Why free speech is a non-negotiable ...

....ingredient for our growing democracy

Nurturing institutions of society is an important aspect of growing a democracy, and encouraging free speech is an important step on that road. Participatory democracy as we aspire to have in our country cannot happen if we are not allowed to exercise freedom of speech in matters relating to all branches of government. Twenty years since we as a nation adopted the 1992 4th Republican constitution as the supreme law of the land, of which freedom of speech is enshrined in it, we are in danger of throwing it away by acquiescing to a back-door gagging process. It should be a matter of concern if citizens worry about expressing their opinions on matters of national importance simply because their views might offend the sensibilities of judges and thus risk possible jail time.

Off course free speech, indispensable as it is in a participatory democracy isn’t an absolute right. It comes with responsibilities, and that is a universal rule so one has to be careful when bellowing from the rooftop their right to speak freely. If an individual went on national radio and alleged without any evidence that a person from one tribe was murdered by persons from a different tribe for no reason other than ethnicity and proceeds to call on the tribe of the victim to rise up in revenge, that will be irresponsible and that individual will have to be brought to account. When Stephen Atubiga threatened mayhem should the Supreme Court rule against the respondents, it really ought to have been a matter for the police to investigate with the option of prosecuting him for inciting violence and threatening public order. The intervention of the justices of the Supreme Court was therefore unnecessary.

After all, the Supreme Court, as the highest court of the land essentially acts as the referee in the ever-present tussle between the executive and the ordinary citizen. In other words, the judiciary acts as a check on executive excesses, which if unchecked invariably translates into a shrinking or reduction of the individual’s liberty and ability to exercise his/her rights. If the Supreme Court, as the ultimate guarantor of our civil rights, which are enshrined in the constitution, of which freedom of speech is included, elects themselves as beyond criticism by individuals, are we not as a society risking our fundamental liberties? Participatory democracy is noisy, and rightly so, because different views should be allowed to be expressed to inform the discourse rather than only the views of a select few. No one wants to be hauled before his eminences and risk jail time without any course for redress. Where does one go to seek redress when the Supreme Court sentences one to jail for speaking out of turn? And speaking out-of-turn is anything his eminences decide is out of turn while also sitting in judgement of it, thus leaving the accused to seek to change the minds of the very people he has allegedly offended. Can the justices’ objectivity be guaranteed?

Our Supreme Court judges are obviously a product of our cultural heritage where authority and deference are synonymous with positions of leadership, almost without questioning. Challenging a leader is frowned upon. It is viewed as disrespectful and a show of contempt. One only has to watch the proceedings against Ken Kuranchie to understand my point. Not only was Ken constantly interrupted by the justices while demanding unqualified apology for his publication, they also did not even see fit to explain their reasons for hauling him before them in spite of his efforts at seeking some clarity. “You want to be a hero huh” (repeated several times) crystallises this view that Ken was only expected to render a grovelling apology, not attempt to exercise his right to explain his point. By their actions the justices seemed intent on asserting that he was being petulant and had no right to think he could challenge their wisdom, however unclear their point was. And that is a worrying point.

This undue emphasis on total respect for the judges, placing them in the pantheon of deity; that their words and actions are sacrosanct and beyond criticism presents an existential risk to our democracy. Judges are not beyond fallibility. They are not endowed with unfettered divine wisdom. Their performance cannot be beyond the layman’s remit to critique. Our society, indeed our underdevelopment as a society is arguably down in large part to our past leaders arrogating unto themselves divine wisdom and infallibility as to place their actions and decisions beyond the ability of others to criticise them, however mediocre and shambolic they truly were.

Important a role as the judiciary plays in a democracy, what it definitely is NOT is being above the law. The court, as an institution is still staffed by human beings, who are also subject to the same kinds of emotions that lesser beings experience. While training and years of experience on the bench enables judges to develop better perspectives on issues, they are nonetheless human beings who may not always be able to deliver the unvarnished truth without some influence of personal biases. Judges’ decisions are regularly overturned by higher courts on various grounds. However it is dressed up in explanation, the fact of reversing a judicial ruling is ipso facto recognition of fallibility on the part of the person (judge) or institution (judiciary) for which the system should be able to deal with without unduly trampling on citizens’ rights.

There is also a contradiction at the heart of our democracy, which this case has helped to unravel. We are able to criticise and even mock our political leaders, which is a good thing. The same apparently cannot be said of our judges and/or their actions in the course of doing their job. Every thriving democracy needs a healthy dose of disdain for the politicians who run the show. The growth of political satire in the West has gone hand in hand with the deepening of participatory democracy because politicians have been made to realise that however seriously they may take themselves, they remain at the service of the electorate and so they could not take themselves too seriously or risk the ire of their electors. Judges are however not elected in our democracy. They are appointed, and at the Supreme Court level, they are appointed by the president. Does it follow from this that because they are not elected they are exempt from the normal rules of critique? The answer is a resounding NO. They are obliged to ignore the sound and fury raging around them to dispense justice as they see fair without being too sensitive to criticisms of their rulings.

I have heard that the laws of contempt in Ghana are so broad and wide in spectrum that judges effectively have free reign on what they may deem as contempt of court, and with that administer what they may regard as appropriate justice. The scary thing is that such dispensation of justice is akin to God’s justice as any request for redress is virtually non-existent, particularly if dispensed by Supreme Court justices. At least in lesser courts, a long jail term may be appealable to a higher court. If the judiciary is to be powerful enough to be a counter-weight to executive power grab, then it has to be appropriately empowered by the constitution. By the same principle of investing sufficient power into any institution of state to ensure its effectiveness, there is also the need to ensure that the same institution does not then become too powerful as to become a law unto itself.

Judges allowing themselves to be caught up in the drama around the process of delivering justice risks making them an active player rather than the conduit for justice, which essentially is their raison d’être. In a paradoxical sense, that even undermines the aura and deference traditionally accustomed to the bench as they risk being seen as a political player. The judges, particularly the Supreme Court justices should not be seen and should not regard themselves as above criticism or even reproach. After all, enshrined in the constitution is the possibility of impeaching a Supreme Court justice. However remote a scenario that is, its availability is recognition of the fallibility of Supreme Court judges and that is an affirmation of their essential humanity subject to all the frailties of the human species. We sell ourselves short and undermine our own democracy if we acquiesce in a process that places certain category of people, however high their class, beyond criticism. And criticising is essentially an exercise in free speech, the one indispensable ingredient our growing democracy needs above all.

I happen to be in favour of a situation where we err on the side of free speech rather than endure the risk of judiciary-inspired cowardice. With time institutions grow stronger and with that effective ways of dealing with inevitable excesses. The opposite, i.e. curtailing free speech in deference to the judiciary or any branch of government does not hold the prospect of any brighter future for the country on its path to development. The absence of free speech stunts critical analysis and with that come poor choices and a people easily fed on lies and half-truths by politicians and other officials.

To have a situation where judges elevate a legitimate issue of respect for the court and administration of justice to the level whereby they simply display the symptoms of judge-itis,(the situation where a judge goes pompous), then the greater good of justice for the ordinary person is seriously imperilled. Once citizens are too cowered into exercising their right to free speech, then the skidding into dictatorship would have began, and stopping progress become more difficult with each metaphoric inch covered.