The panellists speaking Tuesday, July 9, 2013 in Accra, on the theme “The Courts, Free Speech and Judicial Accountability in a Democracy: Defining the Boundaries”, wondered that, despite that fact, the law attracts punishment.
Apart from not being clear on what constitutes contempt of the court, it is also nebulous, while the penalty is not prescribed anywhere, the panellists agreed.
Organised jointly by the Ghana Centre for Democratic Development (CDD-Ghana) and the Media Foundation for West Africa (MFWA) in collaboration with the National Media Commission (NMC), the panellists viewed that incarcerating people based on the ill-defined case of contempt of the court had the propensity to stifle freedom of speech and also stay people off from commenting on the judiciary or holding them accountable.
The panellists, who took turns to give their perspectives on the theme of the forum, after which they fielded questions and concerns from the audience, comprised Professor Kwame Karikari, Executive Director, Media Foundation for West Africa; Mr Anthony Forson Jnr., Public Relations Officer, Ghana Bar Association; Mr Kissi Adajabeng, Lecturer, Faculty of Law, University of Ghana, Legon; Professor Audrey Gadzekpo, School of Communication Studies, University of Ghana, Legon and Ambassador Kabral Blay Amihere, Chairman, National Media Commission. The forum was chaired by Professor Gyimah-Boadi, Executive Director, CDD-Ghana.
Professor Kwame Karikari, who was the first to make his submission said while the recent contempt cases raise questions about the professional conduct of the media, “these cases raise critical questions of the status of the law of contempt of court in our legal system.”
“Certainly, the decision is likely to affect in my opinion, the media and the public’s comments on the outcome of the work of the judiciary,” he added, referring to the on-going election petition hearing at the country’s Supreme Court.
According to him, since many media persons do not have professional training on the legal system, they may decide to leave court matters, as they will not want to be held for contempt. “In which case the court will become isolated or immune from scrutiny,” he opined.
“Must contempt of court for example be a criminal act that it leads to the imprisonment of the offender? What is it that if media publishes or a citizen expresses, must be such that it must be a criminal act punishable by imprisonment?” he quizzed.
Quoting Justice S. A. Brobbey from a book he authored with Professor Kumado, he stated that “the procedure for allowing the very court which has been scandalised or interfered with to punish for the interference of itself, leads to a fly in the face of our cherished principle of natural justice and that creates an anomaly in our judicial system”, adding that “the state of the law seems to create a cloud of uncertainty.”
“While in this country no one can be tried and punished for an offence unless that offence is written and the penalty for it is prescribed, the offence for the contempt of court can be tried and the convict punished, even though the offence is not written for its nature to be predetermined, and even though the penalty for it is not prescribed for the extent of the penalty to be known,” he stressed.
Professor Karikari stated that “in a country with a written constitution and written criminal and penal codes, its citizens can ill afford to live in the realm of uncertainty in respect of the all-important offence of contempt of court.”
“Recognising as we all do, the significance of contempt of court in our law, there is a certainty for clarification and perhaps certain delineation of its excesses cannot be over-emphasised,” he said.
Speaking, Professor Gadzekpo said although there is considerable discontent all around despite people’s appreciation of freedom of speech, the law on contempt of court as it stands, is nebulous.
“It is unclear to ordinary persons what constitutes fair comment on on-going court cases including the one now before the Supreme Court and what is contemptuous,” she stated.
Referring to some publications on general warnings to the media as it comments on cases before the courts, Professor Gadzekpo said “What these comments do is to put a general chill on public utterances and media coverage, because it is not clear what is not too grievous. For a people who [observed] for a long time a culture of silence, many would say it would be better to simply keep quiet and be safe than to be sorry. Now to go on that path, we are doing a disservice to our democracy, because democracy calls for robust public discussions including very critical or uncomfortable issues.”
Taking his turn at the forum, Mr. Blay-Amihere, stated that the law on contempt of court had long been officially dead in its country of origin because of its nebulous nature.
