Seth Boakye[1] & Emmanuel Tematey[2]
Abstract
Ghana’s constitutional commitment to freedom of speech faces a troubling counterpoint in the continued criminalisation of “false news.” This article examines how robust guarantees of expression under the 1992 Constitution and international law are undermined by colonial-era provisions that penalise the publication of false information. It provides an overview of Section 208 of the Criminal Offences Act, 1960 (Act 29) and Section 76 of the Electronic Communications Act, 2008 (Act 775), the principal “false news” offences in Ghana, and analyzes their use by authorities and interpretation by the courts. Drawing on case law, the discussion highlights ambiguities in these laws and contrasts Ghana’s approach with developments in Kenya, Uganda, Zambia, and South Africa – where courts have struck down or abandoned similar laws in defense of free speech. Human rights implications are explored, including concerns about overbreadth, abuse of these laws to stifle journalism and dissent, and inconsistency with Ghana’s international obligations. The article concludes with recommendations for reform, arguing for the repeal or narrowing of broad false news offences and the adoption of measures that protect public order without sacrificing constitutional freedoms. Ultimately, aligning Ghana’s legal framework with its democratic ideals and emerging African jurisprudence is essential to ensure that the punishment of false news does not become a tool of censorship but remains within acceptable bounds of necessity and proportionality.
Key words: freedom of speech, false news, Ghana, criminal law, human rights, press freedom
Introduction
Freedom of speech is a foundational value in Ghana’s democracy, enshrined in the 1992 Constitution and reflected in a vibrant media landscape. Ghana was one of the first African countries to repeal criminal libel and sedition laws in 2001, signaling a commitment to press freedom and open debate[3]. However, vestiges of colonial-era speech restrictions remain on the statute books. Chief among these are the criminal prohibitions on publishing “false news,” which were left intact after 2001 and have resurfaced in prominent prosecutions of journalists and activists in recent years. The persistence of these offences – notably Section 208 of the Criminal Offences Act, 1960 and a parallel provision in the Electronic Communications Act, 2008 – has fueled debate about their compatibility with constitutional free expression rights and Ghana’s international human rights obligations.
This article examines the tension between Ghana’s strong constitutional guarantees of speech and the continuing use of false news laws to arrest and charge individuals for what they say or publish. It begins by discussing the constitutional and international foundations of the right to freedom of expression in Ghana, against which any speech-restricting law must be measured. It then provides an overview of Section 208 of Act 29 and Section 76 of Act 775 – explaining their scope, origins, and the limited defenses they offer. Next, the article analyzes how these laws have been interpreted and enforced in Ghana’s courts, highlighting key cases and practical enforcement patterns that reveal their breadth and potential for abuse. To place Ghana’s experience in context, the article compares developments in other African jurisdictions: Kenya, Uganda, Zambia, and South Africa have all grappled with similar “false publication” laws, and their courts’ responses offer important lessons. The discussion then turns to the human rights concerns raised by criminalising false news, including the chilling effect on journalism and public discourse and the inconsistency of such laws with international free speech standards. Finally, the article makes policy recommendations for reform – suggesting how Ghana can better tailor its laws to address harmful misinformation without infringing on fundamental freedoms – and concludes that reform is needed to align the country’s law with its democratic principles and emerging consensus in comparative jurisprudence.
- CONSTITUTIONAL AND INTERNATIONAL FOUNDATIONS OF FREE SPEECH
1.1 Free Expression under the 1992 Constitution of Ghana
The 1992 Constitution of Ghana firmly guarantees freedom of speech and expression as a fundamental human right. Article 21(1)(a) provides that “all persons shall have the right to freedom of speech and expression, which shall include freedom of the press and other media.” This broad guarantee is buttressed by specific provisions protecting media freedom: for instance, Chapter 12 of the Constitution forbids censorship and upholds the independence of the press[4] in furtherance of a free and vigorous media landscape. In effect, the Constitution establishes a prima facie right for citizens, journalists and others to speak, publish and communicate without fear of censorship or sanction.
At the same time, the Constitution recognizes that free speech, like most rights, is not absolute. Article 164 of the 1992 Constitution permits laws that impose reasonable restrictions on the freedom of expression, but only on narrowly tailored grounds. It provides that the freedoms of the press and other media may be subject to laws that are “reasonably required in the interest of national security, public order, public morality” or for the protection of the reputations and rights of others – and even then, only to the extent that those restrictions are not excessive. In general, any limitation on a fundamental right must be necessary and proportionate to a legitimate aim, consistent with the spirit of a society based on freedom and equality. Ghana’s Supreme Court has affirmed this principle of constrained limitations. In Republic v Tommy Thompson Books Ltd & Others, the Supreme Court noted that “absolute and unrestricted individual rights wholly freed from any form of restraint cannot exist in a modern democratic society.”[5] Rights may thus be limited by law, but such limitations must pass a high threshold of justification under Articles 12(2) and 164 of the Constitution.
