By Rhinehold Parbey
It is a fundamental principle in a democratic society, like Ghana, that everyone has the right to freedom of expression. This right includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority. However this freedom is not exercised in a vacuum particularly when it borders on the reputation and integrity of the judiciary. As guarantors of justice, the courts are expected to enjoy public confidence if it is to be successful in carrying out its duties. To protect their reputation and maintain the authority and impartiality of the judiciary against destructive attacks, that are essentially unfounded, the exercise of freedom of expression is subjected to restrictions or penalties as are prescribed by law and are necessary in any democratic society.
Arguably and expectedly, such protection of confidence has often come into conflict with ones exercise of his/her freedom of speech. This conflict has become more visible when one considers the decision by the Magistrates and Judges’ Association to suspend hearing cases involving four lawyers pending the determination of the investigations into the assertions by the legal practitioners that judicial corruption in Ghana was no longer a perception but a reality. It would be recalled that these lawyers, Dr Raymond Atuguba, David Annan, Abraham Amaliba and Larry Bimi, were referred to the General Legal Council to substantiate their allegations of corruption against judges which were made at a round-table discussion on the Judiciary and Ghana’s Justice System in Accra, organized by the National Commission for Civic Education (NCCE) as part of its Annual Constitution Week celebration.
As regards the scope of this case the decision to invite the lawyers before the disciplinary committee was not prompted by their professional ability to exercise their legal duties but by statements made at a Civic forum regarding allegation of judicial corruption. Accordingly, the issue complained of is essentially related to freedom of expression, and not by virtue of their competence. The issue therefore is whether or not the Association is justified in suspending hearing cases involving these four lawyers prior to the determination of the matter. Honestly, in writing this article, though I am somehow constrained because the matter is yet to be decided, I feel strongly that I need to exercise my right of free speech by analysing dispassionately whether the judges were right in their decision to suspend the lawyers. For convenience, I will in this article use the term "judge" to embrace every judicial decision-maker, whether judge, lay justice or juror.
The Constitution by Article 21 (1) (a) provides:
All persons shall have the right to freedom of speech and expression, which shall include freedom of the press and other media.
Clearly, there is a prima facie evidence that an interference with the lawyers’ freedom to exercise their right to free speech has been occasioned. Having established this, it is then necessary to examine whether that interference was justified.
The judges appear to be arguing that the suspension is necessary for maintaining the authority and impartiality of the judiciary and for the protection of the reputation or rights of others. By this, the Association seem to be arguing that the lawyers’ critical comments, which were unsupported by any evidence, had sought to give the public the impression that our judges are corrupt. Moreover, it appears from their action that these lawyers had disseminated defamatory statements against the judges and until they provide incontrovertible evidence, they risk losing access to their profession. With the greatest respect for the opinion of the Association, I regret that I am unable to agree with the position which has been reached by the Association regarding the suspension. My view is based on the following considerations:
In the first place, in order to justify the interference of freedom of expression, there must be a ‘pressing social need’. In deciding whether there is a pressing social need, a careful distinction needs to be made between facts and value judgments. It is apposite to note that the existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. Nonetheless, even where a statement amounts to a value judgment, the proportionality of interference may depend on whether there exists sufficient factual basis for that statement. The lawyers insist that the statements made, on the basis of which they have been charged with a disciplinary offence, were expressions of their opinions, i.e. a value judgment, and not statements of fact. They, however, maintain that all the facts underlying their opinion were true and supported by evidence.
Indeed, there is nothing to show that these statements were frivolous or fanciful. Of course, the content of statements, such as those made by Dr Atuguba, must be treated prudently in a situation of the kind described by him. It may also be that certain matters reported by the lawyers were mistaken or arose out of a misinterpretation of the situation. However, it cannot be said that the matters described by them, taken as a whole, were entirely false or simply invented for the purpose of denigrating the judges. While I may agree with the judges regarding the difficulties of establishing the veracity of the various statements made, it is my opinion that the judges cannot overlook the support that the lawyers’ account has relative to the pronouncements of the Chief Justice, Ms Theodora Wood, who has recently made several calls in the direction of addressing this issue of corruption in the judiciary. It is also on record that the late Justice Acquah chaired a committee which toured the country investigating corruption in the judiciary following which a report was submitted to Parliament and a Complaints’ Unit established. If corruption does not exist within the judiciary, why would these justices, of all people, institute measures to address the canker?
Secondly, what is at stake as regards the Association’s decision is the confidence which the courts in a democratic society must inspire in the public. Nonetheless, whilst the Association strive strenuously to maintain such impartiality and authority, democracy being an open system of government in which freedom of expression plays a pivotal role is clearly incontestable. To this end, I am in full agreement with, and reproduce approvingly, the opinion of the European Commission of Human Rights when it states:
'… For the citizen to keep a critical control of the exercise of public power it is essential that particularly strict limits be imposed on interferences with the publication of opinions which refer to activities of public authorities, including the judiciary' (cited in Barford v Denmark).
