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Opinions of Thursday, 4 July 2013

Columnist: Asare, Kwaku S.

Matters Arising out of the Contempt Proceedings

S. Kwaku Asare

The purpose of this article is to examine whether due process was followed in the contempt proceedings that led the Supreme Court to sentence Ken Kuranchie and Stephen Atubiga to a 10-day and a 3-day jail term respectively. I conclude that due process was not followed.

I start by noting that criminal contempt is a very serious crime as it entails the interference with the administration of justice. Notwithstanding its seriousness, it is still subject to the procedural safeguards that the Constitution grants to defendants. Indeed, its seriousness compels that due process, in all its aspects, be followed.

The type of process that the Court should follow depends on the type of criminal contempt. The locus of the contumacious act is used to draw a distinction between direct and indirect contempt. Direct contempt occurs in the court. All judges have an inherent power to maintain respect, dignity, and order during court proceedings. Thus, a judge may find anyone in criminal direct contempt by making a record of an in court finding of contempt. The judge can also immediately impose punishment, which takes immediate effect. Because the contumacious act is directly affecting court’s proceedings, the contemnor’s usual rights as a criminal defendant (right to testify, to call witnesses on his own behalf, to an attorney, to cross-examine witnesses, etc.) are necessarily truncated.

On the other hand, indirect contempt of court occurs outside the immediate presence of the court. Because it is a criminal charge and the contumacious act occurs outside the court, a defendant charged in this manner is entitled to all the privileges afforded by the Constitution and the full adversarial process must be activated, if it desired to prosecute him. Inter alia, the process must include: a. Elements of the crime must be proven beyond reasonable doubt b. Decoupling investigation, prosecution and judicial power c. Burden of proof d. Importance of robust defence e. Accused to be informed of their right to appeal

Elements of the Crime must be proven beyond reasonable doubt

It is well established that merely criticizing the court or its decision does not amount to contempt. According to Justice Bamford Addo, in Republic v Mensa Bonsu, Ex Parte AG, “Criticism of the court and of judicial decisions however rambunctious, whether or not in good taste, and despite inaccurate statements of fact, would not amount to contempt of court and is within the limits of the inalienable right of every individual’s freedom of speech ...However, it should not be forgotten that there are limits to this freedom, and therefore even though one is in fact criticising, if imputation of improper motives are attributed to those taking part in administration of justice calculated to interfere with the administration of justice, a publisher of such matter would not be immune from contempt... This is the Fair Comment Doctrine and is the current law on contempt. Thus, the following elements must be proven beyond reasonable double a. Contumacious act b. Specific intent c. Imputation of improper motives d. Calculated to interfere with the administration of justice

What this means is that one cannot commit contempt by accident and the court record must show proof beyond reasonable doubt that on each of these elements. Did the record establish these elements?

According to the Court, “Mr. Stephen Atubiga has shown thorough remorse, having admitted his error readily and started his retractions before his appearance before this court. Nonetheless his utterances were very serious, they were intentionally made contemptuously. Accordingly we find him guilty of criminal contempt and sentence him to three days imprisonment.”

"Ken Kuranchie on the other hand, has hardly shown any remorse. We were left in no doubt that he understood those parts of his publication, which impute deliberate selectivity and hypocrisy with regard to our remarks about Daily Guide and Sammy Awuku’s sanction. Ken Kuranchie clearly says that Sammy Awuku was right in describing us as hypocritical and selective, the things Sammy Awuku himself fully retracted and apologised to this court. If this is not defiance of the authority of this court and the due administration of justice, we do not know what else it can be. We have no doubt that the said statements are made with intent by him to defy the authority of this court and the due administration of justice. Accordingly we find him guilty of criminal contempt of this court and sentence him to 10 days imprisonment.”

"With regard to Kwaku Boahen, it is clear that whatever he said fell outside the touchline drawn by this court. We accordingly dismiss the summons against him."

Notice that the Court presents us with conclusions but not proof. The fact that Atubiga admitted that he erred does not mean that he intended, at the time of making the statement, to impute improper motives to the court or to interfere with the administration of justice. The Court also found Atibuga guilty of defiance for stating that he would not comply with the yet to be issued order of the Court? But what order did he defy? Can one be said to defy an order prospectively? (Can one be found guilty of robbery for asserting that one will rob his friend when the friend becomes rich?)

As for the Kuranchie case, it is just stunning! The Court says that because Kuranchie says Awuku is right in describing the court as hypocritical and selective, he has defied the authority of the court and the administration of justice. How does saying that Awuku is right constitute defiance of authority? What exactly is being defied? The notion that one disagrees with the Court is not in any way evidence that one is defying the Court’s authority. And it really does not make any sense, in this context, to assert that the Court’s authority has been defied.

At the hearing, Kuranchie attempted to explain that by its very nature, the Court is incapable of monitoring everything that is said. As a result, the Court, even though well intentioned, will end being always selective, which can then lead to accusation of hypocrisy.

