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Opinions of Sunday, 31 July 2016

Columnist: Ata, Kofi

Is the Supreme Court seeking revenge or administering justice?

The Supreme Court (SC) on Wednesday July 27, 2016 passed sentences on the Montie Gang of Three, Directors of Networking Broadcasting Company (NBC) Ltd (owners of Montie FM) and the Director of ZeZe Media (owner of the frequency used by the station) for contempt of court. According to media reports, the radio presenter and his two guests who committed the original crime of contempt were jailed four months and fined of Ghc 10,000 each to be paid within twenty-four hours, failure of which will incur one additional month in jail. The Directors of NBC Ltd and the owner of ZeZe Media were fined Ghc 30,000 each also to be paid within twenty-four hours. This article is a review of the sentences passed by the SC.

I will leave the legal argument of contempt of court versus free speech and press freedom to the lawyers and in this regard I refer readers to an excellent article by my good friend and classmate, Prof Stephen Kwaku Asare, entitled “Matters Arising out of the Montie Gang’s Gbeshie” (Ghanaweb, July 9 2016). Let me also say that, I have less sympathy for the “Montie Gang of Three” because there is too much indiscipline and lawlessness on the airwaves in Ghana, which if not checked could lead the country into the abyss. I will therefore limit my argument to the convictions of the Directors or owners.

Notwithstanding my lack of sympathy, I totally disagree with the SC on the severity of the sentences. In fact, the SC by these sentences no longer administered justice but was seeking revenge. What has happened in this case, the second in the history of the apex court is nothing but a show trial and what is known in International Criminal Law as “victors’ justice”. It’s one sided and the accused have very little chance (if any), of receiving a fair trial as it happens after armed conflict resulting in genocide. Only the criminals on the defeated side are tried by the victorious side using their own standards of justice, which is nothing less than revenge. Examples were in Rwanda, the second World War trials and what is currently happening in Turkey.

The most worrying aspect of this case is the fact that the contempt in question is one of “ex facie curiae” (indirect or happened outside court) and not “in facie curiae” (direct or happened in court). In such cases, there is a proper trial through due process in a different court by a different judge with the option for appeal. Sadly, in this case as was the previous one, Ghana’s SC constituted itself into the prosecutor, judge and jury in their own court without the benefit of an appeal process. What sort of justice is that?

Now let me address the convictions of the Directors. I am struggling to understand why the Directors of NBC Ltd and the owner of the frequency were also convicted, especially when there was no trial to prove that they were negligent and therefore vicariously liable? In fact, the reason given by the Presiding Justice for the conviction is laughable. According to media reports, the SC claimed as follows, “the directors of Montie FM provided the platform for the contemptuous comments to be made and held that the NBCL and ZeZe Media ought to have paid more attention to the activities of the radio station. “We are not impressed with the statements of the directors that they had not taken close interest in the operations of the station’’.

Does the above constitute negligence and a criminal liability for the act of contempt? If so, what happened to principles of “actus reus” and “mens rea” in corporate liability? In other words, the general basis for imposing liability in criminal law that the defendant must be proven to have committed a guilty act (the actual act [actus reus]) whilst having had a guilty state of mind (mens rea). Or the concept that an act or omission alone could not constitute a criminal liability unless it was accompanied by a guilt of state of mind. Is it not the fundamental duty of the prosecution (the SC) to prove both of these elements of the offence to the satisfaction of the judge or jury beyond reasonable doubt and in the absence of such proof the defendant should be acquitted? Is the SC saying that even if the Directors were negligent by their actions and omissions, which was not proven in court, they also had in mind to let their station/frequency be used for contempt of court? Is that not ridiculous?

Perhaps, the Justices were only interested in the legal doctrine of "respondeat superior" ("let the superior answer"). The doctrine that an employer is legally responsible for the actions and omissions of its employees (also known as vicarious liability). However, the Justices must have known and ought to know that this rule applies only if the employee/s acted within the course and scope of employment. In other words, the employer will generally be liable if the employee was doing his or her job, carrying out company business, or otherwise acting on the employer's behalf when the incident took place.

