah JSC stated as to the manner of interpreting the provisions of the constitution thus at 659-660:

“We start by reminding ourselves of the major aids to interpretation bearing in mind the goals that the Constitution intends to achieve. Our first duty is to take the words as they stand and give them their true construction having regard to the language of the provisions of the Constitution, always preferring the natural meaning of the words involved, but nonetheless giving the words their appropriate construction according to the context…”

This indeed is the proper way of interpreting the constitution which I shall adopt. It would be convenient here to set out in full the provisions of article 21(1)(a), article 55(3) and (11) and article 163 since these are the main provisions upon which the construction of article 163 depends.

Article 21(1)(a) provides:

“All persons shall have the right to —

(a) freedom of speech and expression, which shall include freedom of the press and other media.”

Article 55(3) and (11) also provide:

“(3) Subject to the provisions of this article, a political party is free to participate in shaping the political will of the people, to disseminate information or political ideas, social and economic programmes of a national character, and sponsor candidates for elections to any public office other than to District Assemblies or lower local government units.

(11) The State shall provide fair opportunity to all political parties to present their programmes to the public by ensuring equal access to the state-owned media.”

Article 163 provides:

“All State owned media shall afford fair opportunities and facilities for the presentation of divergent views and dissenting opinions.” (Emphasis is mine.)

It is important to ascertain the rationale behind the provisions of article 163 as well as the intent of the framers of the 1992 Constitution and the mischief that was sought to be remedied. These issues were discussed in the experts’ report on the proposals for a draft constitution of Ghana.

In chapter six dealing with the freedom and independence of the media at p 85 the committee stated as follows:

“Paragraph 182 … It is through responsible and independent media that objective information is disseminated, different and opposed views are presented and shared, enlightened public opinion is formed and political consensus mobilised and achieved.

Paragraph 186 … The public must, therefore, be guaranteed the right to know, the right of access to information, as a basic human and constitutional right. Freedom of the press and expression also means that any citizen who has anything to say about national affairs should have access to the public sector mass-media, limited only by practical considerations of space and time, and by existing laws of sedition, criminal libel and those protecting privacy etc.

Paragraph 188. Given the above considerations, the public sector media financed by public taxes must operate in such a way that they truly reflect the diverse shades of public opinion existent in the country as a whole.”

These objectives led to the experts’ recommendation in appendix F of their report at p 256, which deals with freedom and independence of the media. The following suggested proposal for incorporation in the draft constitution for Ghana on this issue is contained in 6(1):

“State-owned media for the dissemination of information to the public shall afford equal opportunities and facilities for the presentation of opposing or differing views. Dissenting opinion may be freely exposed in such media.” (Emphasis mine.)

The measure of opportunity to be afforded to all political parties, according to the experts, is “equal opportunities and facilities” in the presentation of opposing or differing views, in the state-owned media on matters of national character. In the same vein, in paragraph 265 of the said report, the committee of experts proposed for incorporation in the draft constitution, the following provisions under “Political Parties”:

“7(13) the State shall provide equal opportunity to all political parties to present their programmes to the public by ensuring equal access to the state-owned media.”

Here also “equal opportunity” was indicated. These recommendations undoubtedly gave rise to formulation of article 163 of the 1992 Constitution. Having identified the raison d’être of article 163, I would now consider the meaning of words used therein and the intended effect of this article, taking into consideration the context in which they appear.

Article 163 of the 1992 Constitution contains the words “fair opportunities and facilities” instead of “equal opportunity,” recommended by the experts in the report. But in article 55(11) the words “fair opportunity” therein used was defined, namely that “fair opportunity” is achieved by ensuring “equal access” to the state-owned media by all political parties when presenting their programmes to the public; and this of course includes the presentation of divergent views on matters of national character.

Therefore if in article 55(11) “fair opportunity” is achieved by ensuring equal opportunity or access, then it follows that fair opportunities in article 163 should mean the same thing, i.e. equal opportunity, especially where both articles deal with similar matters and having regard also to the context in which the words appear.

This is not only a correct mathematical equation, but it is also a presumptive canon of statutory interpretation that generally, the same words bear the same meaning in the same statute. This presumption is of course rebuttable where the legislature clearly intended a different meaning for the same words.

