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Opinions of Thursday, 9 October 2008

Columnist: Antwi, William

Tsatsu: Judicial Tyranny Versus Free Speech!!

A DEMOCRACY IN PERIL.

The historic trial and conviction have so exposed a society so dangerously polarized that prominent citizens and associations are prepared to sacrifice well-established principles of justice just to prosecute their parochial and vindictive agenda. What is presently unraveling is a sad reflection of a democracy in peril - a lawless democracy crying for salvation! Yes, our democracy is the poorer and needs heavy retooling:

One aspect of Mr. Tsatsu Tsikata’s trial and conviction is so damning: We are being told that we, the people, endowed by our constitution with the right to free speech and expression, do not have the right to criticize in a fair, honest, aggressive and even in an acerbic manner the conduct of any judge while a case is pending before him or her. In this day and age, it is really depressing that some prominent citizens and lawyers would hold his kind of "colonial" idea - anti-democratic idea that should not be canvassed any well-meaning Ghanaian. Strikingly, those who hold this anti-democratic view of free speech are the same characters who not long away took on the judiciary for being corrupt and manipulated by a particular democratically elected government. Why should we allow them to play politics with our democratic destiny? Is that how low our politics has sunk? Is it now the duty of lawyers to be politically correct in interpreting the law even in areas where the law is so certain?

The central question is: Are we entitled as citizens to comment on cases pending before a court? The answer should be obvious to all. If the answer is so obvious, why are our lawyers scandalizing the legal profession and our democracy to the point that some of them what us to shut up while a case is "sub judice"? We are really at a loss as to why prominent lawyers in our society are putting a terrible spin on free speech at the expense of an innocent man who has been unjustifiably incarcerated?

JUDGES ARE NO DEMIGODS AND GODDESSES!

Lying at the very heart of our democratic dispensation is the prized right of free speech and expression as per Article 21(1)(a) of our constitution. This freedom allows us to express our thoughts without fear of any kind of punishment or repression from our government or any group of individuals. It is in light of this article that we have to look at whether we are disabled to comment on a case that is pending before any court.

Before we are misinterpreted, let me say that modern legal trend limits punishment of speech vis-a-vis the pendency of a case to only those cases where an individual(s) has/have blatantly disobeyed a court order, verbally or otherwise or is/are disturbing the tranquility of the courtroom. Thus, criminal punishment of speech does not include situations where one acerbically criticizes a judge or the judiciary even where a case is pending before the judge. It is that simple.

Opponents against free speech (while a case is pending before a court) are behaving as if trials are like public elections or referenda where judges are influenced by public pressure and emotions. They conveniently forget that judges are men and women of fortitude, intellect, wisdom and high learning who should not be bordered by public sentiment in a case. In other words, judges are supposed to be made of fearless fortitude and, therefore, are not supposed to be rankled by what is said or published outside the courtroom. They are supposed to be insulated from the public’s emotional outpouring regarding a case. A judge, unlike a politician, is only persuaded by the law and evidence in a case. So to silence the public from commenting on a pending case is in itself contrary or inimical to the very nature of adjudicating cases in a court. Charitably put, any judge who is intimidated by any kind of criticism in a case does not deserve to be on the bench and must find another job.

The ability and, in fact, the capacity of the citizenry to criticize our judges even in a most acerbic manner becomes even more eminently important if we take into direct consideration the corrupt and/or dysfunctional state of almost all institutions of state including the judiciary itself, the presidency, parliament, the press and our investigatory agencies like the Police, the SFO, CHRAJ. It is the firm conviction of the present writer that any attempt to stifle criticism of a judge’s conduct, judgment, decision, ruling and/or order would surely breed contempt and suspicion for the judiciary in our kind of already polarized and corrupt political environment. That would be tantamount to saying goodbye to respect and trust for this important institution of state called the judiciary.

