This is the second time the National Communication Authority (NCA) is undertaking a mandatory registration of SIM cards. The first time I wrote about its impact on Universal Access Obligations of the State as per the International Telecommunication Union (ITU) perspective, of which Ghana is a proud member. I am compelled to do so again, but this time from a legal perspective – both International and Constitutional.
Under Article 17, International Covenant on Civil and Political Rights 1966 (ICCPR, 1996)
“Everyone has the right to life, liberty and security of person” and “No one shall be subjected to arbitrary or unlawful inference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation”; and “Everyone has the right to the protection of the law against such interference or attacks”.
Under Article 4, African Charter on Human and Peoples’ Rights (ACHPR)
“Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.
Under Article 18 (2) of the Constitution of Ghana it states that:
“No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others.”
Under Article 21 (1) (a) of the Constitution of Ghana it states that:
“All persons shall have the right to freedom of speech and expression, which shall include freedom of the press and other media.”
The crux of mandatory SIM card registration is the fact that the above legal considerations are what consumers of telecommunication services rely on for protection of their privacy and rights, and especially at a time the state is using the Constitutional exceptions of “… as may be necessary in a free and democratic society for public safety or the economic well-being of the country…for the prevention of disorder or crime…” to make it mandatory in the public interest.
The question is, how is the state protecting the consumers’ “Right to Communication” and “Right to freedom of Speech and Expression” by blocking the medium of communication, speech and expression as against the obligation of fraud prevention and cybersecurity without infringing upon the basic fundamental human rights of the citizen?
Consumers’ Right to Privacy, Communication and Correspondence
Right to privacy has been a fundamental human right issue even before the advent of present advancements in technology. Under the 1992 Constitution, everyone has the right to uninterrupted communication and correspondence with respect to both text and voice communication when it comes to telecommunication technology. This is an inalienable right to us as human beings.
Mandatory registration of SIM cards and subsequent blocking of unregistered ones after an expiry period is an infringement on this inalienable right, with no lawful justification for an exception. Consumers have the right to protection of the law against such interference or attacks, and the Judiciary must protect the citizens, which includes themselves, from the absolute discretion of power by the Executive arm of government in this registration exercise – in the name of separation of powers as well as of checks and balances within the arms of government. It now looks like the citizens are hopeless in their cry against the implementation process being used by the Executive arm of government.
Universal Access and Service Obligations by the State to the Vulnerable
The International Telecommunication Union (ITU) promotes Universal Access, in that everyone must have access to publicly available communication network facilities and services. The policy objective behind Universal Service is also to ensure that those telecommunications services which are used by the majority and are essential to full social and economic inclusion are made available to everybody upon reasonable request in an appropriate fashion and at an affordable price. This principle is designed to ensure that people on low incomes, those in remote rural areas, those with disabilities and various other groups who might be described as more vulnerable do not miss out on the advantages telephony can bring.
We in the urban areas owe ‘Universal Access and Service’ obligations to those in rural areas who feed us, and we need to be circumspect in passing directives that may have grave negative impacts by widening the gap with our disadvantaged rural users.
Ghana is a proud member of the International Telecommunication Union (ITU), and below is a statement in the ‘Vote for Ghana ITU Council 2019-2022’ campaign:
“We recognise the importance of achieving the objectives of the Sustainable Development Goals (SDGs), especially for emerging economies, and will continue our collaborative efforts in meeting the 2030 agenda; particularly as our president H. E. Nana Akufo-Addo leads and co-chairs the UN SDG Advocate group……Technology will be the key as we strive toward the 2019-2022 period; Ghana will continue to selflessly support the ITU in implementing the policies and Strategic plans on the ITU’s key areas…”
Universal Access and Service are key ITU policy initiatives, so Ghana should be committed in implementing them. Meanwhile, Section 3 (s) of the National Communications Authority Act 2008, (769 Act769), 2008 requires the Authority to support implementation of the Universal Access Policy. Is the blocking of SIM cards supporting this policy? Should the rural user be punished, denied social and economic inclusion in telecommunication service provision just because a few privileged urban users think crime is being committed or will be committed against them? Certainly not.
If some of us do not get our SIMs registered and are cut off, we may not be too much disadvantaged because we have other options of e-socialising: such as Skype, Zoom, Twitter and Facebook which do not require having a SIM card. What about the ‘Kayayo’ or persons in the rural areas who have no other form of communicating, and for no fault of theirs have no Ghana Card?
Goal 10 of the Development Sustainable Goals (SDG) is about reducing inequalities and ensuring no one is left behind. How does blocking SIMs help in achieving this? Also, Target 10 (a) requires “Special and differential treatment for developing countries” – and so why should we not internally have ‘special treatment for the rural folk and the less privileged’ with respect to this SIM registration?
State Surveillance & Cybersecurity
Registering SIM cards in the name of cybersecurity or fraud-prevention is not in itself a bad thing. What are the statistics of fraud caused by users of SIM cards as against traditional fraud which are making the Executive cut people off with such urgency? The implementation has unfortunately been taken too much from the perspective of ‘National Security’ – to the effect that “we are all guilty and must register to prove our innocence”. This gives an impression that it is geared more toward ‘State Surveillance’ than the prevention of fraud.