The lawyers should not have been prevented from criticising the courts only because they were lawyers. Although their profession bestows upon them higher duties in matters of disclosure, they also enjoy the rights and freedoms protected in the Constitution, including those guaranteed by Article 21 (1) (a), just as all other citizens do. Therefore, any interference with their rights must be convincingly justified as it would have been with any other citizen.
Thirdly, it is further submitted that judicial independence and impartiality are issues of great public concern in Ghana, where citizens have little trust in courts and the judiciary. By the statements of these lawyers in such a forum, the public’s attention is drawn to the problem which would serve the interests of justice and the principles of independence and impartiality better than concealing this disgraceful issue. Thus even if the statements in question could be construed as an attack on the integrity or reputation of the judiciary, given that such perception is in the public domain, the general interest in allowing a public debate about the activities of the judiciary, at a Civic forum, weighs more heavily than the interest of the a few judges who may be charting a bad image for the entire judiciary.
Moreover, the judges have added that they will recuse themselves from all cases involving the four lawyers. In a communiqué released to the media by the Association, they outlined the reasons for their recusal as follows:
Until this matter has been satisfactorily resolved, Judges and Magistrates also reserve the right to recuse themselves from hearing cases in which any of these lawyers appears, since Dr. Raymond Atuguba has declared to the world at large that: "...there is nobody in the country who can convince me that judges do not take bribe"
This decision effectively bars these lawyers from practising as lawyers. This is undoubtedly a severe penalty and it must be extremely distressing, not only for these lawyers to have lost access to the profession they have been practising for years, but for the clients they represent as well. It could be logically deduced from the judges’ position that their decision to recuse themselves from hearing cases involving these lawyers is as a result of a conflict of interest occasioned by the sweeping statements of these lawyers. Nonetheless, a juxtaposition of Dr Atuguba’s statement, quoted above, and that of the current Chief Justice’s statement below only exposes the duplicitous position of these judges:
“Allegation of judicial corruption continues to be one of the major challenges facing the judiciary. We have never shirked our responsibility or wavered in our duty in fighting this canker. May I point out that today, as I have done on other occasions, I approach this matter circumspectly given the fact that the evidence does not suggest a wholesale corruption of the entire judiciary…”
Clearly, both statements allude to evidence of corruption in general terms. But whilst the similarity is very conspicuous, the difference is remarkable: the Chief Justice was absolved of any responsibility by being hauled before the General Legal Council and restrained from sitting as a judge following her statement, which also needs to be substantiated, but, sadly and regrettably, these lawyers have been sanctioned by the judges, pending the determination of the matter, on the basis of conflict of interest. Why do I sense a selective justice in this issue? Are we really safe? In fact, I am still struggling to fathom why the clients of these lawyers must be denied their right to Counsels of their own choosing given that the issue in question is already in the public domain. It is my considered opinion that the lawyers’ statements, during the forum, did not constitute disclosure of classified information, but rather opinions inseparable from certain statements of fact.
It must also be underscored that the proportionality of interference depends on whether or not there exists sufficient factual basis for making statement amounting to a value judgment. I say this, with the greatest of respect for our judges, but the issue of corruption is hard to nib in the bud, at least not in the eyes of the public, especially where there have been copious statements and pronouncements by people at the helm of the judiciary. Indeed, this is the strictest available penalty that could be imposed on the lawyers and their various clients. I therefore submit that the Associations’ decision was disproportionately severe on the basis of facts available to support the various assertions.
Finally, even if the Association is right on defamatory grounds, their decision to topple one of the old legal principles, innocent until proven guilty, cannot be sustained. The effect of such a sanction could discourage other lawyers in the future from making statements critical of public institutions or policies, for fear of losing their profession (though temporarily). This effect, which works to the detriment of society as a whole, is likewise a factor which concerns the proportionality of, and thus the justification for, the sanctions imposed on these lawyers, who as I have argued above, were undeniably entitled to bring to the public’s attention to the matter at issue. Public debate on the effectiveness of our judicial institutions is the responsibility of all citizens and any sanction which is likely to undermine such a debate must be exercised proportionately. The Legal Council is within their role to invite the lawyers to provide grounds for such statements. But regrettably, given that the sanction is likely to affect participation in debates of matters of national importance, it is my submission that the Association’s action cannot be justified. With the greatest respect, the Court has a duty in facilitating justice but not to turn justice over its head.
For the afore-mentioned reasons, I consider that this suspension, occasioned by the lawyers’ right to freedom of expression, cannot be regarded as necessary in a democratic society due to the disproportionate nature of the sanctions and is therefore a violation of Article 21 (1) (a) of our Constitution.
Rhinehold Parbey
The author is an Advanced Social Work Practitioner and Student Barrister at BPP Law School, UK. Comments could be forwarded to the author via email: rhineholdp@yahoo.co.uk or by phone: +44 (0) 7961 44 5657
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