Media injustice: The unquestioned bane of Article 19

At the heart of Ghana’s criminal justice system lies the often cited and well-approved principle that every person is presumed innocent until proven guilty by a court of competent jurisdiction.

This principle is of such importance that the framers of the 1992 Constitution did not fail to embrace it in no uncertain terms. Clearly, it was found as a fundamental sine qua non to form part of the entrenched provisions of chapter five (5) of the said Constitution.

The writer of this piece seeks to argue that it is time for parliament to enact a law regulating the conducts of the media in breach of the rights of arrested or accused persons. The Supreme Court can also make a definite pronouncement on article 19(2)(c) of the 1992 Constitution, when offered the opportunity, that the exhibition of arrested persons in state-regulated media outlets constitute a breach of a person’s inalienable right to fair trial and as a result, may lead to a serious unfair consequence on their guaranteed presumption of innocence.

For purposes of understanding and easy reference, relevant portions of article 19 are worth producing. It states:

“19 -

(1) A person charged with a criminal offence shall be given a fair hearing within a reasonable time by a court.

(2) A person charged with a criminal offence shall -

(c) be presumed to be innocent until he is proved or has pleaded guilty;

(d) be informed immediately in a language that he understands, and in detail; of the nature of the offence charged;

(e) be given adequate time and facilities for the preparation of this defence;

(3) The trial of a person charged with a criminal offence shall take place in his presence unless;-

(a) he refuses to appear before the court for the trial to be conducted in his presence after he has been duly notified of the trial; or

(b) he conducts himself in such a manner as to render the continuation of the proceedings in his presence impracticable and the court orders him to be removed for the trial to proceed in his absence..”

The principle of presumption of innocence is an indispensable establishment within the criminal justice system and it underpins the basic concept of individual liberty under the Constitution. The US Supreme Court has had the occasion to firmly place this principle in its jurisprudence. In the case of Coffin v. United States, 156 U.S. 432 (1895) decided on March 4, 1895, the court stated that “the principle that there is a presumption of innocence in favour of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law…..”.

The principle has gained worldwide acceptance at all levels. For example, the UN Declaration of Human Rights, Article 11(1) provides that:

Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

The same principle is re-stated by Article 7(1)(b) of the African Charter on Human and Peoples’ Rights. Article 19(2)(c) of the Constitution(supra) thus reaffirms the principle as captured in the UN and AU human right declarations.

Indeed, the Ghanaian courts have been determined to guard this fundamental principle and to oppose every attempt by anybody to whittle same down. There are a plethora of cases that affirm this. In the recent decision of the Supreme court in the case of Francis Yirenkyi v. The Republic No. J3/7/2015 [Unreported], the court, speaking through Dotse JSC stated that

“…it is a cardinal constitutional principle, embedded in article 19 (2) (c) of the Constitution 1992, that a person is presumed innocent until the contrary is proved in court or he himself has pleaded guilty”.

The same principle was affirmed and applied to strike down section 96(7) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) in the case of MARTIN KPEBU (No. 2) v. ATTORNEY GENERAL [2015-2016] 1 SCGLR 171.

In spite of the existence of this well-guarded principle, the Ghanaian media houses have taken it upon themselves to flout the constitutional provisions by exposing persons accused of criminal conducts to unfair public judgements. These judgements end up damaging and tarnishing the images of the persons involved beyond that which a civil action in defamation could repair. In fact, the courts have refused to hold such media houses liable in defamation suits.

In a recent High Court decision by Justice UUTER PAUL DERY in DANIEL ACQUAH AND OTHERS VRS. THE INSPECTOR GENERAL OF POLICE AND T.V. 3 NETWORK LIMITED. (2011) UNREPORTED, the learned justice refused to hold the 2nd defendant television company liable on grounds that the action of reporting, through its network, that the plaintiffs had committed a crime of robbery were not actuated by malice and that they indeed conducted themselves in good faith during the reportage.

The interesting aspect of the case was that it was the police officers, who were legally required to present the arrested persons before a court of competent jurisdiction, who invited the 2nd defendant to capture the accused persons on their news items. As it turned out after the trial, the accused persons were never criminals and that the person who reported them to the police were those who had rather defrauded the accused persons. The accused persons had only sought to confront the complainant and to retrieve their monies from him when the complainant clandestinely called the police on them.

The evidence showed that the reportage caused a great deal of harm on the accused persons. The learned high court judge, however, held the opinion that the laws governing the conducts of the defendants were not breached, hence an action in defamation ought to fail. This was a clear situation where an innocent party was not even given the opportunity to be fairly tried before the proper institution yet were made to suffer severe reputational damages.

