Free Speech, False Publication and Presidential Criticism in Ghana: Where Does the Law Draw the Line?

Ghana’s constitutional commitment to freedom of speech and media freedom continues to raise an important legal question: when does criticism of the President or government remain protected expression, and when can a publication cross into criminal conduct because it is allegedly false and capable of causing public fear or alarm?

In a legal analysis, Rodney Williams, Esq. of Aseda Chambers examines the distinction between constitutionally protected political criticism and false publications that may attract criminal liability under Ghanaian law.

According to Mr Williams, the legal framework does not criminalise criticism of the President simply because the criticism is harsh, offensive or unpopular. Rather, the law becomes relevant where a publication allegedly contains a false factual assertion and meets specific statutory requirements.

Constitutional protection for free speech

Mr Williams explains that the starting point is the 1992 Constitution of Ghana, particularly Article 21(1)(a), which guarantees freedom of speech and expression.

Article 162 also protects media freedom and prohibits censorship, although these constitutional protections are subject to limitations provided under Article 164.

Article 164 allows restrictions that are reasonably required in areas including national security, public safety, public order, public morality and the protection of the rights and reputations of other people.

Williams therefore argues that freedom of expression is fundamental but is not an unlimited right.

The legal analysis notes that Ghana repealed its criminal libel and sedition laws in 2001.

The repeal means that insulting the President, without more, is not in itself a criminal offence simply because the target of the criticism is the Head of State.

Williams stresses that the repeal is important when discussing contemporary political speech.

A citizen can criticise President John Dramani Mahama, question government policies, disagree with ministers or express strong political opinions without automatically committing an offence.

However, the position can change when the speech involves a separate criminal offence recognised under Ghanaian law.

What Section 208 of Act 29 says

At the centre of the legal debate is Section 208 of the Criminal Offences Act, 1960 (Act 29).

The provision makes it a misdemeanour to publish or reproduce a statement, rumour or report that is likely to cause fear and alarm to the public or disturb the public peace where the person publishing it knows or has reason to believe that it is false.

Williams points out that the provision therefore contains several elements that must be established.

It is not enough, in every circumstance, simply to allege that a statement was inaccurate.

The prosecution would have to establish the relevant statutory requirements, including the falsity of the publication, the required state of mind and the likelihood of causing public fear, alarm or disturbance of the public peace.

According to Williams, the important legal distinction is between opinion and an assertion of fact.

For instance, saying that a person believes President Mahama’s government is performing poorly is an expression of political opinion.

By contrast, publishing an untrue claim that a coup has occurred at Jubilee House is a factual assertion capable of being tested as true or false.

Williams therefore maintains that the issue under Section 208 is not simply whether someone used strong language against the President.

The crucial questions include whether the statement was false, whether the publisher knew or had reason to believe it was false, and whether it was likely to cause the type of public fear or disturbance contemplated by the law.

The “Ghana Jollof” case

Williams’ analysis comes amid the ongoing legal controversy surrounding the TikTok account known as “Ghana Jollof.”

The case involves allegations that false information, including claims concerning an alleged near coup at Jubilee House, was circulated through social media.

A nurse, Salomey Awiti Bafoh, has been arrested and charged in connection with allegations of abetment of the publication of false news.

She has pleaded not guilty.

Police have also named Barbara Asantewaa Kodua, who is alleged to be connected to the TikTok account, as a person wanted in connection with the investigations.

The allegations remain before the courts and have not been established as facts against the accused persons.

Williams uses the case to illustrate the distinction between criticism of political leaders and publications that allegedly present false information capable of causing public fear or alarm.

Electronic communications law

The analysis also examines Section 76(1) of the Electronic Communications Act, 2008 (Act 775).

The provision addresses the knowing transmission through an electronic communications service of false or misleading communications that are likely to endanger life or disrupt essential services.

Williams notes that this provision, like Section 208, is concerned with particular forms of harmful communication rather than creating a blanket prohibition on political criticism online.

Another important aspect of the debate is the constitutional challenge against Section 208.

According to Williams, Austin Kwabena Brako-Powers has challenged aspects of the false-publication laws before the Supreme Court.

The challenge reportedly argues that Section 208 and aspects of the Electronic Communications Act are vague or overly broad and potentially inconsistent with constitutional protections for freedom of expression and media freedom.

The challenge also raises questions about the requirement under Section 208(2) for a person relying on lack of knowledge of falsity to demonstrate that reasonable steps were taken to verify the information.

Williams notes that these arguments remain matters for determination by the Supreme Court.

The fact that a law has been challenged does not, by itself, suspend its operation. Unless and until a competent court declares otherwise, the existing statutory provisions remain part of Ghanaian law.

Williams also acknowledges concerns raised by critics who argue that laws against false publication could potentially be applied selectively or used in ways that discourage legitimate dissent.

Media and civil-society groups have previously raised concerns about the continued use of Section 208 and similar provisions, particularly in the digital era.

The constitutional challenge will therefore have implications for the continuing balance between freedom of expression and the state’s interest in preventing publications that could cause serious public harm.

What the law means for journalists and digital creators

For journalists, bloggers and social-media content creators, Williams’ analysis highlights the importance of verification.

People publishing serious allegations should establish the source of their information and take reasonable steps to verify claims before publication.

This is particularly important when reporting on sensitive issues such as: coups and attempted coups; assassinations;national-security operations; military movements; attacks; deaths; public emergencies; and other events capable of causing widespread fear or disorder.

Journalists and digital publishers are also advised to preserve records showing how information was obtained and verified.

The legal line

For Williams, the central legal distinction is straightforward: strong criticism of the President is not automatically criminal simply because it is offensive or unpopular.

The legal risk arises where a publication allegedly falls within an existing criminal provision by containing a false factual claim, published with the required state of mind and under circumstances capable of causing the harm identified by the law.

The repeal of criminal libel and sedition in 2001 remains significant because it means that political criticism cannot simply be treated as criminal libel or sedition.

At the same time, the repeal did not remove every law dealing with harmful or false publications.

Williams concludes that Ghana must maintain a balance between protecting freedom of expression and addressing publications that may cause genuine public harm.

He argues that the possibility of selective enforcement remains a constitutional concern, but until the Supreme Court determines the pending challenge, Section 208 remains enforceable.

The legal question in individual cases, therefore, should focus on the specific publication, the evidence surrounding it, the intention or knowledge of the publisher, and whether the statutory requirements have been satisfied.

The ongoing “Ghana Jollof” proceedings will consequently be watched closely as Ghana continues to debate the boundaries of free expression, political criticism and false publication in the digital age.

The legal analysis was authored by Rodney Williams, Esq. of Aseda Chambers.