‘Ken, Atubiga contempt convictions unconstitutional’

Professor H. Kwasi Prempeh has described as “unconstitutional”, the manner in which the Atuguba-led Bench of the Supreme Court convicted Journalist Ken Kuranchie and political analyst Stephen Atubiga to separate terms of imprisonment for criminal contempt.

The Managing Editor of the Daily Searchlight Newspaper was jailed for 10 days while Mr. Atubiga got three days.

Ken Kuranchie was faulted by the court for his attempt to justify the description of the Bench as “hypocritical and selective” in a front page comment of his paper.

Atubiga on the other hand, had vowed on radio that the governing National Democratic Congress (NDC) will not hand over power even if the Court ruled so at the end of the election petition hearing.

They have both been released after serving their separate prison terms.

In a short piece written by Prof. Prempeh over the conviction of the two persons which he posted on his facebook page, he argued that: “it is my considered opinion that the MANNER by which the Atuguba Court proceeded to jail Messrs Atubiga and Ken Kuranchie for criminal contempt violates their individual right to LIBERTY under Article 14(1) and to FAIR TRIAL under Article 19 of the 1992 Constitution and is, accordingly, unconstitutional”.

“I must add that, there are also problems with the SUBSTANTIVE aspects of existing contempt of court doctrine, as applied by the Court, once that, too, is subjected to similar scrutiny under the 1992 Constitution. In this short piece, however, I have limited myself to an examination of the constitutional propriety of the Atuguba Court’s contempt of court actions only from the PROCEDURAL angle,” Prof. Prempeh pointed out.

Below is the full piece by Professor H. Kwasi Prempeh

In the ongoing debate over the recent use of criminal contempt power by the Supreme Court panel presided over by Justice William Atuguba (hereafter the "Atuguba Court") to convict Messrs Stephen Atubiga and Ken Kuranchie and sentence each to a jail term, defenders of the Court’s actions have made much of the fact that criminal contempt of court is permissible under the 1992 Constitution. Indeed it is. There are three references to contempt of court in the Constitution, namely in article 126(2), article 14(1)(b), and article 19(12).

The provision in article 126(2), which is found in the chapter of the Constitution devoted to the Judiciary, recognizes that the power to commit a person for contempt of court remains one of the powers vested in the superior courts in Ghana. The other two references to contempt of court in the Constitution appear as exceptions to certain provisions of the chapter on Fundamental Human Rights and Freedom. Article 14(1)(b) allows, as an exception to the right to personal liberty, a person to be deprived of his liberty “in execution of an order of a court punishing him for contempt of court.” In other words, article 14(1)(b) authorizes the imposition of a criminal punishment, including a jail sentence, for contempt of court. Lastly, there is article 14(12). This provision is a narrow exception to its preceding provision, which is Clause (11) of article 14. Clause (11) says “No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law.” Clause 12 then follows, as an exception to Clause 11, and states that “Clause (11) of this article shall not prevent a Superior Court from punishing a person for contempt to itself notwithstanding that the act or omission constituting the contempt is not defined in a written law and the penalty is not so prescribed.” In effect, article 14(12) preserves the crime of contempt of law as a common law (or non-statutory) crime.

To summarize: The common law offense of contempt of court is preserved by the Constitution for use by the Superior Courts of Ghana and a criminal punishment (including a jail term) is permissible in the case of conviction for contempt of court. So far, so good for the defenders of the Atuguba Court’s criminal contempt actions.

Procedurally, however, the fatal flaw of the Atuguba Court’s contempt actions is that the Constitution also has very specific requirements as to the process or procedure to be followed before any person is deprived of his liberty in any criminal matter. First, let us return to Article 14(1). That provision states as follows: “Every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty EXCEPT IN THE FOLLOWING CASES AND IN ACCORDANCE WITH PROCEDURE PERMITTED BY LAW.” (emphasis added).

We have noted earlier that, section (b) of the above provision—that is, article 14(1)(b), which authorizes punishment for contempt of court—is one of the listed “cases” allowed as an exception to the broad right to liberty guaranteed by Clause 1. Thus, by virtue of article 14(1)(b), a person can be punished, including by means of a jail sentence, if found guilty of contempt of court.

Note, however, that all of the listed exceptions under Article 14(1)—that is, all of the cases in which a person may lawfully be deprived of his personal liberty---must still comply with the other condition specified in that same provision, namely “in accordance with procedure permitted by law.”

