Tsatsu: The Legal Albatross (Part 2)

Can we comment on cases pending in the courts? Frank Davies, a member of the Council of the Ghana Bar Association, is reported to have said we can’t. “When a matter is under judicial consideration and judgment has not been delivered, that matter is not open to discussion by any body, be you a lawyer of 100 years standing or one year standing. The only vehicle for defence is the court of law. It does not lie in the unfettered digression of anybody to sit on radio and comment on issues pending in the court of law.”

(http://news.myjoyonline.com/news/200810/21224.asp).Mr. Davies does not tell us how he arrives at this conclusion.

Kwame Mfodwo, a Lecturer-on-law at Monash University says Mr. Davis got it wrong. (See http://www.modernghana.com/news/184681/1/osah-mills).Let us find who is right. First, some general comments. The circumstances regarding the conviction of Mr. Tsikata presented an historic occasion for the Ghana Bar Association (GBA) to wake up from its slumber of civic disengagement. To be fair to the GBA, the presidency of Nii Osah Mills marked a turning point. For the first time in so many years I remember hearing Nii Osah Mills on radio demanding the Police Service respect the human rights of people, who have been arrested in a police swoop. I believe Nii Osah Mills was forced to resign in anticipation of the Tsatsu judgment that was delivered on Thursday, October 16, 2008. It would have looked so bad for the judiciary if the GBA believed the Tsatsu trial was unfair but the Supreme Court ruled there was no breach of a right to fair trial or even there were such a breach it wasn’t enough for an order to quash the June 18 judgment of Justice Abban.

Law of Contempt

In 1968, Akuffo-Ado,the father of the NPP presidential candidate, sat on a case of contempt involving some professors and lecturers of the University of Ghana. The academics had published an article complaining about the delay in determining the appeal of one H.K Djaba. They also complained about the methods that were used to prevent Djaba from getting a fair trial. They described the methods as “barbaric and unfair”. Akuffo-Addo in his judgment made an observation that contradicts what Frank Davies wants us to believe. This was what Akuffo Addo said: ‘one of the surest ways of doing so[of not being in contempt] 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…’[Liberty Press: 1968]

You see, Frank Davies and for that matter the Council of the Ghana Bar Association, got it wrong when they forced Osah Mills to resign for allegedly bringing the administration of justice into disrepute! There is no absolute bar to commenting on cases pending in the courts. Indeed, we can comment of such cases with one caveat; let us be decent in our criticism of judges; native intelligence and common sense brewed in the pito bowl demands so! Our judges are vulnerable. They are not supposed to enter the public arena to defend themselves. One of our best SC judges,Mr N.Y.B Adade,had this to say in one case : “it is often not remembered that judges, seem by many as very strong, are in fact the weakest members in the society-we receive blows, we cannot throw any; a factor to be taken into account when a member of the public is inclined to criticize us’[Mensa-Bonsu Case 1995-1996]Poor Abban! You can’t hit back despite all these blows.

I believe Abban got so many things wrong in the Tsatsu Case. She is not the only one. Our Supreme Court has made bigger mistakes. Some of the propositions of law it keeps formulating in the Tsatsu Cases have been just startling. Ten, twenty years hence, some of these judges might be uncomfortable about some of the things they have written as propositions of law.

Why We Need the Law of Contempt

In any civilized country, courts are designed to administer justice according to law. To perform this task effectively and in the process promote the maintenance of a civilized process for resolving disputes, the courts have the power to punish persons for conduct that subverts the judicial function. For example, when you disobey the orders of a court; you engage in conduct in court that undermines the exercise of judicial power or interfere with the administration of justice, you can be punished for contempt. You interfere with or bring the administration of justice when, for instance, you tell people not to obey court orders, when you seek to suggest the courts are a den of hypocritical religious persons, not to be trusted and not be used for the resolution of disputes. It must be serious conduct that seeks to question the legitimacy of the courts, and encourages others to treat the court with contempt or ridicule.

