July 5th, 2018

An Appeal Court has upheld an order of interlocutory injunction on the implementation of the controversial $89 million Kelni-GVG contract by the National Communications Authority (NCA).

This was after the court, presided over by Justice A.K. Acquaye, with Justices Tanko Amadu and Barbara Ackah-Yensu composing the panel, dismissed an application for stay of execution filed by the NCA and Ghana Revenue Authority (GRA) in a unanimous decision.

Subah Infosolutions, on December 27, 2017, commenced an action against the NCA and the GRA.

It prayed the court for a declaration that the termination of the service of their agreement with the two authorities dated April 10, 2015 was unlawful and therefore void, among others.

Counsel for Subah Infosolutions, Osafo Buabeng, filed an application for an order of injunction on NCA and GRA to restrain them from awarding the contact to any third party, pending the determination of the suit.

The interlocutory application was subsequently moved by the lawyer and it was granted on February 14, 2018.

Not satisfied with the decision, the NCA filed a notice of appeal and afterwards filed for an application for stay of execution of the interlocutory injunction order.

But the Appeal Court, in its ruling held that the NCA, GRA and others in their application denied that they were about to contract a third party to perform the work Subah Infosolutions was suing for, hence they cannot be heard now.

“Having failed to establish any special circumstances why the order of 14-02-2018 should be stayed, this application for stay of execution is hereby dismissed,” the court ruled.

A cost of GH₵2,000 was awarded against NCA and GRA and the others.

Ignored Order

The High Court’s order of interlocutory injunction were somehow ignored, as the telecommunication companies were compelled to connect to the controversial KelniGVG Company in spite of all the privacy issues raised by the Telecommunication Chamber and other Civil Society Organizations such as IMANI Africa, Citizens Ghana Movement, CDD, GII, GACC and others that have also questioned the process of awarding the Kelni-GVG contract and the cost involved.

Essentially, the decision of the Appeal Court to uphold the order of interlocutory injunction now puts the Ministry of Communications, NCA, GRA and their assigns in contempt of court if they continue to collaborate to implement the common monitoring platform project.

Double Agony

Meanwhile, an Accra High Court will today continue hearing an interlocutory injunction application filed by another group of applicants.

The applicants are praying the court to place an injunction on the execution of the contract, saying it’s not in the interest of the country.

The plaintiffs claim 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.

The applicants also 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.

By Gibril Abdul Razak