1.2 International and Regional Free Speech Standards
Ghana’s constitutional protections for speech do not exist in isolation; they reflect broader international and regional human rights norms to which Ghana is committed. Ghana is a state party to the International Covenant on Civil and Political Rights (ICCPR), which in Article 19 guarantees the right to freedom of expression, including the “freedom to seek, receive and impart information and ideas of all kinds.” Like Ghana’s Constitution, however, Article 19 of the ICCPR allows certain restrictions on expression, but only those “provided by law and … necessary” to achieve legitimate aims such as respect for the rights or reputations of others, protection of national security or public order, or public health or morals. Any restriction must therefore meet a strict test of legality, necessity and proportionality under international law. Similarly, at the regional level, Article 9 of the African Charter on Human and Peoples’ Rights affirms the right to receive information and free expression, and Article 27(2) of the Charter imposes a duty to exercise rights with due regard to the rights of others, national security, and morality – effectively permitting restrictions on speech only if they are necessary and proportionate to protect those interests.
International jurisprudence has emphasized that laws limiting speech must be crafted with precision and used only for legitimate purposes. Overly broad or vague restrictions are incompatible with the right to freedom of expression. For example, the United Nations Human Rights Committee – the body that monitors ICCPR compliance – has observed that prosecuting journalists for “false news,” in itself, violates Article 19 of the ICCPR (such laws are considered a clear violation of freedom of expression)[6]. In a commentary on Cameroon’s laws, the Committee condemned “the prosecution and punishment of journalists for the crime of publication of false news, merely on the grounds that the news was false,” as a clear breach of freedom of expression. Likewise, the special mandates on freedom of expression of the UN, African Union, OSCE, and OAS have jointly declared that general prohibitions on “fake news” and disinformation are incompatible with free speech guarantees, urging states to repeal such laws[7]. These international standards provide a crucial benchmark: laws criminalising speech must be narrowly tailored to address concrete harms, and mere falsity alone is not a sufficient basis to impose criminal penalties in a democratic society.
- GHANA’S FALSE NEWS OFFENCES: SCOPE AND ORIGINS
2.1 Section 208 of the Criminal Offences Act, 1960 (Act 29)
Section 208 of Ghana’s Criminal Offences Act, 1960 (Act 29) is the primary provision criminalising the publication of false news. Originally enacted during the colonial era, and retained in Ghana’s statute books post-independence, Section 208(1) provides that: “A person who publishes or reproduces a 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.” In essence, the law makes it a crime to publish any false statement that is likely to create public fear, alarm, or disturb the peace, if the publisher knew or should have known the information was false. Conviction can result in imprisonment or a fine, since a misdemeanour in Ghana’s law carries up to three years’ imprisonment. There is no explicit requirement under Section 208 that the false publication must actually cause any harm; it is enough that the content is “likely” to cause fear and alarm and that it is false to the knowledge of the publisher.
Notably, Section 208 does not provide many defenses for a person accused of spreading false news. The offence is one of strict liability with respect to the falsity of the content – if the information is false and likely to cause alarm, the publisher’s lack of intent to cause harm is no defense. The only mental element in the statute is the knowledge of falsity. Unlike some other jurisdictions’ laws, Ghana’s provision does not expressly excuse publication of false statements that were made after reasonable verification attempts. The breadth of Section 208’s language, which dates back to an 1893 colonial ordinance, has drawn criticism for being vague and overinclusive. Commentators note that it is so broadly worded that almost any statement an official dislikes could be deemed “likely to cause alarm,” making the law susceptible to abuse[8]. Indeed, its vagueness and colonial pedigree suggest it was designed to suppress anti-colonial dissent by criminalising “any kind of speech that in the opinion of the enforcer can cause fear and alarm”.
It is significant that when Ghana repealed its criminal libel and sedition laws in 2001, Section 208 was left untouched. Some scholars speculate this was an oversight, while others suggest it was a deliberate decision to retain a tool for controlling misinformation that could cause panic. In practice, however, the dormant false news law “hiding in plain sight” was rarely used in the years immediately after 2001. Only in the last few years has there been a resurgence in charges under Section 208, raising concerns that its continued existence undermines the legacy of the 2001 media law reforms.
2.2 Section 76 of the Electronic Communications Act, 2008 (Act 775)
In 2008, Ghana’s Parliament enacted an additional false news provision as part of the Electronic Communications Act, 2008 (Act 775). Section 76 of Act 775 makes it an offence to knowingly send false information using an electronic communications service. Specifically, Section 76(1) states: “A person who by means of electronic communications service, knowingly sends a communication which is false or misleading and likely to prejudice the efficiency of life-saving services or to endanger the safety of any person, ship, aircraft, vessel or vehicle commits an offence and is liable on summary conviction to a fine of not more than three thousand penalty units or to a term of imprisonment of not more than five years or both.” This provision, which was introduced in the era of expanding internet and mobile phone usage, targets false information that could jeopardise public safety or critical services.
Section 76 is narrower in scope than Section 208 in some respects: it requires that the false communication be likely to prejudice the efficiency of a life-saving service or endanger safety (a higher threshold than merely causing “alarm” or “fear” to the public). It also explicitly confines the offence to communications sent by electronic means, reflecting concerns about misuse of telecom networks and the internet. In this sense, Section 76 can be seen as a modern, and more specific, iteration of the false news offence – one arguably more tailored to situations akin to yelling “fire” in a crowded theatre. Ghana’s Electronic Communications Act was part of a broader legislative effort to regulate the burgeoning digital communication space and cybercrimes, aligning with similar laws across Africa in the late 2000s.
