12 Jun Ghana: Gov’t Sued Over $89m Telco Deal
An attempt by the government to implement the controversial Common Platform (CP) that will ensure proper monitoring of revenue flow from the telecoms sector is facing stiff challenge.
This follows a fresh suit filed against the government by two people who are holding that if the CP policy comes into effect it could be an avenue to spy on telephone conversations which is a breach of the fundamental human right to privacy.
The common platform is expected to be monitored by a private firm KelniGVG whose contract with the government has sparked heated debate in the past weeks.
The whole monitoring policy is supposed to take effect from today, but last Friday, the plaintiffs Sara Asafu-Adjaye and Maximus Amertogoh, filed the writ seeking, among others, an interlocutory injunction to restrain the government and its assigns from “implementing and operationalizing the Common Platform until the final determination of the suit.”
The motion, which is expected to be moved on June 22, 2018, attaches the sector Minister of Communications, Ursula Owusu-Ekuful; regulator National Communications Authority (NCA); revenue collector Ghana Revenue Authority (GRA); umbrella body for the telecoms companies Ghana Chamber of Telecommunications, as well as mobile network operators: Airtel Ghana, MTN Ghana, Tigo Ghana and Vodafon Ghana as defendants.
Ursula has been the lead advocate for the KelniGVG deal that gives the company $89 million.
According to the plaintiffs, on March 28, 2008 the government passed the Communications Service Tax 2008 (Act 754) for the imposition of a communications service tax and other related matters, averring “Act 754 imposed the communications service tax which is to be levied on charges payable to consumers for the use of communication service.”
The plaintiffs said Section 14 of Act 754 gave power to the Minister of Finance, in collaboration with Minister of Communications, to establish monitoring mechanism to verify the actual revenue that accrue to the communication service providers in respect of the tax.
Sometime in July 2013, the plaintiffs said, Act 754 was amended to Act 864 which this time round sought to clarify the scope and coverage of the tax and provide related matters and in the process Act 864 even prescribed sanctions against players in the telecoms sector who did not want to comply with the common platform agenda.
The plaintiffs averred that in May 2018, the NCA wrote to all telecoms companies that the government was establishing the common platform for revenue monitoring, as well as notifying them of the schedule for installation of systems for the common platform at the various data centers.
According to the plaintiff, a private third party company called KelniGVG has been contracted by the ministry to install and operate the common platform on behalf of the government.
“Having followed the public debate and upon further enquiry, they gathered that the 1st, 2nd and 3rd respondents, who are primarily responsible for the implementation of the common platform intend to carry out this exercise in a manner which will be in breach of the applicants fundamental human right to privacy.”
The plaintiffs said that the architecture of the common platform to be implemented is such that instead of connecting to only the billing node provided by the telecom companies as stipulated under Act 864, the connection will be made to all the physical nodes, and it will be a breach of Article 18 (2) of the 1992 Constitution.
According to the applicants, the mobile networks have a statutory duty to protect their customers, including the plaintiffs under Section 73 of the Electronic Communications Act 2008 (Act 775) by ensuring that correspondence and communications of customers are not intercepted or interfered with.
They insisted that in the current form, a third party acting on behalf of the government even without a court order can intercept communications and correspondences, including text messages and voice calls of customers of mobile network operators.
“Applicants believe that the intended implementation of the common platform constitutes a real threat to the enjoyment of their fundamental human right to privacy,” adding that the implementation of the common platform and its attendant breach of the applicant’s right to privacy will be irreparable.”
The defendants are yet to respond to the plaintiff’s claims.