Chapter 6 is on the topic PRIVILEGES.

We say she is claiming a privilege not to disclose the said information or evidence. You inform the
court that a particular piece of evidence is a privileged one and as such the court should not compel
you to disclose same.

Privilege in the Law of Evidence in the layman's explanation is when a witness refuses to disclose a
fact because he deems that it is not something that should be put in the public domain. The witness
will claim a privilege. For example if you ask a wife to give evidence on what the husband told her.
The wife can tell you, "this a husband and wife conversation and l will not tell you"

lawyer will also not disclose any communication between him and his client.

The Evidence Act in chapter 6 provides for the various situations where one can claim a privilege. For
example a communication between a Medical Doctor and his patient. A medical doctor will not
disclose the disease or type of treatment of his patient.

If you ask any of these persons to disclose such an information by way of evidence, they will
immediately lay claim on the privilege not to testify on the said matter.

The law on privileges gives the circumstances under which a witness is allowed to claim a privilege.

So under the Evidence Act, Chapter 6, provision is made for the circumstances under which one is
allowed to claim a privilege.

CHAPTER SIX of the Evidence Act touches on the topic "PRIVILEGES"

A privilege is defined generally to mean a special right, advantage, exemption or immunity given or
granted to a special person or group of people.

In law, it is a right given to a person to disclose evidence to the court. Others in possession of the
said evidence are also prohibited from giving out the exempted information. It is meant to protect
public policy. It is not all facts about a person or society that must be put in the public domain. Some
borders on privacy, protection of some fundamental human rights, state security etc.

The use of privilege obstruct the producing of relevant evidence before the court essential to the
adjudication of issues before the court.

Privileges in the Evidence Act starts from Section 87 to 110.

Section 87.

The law on the claim of privilege applies not only to proceedings in court but to all formal and
informal proceedings of findings of fact like disciplinary committee sittings police investigation
processes.

For example there is an enquiry going on and a person is summoned to appear before the sitting and
testify on a subject. If the information is privileged, the person will communicate to the committee
that the information they seek from him is a privilege one and as such same cannot be divulged.

Section 88

It provides that apart from the categories of privileges specifically mentioned in the Evidence Act or
any other law, it is an offence to refuse to disclose the needed information to the court.

The Right to Information Law excludes the specific privileges listed under law.
Section 89

If the holder of the privileged information discloses it, then it ceases to be a privilege and as such
cannot be claimed by any other person. For example if l go to my medical officer and after a routine
medical examination l test positive for AIDS , it is a confidential information between Doctor and
myself. However, if l on my own volition voluntarily makes it public, then if the Doctor should be
summoned by any court to disclose the results, he cannot claim immunity because l being the holder
of that privilege had already disclosed it.

89(2) It is not all disclosures under sub-section (1) that will take away the right of privilege. At times
the disclosure itself is a privilege. For example taking the AIDS scenario, if l inform my pastor about it
to pray for me, the communication between the pastor and myself is in law a privilege
communication. As such the fact it was disclosed by me to my pastor will not be a basis for my
Doctor to disclose same. That is should my Doctor be requested to disclose the said information, he
can still claim the privilege.

(3) There are some circumstances that the privilege communication will be a joint one, if one of the
joint holders should disclose it, same will not affect the right of the others to the claim of the
privilege. For example if for any reason based on urgency two of us (husband and wife tested
positive for the AIDS test), it becomes a joint privilege. If my wife should disclose it to the public, it
will not affect my claim to the said privilege.

Section 90. COMMENT AND INFERENCES AS TO EXERCISE OF PRIVILEGE

After the claim of privilege is allowed, the court or any of the parties may comment on it and the
court may draw an inference from it.

For example, a party may comment that the refusal for the information to be disclosed will make
difficult to discharge the burden of persuasion on him. The court may draw an inference from it and
may use same in his final decision.

Section 91 DETERMINATION AND ENFORCEMENT OF PRIVILEGE

(1)The decision by the court to allow a claim of privilege will follow the process as stated in PART
ONE on the determination of preliminary facts. (Please go back and read Section 3 of the Evidence
Act on the process used in the determination of the existence or non-existence of a privilege)

(2) A person refusing to disclose an information and claiming a privilege formally before the court
cannot be sanctioned for doing so.