However, despite its narrower focus, Section 76 of Act 775 has also faced criticism. Observers have pointed out that it overlaps with Section 208. Moreover, while Section 76 targets specific harms (life-saving services and safety), those terms can still be interpreted broadly. In practice, authorities have sometimes charged individuals under Section 76 for online speech that arguably did not threaten any life-saving service. For example, a number of arrests of bloggers and social media commenters in recent years have been made under Section 76 for posts deemed false and likely “to cause fear and panic,” suggesting that enforcement has not always hewed strictly to the life/safety clause. The existence of both Section 208 and Section 76 in Ghana’s laws means that false information can be prosecuted either as a general public-order crime or as a cyber-specific crime. Both carry significant penalties, including custodial sentences.
2.3 Colonial Roots and Rationale
Both of Ghana’s false news laws have roots in older statutes aimed at maintaining public order. The antecedent of Section 208 can be traced to British colonial regulations against spreading “alarming news” that could stir unrest. Such laws were common in colonial territories to curb rumours that might incite rebellion or mass panic. The crime did not require that the information cause actual harm – the mere potential to alarm colonial authorities or the public was enough. This overinclusive approach was arguably intentional: it gave colonial officials a broad tool to clamp down on nationalist or anti-government publications under the guise of preventing unrest[9]. After independence, Ghana retained many parts of the Criminal Code (Act 29), and while blatant instruments of colonial repression (like sedition laws) were eventually removed, the false news provision survived.
The Electronic Communications Act’s false news section, by contrast, was enacted in independent Ghana, but its rationale similarly lies in preventing public disorder – in this case, in the context of electronic communications. It was passed at a time of global concern over misuse of telecom networks for spreading. During the parliamentary debates on Act 775, lawmakers justified Section 76 as necessary to deter malicious hoaxes that could divert emergency services or endanger lives. On paper, it was not intended to criminalise ordinary misinformation on the internet, but rather egregious cases where falsehoods create tangible risks to public safety. Whether enforcement has stuck to that intent is debatable, as discussed below.
- ENFORCEMENT AND JUDICIAL INTERPRETATION IN GHANA
3.1 Application of the False News Laws in Recent Cases
Ghana’s false news laws languished in relative obscurity for some years, but recent cases show a pattern of use that many find troubling. Since around 2019, there have been a series of high-profile arrests of journalists and activists under Section 208 of Act 29 (and occasionally Section 76 of Act 775). These incidents suggest that the authorities are reviving false news charges as a tool against critical speech, despite Ghana’s reputation for press freedom. A few illustrative examples include:
In July 2019, officers of the National Security Council raided the offices of an online news outlet, ModernGhana, and arrested two editors, reportedly in connection with a publication critical of a government official. The editors were initially charged with cybercrimes but it was later suggested that “publication of false news” was involved. The Media Foundation for West Africa condemned the raid and arrests, seeing it as a misuse of security apparatus to intimidate the press[10]. Ultimately, that case drew international criticism; charges were eventually dropped amid the outcry.
In February 2022, police arrested Accra FM presenter Kwabena “Bobie” Ansah after his radio show, on allegations that he had published false news about the First Lady of Ghana. The police claimed Ansah had repeatedly turned down invitations to cooperate, necessitating the arrest[11]. He was charged with “publication of false news and offensive conduct.” The case caused public debate, with media advocates arguing that even if Ansah’s claims were unsubstantiated or defamatory, the appropriate response would be a civil lawsuit by the aggrieved party, not a criminal charge. Ansah was later released on bail, and prominent journalists like Manasseh Azure argued that treating such matters as crimes reintroduces criminal libel “through the backdoor.”
Noah Narh Dameh, a community radio journalist with Radio Ada, was arrested in May 2022 and later charged under Section 76(1) of Act 775 for allegedly posting false information on Facebook about a local business tycoon[12]. Dameh’s post accused the businessman (who had a concession in Ada) and local chiefs of mistreating community members; the businessman reported it to police. The case exemplifies how even Section 76, ostensibly about life-saving services, has been used to prosecute commentary on public interest issues.
These cases illustrate a pattern: the false news laws have been used predominantly against speech that criticizes public figures or tackles sensitive issues. In each instance, the authorities arguably had other means at their disposal (right of reply, civil litigation for defamation, etc.), yet chose to employ the blunt instrument of criminal law. This trend has contributed to a climate of self-censorship.
3.2 Judicial Attitude and Interpretations
How have Ghana’s courts dealt with false news prosecutions? Notably, there is a dearth of reported Supreme Court decisions directly on Section 208’s constitutionality. Unlike in some countries (as discussed in Part 4), Ghana’s judiciary has not yet had an opportunity to strike down the false news law; no constitutional challenge to Section 208 or Section 76 has reached a definitive conclusion at the Supreme Court or Court of Appeal. This is partly because many false news cases end at the magistrate or High Court level. Thus, Ghana lacks a clear judicial precedent either limiting or invalidating these laws, leaving their broad language intact.
