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Jul
11

UPDATED: THIS IRKSOME LAW OF ‘CONTMEPT’

UPDATED: THIS IRKSOME LAW OF ‘CONTEMPT’

By CAMERON DUODU

 
The weighty matter of contempt of court, which has come to the fore of our national consciousness because of what happened at the Supreme Court in Accra on 25 June 2013, has, of course, dominated my thinking, too.. I refer, of course, to the 10-day term of imprisonment imposed by the Supreme Court on Ken Kuranchie, editor of the Daily Searchlight newspaper and the three-day term handed to Stephen Atugibah of the NDC communications team.

Atugibah, who had the good sense to grovel before the Supreme Court and in fact “over-apologise” to the panel for his behaviour, has already served his sentence and is now a free man. But Ken Kuranchie is still inside, and the Editors’ Forum of Ghana has now petitioned the Supreme Court panel, on his behalf, to reduce his ten-day sentence, “on humanitarian grounds.” It wold be good for the Supreme Court to hear the editors’ plea, if only because  it appears the executive  is using the SC’s sentence as an opportunity to  ferociously harass Kuranchie by moving him from prison to prison — five in as many day, so far, it is alleged.I also fully support the editors’ appeal not because Kuranchie was right and the Supreme Court wrong, but because in asking for the mitigation of Kuranchie’s sentence on “humanitarian grounds” the Editors’ Forum is asking the Supreme Court for mercy.

And even convicted murderers are entitled to ask for mercy from the judges who have found them guilty, and some murderers do receive mercy at the hands of judges. ..
For with regard to mercy, we cannot describe it better than how Shakespeare’s sagacious creation, Portia, in the play, “The Merchant of Venice”, put it:

The quality of mercy is not strained.

It droppeth as the gentle rain from heaven,

Upon the place beneath.

It is twice blessed.

It blesseth him that gives and him that takes.

It is mightiest in the mightiest…

…Mercy is above [the] sceptred sway,

It is enthroned in the hearts of kings,

It is an attribute to God himself.

And earthly power dost … become like God’s,

Where mercy seasons justice.

“Earthly power dost become like God’s/Where mercy seasons justice!” Say that again!What a lofty phrase! And what a  writer Shakespeare was, to pen it. I recommend his philosophy whole-heartedly to the Supreme Court, for we are all human, and eternal verities (Shakespeare wrote his lines more than 400 years ago!) were laid down to guide all of us through the ages. As a Ga would say to the Supreme Court judges,

Having said that, I must say  that on the issue of this particular contempt of court, I do  not think that  all the sympathy should be  on the side of the respected Supreme Court, especially  when we consider the way it has dealt with some of the more explosive  statements emanating from outside the Court on its proceedings regarding the election petition before it.

For instance, the opinion alleged to have been expressed  by the President of the Republic, Mr John Dramani Mahama, in a speech to party supporters on June 10, 2013, at the NDC’s headquarters in Accra, that he won the polls “cleanly and fairly” and therefore “the Supreme Court will re-affirm that victory, was, if true, far more contemptuous, in any reading,  than what Ken Kuranchie wrote or Sammy Awuku said..

For, let it be noted, Ken Kuranchie has no power in the land comparable to the executive power  of the President of the Republic!

You see,  in theory, President Mahama could use executive power, if he so chose, (1) legally to put “open” surveillance teams on every judge on the Supreme Court panel. This could be done  purely  to intimidate them, for in “open surveillance”, the target or more appropriately, victim, is deliberately made aware that he or she is being watched — 24/7!.

This intimidation could include, theoretically again,  the illegal bugging of their telephones; (2) the President could also legally prevent funds from flowing smoothly to the judicial service – on contrived technical grounds of one sort or another, and subtly let it be known that the funds would flow again if the Supreme Court did what he wanted them to do; and (3) he could legally instruct his party’s parliamentarians to start the complex processes provided in the Ghana Constitution for the removal of Supreme Court judges from the bench, and apply these processes to judges on the panel whom he considers potentially antagonistic to his case. Listen: executive power can be awesome in a centralised administration like Ghana’s.

I cannot speak for him, but I imagine that it was his knowledge of these and other more subtle powers of intimidation, available to the President of the Republic, that made the venerable Mr Sam Okudzeto, former president of the Ghana Bar Association (and a doughty fighter for freedom in Ghana in the late 1970s, through his leadership, with others, of  the Association of Registered Professional Bodies) to condemn Mr Mahama’s statement on nthe election petition case  as “very very unfortunate”.

Said Mr Okudzeto: “The [Supreme] Court is there to find out whether the whole of the electoral process was done properly; whether indeed those who were declared to have won have won; whether indeed there were malpractices in the process….The Court has not come to a conclusion, so how can [President Mahama] be making statements to show that the thing was proper? If that’s the case, then why are we in Court?” Mr Okudzeto wondered.

