Telecom operators in the country are torn between risking losing their licenses and preventing legal suits by their customers over the implementation of the controversial Kelni GVG common monitoring platform.
Section 14(4) of the Communications Service Tax, Amendment Act, 864 empowers the Ministers of Finance and of Communications to establish a common monitoring platform for the purposes of tax revenue assurance. It also enjoins telcos to allow the two ministers or their assigns to connect monitoring equipment on the nodes of the telcos for the purpose.
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Sub-section 5 then warns telcos against refusing to allow connection of monitoring equipment to their networks or risk being fined five percent of the previous tax paid and eventually lose their license after ninety days of refusal.
But Sub-section 6 of the same Act states that “the monitoring mechanism referred to in subsection (4)(a) shall not have the capability to actively or passively record, monitor, or tap into the content of any incoming or outgoing electronic communications traffic, including voice, video or data existing discretely or on a converged platform whether local or international.”
In the midst of the huge controversy over the Kelni GVG deal, the National Communications Authority has, in separate letters to the telcos, reminded them of their legal obligation to allow monitoring by June 11, 2018, and the risk they run if they refuse.
But the telcos, through the Ghana Telecoms Chamber have stated that the architecture of the Kelni GVG monitoring equipment they have seen indicates to them that it can monitor the exact location of a caller in real time and also be able to read SMS.
According to them, if they allow the equipment to be connected as it is, they risk legal suits by their customers.
Top officials of at least three telcos also told Adom News they are uncomfortable with the architecture they have seen and they don’t want to run the risk of being sued by their customers.
Indeed, in 2007/2008, when GVG first came to Ghana, some individual citizens filed a legal suit against telcos, regulators and GVG, citing similar concerns and the GVG was therefore never able to connect and do real time monitoring.
Subah and Afriwave, according to the sitting Communications Minister Ursula Owusu Ekuful, were also never able to do real time monitoring.
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Meanwhile, Subah has also filed an interlocutory injunction on the implementation of the Kelni GVG deal and they have given notice to all the telcos that they risk contempt of court of they go ahead and allow Kelni GVG to connect.
While, the telcos are complaining in the public space about their legal dilemma, Subsection 7 of Act 754 gives them the opportunity to seek redress in the High Court on any matter of concern to them regarding the connection and monitoring.
The law gives telcos seven days after receiving from the government to go to court, but so far none of the telcos has gone to court yet.