There is, however, one older case that indirectly touched on the theme: the Tommy Thompson Books Ltd. case in 1997 cited supra was not about Section 208 specifically, but about another “false publication” offence (Section 185 of Act 29, which criminalised false reports injuring the reputation of the state). In that case, which was a constitutional reference, the Supreme Court upheld the principle that freedom of the press could be restricted by laws “reasonably required” for state interests, but also insisted that such restrictions must be narrowly construed. The judges expressed concern about laws that cast too wide a net. For example, Adjaben JSC observed that the mere falsity of a statement should not suffice to penalize it, absent a showing of real harm or malicious intent. While the Tommy Thompson ruling did not annul Section 185 (the specific colonial law on false reports against the state), it did caution that the constitutional standard of “reasonable” limitation should guard against overly broad interpretations that would stifle legitimate speech.
It remains an open question how Ghana’s Supreme Court would rule if faced with a direct constitutional challenge to those provisions. The comparative jurisprudence from other countries (discussed next) suggests that a strong case could be made that such laws violate the free expression guarantees of Ghana’s Constitution[13], given their overbreadth. Until such a case is brought, however, the laws remain on the books and available for use.
- COMPARATIVE DEVELOPMENTS: AFRICAN JURISPRUDENCE ON “FALSE NEWS”
Ghana’s experience with false news laws is not unique. Many African countries inherited similar provisions from colonial criminal codes, and in recent decades these laws have been scrutinised by courts as countries democratized. The experiences of Kenya, Zambia, Uganda, and South Africa are particularly instructive, as each has seen significant legal developments regarding the offence of publishing false information.
Kenya, Uganda, and Zambia have all struck down their general false news laws as unconstitutional, signaling a judicial recognition that such broad speech crimes do more harm than good in a democracy. South Africa, on the other hand, repealed or ceased enforcing its false news statutes in the transition from apartheid to democracy . These comparative cases offer both legal reasoning and policy context that could inform Ghana’s approach.
4.1 Kenya
For decades, Kenya’s Penal Code contained an offence[14] almost identical to Ghana’s Section 208 – criminalising “any false statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace.” This provision had existed since colonial times and was briefly removed in the early 1990s, but then re-introduced in 2014 through an amendment. Its return was immediately controversial. Kenyan media and civil society decried Section 66 as a draconian duplication of existing media regulations. Legal challenges ensued, and in February 2015 the High Court suspended the enforcement of Section 66 shortly after it was re-enacted.
After protracted litigation, the High Court in Nairobi (per Justice Weldon Korir) in Andama v. DPP[15] delivered a landmark judgment in May 2021. The court invalidated Section 66 of the Penal Code as an unconstitutional restriction on the freedom of expression guaranteed by Article 33 of Kenya’s 2010 Constitution[16]. Notably, the judgment described the false news law as “retrogressive,” pointing out that Kenya had other less restrictive means (such as civil defamation suits or regulatory remedies for misinformation) to address the harms of false news. The court emphasized that the right to freedom of expression cannot be limited merely on the basis that a statement is false; there must be a more compelling harm. Because Section 66 cast a wide net – capturing speech that might be merely annoying or critical of authorities under the vague rubric of “fear and alarm” – it failed the necessity and proportionality test. In the court’s words, the provision was “overbroad and vague” and thus not a reasonable limitation in a democratic society.
Consequently, after that 2021 decision, Kenyans could no longer be charged under that colonial-era false news ban. However, Kenya’s struggle did not end there. The legislature had, in 2018, attempted a new approach by including a false information offence in the Computer Misuse and Cybercrimes Act 2018 (Section 22 of that Act, targeting false news spread online). That too was met with judicial skepticism: in 2020, the Kenyan High Court struck down the false information section of the cybercrimes law on similar grounds of overbreadth and infringement of free speech. Kenya’s trajectory thus shows a judiciary strongly inclined to protect speech: twice in recent years, Kenyan courts dismantled laws that criminalised spreading false information, insisting that the state pursue less restrictive measures against any purported harms of false news. The Kenya cases also underscored that the mere potential for “alarm” or “panic” is too subjective and flimsy a basis to criminalise speech in the absence of clear, immediate danger.
4.2 Uganda
Uganda provides another vivid example. The Ugandan Penal Code Act had a Section 50[17] which made it a crime to publish “any false statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace” – virtually the same wording as Ghana’s Section 208. In the late 1990s, this law was used to prosecute journalists from the Monitor newspaper who had reported on security matters. The journalists (Charles Onyango-Obbo and Andrew Mwenda) challenged the law’s constitutionality. After an initial setback in the Constitutional Court, the case went to Uganda’s Supreme Court. In February 2004, the Supreme Court of Uganda unanimously struck down Section 50 as inconsistent with freedom of expression under Uganda’s Constitution[18].
