The right to freedom of speech and expression constitutes the sine qua non of any democratic society. Under Article 21(1)(a) of the Constitution, 1992 of the Republic of Ghana, 1992 “all persons shall have the right to freedom of speech and expression, which shall include freedom of the press and other media.”
This constitutional guarantee, however, does not exist in a vacuum. The State retains a legitimate interest in preserving public order, safety, and the administration of justice. It is within this delicate equilibrium that Sections 207 and 208 of the Criminal Offences Act, 1960 (Act 29) operate provisions that have, in recent jurisprudential and political discourse, become the subject of intense constitutional scrutiny.
This article examines the interplay between the constitutionally entrenched right to free expression and the penal provisions under Sections 207 and 208 of Act 29. It argues that while the State possesses a legitimate duty to regulate speech that incites violence or causes demonstrable public harm, the current formulation and application of these provisions risk crossing the constitutional threshold from reasonable regulation into impermissible censorship.
Through an analysis of judicial precedent, comparative jurisprudence, and constitutional doctrine, this article advances practical recommendations for legislative reform and judicial interpretation that would preserve public order without eviscerating the democratic essence of free speech.
*The Constitutional Architecture of Free Expression in Ghana*
The 1992 Constitution entrenches freedom of expression as a fundamental human right under Chapter 5. Article 21(1)(a) guarantees the right to freedom of speech and expression, while Article 21(1)(f) protects the freedom of the press and other media. These provisions are not absolute; however, the Constitution prescribes specific limitation clauses that must be strictly construed.
Article 12(2) provides a general limitation formula, stipulating that fundamental rights may be restricted only by laws that are “reasonably required” in the interest of public safety, public order, public morality, or the rights and freedoms of others.
Notably, Article 162(2) of the Constitution expressly prohibits censorship, declaring that “subject to this Constitution and any other law not inconsistent with this Constitution, there shall be no censorship in Ghana.” This constitutional injunction imposes a heavy burden on any legislative provision that seeks to restrict speech, requiring that such restrictions satisfy the proportionality test, a jurisprudential standard that measures the objective of the restriction against its impact on the fundamental right.
The Supreme Court of Ghana, in Independent Broadcasters Association of Ghana v. Attorney-General [2023] GHASC affirmed the applicability of the proportionality test in assessing restrictions on press freedom. The Court held that regulating broadcasting standards does not per se infringe the Constitution provided such regulation is justified on grounds of public interest and is proportionate to the aim sought to be achieved.
This jurisprudential framework is essential in evaluating the constitutional validity of Sections 207 and 208 of Act 29.
*Section 207 Of Act 29: Offensive Conduct Conducive to Breaches of the Peace*
Section 207 of the Criminal Offences Act, 1960 (Act 29) provides “Any person who in any public place or at any public meeting uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned, shall be guilty of a misdemeanour.”
*a. Actus Reus and Mens Rea*
The offence created under Section 207 is a conduct-based misdemeanour requiring both a physical element (actus reus) and a mental element (mens rea). The actus reus consists of the use of “threatening, abusive or insulting words or behaviour” in a public place or at a public meeting. The mens rea is bifurcated: the prosecution must prove either (i) specific intent to provoke a breach of the peace, or (ii) objective likelihood that a breach of the peace would be occasioned by the conduct.
The terminology employed “threatening,” “abusive,” “insulting” is inherently subjective and lacks precise statutory definition. This vagueness creates a zone of uncertainty that renders the provision susceptible to arbitrary application, particularly against political dissidents, journalists, and activists whose speech may be discomforting to the State or public officials but falls short of incitement to violence.
*b. Constitutional Vulnerabilities: The Overbreadth Doctrine*
The doctrine of overbreadth, well-established in comparative constitutional jurisprudence, holds that a criminal statute is unconstitutional if it prohibits conduct that is constitutionally protected, thereby chilling legitimate expression. In the Ghanaian context, scholars have identified Section 207 as potentially overbroad, given its capacity to capture speech that merely offends or shocks without constituting a genuine threat to public order.
The Supreme Court of the United States, in Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) struck down a vagrancy ordinance on the grounds that it was “unconstitutionally void for vagueness” for failing to provide adequate notice of forbidden conduct and encouraging arbitrary arrests.
The parallels to Section 207 are unmistakable. The provision’s indeterminate language “insulting words or behaviour” fails to delineate with sufficient clarity the boundary between protected criticism and criminal conduct, thereby conferring excessive discretion upon law enforcement authorities.
*Section 208 of Act 29: Publication of False News*
Section 208(1) of Act 29 criminalises the publication of false information. It states that “Any person who publishes or reproduces any statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace knowing or having reason to believe that the statement, rumour or report is false commits a misdemeanour.”
