The 2012 election petition in retrospect

POST VERDICT COMMENTS AND CONTEMPT OF COURT:

The 2012 election petition in retrospect

After the Supreme Court pronounced its verdict on 29th August, 2013, one would have thought that every well-meaning Ghanaian will be grateful to God and the court and will wish Ghana well in her bid to deepen her incipient democracy. It is therefore immensely unfortunate that some individuals, and most regrettably some lawyers, have indulged in commentaries that have the unworthy effect of subjecting the administration of justice to serious contempt, disrepute vilification and disparagement. The right of an individual or a group of persons or parties in a case to criticize the judgment of the court cannot be taken away from them and the public. The verdict of the Supreme Court is not beyond criticism. Every Ghanaian, and even non-Ghanaians, can temperately and fairly criticize the verdict without being cited for contempt of court. However, it deserves emphasis that any attempt by anyone – be they lawyers, parties to the case or ordinary Ghanaians – to comment on the verdict in a way as to expose the administration of justice to disrepute and contempt must be condemned.

It is important to state quite clearly that, the courts in Ghana are constitutionally mandated to administer justice. They are not associations of a few individuals, claiming on their own personal account special privileges and peculiar dignity by reason of their position. The Supreme Court of Ghana, whatever may be thought of the separate members composing it, is the appointed and recognised judicial body – the highest court, of course - for the maintenance of the collective authority of the entire Ghanaian community. It derives its force and authority from the common knowledge that it has the whole power of the Ghanaian community at its back. This is a power unseen, but efficacious and irresistible and on its maintenance depends the security of the public.

The Rationale for Contempt of Court

The power given to the court to punish people for contempt of itself has the sole rationale of protecting the dignity, integrity, sanctity and veracity of the court. The dignity of the court is inviolable, to say the least. The rationale of any type of contempt is that the administration of Justice has to be protected. Thus if allegations of partiality, bias, dishonesty, partisanship or corruption, even if true, have the potential effect of lowering the Court's repute and thereby undermining public confidence in the administration of Justice, the offence of contempt will have been committed. Therefore, by singling out one judge of the court and spewing scandalous criticism on him and accusing him of political bias, Tsatsu Tsikata must be condemned as having committed contempt of court. Imputation of political partisanship is contumacious of the judge and the judicial system as it is calculated to bring the court and the judge into contempt and lower the authority of the law, the judge and the court as an impartial and independent organ of State. Equally reprehensible is the statement by Gabby Otchere Darko that the court’s decision is corrupt. What are the particulars of the much-vaunted corrupt practice? Can it be proved? This is regrettable and disappointing!

I need hardly say that the judiciary has never claimed to be above criticism. Indeed the judiciary, like any other democratic institution, must justify its continued existence. This implies that its actions and conduct must be subject to the same measure of public scrutiny as any other governmental institution. Justice, it has been said, is not a cloistered virtue, and those who have the responsibility to dispense justice will certainly not want to live in cloisters. But the important position of the judiciary in any democratic set-up must be fully appreciated.

Performing, as they are called upon to do, the sacred duty of holding the scales between the executive power of the state and the citizenry and protecting the fundamental liberties of the individual, the courts must not only enjoy the respect and confidence of the people among whom they operate, but also must have the means to protect that respect and confidence in order to maintain their authority.

For this reason any conduct that tends to bring the authority and administration of the law into disrespect or disregard or to interfere in any way with the course of justice becomes an offence not only against the courts but against the entire community which the courts serve. Such conduct constitutes the offence of contempt of court, and the courts are vested with the power of dealing with it in a manner that is almost arbitrary. For this reason the power is rarely invoked and only when the dignity, respect and authority of the courts are seriously threatened. It has been said that these powers are given to the courts (and the judges) to keep the course of justice free; power of great importance to society, for by the exercise of them law and order prevail; those who are interested in wrong are shown that the law is irresistible.