Chief Justice Benjamin Odoki and Justice Joseph Mulenga wrote influential opinions. They held that the false news offence was overbroad and vague, thus failing the requirement in Uganda’s constitution that limitations on free speech be “acceptable and demonstrably justifiable in a free and democratic society.” Mulenga JSC famously observed that false statements are “inevitable in free debate” and that the remedy for falsehoods is not their criminal suppression but rather “more speech” to expose the falsehood. He noted that the law’s wording would even catch one who honestly spread what turned out to be false news – thereby having a severe chilling effect on the press[19]. The Supreme Court concluded that Section 50’s potential to suppress a great deal of legitimate news (including early reports on matters of public interest that might later turn out inaccurate) could not be justified by the speculative benefit of preventing panic. Therefore the law was declared null and void. This 2004 decision was one of the first in Africa to explicitly invalidate a false news law on human rights grounds, and it has been cited by courts in other countries.
Importantly, Uganda has not reintroduced any analogous offence since then – its legal system now handles harmful misinformation through other laws (like defamation, or specific provisions on incitement or security threats) without a general false news ban. The Ugandan case is a powerful precedent in the region, often referenced to show that criminalising mere falsity is an unnecessary and disproportionate measure in a democratic society[20].
4.3 Zambia
Zambia’s Penal Code[21] long criminalised the publication of “false news” likely to cause fear or alarm to the public. In 2013–2014, this provision came under judicial review in the case of Chipenzi and Others v. The People[22]. In a judgment delivered in December 2014, the High Court of Zambia (Justice Isaac Chali) struck down Section 67 as unconstitutional[23]. The case had been brought by civil society activists who were charged under the law for an article they published. The High Court’s reasoning closely mirrored that of Uganda’s Supreme Court and international standards: it held that Section 67 was impermissibly overbroad, catching not only deliberately false and harmful statements but also speech by people who honestly believed their statements to be true. The Court noted that the law “virtually restricts any statement which does not meet the majority’s definition of truth,” and thus could be abused to prosecute unpopular opinions or errors. It also pointed out the problem of the reverse burden – the law effectively required the accused to prove their innocence (that they didn’t know the statement was false), which clashes with due process and free speech protections.
In the end, Zambia’s High Court concluded that the harm addressed by the law was too “remote and uncertain” to justify such a broad restriction on speech. Section 67 was declared void for inconsistency with the freedom of expression guarantee in the Zambian Constitution. Following this ruling, Zambia too removed the general false news offence from active use. Analysts hailed the decision as part of a growing trend in African jurisprudence that recognises criminal false news laws as outdated relics. Zambia’s government did not appeal the ruling, and in the years since, there have been no attempts to re-enact the provision.
4.4 South Africa
South Africa’s trajectory with false news laws took a different route, owing to its unique history. Under apartheid, South Africa had notorious laws against “publishing false information” – for instance, the apartheid-era authorities often used provisions of the Criminal Procedure Act and Internal Security Act to charge activists and newspapers for spreading information deemed false or subversive. However, with the end of apartheid, South Africa’s interim and 1996 Constitutions brought strong free expression protections (subject only to narrowly defined limits such as incitement to violence, hate speech, etc.). The broad false news offences were proactively repealed or fell into disuse as they were incompatible with the new constitutional order. By the time the 1996 Constitution came into effect, South African law no longer had an equivalent of Section 208 on the books for ordinary times.
The only notable instance when a “false news” rule resurfaced was during the COVID-19 pandemic. In March 2020, under a declared State of Disaster, South Africa’s government issued emergency regulations that criminalised the dissemination of false information about COVID-19 if the person knew it was false and it was likely to cause a serious public panic[24]. This was a temporary measure to curb dangerous disinformation during the emergency.
Thus, South Africa today has no general false news offence in its permanent laws. The approach has been to rely on other legal mechanisms to deal with harmful lies. The South African example demonstrates that a country can maintain public order and address malicious falsehoods without a broad crime of publishing false news. The few instances where false information is specifically penalised are tightly confined. For example, it is a crime to lie under oath, to lie to law enforcement in aninvestigation, etc., but not to publish general misinformation.
4.5 Lessons for Ghana
The experiences of Kenya, Zambia, Uganda, and South Africa reveal an emerging consensus that blanket false news laws do not fit within modern constitutional frameworks. In three of those countries, superior courts nullified such laws as unconstitutional, and in South Africa the lawmakers removed them proactively when moving to a rights-based system. Several common themes can be distilled from these comparative developments:
First, courts have been persuaded that these laws are overinclusive – capturing not only malign, dangerous lies but also trivial falsehoods, satire, or speech that may simply annoy the powerful. The potential reach of phrases like “likely to cause alarm” is virtually unlimited, leading judges to conclude that they deter much legitimate speech along with any harmful speech.
Second, the vagueness of terms like “alarm” and “fear” makes the laws incompatible with the rule of law requirement of clarity. People cannot know in advance what speech might be deemed criminal, which leads to self-censorship. As the Zambian and Ugandan courts noted, such vagueness hands too much discretion to authorities and invites abuse.
Third, criminal sanctions are seen as a sledgehammer that is often disproportionate; other remedies exist. Civil defamation suits, retractions, or administrative penalties can address the underlying issues in a less speech-restrictive way. Criminalising speech should be reserved for truly egregious situations. False news laws typically do not require any showing of serious harm, yet they threaten offenders with prison – a mismatch of punishment to harm.
