Licence, written consent, regulations and the dictionary

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Category: Law Commentaries

Created on Tuesday, 18 November 2014 00:00

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Licence, written consent, regulations and the dictionary

“Radio Eye” will not be coming on air before the General Elections in December. Whether it will ever do so at all probably depends on the outcome of a future arbitration by a panel of learned professors of the English language rather than the Supreme Court of Ghana.

Indeed, whether Ghanaians will ever be able to enjoy one of their constitutionally-enshrined fundamental freedoms fully and without Executive interference, will depend on unravelling the meanings and inter-relationships between the words ‘licence’, ‘regulations’ and ‘written consent’.

The Supreme Court of Ghana has ruled that Section !5(b) of the Telecommunications (Frequency Registration & Control) Decree, 1977, SMCD 71, which states that “Any person who uses any radio frequency without the written consent of the Board shall be guilty of an offence...”, is not inconsistent with Article 162(3) of the Constitution. which states that “There shall be no impediments to the establishment of private press or media; and in particular, there shall be no law requiring any person to obtain a licence as a prerequisite to the establishment or operation of a newspaper, journal or other media for mass communication or information.”

IMCG, the operators of ‘Radio Eye’ took the view that “written consent” was the same as “licence” and therefore Section 15(b) under which it had been charged, being inconsistent with the Constitution, was to be declared “null, void and of no effect”. The Government took a different position and sought refuge under Article 164, which states that “ The provisions of articles 162 and 163 of this Constitution are subject to laws that are reasonably required in the interest of national security, public order, public morality and for the purpose of protecting reputations, rights and freedoms of other persons.”

It was the view of the government that Section 15(b) of SMCD 71 was the reasonably required law, never mind the fact that its specific language of “written consent” was tantamount to taking away completely the very freedom which Article 162(3) granted so explicitly and unconditionally. This was the view endorsed by the Supreme Court in its 4-1 majority decision of July 23 1996.

The Supreme Court’s decision is both absurd and dangerous. Absurd because it makes a complete ass of the Constitution of the country, being a classic example of Joseph Heller’s “Catch-22" situation. Our Constitution says we do not need a licence to establish and operate a broadcasting service ( article 162(3). However, the Supreme Court has held that a law which makes it an offence to operate a broadcasting sation without “written consent” is valid and not inconsistent with the same Constitution. Since “written consent” and “licence” mean the same thing, then it follows that even though the Constitution says we do not need a licence, that right is immediately taken away by Section 15(b) of SMCD 71.

In trying to cover up the ridicule of their ruling, his Lordships Kpegah and Acquah sought to create the impression that the Directors of ‘Radio Eye’ were a bunch of anarchists bent on creating chaos and mayhem in Ghana by insisting on unfettered rights to go on the air without taking due cognisance of the technical requirements of the use of radio frequencies or acceptance of the country’s international obligations. In the end what they succeeded in doing was to expose deep ignorance about the subject which they attempted to cover up with long treatises and irrelevant historical accounts.

His Lordship Kpegah started off by sneering at some people’s penchant for “so-called western democracies”. Indeed, he used the phrase no less than 4-6 times in the first 15 minutes of his delivery. Listening to him bellowing out his ‘contempt’ I couldn’t help but think about the fact that an earlier sitting to give judgement on the case had been adjourned “san dan ho” because he was ill. I thought to myself, if the fellow is so contemptuous of western democracies and values, why did he go to England to receive the best possible treatment for his ailment?. After all, he could have gone to the fetish shrine of Hohoe or even chanced his life at the grave-yard of Korle-Bu or 37 Military Hospital.

The hypocrisy of His Lordship’s Kpegah’s position was completely exposed when he sought refuge in American and British broadcasting laws and practices to justify why we should have broadcasting licences in Ghana even as the Constitution expressly forbade so. We were treated to a 20 minute historical account of the early years of US broadcasting, leading to the enactment of the Federal Communications Act of 19 34, and why the US introduced licensing to bring order to a hitherto chaotic situation.

At best Kpegah J.S.C. was being mischievous. At worst he was just plain ignorant. For how could one seek refuge in an account of the limitations of early days of the valve -driven wireless, to justify conduct and operations in the microprocessor and World-wide Web age, now that it is possible to have up to 200 radio stations within a single defined locality on the Frequency Modulation(FM) band?.