In other words, while a person may be deprived of his liberty pursuant to one of the exceptions [(a) to (g)] listed under article 14(1), which includes contempt of court, any such deprivation of liberty must be “in accordance with procedure permitted by law.”

What, then, are these procedures? The most important of these procedures are enumerated in the chapter on Fundamental Human Rights and Freedoms, the opening clause of which states clearly that the provisions of that chapter “shall be respected and upheld by the Executive, Legislature and Judiciary and all other organs of government . . . .” (emphasis added). Of particular relevance here are the provisions of Article 19, dealing with “Fair Trial.” Clause (1) of the “fair trial” provisions of Article 19 states: “A person charged with a criminal offence shall be a given a fair hearing within a reasonable time by a court.”

To this the rest of Article 19 lists various other specific rights to which a “person charged with a criminal offence” shall be entitled. These include: - Clause (2)(c): the right to “be presumed to be innocent until he is proved or has pleaded guilty” - Clause (2)(d): the right to “be informed immediately in a language he understands and in detail, of the nature of the offence charged.” - Clause (2)(e): the right to “be given adequate time and facilities for the preparation of his defence.” - Clause (2)(f): the right to “be permitted to defend himself before the court in person or by a lawyer of his choice.” - Clause (2)(g): the right to “be afforded facilities to examine, in person or by his lawyer, the witnesses CALLED BY THE PROSECUTION before the court, and to obtain the attendance and carry out the examination of witnesses to testify on the same condition as those applicable to witnesses called by the prosecution.”

The above-listed bundle of rights constitutes the minimum to which a person charged with a crime, REGARDLESS OF THE TYPE OF OFFENCE, is constitutionally entitled as a matter of procedure in order for his or her trial to pass the test of a “fair trial”. In the common law world this constitutes part of what is usually referred to as the “rules of natural justice”—the Americans prefer to call it “due process of law.”

It is important to note that, all of these provisions fall under Article 19. Also part of Article 19 is the provision in Clause (11) to which we referred earlier, which requires all criminal offences, as well as the penalty for their violation, to be defined and prescribed in a written law. We have noted, however, that Clause (12) of Article 19 authorizes a narrow exception to Clause (11) to allow superior courts to rely on the common law of contempt even though the elements of the common law offence and the related penalty are not contained in a written (statutory) law. BUT—and this is a big but-what is even more important to note is that, Clause (12) applies as an exception only to Clause (11), but not to any other clause or provision of Article 19.

In other words, the only exception that is allowed to the entire Article 19 of the Constitution, in cases of contempt of court, is that the offense of contempt of court need not be defined, nor the penalty for it prescribed, in a written law or statute. Outside of this very narrow exception, however, all other aspects of contempt of court must comply with the other “fair trial” provisions of Article 19 which we have discussed, most notably the provisions contained in Clause (1) and Clause (2) [(a) to (g)].

What does all this mean? What this close reading of the constitutional text means is as follows: While a superior court may convict and punish a person for contempt of court (as a common law offense), the person so charged is, under the 1992 Constitution, entitled to all of the procedural protections and safeguards to which all accused persons are entitled, as specified in the “Fair Trial” provisions of Article 19, specifically clauses (1) and (2).

To the extent that the existing common law allowed a court to convict a person for contempt of court without availing that person their “fair trial” rights, that part of the common law is plainly inconsistent with the demands of Article 19, clauses (1) and (2), of the Constitution of Ghana, which, of course, is the supreme law of the land and thus trumps any other conflicting law.

Regrettably, what transpired in the courtroom of the Atuguba Court on July 2, 2013, pursuant to which Messrs Atubiga and Kuranchie were summarily convicted and sentenced, did not pass the Article 19 test of what constitutes constitutionally sufficient process in a criminal proceeding.

On the basis of the foregoing analysis, it is my considered opinion that the MANNER by which the Atuguba Court proceeded to jail Messrs Atubiga and Ken Kuranchie for criminal contempt violates their individual right to LIBERTY under Article 14(1) and to FAIR TRIAL under Article 19 of the 1992 Constitution and is, accordingly, unconstitutional.

I must add that, there are also problems with the SUBSTANTIVE aspects of existing contempt of court doctrine, as applied by the Court, once that, too, is subjected to similar scrutiny under the 1992 Constitution. In this short piece, however, I have limited myself to an examination of the constitutional propriety of the Atuguba Court’s contempt of court actions only from the PROCEDURAL angle.

This matter is not over.