By: Kofi Ata
There is a dangerous development slowly creeping into Ghana’s judicial system that if not critically examined, Ghanaians would one day wake up to realise that freedom of speech and free media that are guaranteed under the 1992 Constitution have become luxury and no longer fundamental rights. That development is the animal called “contempt of court”. Last Tuesday, a journalist of the Daily Graphic and the former Executive Secretary of the Narcotics Control Board (NACOB), Mr Akrasi-Sarpong were found guilty of contempt court (see “Former NACOB Boss Convicted”, Ghanaweb, March 21, 2017). This article is analysis of the conviction and the risk of potential abuse by the judiciary in a liberal democracy.
Let me declare that I worked closely with Akrasi-Sarpong in 1980s but this article has everything to do with administration of justice than my previous link with Akrasi-Sarpong. In any case, this is not the first time I am discussing the subject of contempt of court in Ghana (see my articles entitled “Is the Supreme Court Seeking Revenge or Administering Justice, Ghanaweb July 30, 2016 and “The Montie Trio Case: Did Supreme Court Act Unconstitutionally”, Ghanaweb, August 10, 2016).
According media reports, Akrasi-Sarpong disagreed with a court after it granted bail to a businessman, Chief Sunny Ikechukwu Benjy Eke and an alleged accomplice, James Eleke Chukwu, a second-hand clothes dealer in Accra who were accused of smuggling cocaine into the country. The businessman was arrested and remanded in 2013 for allegedly attempting to smuggle 281,604 grams of liquid cocaine with a street value of over $12.5 million into Ghana. The drugs were concealed in a 40-footer container filled with 1,946 boxes of shampoo imported from Bolivia.
The then NACOB boss, unhappy with the bail, is quoted to have said that the terms of the bail were very unfortunate because Chief Eke was known to have jumped bail in Brazil.
The lawyers for the accused, therefore cited the NACOB boss for contempt. Akrasi-Sarpong explained that all international drug agencies were hunting for Chief Eke but could not arrest him until he was nabbed in Ghana. The judge, in using his discretion as required by law, should have considered the past record of the suspect, which was public knowledge. The NACOB boss said the fight against transnational organised crime is not for the security agencies alone but the whole justice delivery system in the country. He warned that if the suspect escaped, nobody should blame NACOB because the board would use meagre state resources to monitor the suspect as “he walks free on the streets of Accra, a situation which he could take advantage of to escape again.”
He further added that while the Judiciary upheld the 1992 Constitution and the rule of law, there was the need to understand that the characters involved in transnational organised crime, such as Chief Eke, could undermine democracy, promote impunity of the private sector against the public sector, engender corruption both in the public and the private sectors, as well as give cause for the rise of fake and wrong role mod¬els and therefore the condition under which the accused was granted bail was not the best, judging from his past record of jumping bail.
According to media reports the presiding judge concluded that Akrasi-Sarpong’s comments as above were meant to derogate the authority of the court that granted bail to the suspects for which he was convicted and sentenced to sign a bond to be of good behaviour, or serve a two-month jail term if he fails to do so. The Daily Graphic reporter who published the said interview of Akrasi-Sarpong was also charged, convicted for contempt and fined Ghc5,000.
If the above media reports are accurate, then, where does contempt of court arises, especially for the journalist, whose only crime was to report what Akrasi-Sarpong said as part of his duty to inform and educate the public? The other question is, there is no further media information on what happened to Chief Eke and Mr Chukwu. Have they been tried and convicted or found not guilty or are they still on bail? Why did a case of contempt of court lasted four years?
From the reports, it is clear that the contempt was that of ‘ex-facie curiae’ (out of court) and not ‘in facie curiae’ (in court). What is not clear is whether it was the same judge in 2013 bail case who also adjudicated on the contempt trial and convicted the contemnors. If that were to be the case, then it raises a fundamental and constitutional question of fairness as the judge would have been the prosecutor and a judge in his own court, which is reserved for serious cases of in facie curiae contempt.
What is this animal called contempt of court? According to the late Lord Justice Denning, contempt of court is conduct which threatens or interferes with the course of justice and includes conduct which disrupts the proceedings. In a leading contempt case, Lord Justice Salmon explained, “the sole purpose of proceedings for contempt is to give our courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented”.
Can it be properly inferred from Akrasi-Sarpong’s comments or disagreement with the judge and the report by the journalist did derogate the authority of the court or did the comment as published threaten or interfere with the course of justice or did it inhibit the power of the court to effectively protect the rights of the public by ensuring that the administration of justice? My view is that, there is no iota of truth to suggest contempt, let alone secure a conviction.