This is eminently reasonable to me. I see no proof, whatsoever, that such a statement is intended in any way to impute improper motives to the Justices or to interfere with the administration of justice. In my opinion, this is exactly the type of criticism that Justice Bamford Addo talked about and which everyone interested in the legal development of the country must engage in.

On this record, I see no proof at all, let alone proof beyond reasonable doubt, that either defendant intended to interfere with the administration of justice. On the contrary, Atubiga was blowing hot inconsequential political air. He has no ability to defy the Court’s order, which will not be directed to him, since he is not even a party to the dispute at hand. I see Kuranchie as offering fair comment, which is permissible under the rule, set by Bamford. Indeed, without fair comment, our judiciary will become Lords unto themselves, unaccountable to anyone. The Constitution does not permit that.

Decoupling Investigation, prosecution and judicial power

Under our constitution, all defendants are to appear before a neutral unbiased panel. This is why the executive arm of government is in charge of investigations and prosecutions while the judiciary is charged with determining guilt. In Republic v. Mensa Bonsu, Ex Parte Attorney General, when the contemnor was said to accuse Justice Abban of being a liar, it was appropriately the Attorney general who initiated contempt proceedings against the contemnor (and my memory is vague so I cannot remember if Abban sat on the contempt case but if he did it would have been a travesty).

In the extant case, the Supreme Court identified the contumacious act. How it acquired policing powers remain a mystery. Further, the panel prosecuted the case in a very unusual way with each of the 9-member panel fielding questions to the defendants, in gross violation of their right against self-incrimination.

In my view, save as in the case of direct contempt, our constitution does not allow a criminal defendant to be investigated, prosecuted and judged by the same panel. And this is true even if the panel is the Supreme Court of Ghana.

Burden of Proof

As I understand our criminal proceedings, the burden of proof falls on those who allege that a wrong has been done. That means the accusers must present evidence, in the form of witnesses, documents, etc. to prove their case. And while they do this, the defendants do not have to say a word. Only after the accusers have met their burden will the defendant have to open their defense.

In the current proceedings, things were turned upside down. Right from the start, the justices, in their role as prosecutors started to question the defendant, without advising the defendant of his right to remain silent. Even a mere request by one of the defendants for the charge to be explained to him was rebuffed and ridiculed by the Court.

As I watched the proceedings, it appeared to me that the defendants had been judged guilty and they were there to prove their innocence.

Importance of a Robust Defence

All criminal defendants are entitled to a robust defense. They are entitled to question the investigators, cross-examine witnesses, test the credibility of their accusers, etc. I saw no such thing. Who did the investigation and whether the law was followed in investigating this crime remains a mystery. It is well known that the manner in which evidence is obtained can affect whether it is admissible in a court’s proceedings. Here, we learnt that Mr. Boahene ‘s investigation was ineptly done, raising questions about the quality of the other investigations. Unfortunately, no cross examination was allowed, hence we will never know and on such uncertainty, our criminal laws cannot and does not sanction a prison sentence.

It is also regrettable that Kuranchie’s attempt to defend himself was used as evidence of lack of remorse. As a result, he was given extra punishment for offering a defense, instead of apologizing profusely. Is a proffer of defense now equivalent to the lack of remorse? Anytime he tried to offer a defense, one of the judges will cut in to intimidate, confuse or otherwise distract him. To me, that alone denied him the fair trial that he is entitled to under the constitution.

Robust defense also means a defendant must be given adequate time to prepare for his defense. In this case, the defendants learnt of the charges against them in court. Even as a lawyer, I struggled to understand what they were being accused of. Yet, once the charges were read, they were expected to open their defense. The prosecution had automatically met their burden, merely by reading a charge sheet. There were no opening statements by the accusers. Pleas were not taking.

Not even a sentence was directed to the accused, advising them of their right to appeal that is guaranteed in all criminal trials.

Remarkable Statements

Under our system of laws, even accused persons are to be treated with dignity. I find some of the remarks made by some of the Justices rather troubling. These include remarks to the effect that an accused person could set the market on fire, making fun of the accent of accused persons, belittling the educational accomplishment of the accused persons and the insinuation that an accused person was less caring about the country just because of being educated outside the country.

Equally, the Court’s foray into politics, with statements such as “if war erupts, we will care for the people.” The Court should not be in the business of beating war drums. I reject the implied notion that “silence is peace and talking is war.” Further, the Court should avoid statements, such as “politicians have taken over mighty positions and there is too much adrenalin flowing when they mount political podia.” Such gratitutios self-righteousness will ultimately bring the Court into disrepute.

Summary

Just because a person is charged with criminal contempt does not mean he is guilty of the crime or that he has forfeited his privileges as a defendant. In the extant case, there were too many glaring procedural deficiencies, leading me to conclude that the defendants did not get a fair trial.

I end with the 1872 case of Abadie v. Quasie Oyam. In that case, the Court held that it was clear contempt when Oyam refused to attend Court of King of Ejumaku. Nevertheless, the Court also said that it would penalize the contemnor by awarding a nominal fine of 4 ackies. Of course, the Court had the power to incarcerate Oyam but realized that undue show of force by the court will lead to fear but not respect. Our Supreme Court must be respected not feared!