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Resolving the inconsistencies in contempt proceedings

Supreme Court665 The Supreme Court of Ghana

Wed, 2 Jun 2021 Source: Ernest Kyere

Writings on this topic have been non- exhaustive. The age-old common law practice by which contempt proceedings are tried has been greatly criticized as violating the natural justice principle of nemo judex in causa sua.

The endless criticisms made by legal scholars, writers and lawyers all go to say that the silence of the law on this topic is breeding dissatisfaction in the legal fraternity.

This article, thus, does not seek to merely re-echo the cries already made but, to propose ways by which this violation can be addressed in accordance with the law.

We must always remember that the law is not handicapped and as Justice Sowah stated in Tufour v Attorney General , “… the Constitution (and for that matter, the law) is a living organism capable of growth and development …”

Contempt of court

The power of the court to commit people for contempt is said to be the power of the court to protect itself. Having this in mind, it is understandable why the judiciary is not willing to curb the inconsistency of its legal power.

The power of contempt is derived from the age of the King’s rule in England where he exercised his power and jurisdiction over the realms through representatives. In those times, a challenge against the King’s decision was of gross disrespect and a complete impunity .

Thus, the essence of this power was not to enhance the administration of justice but to protect the sovereign rights of the Majesty, the King through the protection of judges and courts.

It is not in dispute whether the power should exist or not but the contention is the extent to which it must exist. Roubury J. stated ‘it seems to me that this jurisdiction of committing contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised, if I may say so, with the greatest anxiety on the part of Judges to see whether there is no other mode which is not open to the objection of arbitrariness, and which can be brought to bear upon the subject’.

The charge for contempt of court may include disobeying a court order, shouting in the court or refusing to answer a court question as a witness. Contempt of court, though having statutory backing, is essentially a common law doctrine.

Natural justice

Natural justice is simply fair play in action. Conventionally, the principle connotes two rules of law. First is the principle that a man should not be condemned unheard. This is known as the rule of audi alteram partem.

The second rule is a judge or decision maker should not act as a prosecutor and a judge in his own case.

The rule can also be understood to mean that a judge should not sit over a case in which he is or may be suspected to be bias. This rule of law is known as nemo judex in causa sua. In the most recent case of Aboagye v Ghana Commercial Bank , the principle has been elevated to a constitutional right and is binding on all adjudicating and administrative bodies, courts or tribunals.

In the case of AG v Ryan, the Supreme Court held that, “It has long been settled law that a decision affecting the legal rights of an individual which is arrived at by a procedure which offends against the principles of natural justice is outside the jurisdiction of the decision-making authority”.

Also, the Supreme Court in the case of The Republic v High Court Kumasi, Ex Parte; Mobil Oil Ghana Ltd (Hagan Interested Party) has held that where a judge makes known his views about an issue he would be called to adjudicate in a very direct manner as to suggest a prejudgment, he is entitled to be disqualified on grounds of real likelihood of bias.

Where does the challenge arise then?

Article 19(12) of the 1992 Constitutions states that “Clause 11 of this article shall not prevent a Superior court from punishing a person for contempt of itself notwithstanding that the act or omission constituting the contempt is not defined in written law and the penalty is not so prescribed”.

Article 126(2) of the 1992 Constitution of Ghana gives the judiciary the power for contempt of court. – “The Superior Courts shall be superior courts of record and shall have the power to commit for ‘contempt to themselves’ and all such powers as were vested in a court of record immediately before the coming into force of the Constitution”.

The phrase “contempt to themselves” has been interpreted by this very same Supreme Court to mean the “court itself” against whom the contempt was made as illustrated in the case Abu Ramandan and Anor v Electoral Commission and Anor.

What this mean is that the judge that committed a person for contempt or the judge against whom contempt was made, is the same judge who is to decide the guilt of the contemnor. The humour, in this practice, is that a person is called to justify himself before the very court that charged him.

This in my view is a great affront to the rule of nemo judex in causa sua and thus defeats the right of an accused to be presumed innocent before trial. In contempt cases, the accused is not tried to determine guilt or not but rather to justify why he should not be punished.

Resolutions/ Solutions the challenge

1) One thing that can be done is that the power to commit for contempt should not be conferred on the judge himself responsible for the committal . If there can be any observance of the nemo judex in causa sua rule, then the adjudication of contempt issues should be vested in a judge other than the judge against whom the contempt was made.

2) This would give light and meaning to the doctrinal basis of the principle as stated in R v Sussex Justice, Ex-parte Macarthy , justice should not only be done, it should manifestly and undoubtedly be seen to be done’.

3) Alternatively, is the call for the jury: The essence of jury trial is ensuring justice and soundness of judgment as it appears to the common man. A purpose which has recently met great criticism by the law author, Daniel Korang in his most controversial book, “Jury Trial in Ghana”.

4) Article 19(2) of the 1992 Constitution states that “A person charged with a criminal offence shall- in the case of an offence other than high treason or treason, the punishment for which is death or imprisonment for life, be tried by a judge and jury.”

The import of this provision is to the effect that, criminal offences of which may include criminal contempt should be done by a judge and jury. It is trite law that in a jury trial, judgments are made by the jury and not the judge. If the jury are made to sit on cases of criminal contempt.

It would preserve the principle of nemo judex in causa sua because the judge that committed one for contempt will not be made a judge of his own case.

Justice Hugo in a dissent in the case of United States v Barnett wrote, “it is high time, in my judgment, to wipe out root and branch the judge-invented and judge-maintained notion that judges can try criminal contempt cases without a jury”.

Conclusion

The controversy on this topic would be different if the law stated its position on the topic by declaring contempt proceedings and not the power itself to be an exception to the nemo judex in causa sua rule.

In the absence of such indication, the rule is an illegality and it falls upon us the citizens of Ghana to fulfil our constitutional obligation in Article 2 of the 1992 Constitution of Ghana to allege such acts.

I wish now to re-state the profound words of Lord Denning, “what is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least.

If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on, and that will be bad for both”.

Nothing stops the Supreme Court from allowing contempt cases to be heard by judges other than the very judge that committed the individual for contempt, as many writers have suggested or alternatively, for such cases to be heard with a jury which I now suggest.

Columnist: Ernest Kyere