When it comes to the rights of public officials to comment on judicial decisions on maters of serious public interests and disagreement with the decision, Akrasi-Sarpong is not the first and would not be the last. In fact, it is very common in democratic societies. A typical example was the recent UK Supreme Court Brexit ruling on the authority of the Prime Minister to trigger Article 50 without parliamentary approval. The Supreme Court dismissed the government's argument that it has the power to begin official Brexit negotiations with the rest of the EU without parliament's prior agreement.
After the judgement, the Attorney General, Jeremy Wright said the government was "disappointed" by the final decision in its historic battle over who has the right to authorise the start of Brexit. A Downing Street spokesman said: "The British people voted to leave the EU, and the government will deliver on their verdict - triggering Article 50, as planned, by the end of March. Today's ruling does nothing to change that. It's important to remember that parliament backed the referendum by a margin of six to one and has already indicated its support for getting on with the process of exit to the timetable we have set out”.
Comparing what Akrasi-Sarpong was reported to have said in regard to the bail granted by the judge and those of the UK Attorney General and the Prime Minister’s spokesman, I see no difference, except the countries involved.
Of course, I must admit that in the case of Akrasi-Sarpong the substantial case was still pending before court and therefore his comments could have been sub judice (the rule that no one should interfere with legal proceedings which are pending. In practice, this rule is usually used to prohibit publication of matters which are likely to prejudice the right of a fair trial when legal proceedings are pending, or in a more colloquial sense, to prevent “trial by media”. The fact was that Akrasi-Sarpong’s comments and it publication by the journalist had nothing to do with the substantive case but only limited to the bail decision. Even if that was the case, could it be truly concluded from Akrasi-Sarpong’s comments as published by the journalist that it had the potential to prejudice the right to a fair trial or trial by the media? I do not believe that was the case.
What happened to the legal concept of “fair or honest comment” and freedom of expression including free media as a defence? Of course, the principle relates more to libel and defamation cases against publications than contempt of court but they are very similar in this case as the contempt was the direct result of an opinion expressed by one public officer and reported by a journalist.
In the case of the Hong Kong Tse Wai Chun Paul v Cheng  EMLR 31 CFA (HK) Lord Nicholls set out clearly the outer limits of the defence of fair comment as follows: “a comment which falls within the objective limits of the defence of fair comment can lose its immunity only by proof that the defendant did not genuinely hold the view s/he expressed. Honesty of belief is the touchstone. Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it may be, even if it is the dominant or sole motive, does not of itself defeat the defence……” There is no doubt in any rational being mind that Akrasi-Sarpong genuinely and honestly believed what he said.
Lord Nicholls also set out the five tests that must meet fair or honest comment defence. These are that: the comment must be on a matter of public interest; be recognisable as comment, as distinct from an imputation of fact; be based on facts which are true or protected by privilege; explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for her/himself how far the comment was well founded; and one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views.
From the above, there is no doubt that the case that Akrasi-Sarpong commented on and was published by the journalist was not only of huge public interest but had all the other ingredients for the defence of fair or honest comment. So why were they convicted?
Another bizarre aspect of this case was the fact that it was the defence Attorney who cited Akrasi-Sarpong and the journalist for contempt and not the court itself. The question is, was the defence Attorney the prosecutor or the Attorney General and if so, was the court the witness and the judge? Why has the Ghana Journalist Association and human rights NGOs in Ghana kept quiet over the conviction of a journalist for simply reporting what was said by a public officer or carrying out his duties as a journalist? Was there media embargo on the case?
In my view, this case flies in the eyes of liberal democracy with rule of law, freedom of speech and free press. It is unsafe and I urge both Akrasi-Sarpong and the journalist to go to the Appeal court to get their conviction quashed. It’s unsustainable.
Judges have enormous powers in their hands to administer justice and protect individuals from abuse by both state and non-state actors. One of such powers is contempt of court. However, judicial power must be exercised judiciously and not abused. Any form of abuse of power in a democracy by any of the three arms of government (the executive, legislature and the Judiciary) should not be entertained because it is tantamount to replacing military dictatorship with the dictatorship of the ruling class. To convict a public officer for expressing his disagreement on judicial decision that did not scandalise or threaten the court, neither did it interfere with the administration of justice as well as convict a journalist for merely report such comments is not only alien and dangerous to free speech and free media but also to the very foundations of democracy in Ghana. With this conviction, the culture of silence in Ghana could be reintroduced through the back door, though by default of the very institution that is expected to safeguard the 1992 Constitution that gave birth to such fundamental human rights.
Kofi Ata, Cambridge, UK
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