Multimedia’s Full Defence to Government’s Complaint at NMC on Militia Documentary

IN THE SETTLEMENT COMMITTEE OF THE NATIONAL MEDIA COMMISSION – NMC

ACCRA – A.D. 2019

IN THE MATTER OF PART III OF THE NATIONAL MEDIA COMMISSION ACT, 1993 (ACT 449) AND THE NATIONAL MEDIA COMMISSION (COMPLAINTS SETTLEMENT PROCEDURE) REGULATIONS, 1994 (LI 1587)

-AND –

IN THE MATTER OF A COMPLAINT BY THE GOVERNMENT OF GHANA AGAINST MULTIMEDIA GROUP LIMITED

 BETWEEN

GOVERNMENT OF GHANA                                   –                                        COMPLAINANT  

  AND

MULTIMEDIA GROUP LIMITED                             –                                        RESPONDENT

    ———————————————————————————————————–

RESPONDENT’S RESPONSE TO complaint

PURSUANT TO R4 (2) OF NMC LI 1587, 1994

   ———————————————————————————————————– 

Unless hereinafter expressly admitted, Respondent, of 355 Faanofa Street, Kokomlemle, Accra, denies each and every allegation contained in the Complaint dated the 13^th day of March 2019 as if same were set out in extenso and traversed seriatim, and as follows:

1. Respondent serves notice that at the hearing of this Complaint, Respondent shall raise preliminary legal objection to Complainant’s capacity and/or ability, in law, to bring the Complaint and seek the reliefs therein, and other than a probable right in article 162(6) of the Constitution 1992.

1. That clarification as to the capacity or specific Complainant may be required, Respondent’s reading of even the first paragraph/relief (ii) of the Complaint seems to throw up a potential confusion in that respect, and when read against your cover letter. Be that as it may, Respondent shall defer to the purported capacity in said first paragraph/relief (ii) to be the Government of the Republic of Ghana.
2. That again, the specific party(ies) against whom the Complaint is made, is not exactly apparent as ought to be from the face of the Complaint – is it against a specific unit of or the Multimedia Group Limited. Here also, Respondent shall rely on Complainant’s reference to “JOY NEWS” (on the face/contents of the Complaint and the Commission’s cover letter as well as other references to units and “various affiliates”) and prefer to treat same under the umbrella Multimedia Group Limited in the spirit assisting the Commission fully.
3. That despite paragraphs (2) and (3) above in reference to the lack of proper unambiguous identification of the parties or capacity of Complainant, which is critical to satisfy, inter alia, fundamental legal requirements including to properly found the Complaint, please be assured, as always, of Respondent’s commitment to assist the Commission in the present matter to achieve the ends of procedural and substantive justice in full compliance with law and the Constitution.
4. That, alternatively, Respondent shall commence its Response by the following observable by judicial notice:

1. That Respondent is incorporated under the laws of Ghana with the following business units – Joy FM, Adom FM, Asempa FM, Nhyira FM, Luv FM, Hitz FM, MultiTv (with channels including JoyNews), Myjoyonline.com and Adomonline.com churning out arguably the largest number of stories by any media house in Ghana.

1. That Respondent is Ghana’s foremost private commercial establishment in the Mass Media operating said chain of media outlets in service of the citizens of Ghana for the effective exercise of their constitutionally guaranteed fundamental rights to free speech and expression which includes freedom of the press and other media in compliance with law and journalism ethics.

• That in the exercise of their jobs and profession in the normal course, staff attend to the invitation of State and non-state agencies and actors to provide radio, television and online coverage of critical news events for onward broadcast/dissemination to Ghanaians in their homes, offices etc in their various cities, towns and hamlets, and the world at large.

1. That further to the preceding sub-paragraph, Respondent receives distress calls and draws the attention of relevant agencies including the police and fire services to acts that threaten the peace of a community or the country for prompt action to avert harm to life and limb, destruction of property among others.

1. Respondent, further to the preceding sub-paragraphs, conduct research and investigations into various issues of community and national interest including the pendency or outbreak of disease, help to create public awareness and educate people to avoid contracting diseases etc.