Section 92 DISCLOSURE OF PRIVILEGED INFORMATION

(1) ln taking evidence as to whether the information is a privilege, the content of the privilege
information MAY not be disclosed to the court.

It should be noted that the word "MAY" is used.

For example, in the AIDS example, the court may not be told the results of the test to enable it rule
on the existence or non-existence of the claimed privilege.

(2) Where it becomes necessary to know the contents of the privileged information and the
information relates to State secrets, state informants, and trade secrets it may be done in the
chambers(in camera)

(3) all information made available in chambers of the judge shall not be disclosed by the judge or any
other person privy to it.

Section 93 COMMUNICATIONS PRESUMED CONFIDENTIAL

This is a rebuttable presumption of confidentiality. So if a person claims that a piece of information is

confidential, the court will presume it to be so. The person or party adversely affected by the said
claim will have the burden of persuasion to discharge by leading evidence to show that it is not a
privileged information as being claimed.

Section 94 ERROR IN ALLOWING PRIVILEGE

The only person who can appeal against the decision of a court to the effect that a matter is not a
privilege and as such should be disclosed is the holder of that privilege. For example in the AIDS case,
it is only the patient who tested positive and as such the holder of the privilege who can appeal
against the ruling to disclose the results. The Doctor who is ordered by the court cannot appeal
against the decision because he is not the holder of the privilege.

Section 95 EFFECT OF ERROR IN DISALLOWING PRIVILEGE

If a court rules that an information is not a privileged one and is disclosed but an appeal against the
ruling succeeds, the said information so erroneously disclosed shall be expunged from the record of
the court that received the evidence. The said information shall be treated as privileged as if it was
never disclosed to the court or any other person.

Section 96 PRIVILEGE OF AN ACCUSED

(1)An accused person cannot testify against himself unless he himself applies to the court so to do.

This privilege is also guaranteed by article 19(10) of the the Constitution, which provides, "No person
who is tried for a criminal offence shall be compelled to give evidence at the trial"

(2) an accused who testifies in a criminal trial will be cross-examined.

(3)accused cannot claim a privilege if he testifies and the court wants to examine his body is ask to
do any act to assist in identifying him.

(4) In a criminal action if the accused when called upon to open his defence and refuses to testify on
oath to enable him to be cross-examined, shall be taken into consideration by the court in arriving at
its decision.

97 PRIVILEGE AGAINST SELF-INCRIMINATION

(1) This privilege applies to all persons and not only accused persons during a criminal trial.

It is termed the privilege against self incrimination. In the USA it is commonly referred to as the fifth
amendment.

(2) an order of a court for the physical examination of the accused, the taking of samples of accused
for medical examination and ordering the accused to do anything for the purposes of identification.

(3)should the accused decide to testify in his own defence, he will be obligated to make available to
the court any exhibit in his possession that may be requested to be tendered in evidence to meet
the ends of justice. The accused can not lay a claim of privilege.

(4) The following things constitute incriminating matters:

*an object or writing which can be taken to be a violation of any criminal law in Ghana.

In effect the accused can invoke the claim of privilege if you asked him to produce any object or
writing which will show that he had committed an offence.

(5) if a person is declared to be permanently immune from the laws of Ghana like foreign diplomatic
personnel, any object or writing which is an offence will not incriminate them.

Section 98 DISCLOSURE OF THINGS OWNED BY ANOTHER

If a thing is in your possession which is owned by another person and that object or thing may
incriminate that other person, you can not refuse to disclose it by claiming self-incrimination on
behalf of that person. Self-incrimination should be claimed personally by whoever wants to rely on
it.

Section 99 REQUIRED REPORTS

(1) if a law requires you to disclose something, you cannot lay claim to the privilege of immunity.

(2) A public record cannot be disclosed if a law says it should not be disclosed.

Section 100 LAWYER-CLIENT PRIVILEGE

Relations deeme by the law as amounting to a lawyer-client relationship.