Finally, these decisions reflect a fundamental insight of democratic theory: that false or misleading ideas are better countered by debate, education, and the truth – not by locking up the speaker. As the Ugandan court eloquently noted, the remedy for false speech is more speech, provided by a free press and informed public, rather than the heavy hand of criminal law.
For Ghana, which shares a similar common-law heritage and constitutional ideals, the trend among its peers is instructive. While each country’s context differs, the direction is clear: blanket prohibitions on “false news” are increasingly viewed as antiquated legal relics, incompatible with the exigencies of free expression in a democracy. Ghana’s false news laws, especially the sweeping Section 208 of Act 29, thus stand on the wrong side of this evolution, unless they can be justified as meeting a truly necessary and narrowly tailored purpose.
- HUMAN RIGHTS CONCERNS SURROUNDING CRIMINALISING FALSE NEWS
The criminalisation of false news in Ghana raises significant human rights concerns, chiefly centered on freedom of expression but also implicating the right to information and the broader democratic value of accountability. International human rights bodies and experts have consistently cautioned against laws that make mere falsity a crime, for several key reasons[25].
Chilling Effect on Journalism and Public Discourse: Perhaps the most profound concern is the chilling effect that broad false news laws have on the media and citizens’ willingness to speak out. Knowing that any inadvertent error or unverified statement could potentially lead to arrest or imprisonment, journalists may shy away from reporting on controversial or sensitive matters – even when those matters are of great public interest. This self-censorship undermines the watchdog role of the press and deprives the public of information. In Ghana, as we have seen, reporters investigating allegations of corruption or corporate malfeasance have been slapped with false news charges when their reports are disputed. The threat of Section 208 thus hangs like a sword of Damocles over investigative journalism. Human rights advocates argue that this not only violates individual journalists’ rights, but also the public’s right to receive information. The UN Human Rights Committee has emphasized that free expression includes the right to make statements that may be incorrect or that authorities deem false, because a vibrant public debate will allow truth to prevail and errors to be exposed without the need for criminal punishment[26]. When a state uses criminal law to punish publishing untrue information “without more,” it effectively places an undue burden on the press to guarantee truth – a burden that is neither realistic nor consistent with Article 19 of the ICCPR.
Vagueness and Abuse of Power: A closely related concern is that vague false news prohibitions invite selective enforcement and abuse by those in power. Because it is often easy for an official to label a story or statement as “false” (especially where opinions and interpretations are mixed with facts), such laws become convenient tools to silence criticism. This has been documented in numerous countries. In Cameroon, for example, journalists were routinely prosecuted for “spreading false news” when they reported on political or human rights issues, leading the UN Human Rights Committee to deplore this practice as a clear violation of freedom of expression[27]. In Ghana’s context, civil society groups like the Media Foundation for West Africa have raised alarms that the resurrection of false news prosecutions could herald a return to intimidation of journalists reminiscent of the pre-2001 criminal libel era[28]. The broad wording of Section 208 – “likely to cause fear and alarm” – can cover almost any critical commentary about government policies or officials, since authorities might claim such criticism could sow public concern or disaffection. Without stringent judicial checks, the law’s misuse is a constant risk. This concern is magnified by the fact that decisions to prosecute are made by the Attorney-General’s office and the police; if those institutions are politicized or overly sensitive to government interests, they may pursue false news charges in cases of whistleblowing or opposition speech, framing them as threats to public order.
Inconsistency with Proportionality Principle: From a human rights law perspective, criminal sanctions for speech are supposed to be a last resort, reserved for the most serious forms of harmful expression. The use of criminal law to target falsehood in itself sits uneasily with the principle of proportionality. International experts – including the special rapporteurs in their 2017 Joint Declaration – have pointed out that while misinformation can be a problem, the response should prioritize accurate counter-information, media literacy, and if necessary civil remedies, rather than criminal prosecution[29]. The Joint Declaration on “Fake News” specifically notes that general prohibitions on disinformation are disproportionate and that governments should combat disinformation by promoting diversity of media and educating the public, not by locking up those who unwittingly spread false content. In Ghana’s case, Section 208 and its analogues do not require any malicious intent or proof of serious harm, yet they impose potentially severe penalties on speakers. This imbalance – trivial or hypothetical harms meeting heavy punishment – indicates a lack of proportionality. As the African Court on Human and Peoples’ Rights observed in a 2019 free speech judgment, restrictions on expression must target specific, serious threats and must be the least restrictive means to achieve the protective aim. It is debatable whether jailing someone for causing “alarm” meets this test, especially when non-criminal measures could address any genuine issues caused by false news[30].
- CONCLUSIONS AND RECOMMENDATIONS
The tension between Ghana’s free speech commitments and its criminal false news laws has reached a point where reform is imperative. Comparative jurisprudence and Ghana’s own democratic ethos both suggest that the status quo – in which broad, ill-defined speech crimes coexist with constitutional guarantees – is untenable in the long run. False news laws like Section 208 of Act 29 and Section 76 of Act 775, as currently formulated, do not strike an appropriate balance between protecting the public and upholding fundamental freedoms.
