Many African countries have laws protecting the personal data of private citizens but as ever, it is how these laws operate in practice that will show whether they actually protect personal privacy. At the end of last month, a private citizen (joined by MTN Ghana) took legal proceedings against the Government and the private agency that wants to acquire the data, KelniGVG. Russell Southwood looks at who has said what to whom and why getting data to fight Covid-19 has become a live privacy issue.
On 24 March President Nana Akufo-Addo issued Executive Instrument 63 obliging the network operators to co-operate with the telecoms regulator NCA and the platform it operates through KelniGVG to provide information to state agencies in the case of an emergency. Executive instruments 64 and 65 were used to impose physical lockdown on the country.
Acting on behalf of the President and the NCA, Kelni GVG Limited, on March 27, 2020, aked all communication network service operators to put the applicant's personal information and that of other subscribers at their disposal. This information included subscribers' addresses, time of calls and/or text messages and calls content as well as personal information on address, bank details, and mobile money transactions.
At this point private Legal Practitioner, Francis Kwarteng Arthur questioned the rationale behind the Government's request for the personal information of Ghanaians as part of the contact tracing process to identify persons affected by the Coronavirus. Kwarteng Arthur believes that the government's contact tracing scheme does not give President Nana Akufo-Addo the right to access anyone's private details, particularly bank details.
Kwarteng Arthur is seeking an order to quash the President's Executive Instrument because the order "(has) violated, are violating or are likely to violate" his "fundamental rights and freedoms". He is also seeking a perpetual injunction to restrain the Government, Kelni GVG and the NCA "from using the Executive Instrument to procure the applicants' personal information from" Vodafone Ghana, his network provider.
In a separate case titled 'Francis Kwarteng Arthur vs. Vodafone Ghana and four others have accused the acting Chief Executive Officer (CEO) of Kelni GVG Rouba Habboushi of lying under oath and have filed a Perjury charge against her.
The applicant claims the acting CEO of Kelni GVG, (the 3rd Respondent) has deposed to false information to the court in the case in which Mr Arthur, a private legal practitioner, filed on April 6, 2020 at the High Court to challenge the President's order contained in Executive Instrument (EI) Number 63 and the manner in which the order was being implemented.
In a motion for perjury filed at the High Court on Friday and sighted by Starrfm.com.gh, lawyers of the applicant indicated that "the respondent made the deposition mentioned in paragraph 7 of this affidavit knowing same to be false in respect of a material particular, or having no reason to believe in the truth thereof."
According to the affidavit in support of the motion for perjury, the applicant explained "on or about March 27, 2020, the 3rd Respondent, a private entity, acting on behalf or purporting to act on behalf of the President or the 4th Respondent (National Communications Authority), did write to all communication networks operators or service providers including 1st Respondent (Vodafone Ghana Limited) and the 2nd Respondent (SCANCOM- MTN Ghana) directing or requesting them, ostensibly pursuant to the said EI63 to put my personal information and the personal information includes but not limited to a dump of subscribers database, the subscriber cell reference data, the unhashed subscriber mobile money number transfer data, and a dump mobile money merchant codes and addresses.
"That on May 20, the respondent, Rouba Habboushi, acting in her capacity as the Acting Chief Executive of the 3rd Respondent to the amended originating motion, did depose to the 3rd Respondent affidavit in opposition to my affidavit in support on my amended application for an order of interlocutory injunction".
According to the affidavit, the acting CEO of Kelni GVG denied categorically in paragraph six of her affidavit in opposition that Kelni GVG ever wrote or requested from Vodafone and MTN particulars of subscriber, a development she knew was untrue.
"That the averment contained in paragraph 10 of the Amended affidavit in support of the originating notion which the applicant rallies on in this instant application is denied as the 3rd respondent has made no such demand on the 1st and 2nd respondent or any other communication network operator or service provider as alleged by the applicant," Madam Habboushi is said to have deposed on oath.
But contrary to her deposition, Habboushi, the 3rd Respondent did, "in fact, send a communication to at least the 2nd Respondent requesting my personal information and the personal information of other communication network subscribers to be made available to its.
"... The respondent made the deposition mentioned in paragraph 7 of this affidavit knowing same to be false in respect of a material particular, or having no reason to believe in the truth thereof.
The applicant state that, "I'm advised by counsel and I verily believe same to be truth that this honourable court has the power to under section 152 (1)(b) Act 30 as amended by section 14 of Act 633 under section 210(1) of act 29, and under its inherent jurisdiction, order the respondent Rouba Habboushi to show cause why she should not be committed to prison for perjury upon deliberate false deposition which she made on oath to this honourable court, which deposition is mentioned in paragraph 7 of this affidavit.
"I'm advised by counsel and verily believe same to be true that this is a proper case where this honourable court ought to exercise its jurisdiction to grant (a) an order directed at the respondent Rouba Habboushi to show cause why should not be committed to prison for jury and by any other order s that the honourable court may deem fit".
The court fixed June 4, a returned date for the motion to be moved. However, the case has now been adjourned until 3 July to allow the applicant, Francis Kwarteng Arthur, and his lawyers to serve the Respondent with the application.
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