Subsection (2) further provides that ignorance of falsity is no defence unless the accused proves that prior to publication, he or she took reasonable measures to verify the accuracy of the information.
*a. The Colonial Lineage and Surviving Ghosts of Censorship*
Section 208 traces its lineage to colonial-era legislation designed to suppress dissent and control the flow of information to the indigenous population. Following the repeal of the criminal libel and seditious libel laws in 2001, a watershed moment in Ghana’s democratic consolidation, Sections 207 and 208 survived as residual instruments of speech regulation.
The repeal of the criminal libel law was predicated on the recognition that the criminalisation of speech, particularly speech critical of government, is incompatible with democratic governance. As then-Attorney-General Nana Akufo-Addo declared in Parliament, the use of the State apparatus to prosecute journalists for alleged abuse of free speech was an anachronism that ought to be supplanted by civil remedies such as defamation actions.
Yet, the continued existence of Section 208 has enabled the State to achieve indirectly what it can no longer do directly, prosecute journalists and critics for speech that discomforts those in power.
*b. The “Likely to Cause Fear and Alarm” Standard*
The critical phrase “likely to cause fear and alarm to the public” establishes an objective test that focuses not on the actual result of the publication but on its propensity to disturb public tranquillity. In the Republic v. Agyapong, the Court of Appeal held that the mere making of a false statement was not the crux of the offence; rather, the prosecution must establish that the publication was likely to cause alarm and fear, and that the accused knew or had reason to believe the statement was false.
However, this judicial narrowing has not prevented the provision’s weaponisation. Recent events demonstrate a disturbing pattern: journalists, bloggers, TikTok creators, and political activists have been arrested and prosecuted under Section 208, often paired with Section 207 for publications and utterances that, at worst, constitute defamation or mere falsehoods but do not rise to the level of threats to public safety.
*c. The Chilling Effect on Investigative Journalism*
The chilling effect of Section 208 on investigative journalism cannot be overstated. In an era of rapid information dissemination through electronic media, the provision imposes an impossible standard of pre-publication verification. Subsection (2) effectively imposes strict liability by negating the defence of ignorance unless the accused can demonstrate affirmative efforts at verification, a burden that is particularly onerous for freelance journalists and citizen reporters operating under resource constraints.
*Judicial Interpretation and the Proportionality Imperative*
The Supreme Court of Ghana has, in various decisions, articulated the necessity of proportionality in limiting fundamental rights. The proportionality test requires that any restriction on a constitutional right must be: (i) prescribed by law; (ii) directed toward a legitimate aim; (iii) necessary in a democratic society; and (iv) proportionate to the aim sought to be achieved.
Applying this test to Sections 207 and 208, serious constitutional doubts emerge.
While the preservation of public order is unquestionably a legitimate aim, the means employed by these provisions, criminal sanctions including imprisonment for up to three years, are arguably disproportionate to the harm sought to be prevented. The European Court of Human Rights, in Handyside v. United Kingdom (1976) 1 EHRR 737, held that freedom of expression protects not only information and ideas that are favourably received but also those that “offend, shock or disturb the State or any sector of the population.”
This principle is indispensable to the functioning of a pluralistic democracy.
In the Ghanaian context, Justice Osei-Hwere, in his analysis of Section 208, sought to narrow its overbreadth by emphasising that the test is not the actual result but whether the false statement was likely to cause a breach of the peace.
However, this judicial gloss does not cure the provision’s fundamental defect: the criminalisation of false speech, divorced from incitement to violence or imminent lawless action, violates the principle that the State should not be the arbiter of truth in a democratic society.
The Importance of Controlling Free Speech: The Legitimate State Interest
Notwithstanding the constitutional vulnerabilities identified above, it must be acknowledged that the State retains a legitimate and compelling interest in regulating certain categories of speech. The right to free expression is not absolute; it coexists with other constitutional values including public safety, national security, and the rights of others.
*a. The Prevention of Incitement to Violence*
Speech that directly incites imminent violence or lawless action falls outside the protective ambit of Article 21. The State has a duty to prevent speech that constitutes a clear and present danger to public order. Sections 207 and 208, properly construed, may serve this legitimate function when applied to speech that genuinely threatens public tranquillity such as false reports of terrorist attacks, inflammatory rhetoric designed to provoke ethnic conflict, or deliberate incitement to riot.
*b. The Protection of Democratic Institutions*
The stability of democratic institutions requires a baseline of public trust. The deliberate dissemination of false information calculated to undermine electoral integrity, public health responses, or the administration of justice may justifiably attract penal sanctions.
