Feature Article of Saturday, 29 June 2013
Columnist: Asare, Kwaku S.
Petition to the Chief Justice of Ghana to immediately halt the parading of people before the panel hearing the presidential petition on grounds that the exercise violates the Constitution and Public Policy
1. On June 26, 2013, Justice Atuguba, the presiding judge of the 9-member panel used the Court as a vehicle to accuse Samuel Awuku of engaging in an ill-defined, improper conduct. The said conduct appears to be related to comments that Mr. Awuku made on air, during a political discussion. In particular, he is said to have criticized the panel for “being selective and hypocritical,” in citing a Daily Guide reportage of the Court’s proceedings.
2. Mr. Awuku subsequently appeared before the panel and after a short hearing, in which he apologized for his comments, the panel banned him from making further appearances in the Court. As far as I could tell, Mr. Awuku was not represented by counsel. Nor was he accused of a specific offence (as far as I could tell).
3. Presumably, Mr. Awuku’s out-of-court statements were contemptuous of the Court’s proceedings. If so, proper proceedings are required to establish his guilt.
4. But it appeared he had been prejudged guilty and was summoned to appear before the Court to be sentenced.
5. To date, the specific offence committed by Samuel Awuku remains unknown, although he has been sentenced. It is not enough for the Court to state in some general terms that some remarks are contemptuous. The Court must state in very specific terms how Mr. Awuku’s remarks are contemptuous, including at a minimum, setting boundaries for acceptable remarks, in light of the constitutional value of free speech.
6. It is also not clear to me that a ban from appearing in the Court is one that is admitted by the sentencing guidelines where the crime is an out-of-court statement. It is important for laws to be properly applied on a rational, predictable basis. And this applies to accusations, trials, and sentencing.
7. On June 27, 2013, Justice Atuguba announced a new list of wrongdoers (Stephen Atubiga, Kwaku Boahen and Ken Kuranchie). The Court also issued oral instructions for these persons to appear before the Court to defend some comments attributed to them. Several newspapers and websites posted their pictures and declared them wanted, in clear violation of their dignity.
8. The common thread among these four persons who have been summoned to appear before the panel is that they commented on the on-going case before the Court. In the case of Atugiba, he is reported to have said “Ghana cannot contain all of us if NPP wins the Court case.” In the case of Boahen, he is reported to have said “Do you think NDC will sit aloof and watch the court hand over power to NPP, never! It will never happen in Ghana and anyone can mark it on the wall.” No doubt, these statements are odious. They are, at worst characterized as political hot-air or hooey from political operatives, not deserving of the attention of a serious Supreme Court. In the case of Ken Kuranchie, he is to answer for a front-page comment published in his newspaper. The offending content or comments are not specified.
9. It remains unclear how the Justices monitor these statements or how the statements are brought to their notice. Nevertheless, the statements appeared to be taken out of context and their full context is needed to even access their effect.
10. The Constitution is emphatic that “all persons shall have the right to freedom of speech and expression, which shall include freedom of the press and media.” Further, a whole chapter of the Constitution is devoted to guaranteeing the freedom and independence of the media. And understandably so, given our history of fighting against the culture of silence, which characterized the military era, and our collective desire and hope to never allow the reemergence of any regime wherein expressing an opinion, no matter how erroneous or even inflammatory, will be criminalized.
11. Equally significant, the Parliament of Ghana has declared, as a matter of policy, that the people of Ghana abhor the criminalization of speech (see Repeal of Criminal Libel and Seditious Libel Laws, Amendment Act 602) . This policy follows a series of illiberal decisions rendered by this Court (see e.g., Republic V. Tommy Thompson Books (No. 2) et al; Republic v. Mensa-Bonsu). The Attorney General who spearheaded that effort, Nana Addo Dankwa Akufo Addo, has said of this policy: “by this singular deed, a historic victory was won in the struggle of our people for liberty and especially, for freedom of expression. This policy brings an end to more than a century-old regime of laws repressive of free expression.”
12. Even the harsh and dated, Ghana’s pre-constitutional criminal contempt law required an intention to bring into hatred or contempt or to excite disaffection against the administration of justice. Merely stating an opinion, that the Court is being selective, where the Court has used one publication as an example of unfair reporting, hardly meets the “mens rea” required for the committing of this crime. I say that it is dated because I verily believe that the freedom of expression guaranteed by the 1992 Constitution as well as the aforementioned policy trump this statute.
13. Of course, an equally important constitutional value is the administration of justice. No society can function effectively, unless it devices mechanisms that prevents those who seek to interfere with the administration of justice. The Court’s common law contempt powers derived from this necessity. But the contempt power is not to be used as a sword against those who hold strong and odious opinions about the court, the court’s proceedings or the justices of the court.
