Is Supreme Curtailing Freedom of Expression?

By Kofi Ata, Cambridge, UK

In the wake of the Supreme Court hauling the Deputy Communication Director of NPP before it on Wednesday June 26, 2013 to explain his accusation of the Justices being selective and hypocritical in singling out the Daily Guide and the subsequent invitation to three others to appear before it on July 2, 2013, a number of articles have appeared on Ghanaweb not only attacking the actions and decisions but also the Presiding Justice as well as accusing him or the Justices of threatening freedom of expression and press freedom. In this article, I will briefly examine the right to free speech and press freedom and their limitations with specific reference to Prof Stephen Kwaku Asare’s two articles (“Justice Contempt”, Ghanaweb July 28, 2013 and “Petition to the Chief Justice of Ghana”, Ghanaweb, July 29,2013).

I should point out that, I am not dialectically opposed to all the views expressed by Prof Asare in the two articles, except to say that, I take a different approach to discussing the subject of freedom of expression and or press freedom within the specific context of the current environment in Ghana, and specifically, the presidential petition.

Prof Asare has quoted various legal authorities to support his view that, by their actions, the Supreme Court is either stifling freedom of expression or intimidating the public from expressing their opinions on the petition or their decisions. I need not repeat those authorities, except to re-examine those of Lord Denning and Judge Salmon, which he quoted in both articles and I quote:

“It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.’’ On that same case, Judge Salmon said “the authority and reputation of our courts are not so frail that their judgments need to be shielded from criticism.”

In my view, Asare has misinterpreted or misapplied the above by not taking cognisance of two critical issues that Lord Denning justified the right to freedom of expression and or free press vis-à-vis the offence of contempt of court. I am referring to the first two sentences of the quote. The question we must ask or answer is, are those who have been making comments and or criticising the Justices are doing so “fairly” and “faithfully”?

I am tempted to say that Sammy Awuku might have been fair in saying that the Justices were selective in singling out one newspaper but was he fair in describing that decision as hypocritical? Was he making the comment and or criticisms faithfully? The obvious answer is, absolutely not. All those who have been the subject of the Supreme Courts directives have not commented and criticised the Justices in good faith. They all have both partisan and personal interests in doing so. For example, Sammy Awuku is by association, a party to the petition and therefore he stands to gain from the petition being upheld either by becoming a minister in an Akufo-Addo government or being appointed into some public position. The same is applicable to those from NDC because they stand to lose the opportunities they may be enjoying or hope to enjoy if the party continues to be in government. The same applies to the pro NDC and NPP media because they stand gain by way of advertisement and contracts depending on which party is in government.

Can we also confidently say that the authority and reputation of Ghana’s judiciary are not so frail that their judgments need not be shielded from criticism as Judge Salmon stated? In fact, it is not only the Judiciary in Ghana that is weak but all the three institutions of governance are weak (the Executive, Legislature and the Judiciary). Indeed, almost every institution in Ghana is weak and may not withstand such hostile, erroneous and misleading criticisms which could lead to loss of confidence in the judgement of the Justices. Such loss of confidence could directly lead to supporters of the losing party not accepting the final verdict of the justices and resorting to violent demonstrations and agitations across the country that could trigger conflict in the country and threaten the peace and security of Ghana.

Again, most of the authorities that Asare relied upon relate to comments and or criticisms on the final judgements and not ongoing trials. In fact, my view has been that had Sammy Awuku made his criticism after the final verdict, I would not have faulted him, though those of Atugiba can never be justified whether before, during or after. In effect, because these people have both direct partisan and personal interests in the petition, such criticisms are meant to influence the future actions and omissions of the nine Justices. That in itself is a threat to the independence and impartiality of the judiciary.

In conclusion, whilst I agree with Lord Denning and Judge Salmon, their observations should not be misinterpreted and misapplied wholesale in what is happening in Ghana. Above all, there is the urgent need to take into consideration the current political environment in Ghana into context. A subject I will examine later.

Let me now turn to the concept of freedom of expression and free press. I am not writing an academic paper and therefore for the purposes of this article, space and time, please allow me to skip the theoretical concept of these two freedoms. Instead, I will restrict my discussion to the legal basis of the freedoms and their limitations.