No dissatisfied party or political fanatics can be justified or permitted to indulge in commentaries that have the overall effect of eroding public confidence in the judiciary. Therefore, the power of the court to punish for contempt cannot be extinguished by time lapse. The court can punish any person for committing contempt even after it has passed its verdict. It is must be noted that the power of the court to punish for contempt is a necessary guarantee that ensures that the administration of justice is not unduly interfered with, obstructed or subjected to undignified treatment and morass of scorn. The authority of the court is hinged on its power to enforce its decisions and command respect for itself.

Freedom to Criticise Concluded Matters

The law is that after a case is concluded it is given over to criticism and no wrong is committed by any member of the public, including the press and lawyers, who exercise freely the ordinary liberty of criticising temperately and fairly in good faith in private or in public any case which has been concluded by the court. It was said in Mcleod v St Aubyn [1899] AC 549 at 561, PC that "When a trial has taken place and the case is over, the judge or the jury are given over to criticism." The verdict of the Supreme Court has an element of finality until it has been successfully reviewed. However, the verdict of the court is not beyond fair criticism. It is needless to say that those who administer justice are not immune from criticism even if it be quite wrong. It is one thing to criticise: it is quite another to scandalise the Court or a Judge.

The importance of a free press in any democratic society cannot be over-emphasised and this is because no society can thrive and progress if there is no freedom of expression, which is essential to the achievement and maintenance of a democratic society. That is why the press may criticise in matters of public interest but it must be remembered that this right is not absolute, but subject to the limitation that it does not violate the integrity of the court or present a threat to judicial authority. Criticism, however trenchant, is permitted, but criticism ends when scurrilous abuse of a judge or the court begins, and there is a great difference between criticism of a judgment and imputation of unfairness and of partiality to a judge qua judge. Thus even though acerbic criticism of a judgment is permitted, scandalous abuse of a judge qua judge by the imputation of unfairness, partisan bias, dishonesty, corruption and impartiality constitutes contempt of court.

Imputation of Improper Motives is Contemptuous

It is true that once a case has been concluded it is given over to criticism, and provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice and are genuinely exercising their right of criticism and not acting in malice, they are perfectly entitled to criticise any judgment. Members of the public must refrain from imputing improper motives or malice to judges - those taking part in the administration of justice. If any statement is intended to impute derogatory conduct to a judge— such as calling one particular judge a liar, a criminal, one practising judicial dishonesty or political chicanery and a partial judge—then it is contemptuous. Any statement or publication in a newspaper or on air containing scurrilous personal abuse of a judge with reference to his conduct as a judge in a judicial proceeding which has terminated, is a contempt of court punishable by the court: see R v Gray [1900] 2 QB 36; Republic v Mensa-Bonsu And Others; Ex Parte Attorney-General [1995-96] 1 GLR 377 – 531. It is therefore necessary that in our comments after the Supreme Court’s verdict, we shall be decorous and refrain from wild allegations of ill-motive andmalice on the part of judges, for this dents the dignity and independence of the court.

The Reputation of the Court Embodies that of Every Single Judge

The jurisdiction to punish for contempt does not exist for the protection of an individual judge but for the protection of the court, and therefore if the words complained of amount to scurrilous abuse of a judge in his capacity as a judge, and the requisite mens rea (guilty mental state) is present, then the offence of contempt of court would have been committed regardless of the truth or the accuracy of the matter published. In law, the court is not different from the judges. Article 128 (1) provides that the Supreme Court consists of the Chief Justice and not less than nine other Justices of the Supreme Court. Article 134 states that a single Justice of the Supreme Court may exercise power vested in the Supreme Court. Therefore in the circumstances, abuse of one member of the court is an abuse of the rest of the members of the court, and the court itself.