1. Respondent, further to the preceding sub-paragraphs, duly empowered including as in chapters 5, 6 and 12 of the Constitution, exercises constitutional duties including article 41(f) to expose and combat corruption in furtherance of the ideals including as mandated in chapter 6 of the Constitution.

• In fact, presently airing on Respondent’s network is one such critical documentary of huge national importance going to the very core of citizenship. It is dubbed “Paper Citizens” is set to get Parliament act even as relevant authorities move in the arrest and prosecute officers and fraudsters at the Births and Deaths Registry.

• Respondent has produced uncountable documentaries that have gotten the State into action including recent ones leading to efforts to improve prison conditions under the leadership of Chief Justice Georgina Wood, fight the menace of land guards and galamsey, and with public support and under the sterling leadership of the First Lady Rebecca Akufo Addo provide life-saving healthcare facilities building one from the scratch now being used by mothers and babies.

1. That Respondent, in the normal course, also works to expose human rights abuses, bad conditions of health, poor education, poor shelter among others in especially deprived communities and of less privileged individuals, to seek support/redress from both public and private agencies including from philanthropists, all of which help in no small measure to improve the general well-being of society.

1. Respondent through its various outlets project and celebrate the country, or institutions and individuals doing patriotic and other good and inspiring acts, and raise funds to support brilliant but needy students, build schools, provide furniture, libraries, drill boreholes and other essential needs where such are lacking.

1. That Respondent pursues professionally ethical broadcasting and strives at all times to be the leading light in such pursuit in its various forms of media operations.

• That Respondent has neither the motivation nor the desire to act or promote content that is “…offensive, utterly false, a product of gross misrepresentation of facts and wild speculation…” as Complainant alleges.

• That a civil suit number GJ936/19 over same subject before the NMC is pending before the High Court, General Jurisdiction Division, Accra, albeit styled in the tort of defamation of the De-Eye Group Limited, the subject of the documentary in question.

1. That further to paragraph (1) above and pursuant to said constitutional dictate, Respondent duly performed the constitutional obligation in publishing Complainant’s rejoinder and giving it deserving prominence and referring profusely to same anytime it dealt with the subject matter herein on any of its platforms including it flagship programmes. Attached hereto is said rejoinder cast in the mould of the Complaint herein in material respect and marked Exhibit “1” and evidence of publication by Respondent marked Exhibit “1A”.

1. Respondent contends, from the onset, that the reference and resort to the words “militia” and “security zone” which rile Complainant and constitute the gravamen of its plaint or charge, are Respondent’s opinion and fair comment in fact and in law on the subject of its investigations and not subject to the Complainant’s (or the Commission’s) contrary view as such will be contrary to standard professional conduct in journalism, the GJA Code of Ethics, purport to vary the law on the defences of justification/opinion/comment, and even more dangerously purport to fetter individual/media constitutional and fundamental human right to free expression in article 21 of the Constitution.

1. That further to paragraph (7) above, Respondent dwelt on facts including formal official popularization of the word “militia” by a constitutional commission set up by the H.E the President of the Republic of Ghana to investigate matters concerning electoral violence said to have arisen partly from what was hitherto widely referred to by a section of the public as “political party vigilante”.

1. That in fact, in said documentary the group in question is interchangeably referred to as “vigilante” and “militia” and that said second usage arose because while the production of the documentary was ongoing, a member of the Commission of Inquiry into the Ayawaso West Wuogon By Election Violence, Professor Henrietta Mensah-Bonsu, observed and emphasised thus:

“We call these things political vigilantes and we don’t quite appreciate how bad. It is plain warlordism. They are militias. They are not political vigilantes. They are militias…They are private militias, subject to some people’s control. Those people are war lords.”