With all the noise we are making now about the need to protect the finite resource of the radio frequency, we have less than 20 FM. stations operating in the whole of Ghana, when we can have as many as 200 in the Greater Accra area alone. And in an era, when those of our people who can afford, or enjoy it as a freebie, are being offered Direct Satellite TV, and land-cable offers endless possibilities, it is only those seeking to control people’s freedoms and liberties, who will hide behind irrelevant and hopelessly outmoded histories of “western democracy”experiences to cut and run.

The operators of ‘Radio Eye’ never claimed that they could simply set up their equipment and start a radio station. For if we had, we would not have written several formal letters to the Ghana Frequency Board asking it to register a frequency for our use. Our contention was that the new Constitution had introduced a radically new way of frequency management in Ghana. The old order of Executive exercise of discretionary power was gone. In its place, a new and independent body was to devise and administer transparent regulations which merely guided prospective operators on how to get started without getting in each other’s way or infringing international obligations.

As our lawyers pointed out in their submission to the Court, Article 164 of the present Constitution should take its inspiration from Article 28(4) of the 1979 Constitution from which the 1992 is derived. The 1979 provision talks of making laws that are reasonably required for the purpose of “regulating telephony, telegraphy, posts, wireless broadcasting, public exhibitions or public entertainments”.

In other words, it is possible to satisfy both Articles 163(2) and 164 of the present Constitution by making laws that regulate the management and assignment of radio frequencies without the need to introduce a regime of licensing. This means that Section 15(b) of SMCD 71 can be ruled as inconsistent with Article 163(2) and be replaced by new lasw which establish regulations that ensure orderly management of the airwaves.

His Lordship Sophia Akuffo, in a most enlightening and brilliantly- argued but ultimately-flawed ruling , arrived at the very same conclusion as our lawyers, even though she took the side of the majority when it came to the vote. She made a very careful distinction between licensing and regulations throughout her judgement, emphasising the need for regulations to maintain sanity and order without impinging on the freedoms granted to the media by the Constitution.

What Akuffo J.S.C. did not do was to define what she saw as the difference between licensing and regulating. That was really a pity, for if she had bitten the bullet, she would have come down on the side of constitutional sanity, order and freedom, rather than attaching herself to the warped “Catch-22 logic” of giving with the right hanad and taking back immediately with the left.

Our lawyers provided definitions from several authoritative dictionaries to help his Lordships out to unravel the simple fact that “written consent” and “ licence” are one and the same thing. Since, last Tuesday, I have looked up the three phrases in every conceivable dictionary I have been able to lay my hands on. The Oxford Advanced Learner’s Dictionary defines “CONSENT” as “agreement or permission”. The same dictionary defines LICENCE as “permission”, and “REGULATIONS as “rules or restrictions”.

The ‘All Nations English Dictionary’, which prides itself on giving “authoritative, definitions in precise easily understood modern English”, defines CONSENT as “Agreement, permission. LICENCE is defined as “permission” to do something; REGULATIONS are defined as “rules”. The Shorter Oxford English Dictionary on Historical Principles defines CONSENT as “agreement or permission”; LICENCE is “formal permission”;, and, REGULATIONS are “rules prescribed for the management of some matter.

So there we have it. Whichever ways his Lordships want to look at it, CONSENT MEANS PERMISSION MEANS LICENSING MEANS CONSENT and REGULATIONS MEANS RULES. That is the English language which is what we use here as the official language of Ghana.

It is also the tradition and the language of the people from whom we derive much of our modern laws. The incontrovertible fact is that our legal practitioners, including his Lordship Kpegah, still adorn themselves in the apparel of their English legal brothers. Therefore until such time that we cast off the last vestiges of “so-called western democracies” from our legal system here, we can do very little else than accept the strict distinction that the English Language has made between LICENCE = WRITTEN CONSENT & REGULATIONS = RULES.

This is why I say that the future of ‘Radio Eye’ and our constitutionally-guaranteed right to establish and operate broadcasting stations without licence is in the gift of learned professors of the “Queen’s English.”; for Ghana’s Supreme Court has decided that the clear and hitherto assumed incontrovertible authority of revered English dictionaries is simply not good enough. It is perhaps another example of the polluting penetration of the values of “so-called western democracies” into our pure and perfect culture and traditions. Perhaps it is time for us to chnage our official working language to Ewe or Akan or some less-confusing local dialect.

Source: Dr Charles Wereko-Brobbey