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Opinions of Saturday, 9 July 2016

Columnist: Asare, Kwaku S.

Matters arising out of the Muntie Gang’s gbeshie

S. Kwaku Asare


Salifu Maase, Godwin Gunn and Alistair Nelson (hereafter the “muntie gang”) recent despicable, outrageous and vitriolic on-air comments raise the question of whether crimes have been committed and if so whether contempt of court is part of the set of crimes. Initially, it must be stated that a particular criminal transaction can implicate multiple criminal charges, not to mention civil violations. So, in this instance, the comments can be both contemptuous and violate other aspects of the criminal code. The dispositive factor is the interplay between the criminal transaction and the elements of the crime. Crimes have specific elements that are contained in the definition of the crime. Generally, a crime is committed when a person commits a guilty act (actus reus) accompanied by a guilty mind (mens rea).

Section 74 of the criminal code provides that — “Threat of Harm. Whoever threatens any other person with unlawful harm, with intent to put that person in fear of unlawful harm, shall be guilty of a misdemeanour.” Section 75 of the same code provides that — “Threat of Death. Whoever threatens any other person with death, with intent to put that person in fear of death, is guilty of a second degree felony.”

Undoubtedly, the comments of the Montie gang offend Section 74 and 75 of the criminal code. The criminal transaction is complete once the threat is made with the intent to put the fear of unlawful harm or death in the person threatened. Capability to carry out a threat is not an element of Sections 74 and 75, both of which simply require a threat of any person with death or unlawful harm (the actus reus) and an intent to put that person in fear of death or of the unlawful harm (the mens rea).

The felony is complete once the threat is made with the intent to put the fear of death or the unlawful harm in the person threatened. Whether the threatened person feared death (unlawful harm) or whether the person making the threat had the intent or capability to carry out the threat is irrelevant, immaterial and incompetent. In this vein, the recent press release by the BNI that the montie gang lacked the capability to effectuate their threat is a red herring that should not stand in the way of their being prosecuted under Sections 74 and 75. The onus of initiating this prosecution rests on the Director of Public Prosecution, who supervises criminal prosecution at the Attorney General Department. Given the gravity of the offense, any delay in bringing the prosecution should be followed by pressure to remove the DPP and the AG from office.

The criminal code also protects legal proceedings by criminalizing various acts that interfere with legal proceeding. For instance, Section 222 provides that, "Whoever uses any violence with intent to deter any person from acting in any manner as a judge, arbitrator, umpire, assessor, juror, witness, counsel, agent, prosecutor, or party in any legal proceeding or enquiry, or from acting in execution of his duty in any judicial or official capacity, or from having recourse to any Court or public officer, or on account of his having so acted or had recourse, shall be guilty of a misdemeanor. Section 222 provides that, "Whoever with force, threats, or tumult, hinders, interrupts or disturbs the proceedings of any Court, or wilfully and unlawfully, with force, threats, or tumult, hinders any person from entering or quitting any Court, or removes him therefrom, or detains him therein, shall be guilty of a misdemeanor. Section 225 provides that "Whoever, pending any proceedings in any Court, publishes in writing or otherwise anything concerning such proceedings or any party thereto, with intent to excite any popular prejudice for or against any party to the proceedings, is guilty of a misdemeanor." As a side matter, I do not believe that Section 225 can withstand constitutional scrutiny given the first order importance attached to speech and media rights in the 1992 Constitution.

While the Supreme Court has summoned the muntie gang to show why they should not be incarcerated for contempt, I am unable to see why the comments made by the muntie gang are contemptuous.

In Antwi v. Amponsah and Another (1961 GLR 751 756), a district commissioner asked a plaintiff who had sued him to stop the prosecution on pain of being arrested under the Preventive Detention Act. That is, the DC threatened to arrest him unless he dropped his lawsuit. The issue for the Court was whether the threat as to what would happen to the plaintiff, if he insisted upon prosecuting his claim, constitute contempt of court?

