Opinions Sun, 7 Jul 2013

An Open Letter to Professor Asare

I have to praise Professor Stephen K. Asare for his intention of standing up for free speech. Free speech is very important in any modern country. Unfortunately, this professor does not really understand that free speech does not mean irresponsible speech; free speech does not mean disregarding the pillars (Courts) that are supposed to protect free speech. I don’t know of any country that encourages irresponsible speech yet this professor thinks Ghana should allow that.

Not long ago when that beleaguered Ken Agyapong went on radio to encourage Ashantis to kill Ewes and Gas, Professor Asare insisted that Ken Agyapong had the right to say what he said. Now, some people disobeyed the Supreme Court’s directives and the Court held them in contempt and the same Professor Asare has been posting articles all over insisting that the contemnors exercised their rights to free speech. It appears that Professor Asare does not know the meaning of contempt of court. The Lectric Law Library’s Lexicon (go to Lectlaw.com) defines contempt of court as “Any willful disobedience to, or disregard of, a court order or any misconduct in the presence of a court; action that interferes with a judge's ability to administer justice or that insults the dignity of the court; punishable by fine or imprisonment or both.”

Considering elements of the above definition of contempt of court, it is obvious that both Ken Kuranchie and Stephen Atubiga were in contempt of the Court. They disobeyed and disregarded the order of the Court. In addition, Ken Kuranchie obviously insulted the dignity of the Court by saying that the judges are selective and hypocritical.

There are both civil and criminal contempts, and Ken Kuranchie and Stephen Atubiga case is obviously a civil contempt which occurs when the contemnor willfully disobeys a court order. This is also called indirect contempt because it occurs outside the judge's immediate realm and evidence must be presented to the judge to prove the contempt. According to the Lectric Law Library’s Lexicon, a civil contemnor may be fined, jailed or both.

Ghanaians may learn a lot from a similar election petition case in Kenya. During the Kenyan case, the Kenyan Supreme Court through the Chief Justice warned against discussing matters pertaining to the petition outside Court. “The petitioners and respondents, their agents, supporters and advisors are directed to desist from prosecuting the merits of their cases in any forum other than this court,” said Justice Mutunga. When one Mutua remarked on the case, Kenya’s Supreme Court noted that “Mutua’s remarks published in a local daily were reckless and violation of the order issued last Monday.” Subsequently, the Supreme Court, summoned Mutua to appear in court on a date to be notified to him by the Supreme Court Registrar. Mutua apologized to the Court and matters ended there. After dealing with Mutua, Justice Mutunga reiterated the court’s warning on commenting on the cases and said those wishing to do so should wait until the Court has delivered a ruling. (Those interested in the Kenyan case should see Standard Digital of Kenya on the Internet).

Where Mutua showed remorse, Kuranchie showed defiance. It was like, I have insulted the dignity of the Court and so what?

I am surprised that Professor Asare expects the Supreme Court to do nothing as its orders are disregarded. I agree with Haresh Raichuraof India when he writes that it is upto the Supreme Court to see that its orders command respect. In a piece titled, Contempt, Disobedience or Disregard of Supreme Court Orders ought to be Punished more Frequently, Haresh Raichura noted that orders of the Supreme Court are binding on all authorities of India. He went on to note that, “It is contempt to disobey or to disregard orders of the Supreme Court.”

Professor Asare is obvious fighting lost battle, and he can do what he is doing only in Ghana. If he truly believes in freedom of speech then he should be fighting for freedom of speech in his adopted country of US. For example, recently a Texas teen was jailed for making a sarcastic threat online. Not long after the Texas case, a 19-year old Mississippi teen was jailed for threatening to kill people and destroy buildings. According to the Daily Caller News Foundation, Josh Pillault was arrested for threatening to kill people and destroy buildings. Read the following:

The threats were made while he was playing “Runescape,” an online multiplayer fantasy game. Another player began antagonizing him, and eventually told him to kill himself. Irritated, Pillault said he would kill not just himself, but also take out the local high school. Accordingly, federal authorities raided the Pillault home a few days later and arrested him. He has been in jail since October 2012.

The above is what sent the teenager to jail. This occurred at Professor Asare’s back-yard but he is mute over it. This is because he knows that USA will not entertain his nonsense. In fact, if he channels his so-called freedom of speech crusade toward America, the government will pressure his employers to terminate his appointment and he knows that.

Please read the following as well: The Pillault case mirrors the case of 19-year-old Justin Carter, who has been in jail since February due to threats he made over the Internet after playing an online game. When another player called Carter insane, he made a sarcastic comment that he was crazy enough to attack a school. Immediately afterward, he wrote that he was just kidding.

Still, a Canadian woman saw the threat online, and reported it to Texas authorities, who arrested Carter for making threats of a terrorist nature. He has been in jail ever since, and faces an eight-year sentence. Like Josh, Justin celebrated his birthday in jail.

Where is Professor Asare, the crusader of free speech, when these American teenagers need him? Teenagers can be excused if they are irresponsible but can one excuse adults like Ken Kuranchie and Stephen Atubiga when they choose to be irresponsible?

Now, let us turn our attention to Professor Asare himself. He claims to be a Law Professor, and a Constitutional Scholar. That is being disingenuous because he has never taught law. Actually he does not have the qualifications to be a law professor. Professor Asare has a doctorate degree in Accounting and has been teaching accounting for several years when his interest pushed him to acquire a law degree in 2006, merely seven years ago. Per his own CV, the following are the courses he teaches or has taught: Computer Assurance; Principles of Accounting; Intermediate Accounting I and II; Accounting for Managers (MBA); Managerial Accounting; Principles of Auditing; Contemporary Issues in Auditing; Behavioral Seminar in Accounting for Doctoral Students.

It is only in Ghana that a backseat degree in law makes one a Professor in Law. He says he is a constitutional law scholar but he has not published a single article on law. That is not surprising because he acquired his law degree as a matter of personal interest rather than of academic interest. Again, it is only in Ghana that such a person will be considered a constitutional scholar.

The Ghana Bar Association (GBA) has cautioned its members to show circumspection when commenting on the election petition case before the Supreme Court of Ghana. The president of GBA said: “Lawyers [and journalists] are not supposed to run commentaries while the case is going on, with the intention of abusing or influencing the mind of supporters of a particular party and preparing them to accept the results or not. It is against the ethics of the profession and the Ghana Bar Association is worried.”

All the Lead Counsel for the parties involved in the election petition case have jointly made a public statement supporting any disciplinary action the Supreme Court pronounced on ‘the gang of three’ who were summoned by the Court for making alleged contemptuous comments on the matter.

Private legal practitioner, Mr. Sam Okudzeto, a former president of the Ghana Bar Association says he was happy with the Supreme Court ruling in which Daily Searchlight newspaper editor Ken Kuranchie and NDC Communicator, Stephen Atubiga were found guilty of criminal contempt.

Even Otiko Afisa Djaba, the NPP Women’s Organiser, said the Supreme Court was to be commended for stamping its authority in ensuring that sanity prevailed on the airwaves.

I wonder why Professor Asare, a straw person in law, thinks he knows the law better than the nine judges of the Supreme Court; I wonder why a straw person in law thinks he knows the law better than the Ghana Bar Association; I wonder why a straw person in law thinks he knows the law better than the lead counsels for the NPP and NDC.

God Bless Ghana

Maxwell Nimo USA
Columnist: Nimo, Maxwell