Now, what one would like mto know is this:  did the Supreme Court judges read the President’s statement? If they did, did they regard it was “proper” for him to say such things about an ongoing case in which he had an interest,  or did they regard it as blatant  “contempt of court” by the President?

It would not be far-fetched for some lawyers to consider the Nahama  speech as more deserving of a contempt charge than the  empty  effusions of the editor of a newspaper like the Daily Searchlight, which has a circulation hardly worth writing home about! It has to be pointed out that  Mahama’s statement, on the other hand, was given the wide dissemination that a presidential statement is automatically accorded by the Ghanaian media.

Indeed, taking account of the failure of the Supreme Court to even acknowledge, publicly,  the President’s apparent  desire to direct it on what to do about his case,  Mr Kuranchie would have been entirely within his rights, had he stopped,  after opining that the attitude of the Supreme Court panel with regard to “contempt” was “selective” He could even safely have pointed out (assuming that he had the language!) that the Supreme Court’s attitude to contemot of itself  was “subjective” rather than “objective”. (No sensible judge would resent being told that objectivity was expected of him, would he?)

But in going on to charge  the panel with  “hypocrisy,  and asking rhetorically  whether what they had done was “justice”, Kuranchie went a shade too far, it can be argued, given the state of the law of contempt, as it exists and must, of necessity,  be obeyed. That all the counsel appearing before the Supreme Court panel pre-endorsed any punishment the panel might wish to impose on those accused of contempt, speaks volumes: all the counsel might have been equally appalled by the tone of the comments made, if not by the raw uncouthness of the language employed.

I cannot understand why Kuranchie’s lawyer, Atta Akyea, didn’t take a cue from the attitude of his “learned friends” (including Addison!)and urge his client to drop his defiant posture. But then, Kuranchie did come across as one of those  ultra-clever people who never take a hint!

Sorry to be personal, but when I began life as a journalist, our newsrooms were like a never-ending seminar. We were  constantly put on our guard about  how to cover the courts: “be accurate; never comment, in your reportage,  on what the judges said; don’t change what the counsel said before the court if they corner you outside the court to try and elaborate on the arguments they had made – or get you  to report arguments they had failed to make in court!! Above all, always remember: a judge can have you legally pulled up before him, and not only you, but your boss, the editor and even HIS boss, the  proprietor, if need be. And he can have all of you detained in prison until you have  “purged” your “contempt”. Yeah, it is that bad.

The law of contempt is so archaic and oppressive. that when I was elected by the Ghana Association of Journalists to be its representative in the Constituent Assembly of 1978-79, I tried to reform it through the new Constitution we were then  writing. I distilled my proposal for an anti-contempt of court law into a simple provision to be enshrined in the Constitution, namely, that “no journalist should be “compelled by any court to reveal his source of information.”

My reasoning was that if a journalist in the dock or in the witness box, refused pointblank to obey  the DIRECT ORDER of a court  to reveal his source of information, because that would amount to a breach of his professional ethics, which enjoin him to safeguard information imparted to him in confidence, that defiance by the journalist would nevertheless constitute a blatant contempt of court. But it would be “contempt” committed in the public interest, especially if the “source” was a whistleblower trying to promote good governance by, for example, exposing corruption or other malfeasance in government. Rendering such a flagrant contempt of court  unconstitutional would cause  other, less blatant, examples of contempt simply fade away out of mheer ridicule, I argued. I mean a journalist has refused to reveal a source, as ordered by a judge, and he is backed by the constitution. On what grounds, then, would a judge jail another journalist who merely said unpleasant things about a judge’s behaviour? When did hard words begin to break bones?

But alas, the Constituent Assembly of 1978-79 was filled with politicians some of whom were waiting in the wings to become the next government. Limann’s prospective Vice-President and his prospective  Defence Minister were both lobbied by me, but they couldn’t have cared less. I deduced afterwards that many of the Assemblymen  were secre4tly apprehensive  that such a constitutional guarantee of freedom of the media might be used to embarrass them, if they went into government. So, they rejected my proposal. If they had accepted it, this current hullabaloo about contempt would never have come about, in my opinion. For the Constitution would have tilted the balance unambiguously  in the direction of freedom of speech.

Therefore, what needs to be done now is for  the contempt of court law to be fully reformed by our Legislature. However, until the reform takes place,  my pragmatic advice to my fellow journalists is (1) always get a good lawyer to read through any controversial stuff you might write about the judiciary, before publication and (2) if you are unfortunate enough ever to be pulled up before a judge for contempt, be as abject in apologising as possible.

For being “kuntaann” [arrogant] before a judge is worthless (1) because judges did not make the law of contempt, but only apply it and (2) in any case, no-one can realistically expect to win a contest in arrogance with a person who is clothed in judicial authority by the state! The scales of justice carry the weight of the state against the individual, man!

It is our own elected representatives in Parliament, then,  who could change the law of contempt  tomorrow, if they wanted to! It is they who should be our target for effective campaigning, aimed at pressurising them to change the oppressive  law and irksome law of contempt

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