Justice Ollenu provided an excellent review of the law of contempt and noted that “for an act to be contempt of court it must be calculated to bring a court or judge into contempt, or to lower his authority, or to interfere with the due course of justice, or the lawful process of the court; see Halsbury's Laws of England, (3rd. ed.) Vol. 8, p. 7, and R. v. Gray.1 Bowen, L.J. in the case of Helmore v. Smith laid down the test to be applied; he said:

"The object of the discipline enforced by the Court in case of contempt of Court is not to vindicate the dignity of the Court or the person of the Judge, but to prevent undue interference with the administration of justice. The question, therefore, here is whether there has been an interference with the administration of justice."
Justice Ollenu interpreted the principle laid down in that case to mean that “improper conduct by itself is not enough to constitute contempt. The act or conduct must be of such a nature as would unduly interfere with the administration of justice (i.e., prevent the court from, or make it impossible for it to exercise jurisdiction in a case, or if it exercises the jurisdiction it leads to miscarriage of justice).

Applying this test, Justice Ollenu said, “in my opinion, however improper the conduct of the respondent was, his threats did not amount to undue interference with the administration of justice, and was not calculated to interfere with the due course of justice. The application is dismissed with costs."

Justice Ollenu’s test in 1961 highlights that contempt has three elements (i) the conduct; (ii) the calculus; and (iii) consequence. It is not enough that one engages in a contumacious act with an intent to interfere with the administration of justice. In fact, as he observes, the conduct must actually interfere with the administration of justice by preventing the court from, or making it impossible for it to exercise jurisdiction in a case, or if it exercises the jurisdiction by leading to miscarriage of justice.

Thus, as outrageous as the comments are in the instant case and regardless of the calculus of the perpetrators, they cannot be guilty of contempt of court because their actions had no effect on the administration of justice.

Is it possible that the comments hurt the feelings of the Judges? Sure, they are only humans. In fact, I too find the comments to be extremely outrageous and unconscionable. But the purpose of the law of contempt is not to assuage such hurt feelings. It has a higher purpose and that purpose must not be corrupted by incorporating the feelings of judges, the judicial council and the citizens at large.

A related question is the nature of the trial that should be held assuming the facts suggested the crime of contempt. The Supreme Court panel hearing the Ramdan case summoned Salifu Maase, Godwin Gunn and Alistair Nelson to appear before it on the morning of Tuesday, July 12, 2016 “to show cause why they should not be imprisoned for contempt for scandalizing the court, defying and lowering the authority of the court and bringing the authority of the court into disrepute.”
In technical term, the Court is planning to hold a summary trial of the type that we witnessed during the election petitions. In these trial, the normal protections afforded to criminal defendants are severely curtailed. In fact, observe the shift in burden to the monte gang. The summons ask them to show why they should not be imprisoned, which susupons the concept of "innocent until proven guilty beyond reasonable doubt."

While such summary contempt proceedings come very close to the exercise of despotic power, they are not alien to the common law. The proceedings are justified on grounds that all judges should have an inherent power to maintain respect, dignity, and order during court proceedings. As such, the common law accommodated such proceedings but only when the contempt was occurring in the court (also called direct contempt or contempt in facie curiae).
Accordingly, a judge may find anyone in criminal contempt by making a record of an ‘in court’ finding of contempt and also immediately impose punishment, which takes immediate effect. In this vein, contempt in facie curiae is sui generis as a criminal offence in that the power to commit for the offence is of unknown scope as is the summary procedure by which it is exercised. However, even for contempt in facie curiae, recent cases have emphasised the need to follow a more restrictive approach, which balances the need for urgency during summary contempt proceedings with the application of natural justice principles.

On the other hand, it is settled law that contempt occurring outside the court (contempt ex facie curiae) cannot be summarily punished. Sir John Fox demonstrated that ‘contempt out of court’ by ‘strangers’ was, like trespass, tried either by jury or in the Star Chamber, although contempt in the actual view of the court was punished summarily. Thus, he concludes that historically the summary procedure applied only to contempt in the face of the court and that other forms of contempt were only triable on indictment, and that ‘committal’ or ‘attachment’ in the earlier contempt ex facie curiae cases referred to committal to stand trial and not to imprisonment by way of punishment.

In the early 20th century, the United States (US) Supreme Court affirmed this principle when it held that ‘when the contempt is not in open court, however, there is no right or reason in dispensing with the necessity of charges and the opportunity of the accused to present his defense by witnesses and argument’. Further, if the criminal contempt involves disrespect toward or criticism of a judge, due process requires that the judge be disqualified from presiding at the contempt trial or hearing unless the defendant consents.