The already-captured biometrics by the National Identification Authority (NIA) should be available for whatever fraud protection we want. The Telcos are not going to investigate cybercrime by themselves using the biometric database they are setting up, but through the law enforcement agencies. The law enforcement agencies, subject to the appropriate legal requirements, can have access to our ‘sensitive’ biometric database that has already been collected under the Ghana Card.
All that’s needed is the linking of our Ghana Card number to our registered SIM cards for purposes of cybersecurity – which can be done remotely without the inconvenience of queuing at the offices of telcos during this COVID-19 pandemic. This is the real test of the ‘digitalisation drive’. Walking the Talk.
For cybersecurity, blocking SIM cards is not a sufficient reason but rather a ‘no brainer’ approach. You do not need a SIM card to go into cyberspace and commit fraud. Remove the chip from your phone and connect to a Wi-Fi and see if you can surf the Internet. The rural people do not use Wi-Fi, so blocking SIM cards is more disadvantageous to the vulnerable. They are not even the target of cyber fraud, and are in the majority as well.
In my opinion, the only reason for such haste in the implementation despite infringement on the rights of citizens is for ‘state surveillance’ – and this should be a concern for everyone. Keep quiet till it you become a target and your rights are infringed upon. Today, you feel it cannot be you.
Infringement of Data Protection Act, 2012 (Act 843)
The telcos and the National Communication Authority are capturing our biometrics again for the purpose of SIM registration when the Ghana Card which already has our biometrics is being used as the only form of identification and linkage.
Section 22 of Act 843 allows the telcos as data controllers to collect personal data for a purpose that is specific, explicitly defined and lawful, and is related to their functions or activity; but the telcos under sections 20 and 23 of Act 843 must make us the citizens aware of the purpose and give us the right to object to or stop such processing.
Section 19 of Act 843 requires that personal data is only processed if the purpose for which it is to be processed is necessary, relevant and not excessive. Though the biometrics may be relevant for cybersecurity purposes, the Ghana Card – which is the only identification document to be used – already has our biometrics, making the re-capture unnecessary and excessive.
The General Data Protection Regulation (GDPR) that regulates data protection and privacy in the EU, for example, prohibits the processing of biometric data for the purpose of uniquely identifying natural persons; with the very limited exemptions of an express consent or a compelling public interest. The GDPR, for example, has introduced a new requirement: that data controllers must conduct Data Privacy Impact Assessments (DPIA) when processing is likely to result in high risk to the rights and freedoms of Data Subjects.
The UK, in response, had to pass the Protection of Freedoms Act 2012, with a section that specifically deals with biometrics and the appointment of a Biometric Commissioner. This Commissioner is independent of government, and his duty among others is to have an independent oversight to review national security determinations in the use of biometrics. The point that is government can collect biometrics when it’s in the public interest; but because it is sensitive data there should be an independent check, review of the use, retention and destruction of biometrics, even by government.
The Dutch Data Protection Authority (DDPA) once imposed one of its highest fines on an organisation that used biometric data of its employees for attendance and time registration. SIM card registration with a Ghana Card that already has our biometrics captured cannot in any way be compelling public interest for the recapture of our biometrics. We need to be protected by the Data Protection Commission as an independent body.
For the national identification cards, yes – but biometrics are not ordinary personal data which can be collected at will for a service such as telecommunication. The telcos or NCA cannot have the same information security systems that the National Identification Authority (NIA) is obliged and most likely to put in place. Our ‘Digital Persona’ is at risk.
Defending the Law
There are legal implications to what in my opinion is an arbitrary use of power by the Executive arm of government in this mandatory registration of SIM cards, in the name of wanting to protect the same citizens from possible fraud by a few unscrupulous people. What is the opinion of the following?
- Ghana Bar Association (GBA)
As an independent association of lawyers, do they agree on what is being done? What in their view is the position of the law? If it is an arbitrary infringement of the people’s rights, is it not possible for them to go to court to defend the rights of the people? If there is no abuse by the Executive, too, is it not possible for them to make a statement on it and explain to citizens that it is in our own interest and a legal requirement? Is it an Association that can help and deepen the promotion of a free and democratic society for public safety, or the economic well-being of the country; for the protection of health or morals, for the prevention of disorder or crime or for protecting the people’s rights or freedoms? Maybe, as they say, lawyers defend their clients not the law so it is none of their business – which is fine, too. They have to be paid, and no one has come to them. Understandable. What about Parliament and the Judiciary?
- Parliament and the Judiciary
Parliament and the Judiciary are, constitutionally, the two arms of government for separation of powers, checks and balance. Is this mandatory registration of SIM cards not a typical situation for which the Constitution envisaged a possible arbitrary abuse of power by an arm of government – especially the Executive for which the powers were separated? I have heard of Parliamentarians saying there is no law under which the Executive is operating in this mandatory SIM registration. What are the Parliamentarians there for? What is Parliament then doing with their Constitutional power? Parliament, you make the laws, you say you have not made any such law and you lamenting to us the citizens. “SMH”!