In fact, what the Ghana Bar Association, for purely irresponsible reasons, does not get is that with a rubber-stamping parliament, an insensitive presidency and politically tainted and dysfunctional investigatory agencies and, surprisingly, dormant civil societies, all the citizenry is craving for is a fearless, non-partisan, robust and incorruptible judiciary to protect and sustain what is left of our democracy. And, the only way, citizens can keep alive the integrity and sanctity of the judiciary branch of our government is to hold our judges strictly accountable for their conduct while on the bench. Which part of this scheme doesn’t the Ghana Bar Association understand?

It is against this backdrop that we find it most irresponsible for anybody to advocate that we, the people, cannot comment on any case that is pending before any court. Do they believe that our judges who own life tenures on the bench are demigods and goddesses incapable of misconducting themselves and giving fatal judgments and decisions? Annoyingly, they keep hiding behind such nebulous phrases like "bringing the judiciary into disrepute and contempt" to make their points. What is really stopping them from explaining to the public why they think those of us lambasting Justice Abban are "tarnishing the image of the judiciary"? Why don’t they tell the world what is so inimical to the administration of criminal justice to criticize Justice Abban’s conduct in the Tsatsu Tsikata trial and conviction?

Do they really have honest answers to Justice Abban’s conduct on June 18, 2008 as captured by the following irrepressible questions?

1. Why did she go against her own ruling in and around July 2006 granting the defense ample opportunity to prosecute a material issue in the case, to wit, the IFC immunity issue?

2. If she had waited since July 2006, why couldn’t she wait for another week when the Supreme Court was supposed to be giving its ruling in the IFC immunity case?

3. Should a judge set a date for judgment when all matters in a case had not been concluded? Or, is this a classic case where Justice Abban set the date for the judgment only to change her mind and then "re-change" her mind without telling the defense?

4. Why didn’t she give notice to the defense that judgment was going to be given that fateful day - importantly, the same day when another motion to adduce fresh evidence was before her? Why the element of surprise in spite her own ruling on record that she was going to await the Supreme Court’s ruling on the IFC immunity matter?

5. Isn’t it ironic that although she didn’t give notice to the defense, she thought it "prudent" to give such notice to the Police?

And

6. Why did she deny Mr. Tsatsu Tsikata legal representation?

If raising these salient and well-intended issues means "bringing the judiciary into disrepute and contempt," then so be it! Seriously, do these individuals including Mr. Ansah Asare, think that the public is intimidated by such technical legal terms like "sub judice" or "contempt of court"? As we have already indicated, the public is more disturbed by the nauseating hypocrisy of some of our top-gun lawyers who are sacrificing diamond-gilt principles of law on the altar of political expediency! Intellectual dishonesty in the name of malicious partisan politics is what is grievously undermining the integrity of the law and the judiciary in our country and not our right to criticize in a fair, honest and robust manner, the injudicious conduct of Judges like Justice Henrietta Abban. In fact, what damage is done to the integrity of the judiciary if a section of the public, out of concern for the ill-treatment of an innocent man and the larger interest of justice mounts a public onslaught for his release?

Shouldn’t that be applauded by decent minded citizens who truly believe in justice? What is so evil, reprehensible or contemptuous about pointing out the inadequacies in Justice Abban’s judgment or her own conduct in the case? The beauty of our present democratic dispensation is that those who are uncomfortable with our criticism of Justice Abban’s judgment and conduct in the case are also free to mount their own platform or form a movement to defend her conduct in this historic case! In fact, if they have the moral and legal chutzpah so to do!

It is crucially important for all of us to acknowledge that the judiciary branch of our government should not be used as anybody’s trash receptacle. It must be as clean as a whistle if our democracy is to be sustained. Our judges should have nothing to fear from the public because they have their conscience and the law to back them. And, the only way they can effectively win the trust and confidence of the people is if they are faithful to their oath of office which calls on them to do justice without recourse to the political affiliation, creed, tribe, religion, gender, sex or color of parties who appear before them!

We must all stand in defense of free speech!

We will surely be back.

WILLIAM ANTWI (BAFO) A.K.A. OYOO BUSANGA.

NEW YORK.