In R v Almon (1765) Wilm 243 at 256, Justice Wilmot said:

"By the word 'court', I mean the Judges who constitute it, and who are entrusted by the constitution with a portion of jurisdiction defined and marked out by the common law, or Acts of Parliament.’Contempt of the Court' involves two ideas; contempt of their power, and contempt of their authority. The word 'authority,' is frequently used to express both the right of declaring the law, which is properly called jurisdiction, and of enforcing obedience to it, in which sense it is equivalent to the word power; but by the word 'authority', I do not mean that coercive power of the Judges, but the deference and respect which is paid to them and their acts, from an opinion of their justice and integrity."

A final judgment of the Supreme Court, whether unanimous or majority is a judgment of that court made up of the composite number of judges on the panel. It is therefore contempt of the Supreme Court itself when scurrilous abuse is heaped on even one member of the panel or on the whole panel or court. It has been held that imputation of lack of impartiality in a judge is necessarily contempt. Just as calling a judge a liar and a criminal, is contempt: see the cases of Republic v Liberty Press Ltd [1968] GLR 123; R v Freeman, The Times, November 18, 1925.

Freedom Of The Press Not To Violate The Integrity Of The Court

It is axiomatic that criticism of the court and of judicial decisions, however rumbustious, whether or not in good taste, and despite inaccurate statements of fact, would not amount to contempt of court and is within the limits of the inalienable right of every individual's freedom of speech, subject of course to the proviso that such criticism must be free from any tendency to expose the administration of justice to disrepute: Republic v Mensa-Bonsu And Others; Ex Parte Attorney-General [1995-96] 1 GLR 377 – 531. Freedom of expression is essential to the achievement and maintenance of a democratic society. Accordingly, the press might criticise in matters of public interest. That right is however not absolute but subject to the limitation that it does not violate the integrity of the court or present a threat to judicial authority. Freedom of speech must be exercised responsibly.

Free speech carries with it duties and responsibilities and is subject to conditions and restrictions prescribed by law, including committal for contempt of court when this offence is committed. Committal for contempt is a necessary power given to the courts themselves, and which they are in duty bound to exercise to preserve and maintain the dignity and authority of the courts. To scandalise a judge or the court is rather a tyranny of the press based on twisted notions of liberty and freedom.

Truth Of A Contemptuous Statement Not A Defence

Truth or otherwise of the matter published is no defence in law in the case of contempt of court. In the Republic v Mensa-Bonsu And Others; Ex Parte Attorney-General [1995-96] 1 GLR 377 – 531, in holding that a personal attack on a judge was contemptuous of the court, it was held that: “It seems to me that if the truth were a defence, it would give a platform for the repetition of the offending original scandal and could also be used maliciously to rake up some damaging episode in a judge's past life, which conduct would tend to interfere with the administration of justice, the very mischief which contempt seeks to prevent.”

Conclusions

Any words or statements that personally attack a judge or that create the impression that a particular judge’s judicial reasoning was beclouded by partisan considerations are not only scandalous but are deliberately contrived to erode public confidence in the judiciary – in fact, malice actually permeates those statements! Lawyers must lead exemplary lives by being responsible in their commentaries. Journalists must ensure high professionalism in their reportage.

I can do no more than end with a quotation from one of our most respected, able and revered judges in the person of the late Akufo-Addo CJ in the case of Republic v Liberty Press Ltd [1968] GLR 123 at 137 wherein he ably set out the main principles of the law of contempt. He stated at 137 as follows:

"It must be appreciated by the press and all other freedom lovers that without a judiciary strong, courageous and respected that can effectively protect the freedom which we all love so much, all talk about freedom, whether it be in the lecture room or at Bukom Square, remains no more than a mere metaphysical speculation, and the courts are entitled to look upon men such as are before me today to help them in the acquisition of the requisite strength, courage and respect. One of the surest ways of doing so is to refrain from commenting on proceedings which are pending in the courts. For these constitute some of the most fruitful fields of contempt. There is however no law which prohibits absolutely any such comments, but there is law which punishes if the limits set by law are transgressed, as indeed they have been transgressed in this case."

BY DANIEL KORANG (LL.B)

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