To the Judiciary, you are the defender of the law: I doubt if any member of the Judiciary went to queue at a telco office under COVID-19 health risks, so they will not feel the disrespect to the lives of citizens. Parliament or the Judiciary cannot lament like the ordinary citizen when they have the power to do something about it, unless they see nothing wrong with it.
- Civil Society Organisations (CSOs)
We have so many of them, but the notable ones are IMANI, ASEPA and OCCUPYGHANA. I guess this should be a typical civil society situation that requires an intervention from them. I spoke to a member of one of these CSOs, and the person said it is a political case and if they should go to court they would lose. Why is this so?
- The Media (Fourth Estate)
They are supposed to be the ‘Fourth Estate of the Realm’; that is, to act as a sort of watchdog for the Constitution. In its present situation, I have no comment.
- The Citizens (Fifth Estate)
I think we the ordinary citizens ourselves must form what I would call a ‘Fifth Estate of the Realm’ and fight our own cause, since we are on our own from the way I see things. I have a few suggestions, though, on how we can have a ‘Both-Gain’ situation with government if they say they are protecting us – so they can do so without infringing on our fundamental human rights.
Way Forward
- Limiting Value Adding Services
Mobile technology comes with the capacity to deliver value adding services such a digital transaction accounts (MoMo). There is no ‘Right to a Digital Transaction Account’ in the Constitution. MoMo is not ‘fundamental’ but a Value Adding Service. These type of services are convenience services which can be limited subject to a SIM card being registered. The non-registered SIM holder will then have to buy paper-based airtime to top-up and cannot make online payments. The inconvenience will nudge consumers to undergo voluntary registration, since they want to avail themselves to Value Adding Services above the basic ‘Right to Communication’ as enshrined in the Constitution.
In effect, one cannot make payment on the digital platform if your SIM is not registered; but this is a fair arrangement because there are alternative modes of payment. The analogy is this: if in the name of “Right to Freedom of Movement” under Article 21 (1) (g) of the 1992 Constitution, you want to drive a car on the streets, get a driving licence or else walk; but one cannot be denied the ‘Right to Walk’.
Blocking SIM cards is an interference and denial of the “Right to Communication and Correspondence” as well as “Freedom of Speech”. Limiting the registration to Value Adding Services will be in the spirit of sections 20 and 23 of the Data Protection Act by giving consumers the right to object to or stop such processing.
- Data Protection Commissioner to Stop the Recapture of Biometrics
Data protection laws are, in general, an extension of the fundamental rights to communication and correspondence as long as the telcos are data controllers by capturing our biometrics. They were introduced because of concerns about the impact of computerised data processing on privacy in the information society, right to respect for private and family life, home and correspondence.
The object of the Data Protection Commission (DPC) in Act 843 is to:
- protect privacy of the individual and personal data by regulating the processing of personal information, and
- provide the process to obtain, hold, use or disclose personalinformation.
In my opinion, the recapture of biometrics is not being obtained fairly in accordance with the rights of data subjects: there is no specific, explicit and legitimate purpose from the Telcos point of view since the Ghana Card already has our biometrics. This makes the recapture excessive and unnecessary. If government still wants to go ahead, the Data Protection Commissioner, if indeed independent, must go to court to stop the recapture and order for the destruction of already recaptured biometrics.
There is no compelling national interest for biometrics to be taken again. The National Communication Authority is a state organisation with its own functions, and so is the Data Protection Commission (DPC). The capture and protection of our biometrics falls within the DPC’s function, and they must be able to stop this recapture. If they however think it is legal, then they should let us know.
Conclusion
The Ghana Card, which already has our biometrics and personal data, is being used as the only means of identification. This makes collecting biometrics for a SIM registration superfluous, not necessary for the intended purpose – and the data protection principles as in Act 843 do not sanction it. All it takes is to remotely link the SIM card to the Ghana Card – no biometrics needed and no queuing necessary. COVID-19 is still on the rise, it’s just that the statistics are not being published for whatever reason.
The benefits in terms of unique identification to prevent fraud are unquestionable; but so is the downside of abuse in the arbitrary recapture of our biometrics by all the telcos and other SIM card sales agents, which may lead to permanent damage to our ‘digital persona’ and our right to information security.
The blocking of unregistered SIM cards is an unlawful interference, an arbitrary attack on and deprivation of the right of correspondence, communication of the people by the Executive arm of government and against the ICCPR, ACHPR and the 1992 Constitution. The queuing at telco offices under COVID-19 health risks is inhumane and disrespectful to the lives of ordinary Ghanaians – a blatant abuse to the “Right to Life”. Who is to defend the people? I guess nobody but ourselves, the ‘Fifth Estate’.
Let us not block unregistered SIM cards except for managing inherent risks in the provision of Value Adding Services like registering for MOMO, unless there is of course an undisclosed, hidden motive – because the present posture by the Minister for Communication and Digitalisation is a bit worrying. You know we do not all have the cards because another state institution responsible for issuing the cards has not been able to make them readily available. Why the rush?
The author holds an EMBA (IT Management) an LLB and LLM (IT & Telecommunication) (visit : Kofianokye.blogspot.com; contact: [email protected])
