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Opinions of Thursday, 4 August 2016

Columnist: H. Kwasi Prempeh

The contour in Ghana's anti-speech laws and judicial doctrine

How I wish I had this much influential elite, lawyerly, and popular support when I was crusading for free speech and the repeal of anti-speech laws in the pages of Tommy Thompson's Free Press and Kofi Coomson's Chronicle and in IEA's forums and publications in the 1990s, at a time when the Rawlings regime was imprisoning journalists and the Supreme Court was using "scandalizing the court" to do same as well as endorsing as constitutional the government's imprisonment of journalists for their reporting and opinion.

In one of my many writings during that period, "Judicial Independence and Accountability in Ghana", published by IEA in 1997, I made a case for the abolition of scandalizing the court and the reform of other anti-speech laws and judicial doctrine. As usual, it fell on deaf ears and closed minds.

When in 2013, the Supreme Court panel hearing the Presidential Election Petition started throwing journalists and commentators in jail to cheers of "crack the whip", I wrote an article in Abdul Malik Kweku Baako's paper condemning the court's actions as an abuse of judicial power.

More recently, when Parliament tried to bully a scientist and a journalist into silence with "Contempt of Parliament" for things they had said in the public square about Parliament and MPs, I wrote a longish article condemning this new dangerous tendency. I could have used some elite and public support, too, at the time.

In the Muntie 3 palaver, consistent with my principled aversion for scandalizing the court doctrine, I advocated criminal prosecution, not summary criminal contempt proceedings by the Supreme Court, as the more appropriate legal response to the criminal utterances of the three rogues.

I recount all this to say that, we must separate this pardon crusade now being spearheaded by people famous for their illiberalism from principled advocacy on behalf of free speech. There is little doubt that the utterances of the so-called Muntie 3 crossed the permissible limits of free speech under our laws.

Had the Attorney General dutifully prosecuted the three, they would very likely have been found guilty and appropriately sentenced to terms of imprisonment longer than four months. The issue, then, is not about free speech.

The issue here is about whether it was legally appropriate for the Supreme Court to step in and use its inherent criminal contempt powers to cage the three and, if not, whether a Presidential pardon freeing the jailed contemptors is an appropriate remedy. On this, there is clearly a sharp difference of opinion, some of it legal, some political.

First, there are those who believe that the Court's use of criminal contempt in this instance amounts to judicial tyranny. Curiously this group includes, predominantly, the very same people who found nothing legally wrong with the Court's use of criminal contempt during the 2013 Presidential Election Petition-or in times past.

And yet, in terms of content, the sins of those who were jailed for their public speech during the 2013 petition are nothing compared with the utterances for which the Muntie 3 were dragged before the Court this July.

Somehow, those who were for "crack the whip" in 2013 but have become pardon petition signatories in 2016 haven't quite yet explained the obvious cognitive dissonance here. One of them has typically invoked biblical metaphor to say that he was once a Saul but has now become a Paul. He is apparently not alone.

There is a second group, comprising those who believe that the Court was well within its power to commit the Muntie 3 for criminal contempt. Many of the vocal leaders of this second group also presumably didn't have much of a problem with the Court's criminal contempt actions during the 2013 Presidential Election Petition. At least they are consistent on this. They oppose the pardon petition.

There is a third group. This group appears to have fewer members than the first two. This third group comprises those like me who have doctrinal difficulties with judicial intervention in this matter (and with the whole business of scandalizing the court generally) yet believe that a pardon, even if constitutionally permissible (which is itself an unsettled and contested question), is a cure far worse than the disease, not least because of the overtly partisan dimension of this pardon crusade and the entire Muntie 3 saga.

There is probably a fourth group, populated, as far as I know, by only one person whose position in this palaver defies easy classification. That one-man group is my good friend, classmate and fellow Vandal Professor Kwaku Azar.

Although an ally of the Group 1 partisans in this debate, he does not share their longstanding illiberalism in matters of free speech. To the contrary, he has been a consistent defender of free speech and an opponent of the "crack the whip" type of criminal contempt practised by our courts.

He also happens to be the most vocal champion of the use of Article 72 in this case, defending the pardon power as necessary in this case to undo the criminal contempt jailing of the Muntie 3, an act he deems to be judicial tyranny. His present cooptation by Group 1 partisans is primarily for his Article 72 stance and is largely opportunistic.

The issue, then, is not about free speech. It is not even about the propriety or constitutionality of summary criminal contempt jurisprudence.

It is about rival views of presidential and judicial power. Excepting Azar's idiosyncratic category, the issue boils down primarily to a dispute between those who believe in the political (even partisan) control of judicial power, many of whom have found a convenient and useful ally momentarily in the pardon power of the President, and those who reject a presidential pardon in this instance as an improper use of presidential power designed to diminish and undermine the judiciary for partisan purposes.

Let's keep the issues clear and stop dragging free speech into the mud.