Section 100(1)

(a)a client for the purposes of the Lawyer-Client privilege under the Evidence Act is either a natural
person or legal personality who seeks professional legal advice from a lawyer.

(b) a representative of the client is the person authorized by the client communicate confidential
information to and from the lawyer and client.

(c) is the person authorized by the lawyers to communicate confidential information to and from the
lawyer

to the client.

(d) a confidential information is one which is intended not to be disclosed

100(2) A client has the privilege to refuse to disclose and to prevent any other person from
disclosing a confidential information with his lawyer which was made

(a) between the client or any person representing the client and the lawyer or representative of the
lawyer

(b) between the lawyer and representative of the lawyer relating to the confidential information of
the client.

(c) between the lawyer or rep of the lawyer and another lawyer Rep another person.

all representations and communications in the common interest of the client.

100(3) The following can claim lawyer-client privilege :client, client's guardian, personal Rep of a
deceased client, successor in interest of a client who was a legal personality (corporate body) and
the client's lawyer at the time of the communication.

Section 101 EXCEPTION TO THE LAWYER-CLIENT RELATIONSHIP

No claim to privilege under section 100 above if any of the following exists :

(a) If the lawyer-client communication was to promote a crime

(b) if two or more parties are claiming interest in the property of the same deceased person

(c) if the communication relates to the issue of breach of duty as a lawyer

(d) if it relates to the signing of a document such as a will or title deed

(e) the communication relates to a subject in which more than one client has an interest an interest
and is being used in proceedings involving the same interest holders.

Section 102 WORK PRODUCE BY A LAWYER FOR A CLIENT.

102(1)

A client has a privilege to disclose and to prevent any other person from disclosing any professional
confidential information between him and his lawyer

102(2) The privilege of the client in 102(1) can be claimed by the client's guardian, personal
representative of a deceased client or the successor of a deceased client.

(e) the lawyer who personally obtained the information

102(3) A court may disallow the claim of the privilege if same cannot be obtained from another
source and the probative value of the information if not disclosed will cause greater hardship than
its non-disclosure.

Section 103 MENTAL TREATMENT

A person can claim to confidential information between him and a medical physician on his mental
condition.

(1) Mental or emotional treatment is qualified as a privilege and the patient being the holder can
claim the said privilege or prevent same from being disclosed.
(2) it can only be disclosed to those participating in the treatment and diagnosis of the patient.

(3) The following are those who qualify to rely on the said claim of privilege from disclosure : (a) the
patient, (b) patient's guardian, (c) patient's personal representative, if he is deceased (for example if
a relative of yours is diagnosed of mental illness before his death, you can lay a claim of privilege
from disclosure of the illness of your deceased relative) and (d) the medical officer who treated the
patient.

(4) However, the court can disallow a claim of privilege if (a) it is for the purpose of ascertaining
whether he was of a sound mind when he committed an offence (b) if the patient in any court
proceedings raises a mental issue (for example if he signed an agreement and claiming in court that
the agreement is void because he was of unsound mind at the time of signing the said agreement)
(c) the medical treatment was based on an order of a court appointing a medical court expert to
make that enquiry for the court (the patient cannot lay a claim of privilege to prevent the report
from being disclosed to the court).

Section 104 RELIGIOUS ADVICE

This is the communication between a person and his Reverend Father or Pastor. Usually it is by
means of secretly making a confession to the Reverend Father. For example it is rumoured(l can not
prove) that the most common confession by married

women to the Reverend Fathers is about their infidelity or adulterous incidental flips. The Reverend
Father will listen and pray for forgiveness and thereafter advice them to be strong in faith.

(1) A person can lay a claim of privilege to prevent his communication with their religious persons.

(2) However, if such a confession is made to or before the whole congregation, it ceases to be
confidential and there will be no claim of privilege from disclosure available to the holder.

(3) Those who can claim this privilege are : (a) the maker of the confession (b) the maker's guardian
(c) the maker's representative if the maker is deceased and (d) the Reverend Father or Pastor to
whom the maker made the confession to.