1. That said introduction (of said militia) was not only by a member of said Commission but one of Ghana’s foremost professor of criminal law with international exposure and experience in the subject having been a member of the UN Secretary-General’s 14-member High-Level Independent Panel on Peace Operations, Deputy Special Representative of the Secretary-General for Rule of Law in the UN Mission in Liberia (UNMIL), worked for the Organization of African Unity (OAU), African Union and Economic Community of West African States (ECOWAS), Ghana’s representative on the Intergovernmental Committee of Experts on the Drafting of the African Charter on the Rights and Welfare of the African Child in 1991, and the OAU’s Committee of Experts on the Lockerbie Case, a member of the Advisory Panel of the International Bar Association for the drafting of a Code of Professional Conduct for Defence Counsel appearing before the International Criminal Court to which she was a favourite for the candidacy of judgeship.

1. That it came as no surprise to Respondent that there was not the slightest challenge to her usage from the Chairman of the Commission with similar repute and expertise in said matters, as well as the other member of the Commission, a former Inspector-General of the Ghana Police Service. In fact, internationally reputed security experts shared the usage leading to widespread acceptance replacing the hitherto common usage of political party vigilante.

1. That the word “militia” is therefore used and understood contextually not to be same as what might find as the first technical sense in a dictionary but somewhat loosely along the second non-technical sense of the definition as rendered in Wikipedia essentially to be a “fighting organization of non-professional soldiers, citizens of a nation, or subjects of a state”.

1. Respondent shall rely on the defences of justification, privilege, fair comment/opinion and public interest on the facts particularised as follows:

PARTICULARS OF JUSTIFICATION/PRIVILEGE

FAIR COMMENT/OPINION

PUBLIC INTEREST

1. That Respondent’s investigation conducted on the De-Eye group between October 2018 and March 2019 is a matter of fact.

1. That the investigations were triggered by a tip off that the group was engaged in military drills and security training to the youth at the Osu Castle, and same was confirmed by the investigations. Conduct of military training by a private group is against the law and punishable by prison terms.

1. That the group is a vigilante/militia group affiliated to the NPP and was formed in 2009 is a matter of fact and that a June 2012 Daily Guide Report with a photograph captioned “Vigilante Group Vows to Protect Ballot Box” referenced the group: “Formed in 2009, the ‘Eye Vigilante’ group is made up of energetic male and female NPP members across the country whose primary target is to protect the NPP members against any attacks by lawless people.” Attached hereto is Exhibit “2”.

1. That a UTV story also referred to the group as a Vigilante Group, and in fact, a popular member of the NPP in the Ashanti Region who is also a Polling Station Executive in Moshie Zongo in Kumasi, Alhaji Haruna Mohammed, has publicly named the group as one of the vigilante groups in the NPP. It is instructive to note that he granted this interview as Spokesperson for the well-known Invisible Forces. Attached hereto are Exhibits “3” and “3A”.

1. That contrary to the claim that the group is a loose association of youth seeking employment, its meetings are characterized by training and speeches that depict a security group within the NPP, and members were never captured receiving instructions on interviewing skills or how to write CVs.

1. That the investigations captured members of the group at meetings responding to the group’s motto “Vigilance and Protection.”

1. That the group’s leader is addressed as “Commander” while the second in Command is addressed as “Chief of Staff”.

1. That members of the group cheer or clap in the known military style “Ahooo! Ahoyaha!”

1. That trainers of the group’s members are ex-military officers is a matter not controverted even by the group itself.

1. That the official website of the group, which was clandestinely pulled down after its activities were exposed by Respondent, advertises itself on the page titled About Us thus: “DE-EYE Group was conceived out of the growing need for more efficient jobs and security service in Ghana. It is absolutely owned by Ghanaians, licensed and registered. All our personnel are experienced well trained by retired military officers and are very reliable. Our personnel also go through rigorous screening, background checks for crime history and drug test…” Attached hereto is Exhibit “4”.

1. That the investigations revealed the Ministry of Interior authorised to licence private security firms and regulate same had not licenced the De-Eye Group is a matter of fact and same conduct is against the law. This conduct including mere membership of such entity is punishable in fines and prison terms. Attached hereto is Exhibit “5”.

1. That the investigations revealed the group provided security for a high level NPP event in honour of Chief S.D. Dombo with the President, Vice-President and his wife, former President John Agyekum Kufuor and other high up NPP members in attendance at the Accra International Conference Centre on December 7, 2018 is a matter of fact.

