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COVID-19: Gov’t sued for requesting subscriber details from Telcos

A private legal practitioner, Francis Kwarteng Arthur, has instituted a court action against the government seeking to stop the President, KelniGVG and the National Communication Authority (NCA) from relying on Executive Instrument (EI 63) to procure his personal information from Vodafone Ghana and MTN Ghana for purposes of contact tracing in the COVID-19 pandemic fight.

It is the contention of Mr Kwarteng Arthur, that the Executive Instrument issued by President Akufo-Addo on the 23rd of March 2020 directing MTN and Vodafone to make available to Government the details of their subscribers including his, based on powers vested in the President under provisions in the Electronic Communications Act, 2008, (Act 775), will amount to a breach of his fundamental human rights and his right to privacy in his personal information which is in the possession of Vodafone and MTN.

“The Applicant is alarmed by this development; and disagrees vehemently with the claim that the President followed the law and due process in requesting or causing a request to be made for the body of personal information. The Applicant believes that even though the President has the power to procure his personal information under the appropriate circumstances taking into account the appropriate factors, the manner in which he is seeking to procure the information at this particular time breaches the law and, consequently, violates his right to administrative justice, to privacy and equality, hence the present action” the facts in the Statement of Case filed at the High Court on the 6th of April 2020 said.

According to the Executive Instrument (EI 63) titled the “Establishment of Emergency Communications Systems Instrument, 2020”, which states in the first paragraph that, “Whereas, under the power conferred by section 100 of the Electronic Communications Act, 2008(Act 775), the President may, by Executive Instrument, make written requests and issue orders to operators or providers of electronic communications networks or services requiring them to provide user information or otherwise in aid of law enforcement or national security”, President Akufo-Addo ordered network operators or service providers to make available “all caller and called numbers, Merchant Codes, Mobile Station International Subscriber Directory Number Codes and International Mobile Equipment Identity Codes and Site location to the National Communications Authority to facilitate location-based tracking” in this time of a public health emergency.

The applicant according to his affidavit in support of his case among others is seeing an order of the High Court “to quash the President’s directives in EI 63 to the extent that they have violated, are violating or are likely to violate his fundamental human rights and freedoms”.

It is also the prayer of the applicant that the High Court makes “a perpetual injunction to restrain Vodafone Ghana and MTN Ghana from relying on EI 63 to make his personal information in their possession available to the President, the Government, KelniGVG and the National Communication Authority”.

The Attorney General who is the 5th respondent in the case is expected to respond to the statement of the case as filed by the applicant. Lawyers of the applicant were expected to move a motion for an interlocutory injunction on the 21st of April 2020 at the General Jurisdiction High Court three presided over by Justice George Oppong.

However, same was adjourned to the 28th of April 2020 because the applicants were unable to serve all the respondents ( Vodafone, MTN, KelniGVG, National Communications Authority (NCA) and the Attorney General’s Department) before the hearing date of 21st April 2020.

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