However, in this case there is no reason for holding that a different meaning was intended for the same words used in the constitution and it is my opinion therefore that the word “fair” used in article 163 should be interpreted to mean “equal” as indicated in article 55(11) and I so hold.

But this is not all, I draw support for my said conclusion from the recommendation of the experts’ report referred to above and also from article 22(2) of the 1969 Constitution which states:

“Any person responsible for any national medium for the dissemination of any kind of information to the public shall afford equal opportunities and facilities for the representation of opposing or differing views.”

Article 28(2) of the 1979 Constitution also states:

“A person responsible for the state-owned medium for the dissemination of any kind of information to the public shall afford equal opportunities and facilities for the presentation of opposing or differing views.”

Both these constitutional provisions stipulated that “equal” opportunities and facilities should be given by the state-owned media for the presentation of opposing and differing views. Considering the fact that the 1992 Constitution is based largely on the 1979 Constitution, there is no valid reason for supposing that the 1992 Constitution was meant to depart from the 1979 Constitution on this issue.

The Attorney-General, appearing for the defendant in his submissions, argued that the word “fair” in article 163 should be interpreted to mean “reasonable” and that what is reasonable depends on what the GBC thinks is reasonable.

This argument is not only untenable for the reasons given above, but also for this reason, namely that since the word “shall” used in article 163 imposes a mandatory, not permissive duty on the GBC it has no discretion in the performance of its constitutional duty of mandatorily affording equal opportunities to all parties to present divergent and dissenting opinions to the public on the state-owned news media; see s 27 of the Interpretation Act 1960 (CA 4) where it is stated that the word “shall” is mandatory and therefore excludes any question of discretion.

Further, to accept the Attorney-General’s submission that “fair” in article 163 should mean what the GBC thinks is reasonable, would result in an absurdity and create difficulties. It would mean that the constitution having granted the unqualified right of free speech and equal opportunity to all political parties to present divergent views and programmes to the public on matters of national character in the state-owned mass media, would at the same time curtail or derogate from this right by giving the GBC the power to decide how the parties should exercise their right, even though the constitution requires that equal opportunity should be given to each party.

In any case what would be the criteria to be used by the GBC in deciding what is reasonable? The Attorney-General’s suggested construction of the of the word “fair” in article 163 would lead to rancour and confusion among the various political parties and embroil the GBC in unnecessary and acrimonious controversy where allegations and counter allegations of favouritism and mala fides would be levelled against the corporation from all sides. Such an unfortunate result is surely not what the framers of the constitution intended, having regard to its spirit.

I believe that this is possibly the reason why the constitutional framers in their wisdom provided “equal”, not “reasonable” opportunity to all parties. The interpretation I have put on the word “fair” to mean “equal” seems to me to accord with good sense as well as with the true intent and spirit of the constitution. It is also consistent with paragraph 9(1)(b) and (c) of NLCD 226 which requires the GBC to allocate and apportion airtime equitably between political parties when broadcasting their speeches, or expressing different points of view on matters of controversy.

Counsel for the plaintiff has asked us to apply the maxim, equality is equity and to say that equitable airtime mentioned in paragraph 9(2) of NLCD 226 means equal time. I have no reasons for disagreeing with him on this issue since there is no other indicated basis for apportioning airtime under paragraph 9 of the said decree.

Even though the functions required to be performed by the GBC are multifarious, according to the Ghana Broadcasting Corporation Decree 1968 (NLCD 226) the GBC is still under a mandatory constitutional duty to provide “equal” opportunities and facilities to all political parties, to enable them present their divergent views to the public on matters of national character. As to the specifics of when and how to afford the parties the equal opportunities and facilities, the matter is best left to the GBC to handle, having regard to practical considerations of space and time.

It is to be noted that in the plaintiff’s writ the declaration sought in paragraph 1(b) and 2 (set out earlier on in this judgment) mentioned “equal time,” but that is not the same as “equal opportunity”, and the plaintiff is entitled not to “equal time” as envisaged under article 55(12) which deals with presidential candidates but to “equal opportunity” under article 163.

It is for these reasons that I also agree with my brothers that the plaintiff is entitled to the declaration sought in the writ with the