A more recent case from South Africa (SA) addresses, in some depth, the summary procedure for dealing with contempt ex facie curiae, not just as a common law doctrine but whether it can coexist with a constitutional requirement. The case was about the contempt of scandalising the court and whether a summary process could be used where the contempt was ex facie curiae.

The SA Court stated that, ‘it is inherently inappropriate for a court of law, the constitutionally designated primary protector of personal rights and freedoms, to pursue such a course of conduct’. Moreover, the summary procedure is manifestly unsatisfactory in a number of material respects: (i) there is no adversary process, the issue being between the judge and the accused; (ii) the process is inquisitorial and inherently punitive and unfair; (iii) the procedure, which rolls into one the complainant, prosecutor, witness and judge is irreconcilable with standards of fairness; and (iv) the accused enjoys little protection or benefit of the law and its processes.

In summary, under the common law, a defendant charged with criminal contempt ex facie curiae is entitled to procedural due process. The Ghana Constitution (1992) fortifies this requirement. While Articles 126 (2) and 19 (12) provide that the superior courts of record shall have the power to commit for contempt to themselves, the contours of this contempt power, in the absence of explicit constitutional guidelines, are necessarily defined by the common law and other constitutional rights and limitation on the use of the contempt power.

At common law, a plenary, not a summary, hearing should be used for proceedings involving criminal contempt ex facie curiae. The 1992 Constitution constitutionalizes this common law requirement with its Liberty and due process protections!

Article 19 of the Constitution frowns upon and rejects the practice of allowing a Court to act as complainant, victim, investigator, prosecutor, jury and judge in a cause that seeks to imprison an accused person. The Muntie gang threatened to kill panel members, a despicable act that is triable as a second degree felony but have in no way scandalized the Court, defied or lowered the authority of the Court and brought the authority of the Court into disrepute. Their actions, despicable as they are, fall substantially short of the Ollenu contempt standard.

To sum up, not every improper act or conduct that affronts judges amount to contempt of court. A statement or conduct could be both trigger criminal prosecution and also be contemptuous. The proper solution is arrived at not emotionally but by careful examination of the elements of the crime.
It is contumacious conduct for a person to slap a judge in court. The conduct also has the consequence of interfering with the court's proceedings. It is contempt of court. It is direct contempt (contempt in facie curiae). The necessity of continuing the court’s proceedings justify a summary trial and a conviction of this person, by the same judge. Of course, the conduct is also criminal assault that must be taken up the Director of Public Prosecution.

It is, however, not a contumacious conduct to slap a judge in a night club and the conduct does not have the consequence of interfering with the court's proceedings. It is not contempt of court. But it is criminal assault.

Elements of the crime matter a lot. This is why Ollenu's 1961 test should be advertised on all billboards and in all law schools. It sufficiently shows that threatening a judge on radio or screaming about court proceedings on TV fall short of contempt because such threats or noise do not prevent the court from or make it impossible to exercise its jurisdiction or if the court exercises its jurisdiction it did not occasion the miscarriage of justice. Of course, such a threat is not just despicable, it is also criminal and in the instant case a second degree felony.

Conversely, making those same threats or noise in the courtroom is contempt because such threats or noise in the court prevent the court from or make it impossible for it to exercise its jurisdiction. Indeed, this common law position has found its way into our criminal code in Section 224, which provides that "Whoever in the presence of any Court is guilty of contempt of Court by any insulting, opprobrious, or menacing acts or words, is guilty of a misdemeanor." It is not by accident that Section 224 restricts itself to conduct in the presence of the Court. It just restates part of the common law on contempt in facie curiae. For similar reasons, perjury is also contemptuous since it can occasion the miscarriage of justice. To be sure, making the threat in court triggers not only contempt but various sections of the code, prosecutable by the Director of Public Prosecutions.

Our contempt law has become an albatross around our necks, in large part due to the Supreme Court’s aberrant conduct during the election petitions. Radio show hosts and guests are terrified of making comments about Court cases, even though they have the constitutional freedom to do so.

Ollenu’s contempt test was laid down during the Akoto years. Our current contempt jurisprudence seems to be taking us forward in reverse. The Ghana Bar Association and the Legal Academy must lead to free us from this contempt nightmare.