Montie 3 - criminal contempt and a recent example from the USA

By Mends Ebo

Ever since the Montie 3 case broke, there have been various discussions surrounding this sordid saga. Prominent legal and constitutional experts have weighed in.

Unfortunately, like almost everything in Ghana these days, the case and the discussions that ensued, took a hyper-partisan tone, making it difficult to soberly reflect on the case and learn from it for our national, democratic/constitutional development.

My interest, as I read almost everything written about this MONTIE 3 case, focused on the lessons to be learned and what could be done differently in future for the betterment of our society in general; the sanitization of our airwaves, decorum in our daily political discourse, respect for our state institutions, respect for the rule of law, fairness and justice, no matter the offence and the perpetrators, etc.

One aspect of the processes adopted in convicting the Montie 3 by the Supreme Court (SC), caught my attention when I read pieces on Ghanaweb by Prof. Kwaku Asare (aka Kwaku Azar), Kofi Ata, who writes from Cambridge UK, and lately former Attorney General Martin Amidu.

And that is, the part that the Supreme Court became Prosecutor, Judge and Jury in this case. Some saw it as the SC exercising its powers as enshrined in the 1992 Constitution. Other argued that, in exercising that authority, the SC should still be guided by due process and the right of individuals brought before any court, even the SC, to be treated fairly.

I write as someone with no legal training whatsoever. I am no lawyer (and I don’t play one on TV). I am therefore handicapped by my inability to make legal links and to quote from relevant clauses of the Ghana’s 1992 Constitution.

Having said all that, I wish to state that, although the term “Fairness” may be relative and our appreciation of same depends on where we stand, I think reasonable people could agree that we know fairness or unfairness when we see it.

In the legal processes, there are clearly defined means to ensure justice and fairness and any significant departure from these established laid down processes and procedures invariably lead to what we could fairly call unfairness or injustice.

I was bothered by the fact that Justices of the Supreme Court, although rightly exercising their powers granted to them under the 1992 Constitution, did not pause for a moment to think about the fact that they were sitting in judgment of a case that they had an interest, even if the laws of the land grant them such powers.

If someone insults, threatens or demeans you or the institution that you lead or head of, is it FAIR that you sit in judgment of the person?

I thought I off base with this concern until a recent case in the United States (in the state of Arizona) caught my attention. In fact, it was a news report on National Public Radio (NPR) I heard on my way to work about a week or so ago.

The United State operates a federal system of Government as we all know. As a result, there are certain areas of national policy that are the sole preserve of the Federal Government. One such area is Immigration. In effect, only the Federal government determines US immigration policy and enforces immigration laws.

The federal government decides who comes into the country, stays and under what conditions or gets deported. The states have no power to determine any person’s immigration status. US Courts have affirmed this Federal authority time and again.

Here comes a well-known anti-immigrant Sheriff in a County in Arizona, who has been arresting Hispanics, mostly, under various guises. A Hispanic organization sues the Sheriff, accusing him (the Sherriff) of racial profiling, and wins in Federal Court. The Court orders the Sherriff, among others, to stop the arrests since he (the Sherriff) has no powers to do that.

It is well known that the reason for these arrests is that the Sherriff suspects these individual to be illegal immigrants. Remember, Immigration status of any person in the US is determined only by Federal officials. The Sherriff defies the Court and after several warnings, the Federal Judge takes a very rather rare decision to cite/charge the Sherriff for Criminal Contempt.

Now comes the interesting part; the Federal Judge refers the case to the office of the US Attorney (Federal Prosecutor’s office) for the area, to investigate and prosecute the Sherriff for the criminal contempt charge. The Judge also defers to a different federal Judge to sit on this impending criminal contempt case.

It was at this point that a “little light bulb” went off in my head. This Judge decides that although the Sherriff had explicitly defied his Court orders, and that he has the powers to deal with this recalcitrant Sherriff, not only does he refer the case to a federal prosecutor, he also refrains from sitting in judgment of this case.

To ensure a fair hearing, he decides that the best thing to do is to let a different Judge handle the case going forward. The Sherriff will get his day in court, potentially prosecuted by an independent prosecutor, a different Judge and he (the Sherriff) gets the full benefit of Counsel and a proper trial, either by a Jury or by a Judge, as is allowed here.

I have simplified the Arizona case only for the purposes of this piece. I have deliberately limited myself to the brief description of the situation, capturing only the essence of my discussion of fairness and justice, two very broad concepts, legally and socially, in this presentation.

I don’t know the differences that exist between US Laws and Ghanaian laws. However, I like this arrangement by the US Federal judge better, because the essence fairness and justice.

Judges are obviously human. They have emotions; fears, anger, the need for self preservation, etc, etc just like all of us. They could seek revenge, if allowed to, even in the performance of their solemn duties. Societies have given Judges enormous powers to sit in Judgment of others. That is the reason why Judges, by and large, are supposed to be above all these human emotions.

The powers conferred on Judges notwithstanding, they are, in the same breath expected to apply societal rules/laws in a very transparent, fair and evenhanded way. Justice, we are told must not only be done but must also be SEEN to be done.

In discussing the MONTIE 3 saga, pre and post pardon, a lot of commentators have often proffered Biblical quotations that imply that not all that is lawful should be done. Most of these quotes were directed at the President, pre and post pardon/remission. Interestingly, very few commentators have aimed these same quotes at the Justices of the Supreme Court.

What would have happened if the MONTIE 3’s case was referred to the Attorney General (AG) to prosecute? What would have been the legal effects/consequences, if the Chief Justices or the Court had just SUGGESTED, without making a Court order, to the AG to investigate and, if warranted, to prosecute the MONTIE 3 criminally?

Would that have amounted to interference with the duties executive branch (having in mind the concept of separation of powers) in this case?

As we build a better democratic system and culture for ourselves, there are bound to be situations like this unfortunate sage. How we deal with such situations, how we learn from them, will go a long way in determining what type of society we eventually end up building for ourselves.