An analysis of the case of the recent expose of the investigative journalist Anas Aremeyaw Anas dubbed “number 12” into the conducts of officers of the Ghana Football Association comes to mind. This was a case in which an alleged investigative exercise exposed the corrupt practices of those officers of the Association. It is important to note that corruption is a crime under the Criminal And other Offence Act, 1960 (Act 29). The offence of corruption is provided for under chapter 5 of the Act on offences relating to public officers and to public elections. What this means is that a person cannot be convicted or pronounced as corrupt unless the right procedural requirements are followed.

In the said Anas expose’, the investigative journalist did not only show the video of the corrupt officials. The video was shown at the national conference Centre where people had to be given special invitations to watch. It is interesting to know that the videos were not the entire result of the investigation. It was an edited version wherein the investigative journalist removed portions that were either unnecessary for his purpose or too large to demand more time. People who watched the video came back with much hate and disgust toward the officials captured therein. The said officials did not have the opportunity of viewing the videos and to properly mount their defences where necessary.

It, therefore, did not come as a surprise when the president of the Football Association decided to mount an action in defamation against the makers. The success or failure of the said action is not the focus here. The fact that some persons are now known to be corrupt within the citizenry purely based on the video unfairly prejudices the reputations of the victims. The monetary benefits in such an expose cannot be underestimated. Sponsorships and royalties from the use of media platforms like YouTube bring financial benefits to the investigator.

What happens to the monies made out of the expose’ should a court of law acquit any of those captured in the videos? In that case, will the makers of the video be allowed to keep the proceeds of the reputational damages unfairly suffered by the persons in it?

This must be answered by taking cognizance of the communique issued by the Attorney General as reported by Ghanaweb on the 2nd day of September 2018. In the news, it was reported that the Attorney general was not going to initiate criminal proceedings against the persons captured in the video because there is no sufficient evidence before the office.

This clearly does not match the expectations raised on the minds of the ordinary citizens by the video. The prejudicial effect of these early unregulated and misguided media injustices against persons who are constitutionally presumed innocent do not accord with the tenets of the law. since the announcement by the Attorney General, some section of the country is beginning to question the trustworthiness of the office of the minister of Justice as the impressions created from the one-sided reportage was simply to the effect that all those in the video are jail bound.

Another worrying aspect of the issue is the way in which people arrested on suspicion of committing an offence are reported in the various national news outlets. For example, on the 1st day of March, 2018 citifmonline.com reported that a “24 year old robber, accomplice [have been] arrested with guns”. The prejudicial and unfair nature of this reportage is apparent. Not only does the news seek to portray the persons arrested as armed robbers, even though no court have found them guilty of such offence, but the news also provided images of the said person. These news items capture their information in a manner seeking to conclude that the person involved are indeed armed robbers.

I admit that in some instances, the cases go through trial and the accused persons end up guilty as portrayed by the media outlets. However, we cannot lose sight of those situations in which the criminal trials properly end in favour of the accused persons. It is sad to observe that the media houses do not see the need to report the acquittals in order to clear the persons off their dented images. They leave their victims to their fate and some of them have to suffer the stigma of society as if there is no law protecting their dignity. The few lucky ones are able to convince some people to clear their misconceptions borne against them through the unfair reportage. Others, however, are made to live with the reputational damages and the consequential stigma for as long as they can suffer.

Conclusion

The writer is of the respectful opinion that a country that prides itself with constitutional democracy should not be a haven of suffering for people who are given the constitutional presumption of innocence. Our laws have been made to abhor mob justice (recently better described as mob injustice- a description from which the writer derives the title of this essay) in the strongest possible way. This abhorrence will be incomplete unless it is linked up with a similar opposition to any attempt to subject arrested persons to any form of reputational and unconstitutional torture. The media outlets cannot be allowed to choose to report, in an unfair manner, the arrest of persons without reporting the progress of the prosecutions and, in some instances, the acquittal of the persons involved.

This also includes the publication of any investigative work that seeks to incriminate persons without first giving the work to the appropriate security agencies for the proper procedure to be followed. Nothing will stop the investigator from publishing the works after the competent authorities find them credible enough to warrant criminal sanctions. This may be a long exercise but we cannot slaughter the rights of citizens at the expense of expediency.

It is, therefore, time for state institutions to arrest this kind of injustice and to regulate the way in which the media flouts the clear constitutional provisions. Though this will not come as an easy cause, it will definitely be a worthy one.