Repeal or Amendment of Section 208: The most straightforward recommendation is to repeal Section 208 of the Criminal Offences Act, 1960, or at least amend it to dramatically narrow its scope. A repeal would echo Ghana’s bold step in 2001 of abolishing criminal libel, reinforcing the message that Ghana does not criminalise speech unless it clearly and directly harms a legitimate interest. If outright repeal is deemed too drastic, an amendment should be introduced to align the provision with modern standards – for example, limiting it to false statements made with malicious intent and which directly cause actual public panic or demonstrable harm (a much higher bar than “likely to cause fear”). The amended law could also codify defenses, such as a defense for publication in the public interest or after reasonable verification efforts. However, even a narrowed false news offence may be unnecessary given other laws; thus, repeal is preferable, with reliance on civil law and targeted laws to handle any truly dangerous lies.
Clarify Section 76’s Application: If Section 76 of the Electronic Communications Act is retained, its application should be clarified via regulations or interpretative guidance to ensure it is used only for the serious scenarios it was intended for (e.g., hoaxes that threaten lives). Prosecutions of journalists under Section 76 for social media posts, as in the Radio Ada case, stretch the law beyond its purpose. The National Communications Authority or Attorney-General’s Department could issue guidelines limiting the use of Section 76 to instances where false electronic communications have a direct likelihood of causing harm to life or safety (such as fake emergency calls, bomb threats, etc.). Ultimately, Section 76 too could be re-examined by Parliament to ensure it is not redundant or overly broad in light of any changes to Section 208.
Training and Sensitization of Law Enforcement: One immediate measure is to train police and prosecutors on the proper interpretation of existing false news laws in line with constitutional principles. Often, the decision to arrest or charge journalists is made by police officers who may not be fully versed in freedom of expression jurisprudence. Clear directives could be given (ideally from the Inspector-General of Police or Attorney-General) that emphasize restraint: for instance, that Section 208 should not be used to criminalize journalistic errors or statements that primarily affect reputation (those should go to civil courts). Law enforcement should be directed to focus on false statements that pose a real public safety risk, not those that merely embarrass or inconvenience officials.
Strengthen Alternative Remedies: To address genuine problems of misinformation without resorting to criminal law, Ghana can bolster alternative mechanisms. This includes promoting media literacy programs to help the public critically evaluate information and not panic at rumors. The government can also improve its public communication – often, false news gains traction in an information vacuum, so timely, transparent communication by authorities can preempt the spread of rumors. Additionally, regulators like the National Media Commission could be empowered to issue prompt corrections or demand retractions when false information is published, using moral suasion rather than handcuffs. Strengthening civil defamation laws to ensure they are accessible is another avenue; an offended public official should find it more straightforward to sue for libel than to get a journalist arrested.
Learning from Others: Ghana can look to the jurisprudence of the African Court on Human and Peoples’ Rights, as well as the experiences of the countries discussed above, for guidance. The consistent theme in Africa’s emerging case law is that broad false news laws cannot survive strict scrutiny. Ghana’s judges have already shown themselves to be aligned with international norms in many instances; a proactive legislative reform would avoid the need for someone to litigate this issue to the Supreme Court. Additionally, adopting best practices from other Commonwealth countries – for instance, the approach in the UK where there is no general “fake news” offence, but specific offences for knowingly making false reports to police or creating public hoaxes – could inform Ghana’s path.
In conclusion, the criminalisation of false news in Ghana, as presently formulated, is a square peg in the round hole of a rights-based democracy. It sits awkwardly with Ghana’s proud record on press freedom and increasingly out-of-step with regional trends. Repealing or reforming these laws would not leave Ghana defenseless against dangerous lies; rather, it would channel the response to falsehood through more democratic and effective means. Misinformation is best countered by truth and trust – commodities that increase when freedom of expression is protected, not suppressed. Ghana’s constitutional promise, as well as its international commitments, call for moving beyond the colonial logic of criminalising “fake news” and toward a modern framework where open dialogue and accountable governance are the first lines of defense against false information. The time is ripe for Ghana to complete the unfinished business of 2001 and ensure that its legal regime unequivocally supports free expression while addressing real harms in a narrowly tailored way. Such reform will safeguard Ghana’s democracy and reinforce its status as a leader in promoting human rights in Africa.
[1] LL.B Candidate 2026, Kwame Nkrumah University of Science and Technology, Faculty of Law
[2] LL.B Candidate 2027, Kwame Nkrumah University of Science and Technology, Faculty of Law
[3] Media Foundation for West Africa, ‘The two laws surviving the repealed criminal libel law in Ghana’ (19 September 2022) https://mfwa.org/issues-in-focus/the-two-laws-surviving-the-repealed-criminal-libel-law-in-ghana/ accessed 2 October 2025. mfwa.org
[4] Constitution of Ghana, 1992, art. 162
[5] Republic v Tommy Thompson Books Ltd & Others (No. 1) [1997–98] 1 GLR 611, 627 (SC) (per Acquah JSC).