14. It follows that if the contempt crime envisaged by the panel arises from its common law contempt power, rather than from the criminal statute, then that power is even more limited vis-à-vis the constitutional right to free expression (see e.g., 314 U.S. 252, where it was said that “contempt charges that are not encased in the armor wrought by prior legislative deliberation” must bow readily and easily to the clear demands of the constitution and the policy on criminalization of speech).
15. Courts worldwide have examined the question of whether punishment for an out-of-court publication concerning a pending case, as a contempt, is consistent with the constitutional value of freedom of expression.
16. It is now well established that merely criticizing a judge’s rulings does not rise to interfering with the administration of Justice and hence is not contemptuous (see e.g., Regina v. Commissioner of Police of the Metropolis (1968) 2 All ER 319 where Lord denning said “It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.’’ On that same case, Judge Salmon said “the authority and reputation of our courts are not so frail that their judgments need to be shielded from criticism.”
17. It was for similar reasons that a court in Trinidad, held that “No wrong is committed by any member of the public who exercises the ordinary right of criticizing in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way: the wrongheaded are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.”
18. In India, Justice G.S. Singhvi, dismissing a contempt charge, recently drew the line as follows: “In all civilized societies, the Courts have exhibited high degree of tolerance and accepted adverse comments and criticism of their orders/judgments even though, at times, such criticism is totally off the mark and the language used is inappropriate (Indirect Tax Practitioners Association v. R.K. Jain, 2010).”
19. It is also now well established that criticizing a ruling on a pending case is not contemptuous and is protected by the right to free expression. For instance, in Bridges v. California - 314 U.S. 252 (1941), the Court held that “the publication in a newspaper of news articles, which unfairly reported events in a case pending in a state court, and an editorial which vehemently attacked the trial judge while a motion for a new trial was pending, did not constitute a clear and present danger to the administration of justice, and the conviction of the newspapermen for contempt violated the freedom of the press guaranteed by the First and Fourteenth Amendments. See also Craig v. Harney, 331 U. S. 367, and Pennekamp v. Florida, 328 U. S. 331.
20. All civilized jurisdictions have now accepted that “there is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor reports of occurrences in judicial proceedings.” (331 U. S. 374).
21. Further, anyone reporting the news of a judicial trial may not be held for contempt because he missed the essential point in the trial or failed to summarize the issues to accord with the views of the trial judge. (331 U. S. 375).
22. The vehemence of the language used in a publication concerning a pending case is not alone the measure of the power to punish for contempt; the threat to the administration of justice must be imminent. (331 U. S. 376).
23. The law of contempt is not designed for the protection of judges who may be sensitive to the winds of public opinion. (331 U. S. 376).
24. I further say that the manner in which the Court singles out and summons people to appear before the justices violates their dignity. It violates their dignity for their pictures to be pasted all over the internet and the media declaring them wanted. To be sure, the Court has not given any directions for this to happen but the pictures are a logical consequence of how the Court goes about summoning these people.
25. I further say that parading people before the Court to rebuke them for expressing their opinion on the happenings in the Court brings the Court into disrepute.
26. I further say that out-of-court statements made by commentators, no matter how erroneous, illogical, annoying or even untruthful, have no chance of interfering with the proceedings of the Supreme Court, save as a Justice admits that such comments affect him (or her), in which case the Justice should recuse himself (herself) from the case.
27. I further say that the Constitution and the public policy on speech allow citizens to comment on cases pending before our courts, in so far as those comments do not pose a clear and imminent threat to the administration of justice.
28. I further say that where the Courts believe that odious comments affect their work, the best way to reconcile their concerns with the right to free expression is to refrain from reading newspapers and listening to chatter.
29. I further say that the best way for the Court to address any misleading reportage is to provide the public with the facts. For instance, the Court’s website should publish all the rulings by the Court, along with the Justices who vote for and against the motions by the parties.
Wherefore, I petition your Ladyship to instruct the panel to
1. Halt immediately the on-going exercise of monitoring what people are saying about the case.
2. Halt immediately the on-going exercise of suppressing what can be said about the case.
3. Halt immediately the on-going exercise of using the Supreme Court as a vehicle to intimidate those who hold strong opinions about the conduct of the case, whether or not such opinions are logical, fanciful, mistaken or otherwise ridiculous.
4. Halt immediately the on-going practice of prejudging people as guilty of unspecified, amorphous charges before a formal charge has been filed and a trial has been held.
5. Halt immediately the on-going exercise of declaring people wanted from the bench on grounds that it violates their dignity.
6. Halt immediately the on-going exercise of declaring people wanted from the bench on grounds that it brings the Court into disrepute.
7. Halt immediately the on-going attempts by the Court to restrain speech and expression, unless such speech portends a clear and imminent danger to the administration of justice.
8. Halt immediately the on-going exercise of banning citizens from appearing at the Supreme Court merely because of their out-of-court statements on grounds that it is unusual, cruel and humiliating punishment.
9. Publish all the votes recorded in this presidential case, along with the justices voting for and against each motion.
Professor S. Kwaku Asare