The COVID-19 pandemic demonstrated the lethal potential of health misinformation, justifying narrowly tailored laws that criminalise the intentional dissemination of demonstrably false information that endangers public safety.
*c. The Balance Between Regulation and Censorship*
The distinction between permissible regulation and impermissible censorship lies in the intent, scope, and effect of the law. Regulation targets specific, identifiable harms with precision instruments; censorship suppresses dissenting or inconvenient viewpoints.
The constitutional command under Article 162(2) that there shall be no censorship, demands that any restriction on speech be justified by an overriding public necessity and framed with sufficient specificity to avoid arbitrary enforcement.
*Practical Recommendations*
The following recommendations are advanced to reconcile the State’s duty to preserve public order with the constitutional imperative to protect free expression:
*i. Legislative Reform: Repeal or Narrowing of Sections 207 and 208*
Parliament ought to repeal Section 208 in its entirety and replace it with a narrowly tailored provision that criminalises only the intentional dissemination of false information that creates an imminent threat to public safety such as false bomb threats, hoax distress signals, or health misinformation during a declared pandemic. The current broad formulation is irredeemably vague and incompatible with constitutional standards.
Section 207 should be amended to require proof of imminent likelihood of violence, not merely a “likely” breach of the peace. The terms “abusive” and “insulting” should be replaced with objective standards, such as “speech intended to and likely to incite immediate violence.”
This would align Ghanaian law with the “imminent lawless action” test developed in Brandenburg v. Ohio, 395 U.S. 444 (1969).
False statements that harm individual reputation should be addressed exclusively through civil defamation remedies, not criminal prosecution. The State should not deploy its prosecutorial machinery to vindicate private reputational interests.
*ii. Judicial Interpretation: The Proportionality and Vagueness Doctrines*
The Supreme Court should adopt a strict construction of Sections 207 and 208, requiring prosecutors to prove that the speech in question created a clear and present danger of imminent violence, not merely offence or alarm.
The Courts should be prepared to declare these provisions unconstitutional to the extent that their vague terminology chills protected speech. The doctrine of severability may be invoked to excise unconstitutional applications while preserving the core legitimate purpose of the provisions.
Restrictions on political speech, journalism, and criticism of government should attract heightened judicial scrutiny, given the central role of such speech in democratic governance.
*iii. Institutional Safeguards*
The requirement of the Attorney-General’s consent for prosecutions under speech-related offences should be rigorously enforced to prevent politically motivated prosecutions by subordinate law enforcement agencies.
Continuous engagement between the Ghana Police Service, the National Media Commission and media stakeholders such as the dialogues facilitated by the Media Foundation for West Africa, should be institutionalised to foster mutual understanding and prevent arbitrary arrests.
The Judiciary and the National Media Commission should embark on public education campaigns to delineate the boundaries between protected speech and criminal conduct, thereby reducing self-censorship and promoting responsible journalism.
*iv. Alternative Regulatory Mechanisms*
The media industry should strengthen self-regulatory mechanisms, including the National Media Commission’s standards and codes of ethics, to address professional lapses without recourse to criminal sanctions.
Investment in independent fact-checking organisations and media literacy programmes should be prioritised as non-coercive means of combating misinformation.
Individuals harmed by false publications should be encouraged to pursue civil remedies, thus damages, retractions and apologies rather than invoking the criminal law. The High Court’s jurisdiction in defamation provides an adequate forum for such redress.
Conclusion
Sections 207 and 208 of the Criminal Offences Act, 1960 (Act 29) occupy a contested space in Ghana’s legal architecture purporting to serve the legitimate end of public order while simultaneously threatening the constitutional foundation of free expression.
Their colonial lineage, vague terminology, and susceptibility to political weaponisation render them anomalous in a mature constitutional democracy.
The 1992 Constitution enshrines free speech not as a luxury but as a democratic necessity.
As the European Court of Human Rights recognised in Handyside, pluralism, tolerance, and broadmindedness are the hallmarks of a democratic society; without them, there is no democracy. The criminalisation of speech that merely offends, shocks, or disturbs without a direct nexus to imminent violence constitutes an impermissible encroachment on this foundational right.
Yet the State cannot abdicate its responsibility to protect citizens from speech that incites violence or creates genuine public emergencies.
The challenge lies in crafting laws that are surgically precise, targeting only the harm, not the speaker; preserving order, not suppressing dissent. The repeal or radical narrowing of Sections 207 and 208, coupled with the strengthening of civil remedies and self-regulatory mechanisms, offers the most constitutionally sound path forward.
In the final analysis, the measure of a democratic State is not the silence of its critics but the vigour with which it protects their right to speak. Ghana’s constitutional promise demands nothing less.
By Samuel Saint-Ayisi