[6] Ronan Ó Fathaigh, Natali Helberger & Naomi Appelman, “The perils of legally defining disinformation” Internet Policy Review (4 November 2021) https://policyreview.info/articles/analysis/perils-legally-defining-disinformation accessed 2 October 2025
[7] ARTICLE 19, Free speech mandates issue Joint Declaration addressing freedom of expression and “fake news” (3 March 2017) https://www.article19.org/resources/free-speech-mandates-issue-joint-declaration-addressing-freedom-of-expression-and-fake-news/
accessed 2 October 2025
[8] Media Foundation for West Africa, ‘The two laws surviving the repealed criminal libel law in Ghana’ (19 September 2022) https://mfwa.org/issues-in-focus/the-two-laws-surviving-the-repealed-criminal-libel-law-in-ghana/#:~:text=Act%2029%20archaic%20and%20nebulous accessed 2 October 2025
[9] Media Foundation for West Africa, ‘The two laws surviving the repealed criminal libel law in Ghana’ (19 September 2022) https://mfwa.org/issues-in-focus/the-two-laws-surviving-the-repealed-criminal-libel-law-in-ghana/#:~:text=within%20the%20colonial%20metropolis
accessed 2 October 202
[10] Media Foundation for West Africa, ‘The two laws surviving the repealed criminal libel law in Ghana’ (19 September 2022) https://mfwa.org/issues-in-focus/the-two-laws-surviving-the-repealed-criminal-libel-law-in-ghana/#:~:text=Over%20these%20arrests%2C%20the%20Media,release%20of%20the%20arrested%20journalists accessed 2 October 2025
[11] “Bobie Ansah was arrested for publishing false news, offensive conduct – Police” MyJoyOnline (11 February 2022) https://www.myjoyonline.com/bobie-ansah-was-arrested-for-publishing-false-news-offensive-conduct-police/ accessed 2 October 2025
[12] Paul Gozo, “Radio Ada journalist charged with publishing false news on Facebook about McDan” The Fourth Estate (23 August 2022) https://thefourthestategh.com/2022/08/radio-ada-journalist-charged-with-publishing-false-news-on-facebook-about-mcdan/#:~:text=Noah%20Narh%20Dameh%E2%80%99s%20Facebook%20post,reported%20it%20to%20the%20police accessed 2 October 2025
[13] Constitution of Ghana, 1992, art 21 and chapter 12
[14] Penal Code, Cap. 63, s. 66 (Kenya) https://www.sheriaplex.com/kenya-acts/534-section-66-of-penal-code-cap-63-alarming-publications accessed 2 October 2025
[15] Cyprian Andama v Director of Public Prosecutions & 2 Others [2021] KEHC 12538 (KLR)
[16] Freedom House, “Kenya: Freedom on the Net 2021 Country Report” https://freedomhouse.org/country/kenya/freedom-net/2021 accessed 2 October 2025
[17] Penal Code Act, Cap. 120, Section 50
[18] Committee to Protect Journalists, “Court strikes down repressive legislation” (12 February 2004) https://cpj.org/2004/02/court-strikes-down-repressive-legislation/#:~:text=Yesterday%2C%20the%20court%20struck%20down,%E2%80%9D accessed 2 October 2025
[19] Ibid
[20] Supreme Court invalidates ‘false news’ law” Reporters Without Borders (17 February 2004) https://rsf.org/en/supreme-court-invalidates-false-news-law accessed 2 October 2025
[21] Penal Code Act, Chapter 87, s 67
[22] Macdonald Chipenzi and Others v The People (HPR/03/2014) [2014] ZMHC 385
[23] Chipenzi v. The People (HPR/03/2014) (High Court of Zambia, 4 December 2014) https://globalfreedomofexpression.columbia.edu/cases/chipenzi-v-the-people/ accessed 2 October 2025
[24] Media Monitoring Africa, ‘Media Release: New South African regulation “criminalizing” fake news/disinformation about COVID-19’ (20 March 2020) https://www.mediamonitoringafrica.org/media-release-government-gazette-criminalizing-fake-news-disinformation-around-covid-19/ accessed 3 October 2025
[25] Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda (3 March 2017) https://www.osce.org/fom/302796 accessed 3 October 2025
[26] ARTICLE 19, ‘Free speech mandates issue Joint Declaration addressing freedom of expression and “fake news”’ (3 March 2017) https://www.article19.org/resources/free-speech-mandates-issue-joint-declaration-addressing-freedom-of-expression-and-fake-news/ accessed 3 October 2025
[27] UN Human Rights Committee, Concluding Observations: Cameroon CCPR/C/79/Add.116 (4 November 1999) https://www.refworld.org/policy/polrec/hrc/1999/en/12521 accessed 3 October 2025
[28] Media Foundation for West Africa, ‘The two laws surviving the repealed criminal libel law in Ghana’ (19 September 2022) https://mfwa.org/issues-in-focus/the-two-laws-surviving-the-repealed-criminal-libel-law-in-ghana/ accessed 3 October 2025
[29] ARTICLE 19, ‘Free speech mandates issue Joint Declaration addressing freedom of expression and “fake news”’ (3 March 2017) https://www.article19.org/resources/free-speech-mandates-issue-joint-declaration-addressing-freedom-of-expression-and-fake-news/ accessed 3 October 2025
[30] Konaté v. Burkina Faso (African Court on Human and Peoples’ Rights, Judgment, 5 December 2014) paras 165–166 (holding that criminal sanctions should be used only in exceptional circumstances and that sanctions must be proportionate)