1. That in 2018, Chief of Staff of the group, Fraser Owireku Kegya, told TV3 in an interview that the group had a membership of over 5000 youth “across the country” who believe in the policies of President Nana Addo Dankwa Akufo-Addo, and that at an end-of-year get-together it held at the Castle, the opening prayer said they had gathered as an “NPP family” is a matter of fact.

1. That the group illegally drove away National Security operatives stationed at the Aviance Cargo Village at the Kotoka International Airport in Accra in 2017 and deployed its members in replacement is a matter of fact.

1. That it took a Director of the National Security Secretariat to conduct another operation to reverse this criminal act and send the National Security operatives back to their lawful operational area is a matter of fact.

1. That on December 10, 2018, Fraser Owuireku Kegya told the group at the Castle that they had become a priority whenever top security capos of Ghana met is a matter of fact.

1. That on December 17, 2018, Commander of the group, Nana Owireku Addo, told members that National Security had tried to destroy the group but failed and had sent spies to find evidence against them, and that he asked them to be vigilant and expose any operatives of National Security infiltrating their camp is a matter of fact.

1. That on December 10, 2018, Fraser Owireku Kegya bemoaned the rate at which members of the group were often involved in criminal activities and fell foul of the law, and warned that if anybody embarked on an unauthorized operation and got arrested again, he would allow that person to be in police cells for some time and then he would bring the person to disgrace them in the presence of the group, is a matter of fact.

1. That on December 17, 2018, one of the trainers started the day’s meeting by praising members that none of them had been arrested that weekend is a matter of fact.

2019. That Respondent verified the facts and also contacted the group and offered it a chance of reaction to the investigations, and on two occasions scheduled meetings were aborted by the group. Respondent’s staff spoke with the group on 22^nd February, 2019 and a meeting was agreed for February 26, 2019. On said date, Respondent’s staff got to the Roman Ridge School and called the group officer for further directions to an office said group officer had agreed. Respondent’s staff made more than 10 telephony calls which went unanswered even though in some of the calls it indicated “number busy”. Respondent’s staff sent the following message, “Good evening, Sir. This is Manasseh Azure Awuni of Joy FM. I’m at Roman Ridge. I need a direction to your office.” After waiting for over 20 minutes, Respondent staff left and sent the following message on WhatsApp: “Good evening, Sir. I called many times this evening but you did not answer. I was in Roman Ridge. I’m producing a documentary on political vigilantism and had information that you have a vigilante group. The meeting is to hear from you because it’s fair that if I’m doing a story that involves you, I get your side of the story. Please, let me know when it will be convenient for us to meet. Have a Good evening.” The WhatsApp message ticked blue, indicating same had been read, but there was no response.

1. That again on March 1, 2019, Respondent’s staff placed a call and another meeting was duly arranged. Respondent’s staff got to the Roman Ridge School and called for further directions as mutually agreed, but the calls went unanswered. He sent this message through both SMS and WhatsApp: “Good afternoon, Sir. I’m here at Roman Ridge School. I’ve called many times but you’re not responding.” The message went, but there was no answer. After calling for over 30 minutes, Respondent staff left.

1. That yet again on March 5, 2019, Respondent’s staff sent another WhatsApp Message thus: “Good morning, Sir. We are going ahead with the story I told you about. If you still want to respond or if you have anything to say, kindly let me know. Thank you very much.” The message was delivered. It ticked blue, but was not responded to.

1. That on the two occasions of arranged meetings referred to above, Respondent’s staff were two on each occasion and were together.

1. That, as duly acknowledged in the documentary, Respondent, apart from dealing with reliable sources within the group itself, dealt with State security sources and sources also asked the Presidency if it knew about the group and its operations and received a response in the negative, and that evidence of telephony chat may be available at the request of the Commission including those for exclusive restricted viewing on strict confidential terms of non disclosure only.

1. That Respondent in its verification exercise engaged various ministers of Complainant including posing same question posed to Director of Communications at the Office of the President, to the Minister of Information, author of and signatory to the instant Complaint. The various telephony, especially off record, interactions with said officials of state may be disclosed to this Commission only upon the express consent of those parties in full compliance with law.

