Criminal Libel Code is justifiable limitation, Director

Accra (Greater Accra) 7 April ?99

Mr Samuel Y. Bimpong-Buta, Director of the Ghana School of Law, said in Accra on Tuesday that section 185 of the Criminal Code is a justifiable limitation on press freedom. There should, however, be legislative reforms of the law to exclude private conversation from being an offence and the imposition of a jail term as punishment for breaching it. Mr Bimpong-Buta was delivering an inaugural lecture, on his election as a fellow of the Ghana Academy of Arts and Sciences, on the topic "The role of the judiciary in the establishment of democracy in Ghana". He called on the Attorney-General's Department and the Ghana Law Reform Commission to take steps to reform the law, to exclude private conversation and punishment by way of a jail term for its violation. Section 185 of the Criminal Code, which criminalises false publication "which is likely to injure the reputation of Ghana or the government", has for some time now generated much debate as to whether it is reasonably required within the meaning of Article 164 of the constitution, which puts a limit on press freedom. He suggested on the other hand, that the criminal law of libel, which puts a person in jail when he could be made to pay adequate compensation to an aggrieved person, cannot be said to be reasonably required in terms of Article 164 of the constitution. He, however, said where a public officer is defamed in the exercise of his public duties, it will not be right for him to be put to the expense of resorting to a civil action to safeguard his reputation. Mr Bimpong-Buta said the state should, in that regard, intervene by criminal prosecution with the view to seeking the imposition of a fine as against a jail term. Mr Bimpong-Buta said generally, in determining whether a law such as criminal libel or sedition is reasonably required as a limitation on freedom of speech and the press, the Supreme Court must resort to a "balancing exercise" by espousing both the interests of society on the one hand and that of the individual on the other.

If the courts interpret both existing and future legislation, creating limitations and impediments on the enjoyment of fundamental human rights and freedoms, they will be promoting good governance aimed at socio-economic, political and cultural development in Ghana, he said.

He further suggested that in carrying out the balancing exercise the judiciary must be able to distinguish between a publication, which constitutes criminal libel or sedition from one that constitutes constructive criticism of government and even the courts by the media.

Mr Bimpong-Buta, who described freedom of speech and expression as an "indispensable requirement for democratic governance", explained that the mere fact that a publication seeks or is likely to undermine public confidence in the government should not necessarily attract criminal sanctions. On contempt of court, he appealed to judges of the superior courts to sparingly use their "undoubted power to commit editors and newspaper commentators for the contempt of scandalising the courts" for the sake of "our infant and fledgling democracy." Mr Bimpong-Buta said elaborate provisions in the 1992 constitution would be meaningless unless constitutional law claims and disputes are determined expeditiously. In that regard, he suggested the creation of a special constitutional court division of the Supreme Court to hear and determine constitutional cases as expeditiously as possible.

He pointed out that long and protracted delays in the delivery of justice constitutes a denial of justice and called for prompt delivery of judgements and rulings and the reasons within the shortest possible time, preferably not more than a month after the conclusion of each case.

"The credibility and public perception of the courts as the fountain of justice would be enhanced by quick delivery of judgements". He called on the Rules of Court Committee to come out with the "long overdue rules of court, regarding the practice and procedure of the superior courts relating to the enforcement of fundamental human rights and freedoms guaranteed under the constitution". Mr Bimpong-Buta said the judiciary has a specific role to play in the promotion of good governance under its judicial power provided under the constitution.

He observed that "the constitutional provision aimed at ensuring the independence of the judiciary would not be effective unless the judges themselves, by their decisions, display competence, integrity and knowledge of the law.

"It is only when members of the bench are independent and competent that they can effectively contribute to the observance of the values inherent in a free and democratic society." Mr Bimpong-Buta welcomed as a "progressive constitutional development" the invoking of not only the letter but also the spirit behind the 1992 constitution in resolving constitutional and political questions, citing the case on the celebration of the 31st December coup as an example. He said this would ensure the sustenance of the fourth attempt at a democratic and constitutional system of government.

He commended the judiciary for making "some appreciable and effective contribution to the development and sustenance of democracy in Ghana", but urged the courts to "maintain some consistency in the interpretation of the constitution". Mr Bimpong-Buta, pointed out that co-operation has always been a central feature of democracy, and the judiciary must encourage co- operation between government and the media. He said there should also be co-operation between the judiciary itself and the government to promote democratic governance. Democratic governance, he said, must have the attributes of principle of accountability, need for reconciliation in all aspects of national life.

The promotion of national consensus, establishment of the rule of law and the enforcement of fundamental human rights and freedoms, are other attributes.

Dr S. K. B. Asante, Vice President (Arts) of the Academy, noted that when the "awesome power" of the judiciary is properly handled and nurtured imaginatively it can strengthen and nourish constitutionalism. In this regard people should be concerned about the manner in which judicial power is wielded. "awesome power" of the judiciary is properly handled and