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Opinions of Thursday, 11 July 2013

Columnist: Addai, Michael

Freedom of Speech and the Supreme Court of Ghana

By: Michael Addai

Not long ago a great Katakyie by the name of Ken Kuranchie was incarcerated for standing for what he believes in i.e. Freedom of Speech! He was summarily convicted by the Supreme Court for daring to question some of the judgments of the Justices and going on to criticize the basis upon which some of the decisions in the august court were made.

Background:

Over a front page publication by his newspaper, The Daily Searchlight (which was initially cited by the Justices for contempt and was thus invited to the court to explain himself, however, the actual charges read to him in court was based on the editorial in the same newspaper), he sought to elicit clarification and lead from the court as to what is permissible commentary on the court’s proceedings and thus could be commented on by journalists and commentators. He also questioned the basis of the court’s invitation of Deputy Director of the main opposition, New Patriotic Party (NPP), Sammy Awuku, for describing the Bench as “selective and hypocritical” for citing only The Daily Guide newspaper in court for criticism for an unsavoury reportage of the court’s proceedings and thereby failing to mention other newspapers and persons who have published far worse misrepresentation of the court for same.

In the light of the presence of abundance of evidence of, far worse, misrepresentation of the court’s proceedings by other newspapers and persons when the Daily Guide newspaper was the only one mentioned in court, Katakyie Kuranchie sought to justify Sammy Awuku’s description of the Bench as such in that context and went on to publish instances in his newspaper editorial whereby these misrepresentations have occurred and the court’s failure to take notice of them. To be fair to the Judges, they could not have possibly been aware of any publications or commentaries out there on the court’s proceedings unless those publications and commentaries are brought to their notice and their attention drawn to them. In this context isn’t it fair for them to accept criticism for their failure to take into consideration this fact and if people logically perceived their above decisions with the aforementioned description? More so, when we do not know the criteria they use to select and get themselves acquainted with these misrepresentations.

However, the court saw this differently and therefore deemed his publication as contemptuous and hence was invited to court as guilty as charged from what we witnessed in the court room.

He did not believe he was guilty as such and was only exercising his constitutional rights of Free Speech and thoughts and thus attempted to explain himself to the court, but any time he, with the help of his counsel, attempted to explain himself to the court they were appeared to be “rudely” interrupted by one particular Judge (of course they can do that, that’s their court). In the end this resulted with him and his counsel engaging the bench in what appeared to be back-and-forth arguments.

Candid Opinion:

At this juncture, in my candid opinion (as if it even matters), since he was not accepting his guilt as charged, and most importantly for justice to be seen as done, he should have been referred to the Attorney General, as one of the Justices rightly intimated, for further proceedings to be brought against him and similarly for him to have the opportunity to explain himself fully. However, this was not done and eventually it appeared that he was subtly “intimidated” and “bullied” by the court to accept the charges and render an apology. In his confusion he rendered repeated conditional apologies in spite of the bench’s promptings to give unqualified and unreserved apology or stand his ground. This posture was perceived by the court as unremorseful, bellicose and belligerent and hence the harsher sentence to him.

What actually bothered some of us was the fact that it seemed that the honourable Judges had already formed an opinion about his guilt and found him guilty of contempt before he was even hauled before them. The bench therefore expected him to capitulate before them and start begging for mercy as the other real contemnor, Stephen Atubiga did. If that was the case then why was this “smokescreen” invitation, in the first place, for Katakyie Ken Kuranchie to appear before the court to explain himself but rather not inviting him to appear before the bench to receive his sentence because he had been found guilty of contempt already? What happened to the adage “innocent until proven guilty”? The other NDC person, Kwaku Boahen was allowed to state his case. Even though he perjured himself for stating that he had not made those statements attributed to him, however, it turned out that he had actually made those statements but that was before the so called “touchline” warning by the Judges and for that reason he was allowed to go scot free. In effect, Katakyie Kuranchie was not allowed to express himself in court neither was his counsel.

A true Hero:

One of the Judges, sarcastically I suppose, put it to Katakyie Ken Kuranchie whether he was trying to be a Hero in court simply because Katakyie Kuranchie wanted to know whether he was in court to plead his guilt or explain himself to the court. The point is that Katakyie Ken Kuranchie became a Hero, to many well-meaning Ghanaians, the moment he was summoned to appear before the august court to explain himself for what appeared to be a mild constructive criticism seeking to elicit direction/lead from the Judges as to what is permissible commentary on the court’s proceedings. He is a true Okatakyie and a true Hero!! His mindset was set and toughened by his great Alma Mater. He definitely earned his titles/credentials for standing up for what he believed in.

The truth, does it really matter?

There are some who argue that the truth can not be used as defence and it does not matter in a criminal contempt case because Judges have been empowered by the constitution and hence they can use this “unfettered power” to protect their integrity and maintain confidence in the judiciary. If that was the case then they need to educate us on the following questions: Why are people asked to swear an oath on one of the Holy Scriptures to “speak the truth and nothing else but the truth” before they are allowed to mount the witness box? Really, if the truth does not matter then why do we seek justice in court? What is the essence of the justice system? And what is the point of the judiciary as an institution? We might as well stop this sham of going to court to seek justice and the truth if this view is allowed to hold true as far as contempt cases are concerned. Holding this view by the courts in contempt cases would amount to abuse of power and is tantamount to judicial tyranny. As a country, we have come so far to allow this view to hold us back in our present democratic dispensation.

