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Opinions of Sunday, 14 July 2013

Columnist: Asare, Kwaku S.

Is the Supreme Court Panel Hearing the .....

....Presidential Petition Above the Law?

Justice William Atuguba, the presiding judge hearing the presidential petition, is fond of saying that the law is in the bosom of the Supreme Court Justices. Further, he reminds us that the Justices have awesome powers. Do these awesome powers operate to put the Justices above the law? If not, the Court should address the following issues arising out of their actions in the recent criminal contempt hearings, which appear to put the Justices above the laws of the country.

First, where does the Court get its original jurisdiction to hear criminal contempt cases where the contumacious act is committed outside the courtroom? Under Article 130 of the Constitution, the Court’s original jurisdiction extend to all matters relating to the enforcement or interpretation of the Constitution and all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person. The Court has no original jurisdiction to hear criminal contempt cases, where the alleged crimes occurred outside the courtroom and pose no reasonable threats to or interfere with the administration of justice.

Second, where does the Court get the power to dispense with a criminal defendant’s right to an appeal? A criminal defendant’s right to appeal a conviction is a principle that is so entrenched that it does not require further elaboration. Indeed, the right to appeal was saved even under the PNDC public tribunals. Yet, by assuming the original jurisdiction to hear criminal contempt ex facie curiae cases, the Court automatically suspends this right of appeal, as there is no court higher than the Supreme Court. Even though there is the possibility of a review by the Supreme Court, this review is not an appeal as envisaged under the Constitution or principles of natural justice. This then means a conviction of a criminal offense by the Supreme Court comes with no right of appeal.

Third, where does the Court get the power to penalize or harass editors for their editorial opinions and views? Ken Kuranchie is an editor who expressed an editorial opinion on the Court’s proceedings. The Constitution provides that, “Editors and publishers of newspapers and other institutions of the mass media shall not be subject to control or interference by Government, nor shall they be penalized or harassed for their editorial opinions and views, or the content of their publications (Article 162 (4)).” The only limitation on this right are laws that are reasonably required in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of other persons. The awesome contempt power of the Supreme Court cannot traverse this unambiguous constitutional command and the Court will do well to explain how it is that it procured the power to send an editor to jail, in spite of Article 162(4). I emphasize that no reasonable interpretation of the limitation of the Article 162 (4) privilege will extend it to the power to commit for contempt.

Fourth, where does the Court get the power to deprive criminal defendants of their liberty without following the due process requirements of Article 19 of the Constitution? Article 19 of the Constitution provides that criminal defendants, inter alia, have the following entrenched rights.

? The right to a fair hearing. ? The presumption of innocence. ? The right to prepare a defence, which requires that the defendants are given adequate time and facilities. ? The right to cross-examine the witnesses against them. ? The right against self-incrimination

It is important to emphasize that these privileges cannot be disturbed, even in criminal contempt proceedings. The limited exception is Article 19 (12), which allows the Superior court to punish a person for contempt of itself notwithstanding that the act or omission constituting the contempt is not defined in a written law and the penalty is not so prescribed. Even here, notice that the Superior court is not allowed to punish for contempt but contempt of itself, a phrase that can only be interpreted as criminal contempt in facie curiae, where the smooth administration of justice is of the essence and when it is difficult to stipulate, a priori, an exhaustive list of contumacious acts. This exception makes Superior Court Judges masters of their courtrooms, as it should be but no more. When Justices decide to extend their ears and eyes into the public arena, to look for contumacious acts, then they must contend with the citizens’ constitutional guaranteed rights. It goes without saying that summarily trials of the type that Atubiga, Awuku and Kuranchie faced at the Supreme Court dispensed with these due process safeguards.