Quoting from a petition by a lawyer, Professor Kweku Asare to the supreme court, he said “Scandalising the court, as a criminal offense, while very much alive in the Supreme Court of Ghana, is officially dead in the country of its origin,” adding “Its remains are interred or buried at clause 22 of the Court Act 313, which proclaims that ‘Scandalising the court or the judiciary also known as scandalising the court or judges is abolished as a form of contempt of court under the common law of England and Wales.’”
He said “the repeal of the criminal libel law in 2001 and what Article 162; 4 in the Constitution of Ghana has to say on the exercise of editorial conscience should challenge us all to decriminalise free speech and free press in the courts and elsewhere.”
Quoting from Ghana’s Constitution, he stated “Editors and publishers of newspapers and other institutions of mass media shall not be subject to control or interference by government, nor shall they be penalised nor harassed for the editorial opinions and views or the content of their publication.”
The NMC chair said even though there is no law in Ghana that prohibits absolutely, comments on court proceedings, there is a law that punishes, referring to the law on contempt of court.
While agreeing that the law on contempt of court, which is disobeying or scandalising the court or undermining the judicial system is meant to protect the integrity of the judiciary, Mr Kissi Adjabeng a law lecturer at the University of Ghana, Legon, who was also a panellist, admitted its content is not defined, and the penalty not described anywhere in the statutes.
Expressing worry about the extent of committal in future for contempt of court given the spate of recent events, he said “No person shall be convicted of a criminal offense unless the offense is defined and the penalty prescribed in a written law,” quoting Article 19, clause 11 of Ghana’s 1992 Constitution.
He cited one exception however, which is that “judges can punish, although contempt is not defined and the penalty is not prescribed anywhere.”
Mr Adjabeng thus called for the maintaining of a workable balance between two competing interests, which are the interest of the judicial administration system and the interest of the individual, safeguarding his or her right to free speech.
“If we don’t take care we may be setting a precedent,” he noted, saying one may be hauled before a lower court and judgement passed because he or she passed a certain comment.
Quoting a case involving one Mensah Bonsu, Mr Anthony Forson Jnr. said Justice Adade, the judge who sat on that case stated “Committal for the contempt of court should be used sparingly and always with interest of the administration of justice, hence when a trial has taken place and the case is over, a judge or the jury are given over to criticism.”
Still quoting Justice Adade in that case, he however warned, “I will wish to caution all – the lay public, the legal profession, the judges themselves, have a stake in upholding the integrity and authority and respect for and of the judiciary. If this should collapse, one of the surest foundations of our democracy would have vanished and we shall be the poorer for it.”
Mr Forson Jnr stated further, “My attention has been drawn to the abolition on the offence of scandalising a court in a 2012 Act in England. It is our considered opinion that our democracy has a lot of catching up to do by way of education to be able to stabilise itself before considering such a move.”
The public forum was held on the heels of the recent barring of Samuel Awuku, a journalist and political commentator, from the Supreme Court hearing of the election petition case for allegedly making contemptuous statements and the subsequent imprisonment of Stephen Atubiga and Kenneth Kuranchie, Daily Searchlight editor for three days and 10 days respectively for allegedly making statements injurious to the integrity and reputation of the court and the administration of justice.
Attracting the media, civil society, members of the diplomatic corps and political party representatives among others, the forum sought to among others, contribute to public discussions and education by looking at what type of public comment on, or criticism of court cases that should be deemed legitimate; how a democracy can strike a balance between protecting the courts’ integrity and the smooth administration of justice and the citizens’ constitutionally guaranteed free speech rights.
It also looked at whether the court’s action and conduct are constitutionally permissible and what reforms may be necessary in Ghana’s common law of contempt, in order to balance the judiciary’s institutional interests against concerns about judicial overreaching and likely abuse of the contempt power.
By Edmund Smith-Asante