Section 105 COMPROMISE

(1)A negotiation to accept a certain amount as a means of settlement or a matter being disputed is
not subject to disclosure .

(2)However, the privilege cannot be claimed if the intention at the time of making it was meant for
same to be disclosed.

Section 106 STATE SECRETS

Every government or state has its own secrets.

(1) The government has a privilege not to disclose a state secret. In the recent Guatanamo Bay case
before the Supreme Court, the state laid a claim to the disclosure of some information.

The yardstick to measure the disclosure of a state secret is whether the disclosure is advantageous
to the upholding of justice than its non-disclosure.
(2) this section defines what is "state secret". It provides :

"A State secret is information considered confidential by the Government, which has not been
officially disclosed to the public, and which it would be prejudicial to the security of the State or
injurious to the public interest to disclose.

(3) The privilege can be claimed only by a minister of the Government under whose portfolio the
privilege relates or a person authorized by the said minister.

(4) Whenever a Government's privilege is claimed, the provisions of article 135 of the Constitution is
invoked.

Section 107 INFORMANTS

These are those who secretly dig for information and report back to the Government. In some
countries they are referred to as "undercover officials" There is the need to protect thier identities.

(1) The Government has the right to claim a privilege to prevent the disclosure of their identity. Any
person who on his own reports the commission of any crime or plan to commit any crime to the
state is also protected. For example if you report the identity of some notorious robbers to the
police, your identity will be prented from being disclosed. You can claim privilege from disclosure.

(2) The privilege available to the Government is limited to the need to protect the identity of the
informant. That is to say that the Government can disclose the communication but not the identity
of the person who gave them the information.

(3) The privilege can be claimed on behalf of the Government by any person authorized by the
Government so to do.

(4) There is no claim to privilege by the Government if the identity of the informant is already in the
public domain.

(5) If the identity of the informant is needed for the determination as to whether an accused person
is guilty or otherwise but the identity of the informant is not disclosed to enable him testify, the
accused person will be discharged. He is discharged because the identity of the informant needed to
ascertain whether the prosecution proved its case beyond doubt was not made available.

Section 108 TRADE SECRETS.

(1) The owner of a trade secret can lay claim to the privilege to prevent the disclosure of his trade
secrets. It will be allowed based on the probability of advantages. That is to say if the disclosure of
the said trade secrets will be more advantageous to the claimant than its non-disclosure.

(2) In determining whether or not to allow the claim of privilege, the court will ascertain if there is an
officially registered trademark or patent and whether the said trade secret can adequately be
protected.

(3) the court prior to the determination whether to grant the claim of privilege or not can on its own
issue orders to stop the further disclosure till the determination is made.
Article 135 of the Constitution provides that the Supreme Court has exclusive Jurisdiction to
determine whether a state secret should be disclosed to the court. The proceedings to determine
this is held in camera.

Section 109 POLITICAL VOTE

Every voter at a public election has a claim to privilege as to the candidate, party or if a referendum,
the side he voted for. However, if he the person claiming the privilege is officially alleged to have
been involved in illegal voting, the privilege shall not be extended to him.

Section 110 MARITAL COMMUNICATIONS

Spouses disclose a lot of confidential secrets to each other during marriage, especially when the love
is at its apogee. However, a partner after a breakup out of pain may want to disclose some of those
confidential communications.

(1) A person may claim a privilege from disclosure of communication made to the spouse during
their marriage.

(2) The communication should be such that it was meant to be kept secret or confidential at the
time it was made.

(3)This section is applicable not only to marriages celebrated by "wedding" (monogamous) but also
applicable to customary(polygamous) marriages.

Compromise.

This is a situation where parties to a case inform the court that they intend making attempts at
settlement. Whatever is discussed to arrive at the settlement is not disclosed to the court apart from
the basic agreement or terms of settlement.

The rationale is that in the event settlement should break down the court should determine the
matter independent of whatever went on at the settlement.

However, if there was a prior agreement to disclose the settlement then the disclosure of whatever
was discussed during the process of settlement cannot qualify as a privilege.

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