The court’s sensitivity to criticisms:

Interestingly, those who make this argument are quick to quote legal luminaries in more advanced and developed democratic states like United Kingdom, United States etc to justify this “unfettered power” by the Supreme Court in dealing with criticisms and contempt cases, however, what they fail to realize and notice is that the Supreme Courts, for instance, in United Kingdom and United States exercise extreme discretion in dealing with criticisms and for that matter the subject of criminal contempt. Those contempt laws are as good as dead in these countries because they are hardly used. In fact, the honourable Judges in these countries invite and even welcome criticisms of the courts and are unfazed by them because they strongly believe in their judgments and are honest with them. They also believe that they are on the side of the truth in their opinions when it comes to their judgments, whether you like them or not, and because they believe that they are honest and truthful in dispensing justice they are not worried and bothered by criticisms (and I suppose If you are on the side of the truth you will not be afraid of criticism, will you?). In spite of all the powers that they have been endowed with by their various constitutions to deal with criticism and criminal contempt to ensure the dignity and sanctity of the courts, the Judges also recognize that they live in a free state where people are bound to have dissenting views and different opinions from theirs and therefore any eagerness or attempt to protect and maintain their integrity by gagging criticisms will ultimately lead to stifling of Freedom of Speech and free expression of thoughts which are equally guaranteed in their various constitutions. Since they are also guarantors of the constitution they will rather set the bar high for any criticism to pass this high threshold mark in order for it to lead to conviction of criminal contempt. They are actually not at all that sensitive or prefer to be insensitive to criticisms. In that sense they routinely dismiss criticisms of their decisions/judgments, even the unpalatable ones, with all the contempt that they deserve, so to speak. It is about time our Judges and courts started adopting this same attitude in dealing with criticism since our laws and constitution, more or less, are modeled along the lines of those of these great democracies.

No one is infallible (well, not even the pope):

With all due respect to the court, it must be pointed out that; no one on this earth is above criticism and certainly not above the law, not even our honourable Judges and of course the Justices sitting on the bench. The judiciary as it is constituted is a human institution and just like any other human institution is capable of erring. Therefore, their integrity, dignity and confidence in the judiciary could better be served and only be protected and maintained by their actions and deeds both in and outside the court room, not by using a sledge hammer to kill an innocuous fly (i.e. those mild criticisms). To that extent, it was better for them to err on the side of mercy, and be too merciful than too severe on Katakyie Kuranchie.

There is a clear distinction between constructive and destructive criticisms and undoubtedly there is a difference between purposeful and loose statements. Those criticisms levelled by Sammy Awuku (which he apologized for in court) and then reiterated by Katakyie Kuranchie in a contextual way were mild in comparison and constructive in nature as against those treasonable and contemptuous statements made by certain individuals in the ruling, National Democratic Congress (NDC), party, right from the President to the foot soldiers even though some were made before the so called “touchline” warning given by the President of the panel of Judges hearing the Supreme Court election petition. Those statements sought to defy the court’s decision in case the Judges’ judgment goes against them. They were meant to intimidate the Judges to come out with only one decision/verdict in their favour and any other verdict other than that would be disobeyed. They were threats that attacked and assaulted the integrity and dignity of the court and sought to destroy the confidence in the judiciary, particularly when those threats are coming from a political party that comes from a tradition and a history that inspired the murder of three (3) High Court Judges and a retired Army Officer in the 1980’s. Those were the serious statements that your Lordship should concentrate on, because they pose a threat to the security of our State, not those mere mild criticisms by Sammy Awuku and Katakyie Kuranchie that are only an exercise of free speech and an expression of thoughts.

Threat to Freedom of Speech:

Some of us who are lovers of democracy are really disheartened and concerned about this development in our Supreme Court and if not checked and “criticized” would perhaps lead to judicial dictatorship. Judicial sensitivity to criticism is a potential danger and threat to our hard earned Freedom of Speech and expression of thoughts, particularly in a country whereby there used to be an entrenched “Culture of Silence” engendered by both the civilian and military dictatorships of Kwame Nkrumah, Kutu Acheampong and Jerry Rawlings’ governments respectively. As a country we bore witness to occasions where these “unfettered powers” of the courts were exploited and taken advantage of by civilian and military dictators for their own selfish ends in order to stifle Freedom of Speech under the familiar and the usual excuse that those free expressions posed a threat to national security. In each occasion it took sweat, blood, lives of some individuals and the collective will of the good people of Ghana to break this culture.

It could be very ironic that the very institution that was supposed to be protecting, safe-guarding and ensuring Free Speech and expressions of thoughts guaranteed in our constitution was perhaps unwittingly becoming a threat to these rights by their reactions in court to criticisms, supposedly, to protect their integrity and maintain the confidence in the judiciary. Therefore, we should be careful as a society not to move in a direction that will only stifle our constitutional right to express ourselves with responsibility. All said and done, the Supreme Court in the 4th republic has been amazing notwithstanding those few infractions aforementioned and we will duly give praise when it’s due.

"Facts are sacred but opinions are free”!!

Copyright: Michael Addai

Email: mikeaddai@yahoo.com

P.S:- What is this madness that we hear that Katakyie Ken Kuranchie is being given a prison tour in the country from one end of the country to the other? Moving him from one prison to another in the middle of the night, supposedly for his own safety (my foot!), without his immediate family being made aware of his whereabouts is pathetic, outrageous, disgusting and tantamount to abuse of power. This is never going to break his resolve but rather strengthen it. Whoever is behind this sickness should bow their head in big shame!!