Let me analyse the above. The two contemnors were not employees and therefore the Montie Directors are not criminally liable for their actions and omission. On the other hand, the host was an employee and therefore the Directors were liable. The question is, did the host act within the course and scope of his employment? We do not know yet because there was no proper trail and a defence for the Directors to present the job description, the terms and conditions of his employment as well as the company Vision, Mission, Goals/ Aims, Values, Policies, Strategy and Objectives, if any. These would have shown beyond any reasonable doubt whether the presenter acted within or outside the course and scope of his employment. These documents would have given a defence or otherwise to the Directors.

The irony of this judgement is that, the Supreme Court has now ordered the Directors of the two companies to produce policies and measures which would attest to the fact that the frequency (100.1 FM) “shall not give rise to any act of contempt’’. Does that mean no such documents as mentioned above existed and if they existed did the SC request to see them in court? Even if there were none, the governing documents such as Article of Association, Memorandum of Association and Memorandum of Incorporation should have given the Directors a defence but because there was no proper trial the Directors stood no chance of proving their innocence. This is a travesty of justice.

Just imagine telling Rupert Murdoch, who owns many radio and television stations that he did not show interest in them so he is guilty of contempt for providing the platform for contemnors. Of course, in the media scandal in the UK led by some of his media houses, he was called into Parliament and held accountable but not held responsible for those criminal acts.

The other question is why did the Justices not separate the companies from the individual directors/owners because the two are separate legal entities that could be sued? Both NBC Ltd and Zeze Media are legal entities by themselves and therefore these two companies should have been convicted and not the individual Directors or Owner. The Directors/Owner would only be made party to the case as defendants only if they were negligent in their duties as directors but as indicated above their negligence were not proven in court. In fact, they were arbitrary convicted and sentenced,

I blame the Attorneys of the Directors because they behaved as shepherds who delivered their sheep to the abattoir to be slaughtered and butchered. Instead of challenging the legality or illegality, the constitutionality or unconstitutionality of the actions and omissions of the SC, they went begging for clemency and in so doing gave legitimacy to the SC constituting itself into prosecution, judge and jury in their own court. They did a bad job and behaved as if they were scared of the Justices. Judges should be respected and feared.

What about the severity of the sentences? The objectives for administering justice are two folds, retributive and restitution or restorative justice. Both could have elements of punitive, deterrent and rehabilitation but should never be revengeful and must be within the Sentencing Guideline. For example, with fines, the court must consider the ability the convict to pay the fine, in reasonable time, the immediate impact on the convict, whether individual or corporate, etc. In cases where no injury or harm has been caused directly to persons or damage has not be caused to property, the fine should be a deterrent rather than punitive, let alone revengeful. The SC court ignored all sentencing principles and sought revenge.

Why do I say so? The severity of the fines and the conditions were such that, the objective is to collapse the businesses and activities of the contemnors and the Directors or the companies. I do not know how much money radio stations make in terms of income from advertising and I also do not know how much radio presenters are paid or how much guests are paid to appear on programmes but considering the current economic situation in Ghana, the fines are excessive, probably calculated to bankrupt the contemnors and cause financial difficulties to the businesses involved. The SC should not seek revenge with the administration of justice. Never.

In conclusion, Wednesday 27 July will go down in judicial history as a sad day for the judiciary in Ghana. What happened was disgraceful because the SC turned itself into a body above the law to administer revenge in the name of justice. The language of the Presiding Justice that “even the President cannot control judges (though true) is in bad taste and it created the wrong impression in the minds of some of us that the SC believes it can act above the law. This judicial mob mentality of “we will show you where power lies” should not be allowed in a democratic society under the rule of law.

Kofi Ata, Cambridge, UK