I am not sure how to deal with the politics, free speech and the open legal education on air. The Supreme Court of Ghana passed a four-month jail sentence on two panelists and host of an Accra based radio station.
The jail term came with a ten thousand Ghana Cedi fine. After the court proceedings, the prisoners through their lawyers, presented a petition for pardon to the president of the Republic of Ghana. President John DramaniMahama upon receipt of the petition sought advice from the Council of State and reduced the jail term to one month plus the fine.
Three schools of thought quickly emerged on our airwaves. One group holds the view that the Supreme Court was wittingly harsh of the convicts and presidential pardon was real justice. The second group opined that, notwithstanding the severity of the judgment, the convicts should have served the sentence as sacrificial lambs.
They explained that, there is so much impunity on our airwaves. Insults, vilifications, name callings and media terrorism have gained grounds and they needed to be punished. To them, if the convicts suffer punishment, fair or not, others will learn their lessons and thread cautiously.
The third group praised the Supreme Court for the jail term and wished the sentence was more draconian. Free speech at play? But why are we here?The Montie Trio, as the prisoners have come to be known, were convicted for contempt of court. Contempt is any conduct that tends to bring the authority and administration of law into disrepute or to interfere with or prejudice parties or their witnesses during litigation.
The truth is that, Ghana does not have an elaborate Contempt of Court Act. What exist is an omnibus power granted the courts by the 1992 Constitution under Article 19(12) andArticle 126(2).
To that end, once a judge or a court cites you for contempt, you are judged guilty. The court becomes the complainant,investigator, prosecutor and adjudicator. In their judgment, the Supreme Court in the Montie Trio case stated that “nevertheless, we are mindful that the summary power of the Court to punish for Contempt of Court that has been preserved by Article 126 (2) of the Constitution is almost arbitrary and such awesome power calls for circumspection in its exercise”.Under the current dispensation, the offence of scandalising the court is a mercurial jurisdiction in which there are no rules and no constraints.
What influenced the four-month jail sentence for the Montie Trio? Why were they not jailed 10 days or fined five thousand Ghana cedis as the same court did 2013? The reason for sentencing disparity is in the mind of the judges. Elsewhere, judges in their post-trial press conferences explain how they arrive at some of the decisions.
Under Ghana’s judicial system, judges don’t speak to the press. But our judicial system is not a perfect one. It is fallible and such imperfections are manifest. The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how the system currently functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts.
There are many reasons why citizens should not be imprisoned for scandalising the courts. First, Ghana is a democratic state. Once it is accepted that Ghana is a democracy and that the people are supreme, the reconciliation can only be affected by treating the right of the citizens to free speech and expression to be primary, and the power of contempt to be subordinate.
In other words, the people are free and have the right to criticise judges, but they should not go to the extent of making the functioning of the judiciary impossible or extremely difficult.
Much of our contempt law is a hangover from British rule. Under British rule Ghana was not free and democratic. Also, there was no Constitution containing provisions such as Article 1 which states that ‘The sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution’.How then can the law of those days be applicable today?
Again, scandalising the court, as a criminal offence, is officially dead, in England and Wales; the country of its origin. More so, there is no certainty in the law. What Ghanaians demand is that there should be certainty in the law.
There are two reasons for the uncertainty in the law of contempt. First, there is no Contempt of Courts Act as exists in many countries including England and India. As such, what constitutes scandalising the courts remains unclear; once a judge feel offended or uncomfortable citizens are already prisoners.
Secondly, only a Ghanaian judge can decide what constitutes scandalising the court or what prejudices, or interferes with, the course of justice. What could be regarded as scandalous in one court may not be regarded as scandalous in another court and what could earlier be regarded as prejudicing or interfering with the course of justice may not be so regarded today.
One may ask, do comments by the public (including lawyers, journalists, etc.), or publicity in the media about a pending case prevent, or make very difficult, the functioning of a judge? I think not. A judge should have the composure and inner strength to remain unperturbed and unmoved in any situation.
An honest judge will hardly ever need to use the contempt power in his judicial career. It is my submission that the law of contempt of court can be made certain once it is accepted that the purpose of the contempt power is not to vindicate or uphold the majesty and dignity of the court but only to enable the court to function. The contempt power should only be used in a rare and exceptional situations where, without using it, it becomes impossible or extremely difficult for the court to function. In such situations, the contempt power should not be used if a mere threat to use it suffices.
The contempt power was first stated in England by Wilmot J. in 1765 in a judgment that was, in fact, never delivered (R. vs. Almon).
In that opinion, Wilmot J. observed that this power in the courts was for vindicating their authority, and it was coeval with their foundation and institution and was a necessary incident to a court of justice. Successive courts not only in England but also in other countries thereafter followed the above dictum.
But from where did this authority and dignity of the court come from? In England, it came from the king who, in earlier times, would decide cases himself. It was only subsequently that the judicial function was delegated to judges.
Thus in a monarchy the judge really exercises the delegated functions of the king, and for this he requires dignity and majesty as a king must have to get obedience from his subjects. The situation becomes totally different in a democracy; here the judges get their authority delegated to them by the people.
Hence in a democracy there is no need for judges to vindicate their authority or display majesty or pomp. Their authority will come from the public confidence, and this, in turn, will be an outcome of their own conduct, their integrity, impartiality, learning, and simplicity.
It should be noted that contempt jurisdiction is now very sparingly exercised in countries where it originated from. Thus in Defence Secretary v. Guardian Newspapers (1985) 1 A.C. 339 (347), Lord Diplock observed that “the species of contempt which consists of `scandalising the judges’ is virtually obsolescent in England and may be ignored.”
In recent history, no Ghanaians had served more than one month in prison for scandalising the courts. Many people were therefore shocked to see the Montie Trio sentence to four months in prison at a time when the law of ‘scandalising the judges’ had become ‘obsolete’.
It was therefore appropriate for the president to have granted the Montie Trio remission of sentence. As a result of that action, the jail term was reduced to one month in prison with ten thousand Ghana cedis fine. When the President grants a pardon, a convicted criminal get out of jail free. Any sentence being served at that moment is commuted, or ended early. A pardon doesn’t get rid of a criminal record; but the punishments associated with a conviction are ended. The act of ending a conviction or sentence and sparing a prisoner can be seen as an act of mercy, or of political calculation.
This is one reason why pardons are used less than one might probably imagine; because it’s such a powerful tool and presidents are sensitive to the criticism that may come along with its use. Until such time that a Contempt of Court Act is passed by Parliament, our liberty as citizens remains in the balance.