1. That Respondent question to Mr Arhin was thus: “Good evening. I called earlier. I’m doing a story on De-Eye Group, an NPP vigilante/militia group run by Nana Wireko Addo, aka Choman, a former bodyguard of President Akufo-Addo. I have information that the group operates from the Christianbourg Castle. Some leaders of the group claim the President is aware of their operations there. I’ve spoken to a Jubilee House source close to the president who has denied the presence of the group at the Castle and the knowledge of the President but that’s not the official response, according to the source. I’ll be happy to have the official response on the matter by close of tomorrow.”

1. That Mr. Arhin responded thus: “The President has no knowledge of the alleged activities of this said group, let alone sanction their activities. My checks from National Security have revealed that no such group is operating from the Castle.”

• That the group operated an office in the Castle is a matter of fact. Refer to a confirmation by Complainant in Exhibit “1”.

1. That the group’s leader is a former bodyguard of the H.E. the President is a matter of fact as noted in the documentary. Refer to a confirmation by Complainant in Exhibit “1”.

• That the group was evicted by a joint police and National Security taskforce from meeting at the Castle and operating an office there is a matter of public record prompted by the documentary. Refer to Exhibit “1”.

1. That Respondent has also taken notice of the statement of Sunday March 10, 2019 by the Minister of State in-charge-of National Security, Bryan Acheampong, that the security apparatus was “aware that Nana Wireko, alias Choman started his company from his former secretariat at the castle, where we warned him on two occasions and arrested him, threw him out of the office and shut it down in October on our third encounter with him”. Attached hereto is Exhibit “6”.

1. That the Castle at the material time was a security zone is a matter of fact for the reasons inter alia that security operatives there confirmed same including by conduct including permitting only restricted/qualified entry, prohibiting conduct/activities such as journalists shooting videos there.

• That further to the preceding sub-paragraph, Respondent’s Joseph Ackah Blay who was covering said Commission’s sittings at the Castle had tried on two occasions to do live reporting from there and was prevented from doing so inside or outside the Castle. The Security told him it was a security zone and his camera was not permitted anywhere except the inside of the hall where proceedings were taking place.

• That further to the preceding sub-paragraph, Dr. Kwesi Aning of the Kofi Annan International Peacekeeping Training Centre was stopped by said security from driving into the Castle when he was invited to appear before said Commission. He, a foremost security expert of international repute told Respondent’s NewsFile in an interview that they told him the place was a security Zone and his car had no security clearance to drive in. attached hereto is Exhibit “7”.

1. That further to the preceding sub-paragraph, the Castle had been known an annex of the seat of Government housing as many as four ministries for ministers at the office of the President.

1. That said Castle also still hosts a fuel service station especially for use by offices/officers of the State.

1. That when the Minister of State in-charge-of National Security, Bryan Acheampong appeared before the Commission, he made reference to people wearing black and white at the Castle and referred to them as national security operatives. Respondent holds a different view and is entitled to same that National security operatives are not uniformed so these people were obviously members of De-Eye Group.

1. That the complaint about Respondent’s use of a file photo for its online publication as exhibited by Complainant only betrays a mischief or ignorance of the practice of journalism. Respondent produced a TV promo for the documentary, which was a television documentary anyway. The use of a “file photo” for its online publication is a permitted practice and same does not breach any rule or law in journalism. The file photo used for the online publication was accompanied by the inscription “File Photo” and ought therefore not mislead readers. A copy is attached hereto and marked Exhibit “8”.
2. Complainant ought not be allowed to complain about the said documentary and especially to point to what it claims to be deliberate omission of “material fact” of a purported date of closure of the office of the group at the Castle, having spurned the opportunity given it for reactions prior to the broadcast. Respondent was entitled to broadcast as far as the facts it had gathered including the outright denial by Complainant of knowledge of the group at the Castle when offered the chance by Respondent.

1. Respondent shall contend that Complainant’s belated/ex post facto claim of a “material fact” can only be fact or fact of a material nature known only to Complainant. In any event, the assertion by Complainant of cessation of activities of the group at the Castle by October 2018 can only be false, at least to Respondent, because Respondent has and showed ocular proof to the contrary including as particularized herein in sub-paragraph (L) of paragraph 13. The full investigative footage is available to this Commission upon request.

