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Opinions of Sunday, 30 June 2013

Columnist: Kennedy, Arthur Kobina

Open letter to supreme court panel hearing election petition

Orangeburg, South Carolina
Saturday, 29th June, 2013
Your Lordships,
RE: IMPLICATIONS OF CONTEMPT OF COURT PROCEEDINGS AND RULINGS

Let me begin by thanking you for the difficult task you are engaged in on behalf of Ghana. Indeed, since this case began, every reasonable person can attest that there have been conduct and/or language in court or elsewhere deserving of contempt citations. Most of these, your Lordships, have come from the attorneys, on all sides, practicing before you. To date, despite warnings, you have not sanctioned any of them.

It therefore came as a surprise when you decided to make an example of Sammy Awuku, a lay-person for his comments describing the court as “selective and hypocritical” on Peace fm.

Your Lordships, I would have let this go as an aberration but I and indeed, our nation cannot. This is because, next week, you have summoned an editor, Ken Kuranchie, Atubiga and other lay-persons to appear before you on similar charges. Your Lordships, while your power to cite people for contempt is not in dispute, the context of the exercise of that power is troubling. The exercise of that power in Mr. Awuku’s case as well as in the coming week, risks undermining one of the fundamental principles of our constitutional governance; that of freedom of expression. Your Lordships, as you know, the exercise of the power to hold people in contempt has always been shrouded in controversy. University of Virginia Law Professor Earl Dudley put his finger on the problem when he stated that in the contempt power, “the roles of victim, prosecutor and judge are dangerously co-mingled.” To buttress Prof. Dudley’s point, courts all around the world have been reluctant to exercise this power in relation to free speech. In a 1968 British case, Judge Salmon wrote, “The authority and reputation of our courts are not so frail that their judgments need to be shielded from criticism.” Your Lordships, is the reputation of your tribunal so frail that it suffers from being called “timid” by Gabby or “biased” by Sammy Awuku? If that is the case, you have more significant things to worry about than Gabby, Awuku or Atubiga. To follow up on Awuku’s point of bias, why have you not sanctioned any of those who have praised the court in the media?

Your Lordships, a very troubling aspect of the exercise of your contempt powers is the absence of due process. The way Awuku was summoned and dealt with invoked unpleasant memories of judges in hoods handing out sentences to defendants without due process in the middle of the night. This absence of due process in contempt hearings has drawn the attention of courts all around the world. In a 1994 case, the US Supreme Court overturned a Virginia judge who had fined the United Mine Workers of America for contempt due to violence in a 1989 strike on grounds that the fine was improperly imposed because the Union had never had a chance to defend itself in trial before the fines were imposed. Your Lordships, with the eyes of the world upon us, I am concerned that your failure to temper justice, in this case, with prudence might harm our reputation in the international community.

Your Lordships, my main point in this communication though, is to draw your attention to potential and certainly unintended effects of your conduct on freedom of expression. Article 21:1 of the 1992 constitution states, “All persons shall have the right to—a) freedom of speech and expression, which shall include freedom of the press and other media;”
Elsewhere, in article 33:1 of the same constitution, it is stated, “Where a person alleges that a provision of this constitution on the fundamental human rights and freedoms has been, or is being or is likely to be contravened in relation to him, then without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress.” Under 33:3, the constitution declares, “A person aggrieved by a determination of the High Court may appeal to the Court of Appeal with the right of further appeal to the Supreme Court.” Your Lordships, our constitution makes you the final protectors of our right to free speech. If your conduct produces the unintended effect of creating the impression that our judges are hostile to free speech, where shall we go when we need redress? When judges will not protect our rights, who will? Your Lordships, sooner or later, we shall have a government that will seek to suppress our right to free speech. Indeed, that has already happened on a few occasions during the 4th republic. Actually, aside from governments harassing people with spurious arrests for speech that is not liked, even political parties have harassed members for unwelcome free speech. When that happens, who shall we look to for protection if not to our courts? Your Lordships, I urge, respectfully that you find a way of sending a clear message that our judiciary supports free speech unequivocally.

Finally, your Lordships, this case has gone on longer that it needs to. Our nation, economy, the confidence of our government and the credibility of our electoral processes have all been questioned. Many of your fellow citizens are anxious to see this case decided. It is therefore unsettling that you still have time to deliberate on the comments of people outside the court that clearly do not hinder your work. It is the equivalent, Your Lordships, of a man, whose house is on fire, interrupting the fire fighting to have lunch. Your Lordships please ignore the distractions and get on with the case.
Please move with all deliberate speed to deliver a judgment that Ghanaians can accept and the world will respect, without harming our constitutional guarantee to freedom of expression.
Do have a great week.
Arthur Kobina Kennedy