In fact, the power to power for contempt is so wide. In one case ‘contempt’ was defined as ‘any act or conduct that tended to bring the authority or administration of the law into disrepute or into disregard or to interfere with, or prejudice parties, litigants ,or their witnesses in respect of pending proceedings”[Effiduase Stool,1998-9:SC] When you are found guilty of contempt the court may impose a fine or send you to prison. Our laws don’t specify how long you should spend in jail or how much fine you should pay. It all lies in the discretion of the judge.

Remember Lawyer Mensa-Bonsu who is reported to have called the late Chief Justice I.K Abban a “liar”. To call a judge a “liar” is a scurrilous attack on the integrity of a judge. Yet I don’t agree that in a democracy with guaranteed freedom of speech you can punish me for contempt of court for a scurrilous abuse of a judge when the same facility is not provided all of us. Well, the judge can sue for libel or slander. This can be a very effective remedy especially in a property-owning democracy! Remember that even though the NPP government has repealed the criminal libel law (the BNI after its repeal used the repealed law against a person I once represented) the heavy damages some of the courts have awarded in libel cases might show repeal or no repeal “all is the same”. In a property-owning democracy, going to jail might be better than losing property. I can enjoy my property when I survive jail. Yet, the power to punish for contempt is premised on judges doing the right thing according to law: not excluding relevant facts from their judgment ; mis-stating issues or ignoring arguments, in order to make their unpersuasive arguments look consistent and coherent.

However, we need to be careful when commenting on cases so that we don’t “ interfere with, or prejudice parties, litigants ,or their witnesses in respect of pending proceedings”, especially during a trial. That is when there is a hearing involving parties, witnesses and litigants. The Tsatsu Case had nothing to do with a jury trial nor were Osa Mills’ comments made during the course of such a trial . Nor can it be reasonably argued that by saying Tsatsu’s right to fair trial has been violated Osa Mills brought “the authority of the court or administration of the justice into disrepute”. He didn’t tell anyone to ignore any decision that goes contrary to what he had said. How can it be said as the Council of the Bar wants us to believe that his comments brought the administration of justice into disrepute? The reason given by GBA for forcing Osa Mills to resign was patently flawed. The comments he made in no way brought the administration of justice into disrepute.

In many democracies in order to prevent abuse of the power to punish for contempt of court, legislation is passed to guide lawyers and judges as to what remains of the law of contempt. Even in the UK the source of judicial inspiration and ideas for most our judges, a Contempt of Court law has been passed. Left undefined in legislation, the law of contempt becomes subject to abuse by judges etc. Even Parliament cannot be trusted not to misuse its power to punish for contempt. Remember how it sought to use the power against Lawyer Tony Littur . If our democracy is to flourish we need lawyers who are LEGAL ARCHITECTS and measure the law against the values that the law seeks to implement. Legal apeism, without detailed, comprehensive and proper analysis, is what has left our jurisprudence in its sorry state.

We made a big mistake when we assumed that the orientation of some of our “judges of yore” was the same orientation we needed in our attempt to nurture our democracy under the 1992 Constitution. It is like giving me a Pentium 4 computer to work on a Pentium 4 problem set when as a matter of fact I have only Pentium 2 skills. If I mess up, you must take the bulk of the blame. As my employer or principal in the administration of justice, you (the people of Ghana who are the ultimate source of justice) must also take blame for not providing me the appropriate tools, skills and training. This is only a metaphor. In the meantime, let’s pursue decent criticisms of court decisions. As Mrs. Justice Adade once said “at times some of us feel that our judgments are not criticized enough, especially by the legal profession”.GBA and all lawyers , Wake up from your slumber and do what Justice Adade says you should do”. That is how together we can strengthen democracy! Fordham University is reportedly collaborating with our judiciary on proper case management and judicial ethics. I wish the judiciary well!.

Dusuuru Bamba Dusuuru_bamba@yahoo.com