1. The complaint about what was contained in the first six minutes of the documentary is a most spurious attempt to dictate and direct discretion in clever censorship and same must be rejected outright. The said content was most relevant and a matter of public interest.

1. Respondent contends that the matters complained about are matters of great public interest  having engaged the entire nation and its leaders to the point of H.E. the President setting up a constitutional commission, directing political party leaders to work to end the phenomenon and instructing the Attorney-General to submit draft legislation for the purpose.

1. That in the in the premises of the preceding paragraph, Respondent together with the public had a corresponding or common interest in same, and said broadcasts/publications of the documentary were done as a matter of duty imposed by the Constitution on the media and citizens generally.

1. Respondent contends that Complainant is not entitled to any of the reliefs sought, and that this instant Complaint is baseless, unlawful and unconstitutional action primarily intended:

1. to unconstitutionally and lawfully fetter and frustrate Respondent and the media in exercising the duty and obligation imposed on them and citizens in article 41 (f) of the Constitution “to protect and preserve public property and expose and combat misuse and waste of public funds and property”;

 

1. to unconstitutionally and unlawfully fetter and frustrate Respondent and the media in exercising the rights to speech and of the mass media guaranteed in article 21 of the Constitution;

 

• to unconstitutionally and unlawfully fetter and frustrate the citizens’ right to information as guaranteed in article 21(f) of the Constitution especially in matters of public interest.

 

1. to unconstitutionally and unlawfully procure censorship and interfere with the freedom and independence of Respondent and the media contrary to article 162 (1) and (2) of the Constitution.

 

1. to unconstitutionally and unlawfully prohibit and hinder Respondent from exercising the privileges as guaranteed in article 162 (4) of the Constitution that [e]ditors and publishers of newspapers and other institutions of the mass media shall not be subject to control or interference by Government, nor shall they be penalized or harassed for their editorial opinions and views, or the content of their publications..

 

1. to unconstitutionally and unlawfully prohibit and hinder Respondent from exercising the onerous duty imposed on the media in article 162 (5) of the Constitution that [a]ll agencies of the mass media shall, at all times, be free to uphold the principles, provisions and objectives of this Constitution, and shall uphold the responsibility and accountability of the Government to the people of Ghana.

 

1. Complainant ought not be allowed to force its set of facts and interpretations on Respondent as this appears to be the thrust of the Complaint and nothing more.

1. Respondent contends that it never engaged in any act of professional misconduct, neither did it breach any rule, code or law or the Constitution, and certainly never did all the Complainant accuses it of including the claim of airing a documentary containing “offensive, utterly false, a product of gross misrepresentation of facts and wild speculation.”

1. Consequently, Complainant is not entitled to any of the reliefs it seeks, and its Complaint being baseless and unmeritorious ought to be dismissed in limine, with an order to retract and apologise to Respondent for discrediting the reputation of Respondent and its named staff including in its press statement and this widely publicized Complaint.

1. Respondent shall also implore the Commission to ensure a full recording of its hearing of this Complaint and to render a reasoned decision dealing with each and every plaint of the Complaint vis a vis the heads/basis of each response in the Response.

 

DATED AT A-PARTNERS @ LAW, H/NO. 4, EASMON ST., OPP. THE TRUST CLINIC, NEAR CLUB 250, OFF THE MAIN ROUNDABOUT, DANSOMAN, ACCRA, THIS MONDAY, THE 27^TH DAY OF MARCH, 2019.

 

 SAMSON LARDY ANYENINI ESQ.

                                                                                                                                                                       A-PARTNERS@LAW

                                                                                                                          SOLICITORS FOR RESPONDENT

 

THE AG. EXECUTIVE SECRETARY

NATIONAL MEDIA COMMISSION

ACCRA

AND FOR SERVICE ON THE COMPLAINANT VIA HON. KOJO OPPONG–NKRUMAH, MINISTER, MINISTRY OF INFORMATION, ACCRA.