The UN Universal Declaration of Human Rights, Article 18 states “everyone has the right to freedom of thought, conscience and religion;....” Article 29(2) “in the exercise of his/her rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare of a democratic society”. Article 30 “nothing in this declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

Article 19 (2) of the International Convention on Civil and Political Rights also states, “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print in the form of art or through any other media of his choice”. Article 19 (3) sets there-part but very narrow limitations as follows: only to protect the rights or reputations of others, national security and public order and public health morals.

The 1992 constitution of Ghana also guarantees freedom of speech and freedom of expression under Article 21 (1) “All persons shall have the right to – (a) Freedom of speech and expression, which shall include freedom of the press and other media; (refer to Articles 162 &163 for further details) The right to freedom of expression and freedom of the press as enshrined in Ghana’s 1992 Constitution are also qualified under Article 21 (4). “Nothing in, or done under the authority of, a law shall be held to be inconsistent with, or in contravention of, this article to the extent that the law in question – (c) for the imposition or restrictions that are reasonably required in the interest of defence, public safety, public health or the running of essential services, on the movement or residence within Ghana of any person/s generally, or any class of persons; or (e) that is reasonably required for the purpose of safeguarding the people of Ghana against the teaching or propagation of a doctrine which exhibits or encourages disrespect for the nationhood of Ghana, the national symbols and emblems, or incites hatred against other members of the community; except so far as that provision or, as the case may be, the thing done under the authority of that law is shown not to be reasonably justifiable in terms of the spirit of this Constitution”.

From the above, both Asare and I agree that the right to freedom of expression and free press are not absolute but subject very narrow and clearly defined conditions. In other words, both International National laws consider freedom of expression to be the rule and restrictions, the exception. The restrictions are by themselves not open ended but must also meet three tests. The first is that, the restriction must be provided by law; second it must be for protection of a legitimate and overriding interest and finally, it must be “necessary” to protect the interest identified under the second test.

Let’s now apply the above restrictions and tests to what is happening in Ghana. Assuming (because I do not believe the Justices are seeking to restrict freedom of expression) the actions and omissions of the Justices constitute restrictions on the two freedoms, are the restrictions within the spirit of International and National laws and would it pass the three tests?

I have no doubt that if the objective of the Justices is to restrict the two freedoms, then they are doing so to protect the peace and security of the state (that is, national security and public order). I also believe that if partisan comments and criticisms of the case are not limited to what is reasonable and acceptable in a democratic society, the country’s peace and security could be put at risk. Finally, I am of the view that this restriction will meet all the three tests as above. Ghana’s peace and security is provided for by both International and National laws (the Constitution). It is of legitimate and overriding interest and absolutely necessary to protect the peace and security of the state.

I say I do not believe that the Justices are seeking to restrict freedom of expression because Prof Asare is currently in Ghana and has posted some critical articles regarding the petition and even attacked the integrity of the Presiding Justice but he has not been cited for contempt of court. Again, the actions and omissions of the Justices have not stopped public discourse on the petition. On the contrary, the petition and even the treatment of Sammy Awuku and the directives to the three others to appear before them at the next hearing are subject of intense debate both in and outside Ghana. In my candid opinion, the Justices are genuinely seeking to stop biased, partisan and parochial comments and criticisms that have the potential to bring the Supreme Court itself into disrepute and prepare fertile grounds for potential conflict that could threaten the peace and security of the state.

Since Prof Asare is ordinarily resident in the US and may be very conversant with the freedom of expression and free press in the US, let me use the First Amendment to the US Constitution as an example to illustrate how the two freedoms are restricted in the US. The Supreme Court has interpreted the guarantee of freedom of speech and press to provide no protection or only limited protection for some types of speech. For example, the Court decided that the First Amendment provides no protection to speech that constitutes “advocacy of the use of force or of law violation, where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

The Court is also of the view that the First Amendment provides less than full protection to even speech that enjoys the most extensive First Amendment protection and may be subject to “regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Furthermore, even speech that enjoys the most extensive First Amendment protection may be restricted on the basis of its content if the restriction passes “strict scrutiny” (if the government shows that the restriction serves “to promote a compelling interest” and is “the least restrictive means to further the articulated interest”).