Fifth, where does the Court get the power to act as an investigator, prosecutor and judge in the same cause? Clearly, it is the Supreme Court that is now investigating who is saying what in the polity. Clearly, it is the Supreme Court that is issuing summons to accused defendants. Clearly, it is the Supreme Court Justices who are now prosecuting defendants. Clearly, it is the Supreme Court Justices who are adjudicating guilt in these proceedings. It is universally accepted that the law cannot be above the law; if impartial adjudication is to be at the heart of the administration of justice, a judge should not ordinarily be a judge in his or her own cause.

Sixth, where does the Court get the power to prosecute and punish for out-of-court comments that may threaten public safety but are only tangentially related to the Court’s proceedings? For when Atibuga says “Ghana cannot contain all of us if NPP wins the Court case,” and Boahen says “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,” they, no doubt, have made odious statements of no social value. However, as odious, offensive and worthless as they are, these comments cannot reasonably be said to be interfering with the administration of justice. To the extent that the comments can be said to be criminal at all, one would have to say they offend national security or the public order, offenses, which under the law, must be investigated and prosecuted by the executive. The Court should say why it is empowered to investigate and prosecute people whose comments could threaten national security. Alternatively, the Court should say how persons who are not parties to a petition could be said to defy the authority of the Court where no order has been issued to them or even to the parties? Has the Court created a new criminal contempt offense, related to anticipatory defiance of the Court’s authority?

Seventh, the Chief Justice has consistently said that Justices and Judges are accountable to the people. Judges and Justices are not elected. In the case of the Supreme Court’s proceedings, the appellate form of accountability is not available. Thus, a vibrant media and conscientious observers of courtroom proceedings are the primary form of accountability. Accountability cannot be restricted to a passive reporting of the Court’s proceedings. The media and the observers can only guard against the miscarriage of justice if they are allowed to subject the judicial processes to extensive public scrutiny and criticism. The Court should explain how it could be held accountable when it threatens the evaluative audience with the sword of criminal contempt.

Eight, the Court should clarify what constitutes a legitimate Court order? For instance, the Presiding Judge has said that “any person, be it in the media or not, who crosses the final touchline of proper coverage reportage will be met with the appropriate response.” Quiet apart from being vague, ambiguous and unclear, which will be a defense against criminal contempt, can the Court legitimately issue such oral orders to non-parties in the litigation? To the parties in Court, maybe yes. But such a vague, ambiguous, and unclear oral order should not be the basis of finding anyone in violation of the Court’s order, hence guilty of criminal contempt ex facie curiae. The Court will help everyone if it came out with specific written, signed and sealed orders on what can and cannot be reported, along with a justification for the restrictions.

Ninth, the Court is a court of record. It should not encourage rumormongering. If the Court finds it necessary to announce that people have been writing to them, then it has to name these people and release the said letters for public vetting. Whether such letters are contemptuous or not depends on who is doing the writing and what is being communicated. A letter to a Justice offering him a bribe to decide the case one way or the other is clearly criminal. However, a letter to the Justices, drawing an attention to a relevant case, statute, or constitutional provision is just meant to aid the Court. It cannot be reasonably said that such an aid is contemptuous. Of course, an ex parte communication with the Court is clearly impermissible and is a completely different matter. Justice is better served if all such communications are made part of the public record to put all parties on notice. Further, the fact that the communication comes from laymen or highly placed persons should be secondary. It is the content that should matter.

It is also time for the nation to contemplate whether Parliament too can exercise its awesome contempt power under Article 122, which says, “An act or omission which obstructs or impedes Parliament in the performance of its functions or which obstructs or impedes a member or officer of Parliament in the discharge of its duties, or affronts the dignity of Parliament or which tends either directly or indirectly to produce that result, is contempt of Parliament.” Is there anyone who honestly, reasonably and seriously believe that one could be held in contempt of Parliament for saying that Parliament is “selective and hypocritical?” We are told that one cannot say that about the Court, yet Parliament and the Judiciary are co-equal branches of Government, both with awesome contempt power!]

The law may be in the bosom of the Justices hearing the presidential petition. What the Justices need to educate us on is whether they are also above the law!