It is obvious from the above that even in the one of the most developed democracies the two freedoms could be restricted to stop imminent lawless action that is likely to incite or produce such action. I believe that if the nine Justices are seeking to restrict the two freedoms, then they are seeking to prevent imminent lawlessness in Ghana.

What I am really interested in and are relevant to the issue at stake are the latter sections of the above. These are, “protection may be subject to regulations of the time, place and manner of expression which are content-neutral” and “may be restricted on the basis of its content if the restriction passes “strict scrutiny” The place is Ghana and the time is after the inclusive presidential election that has heightened (political) tension in Ghana.

The above are some of the most liberal of all tests declared by the US Supreme Court as in the case of Schenck v United States (1919). “The question in every case is whether the words used in such circumstances and are of such a nature to create a clear and present danger that will bring about the substantive evils that a State has a right to prevent.” If they do, the speaker shall be punished; otherwise, not. “It is a question of proximity and degree and the character of every act depends upon the circumstances in which it is done”.

The US Supreme Court goes further to elaborate the above as follows: “thus the most stringent protection of free speech would not protect a man in falsely shouting fire, fire in a crowded auditorium and causing panic. By contrast, the same word shouted with same note of alarm but is a less flammable setting, say, in an open green and lush garden would create no clear and present danger and therefore no liability. This is known as the clear and present danger rule and has been applied in cases including protecting attacks of courts and judges.

If we apply the above analogy to the current political situation in Ghana, it is certainly true that there is a clear and present danger of conflict and a threat to the peace and security of the state. The country is divided along political fault lines of NDC and NPP that has been aggravated by the inconclusive presidential election and the subsequent presidential petition. Therefore what could have been ignored in the past could no longer be ignored because of a clear and present danger. For example, if two years ago, someone stood in the middle of Kantamanto Market and shouted fire, fire, no one would have taken him or her serious. But today, let a mad person shout fire, fire in any over overcrowded market in Accra or a city in Ghana, and hell would break loose. That person would surely be arrested for causing false alarm. In other words, the extraordinary protections afforded by the First Amendment carry with them something in the nature of a fiduciary duty to exercise the protected rights responsibly and I strongly believe that is exactly what is being exercised by the nine Justices.

I am all for freedom of expression and press freedom in their utmost but responsible enjoyment of these rights. However, I also believe these fundamental rights exercised without due care and due process can actually threaten the very rights we all enjoy. In fact, I am in agreement with Prof Asare on the need for the judiciary to follow due process to protect the peace and security of the state if in their view, there is potential or imminent treat. In other words, the instant justice dispensed to Sammy Awuku was injustice since he had no fair chance of defending himself. He had no representation let alone a fair trial, yet he was sentenced to being barred from attending the hearings.

However, I disagree with Asare on his approach. His petition though well intended is misguided for a number of reasons. He should have directed the petition to the nine Justices through the presiding Justice. By petitioning the Chief Justice, there is the danger of pitching the nine Justices against the Chief Justice. Should the Chief Justice act on his petition as requested, would that not undermine the authority of the Justices to take independent and impartial decisions? Can the Chief Justice set aside the judicial decisions of the nine Justices? The case of live telecast of the hearing is different from this petition. The Chief Justice’s intervention did not undermine the authority of the Justices because, it had overriding public interest test.

Again, the panel should have been chaired or presided over by the Chief Justice herself, though for some good reason/s she recused herself. Had she presided over the case, how would she have responded to these comments and criticisms and if she had acted in similar faction, who would have Prof Asare addressed his petition to?

I am of the view that, there is no potential or imminent risk to the freedom of expression and free press in Ghana either directly or indirectly from the actions and omissions of the nine Justices. On the contrary, the Justices are right to warn the public to be cautious with their comments and criticism to preserve and protect the peace and security of the state.

We should simply not be swayed by Prof Asare’s ability to used well crafted language, argue his case succinctly and forcefully with case law but we should consider the common good, that is the peace and security of Ghana. I hold my good friend, school and class mate in high regard for his role in protecting the rights and freedoms as well as strengthening democratic institutions in Ghana but on this occasion, I disagree with him on his approach.

Kofi Ata, Cambridge, UK