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criminal law - Contempt -
Constitutional freedoms and
protections - Media - Freedom of
expression - Scandalizing the
court - Defying and lowering the
authority of the court -
Bringing the authority of this
court into disrepute.-
Maintaining the independence,
dignity and effectiveness of the
administration of justice.- 1992
Constitution, in Article 127 (2)
HEADNOTES
Scandalizing the court consists
of scurrilous abuse of a judge
or impugning the integrity or
impartiality of a court or a
judge. In this case the 3rd
and 4th contemnors,
willfully, attacked the Chief
Justice, whom they mentioned by
name, and accused her and the
rest of the court of favoring
the plaintiffs while exhibiting
bias against the Electoral
Commission. They alleged that
the Court was motivated by a
desire to assist the opposition)
in the forthcoming elections.
They defied, insulted and
lowered the authority of the
Court when they stated that they
will not accept the decision of
the court on the voters’
register and they incited
listeners in the general public
to reject it. They cruelly and
callously reminded the justices
of the murder of three High
Court Judges on 30thJune,
1982 (a day that will forever
remain in the annals of this
country as a day of infamy).
This was, doubtlessly, intended
to browbeat and prevent the
court from performing its duty
to administer justice as it
deemed fit.
HELD -
The exercise and enjoyment of
rights and freedoms is
inseparable from the performance
of duties and obligations, and
accordingly, it shall be the
duty of every citizen to promote
the prestige and good name of
Ghana and respect the symbols of
the nation; to uphold and defend
this Constitution and the law;
to foster national unity and
live in harmony with others; to
respect the rights, freedoms and
legitimate interests of others,
and generally to refrain from
doing acts detrimental to the
welfare of other persons to work
conscientiously in his lawfully
chosen occupation; to co-operate
with lawful agencies in the
maintenance of law and order In
these regards the contemnors
have failed dismally.
It is on account of the
preceding observations that we
sentence the contemnors herein
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
Judicial Oath
CASES REFERRED TO IN JUDGMENT
intituled Abu Ramadan & Anor v
Electoral Commission & Anor Suit
No. J1/14/2016
Republic v Liberty Press Ltd and
Ors [1968] GLR 123,
Ambard v Attorney-General of
Trinidad and Tobago [1936] AC
322 at 335
lzuora v R (1953) 13 WACA 313 at
316, PC
Parashuram Detaram Shamdasani v
The King-Emperor [1945] A.C. 214
BOOKS REFERRED TO IN JUDGMENT
Legon Society on National
Affairs”, publishers of Legon
Observer
DELIVERING THE LEADING JUDGMENT
S.
A. B. AKUFFO (MS) JSC.
COUNSEL
NANA ATO
DADZIE FOR IST CONTEMNOR APPEAR
WITH KWABENA ADDO-ATTUAH
NANA
ADJEI AMPOFO FOR 2ND
CONTEMNOR
GEORGE
LOH WITH GODWIN TAMEKLO FOR 3RD
AND 4TH CONTEMNORS
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THE RULING OF THE
COURT
---------------------------------------------------------------------------------------------------------------------
S. A. B. AKUFFO JSC.
On 18th July, 2016,
the court convicted the
contemnors herein for contempt
of court on their own pleas and
adjourned to today for
sentencing. As we have decided
to invoke our undoubted powers
to punish the contemnors for
their contempt, we deem it
necessary to explain the reasons
for our decision. That will
clarify for the contemnors, and
in fact the general public and
media owners and practitioners
in particular, why they are
being punished, in the hope and
expectation that valuable
lessons will be learnt by all,
and this nation will be spared
the recurrence of such
reprehensible behavior, which
bodes no one well.
We are very mindful of the
valuable role that the media, as
the fourth estate of good
governance, has to play in
affording the citizenry and the
state valuable information and
fostering national discourse.
However, to whom much has been
given much is also expected and
the constitutional freedoms and
protections guaranteed to the
media in Ghana are intended to
be exercised and enjoyed with
professionalism, good faith and
self-control. Certainly they are
not to be abused wantonly and
contumaciously.
The contemnors were brought
before this Court, by its own
summons, for them to show cause
why they should not be committed
to prison for contempt of court
on three grounds namely;
(a) Scandalizing the court
(b) Defying and lowering
the authority of this court and
(c) Bringing the
authority of this court into
disrepute.
Scandalizing the court consists
of scurrilous abuse of a judge
or impugning the integrity or
impartiality of a court or a
judge. In this case the 3rd
and 4th contemnors,
willfully, attacked the Chief
Justice, whom they mentioned by
name, and accused her and the
rest of the court of favoring
the plaintiffs in Suit No.
J1/14/2016 intituled Abu Ramadan
& Anor v Electoral Commission &
Anor while exhibiting bias
against the Electoral
Commission. They alleged that
the Court was motivated by a
desire to assist the opposition
New Patriotic Party (NPP) in the
forthcoming elections. They
defied, insulted and lowered the
authority of the Court when they
stated that they will not accept
the decision of the court on the
voters’ register and they
incited listeners in the general
public to reject it. Statements
that attempt to dictate the
orders or other dispositions
that a Court should make or
should not make are calculated
to interfere with and obstruct
the course of justice and
thereby bring the authority of
the court and the administration
of justice into disrepute. That
is exactly what the 3rd and 4th
contemnors did when they
threatened to deal with the
judges if, in a motion filed by
the applicants in CM/J/108/2016
intituled Abu Ramadan & Anor v
Electoral Commission & Anor, the
Court delivered a verdict that
displeased them. They cruelly
and callously reminded the
justices of the murder of three
High Court Judges on 30thJune,
1982 (a day that will forever
remain in the annals of this
country as a day of infamy).
This was, doubtlessly, intended
to browbeat and prevent the
court from performing its duty
to administer justice as it
deemed fit.
The attack, which was directed
at the Chief Justice of the
Republic of Ghana and the Apex
Court of the land, amounts to
criminal contempt of the
Judiciary. We are here
confronted with contemptuous
conduct which has the effect of
undermining and eroding the very
foundation of the Judiciary by
shaking the confidence of the
people in the ability of the
court to deliver independent and
fair justice. In this light,
though there is something that
could be said of the
substantively criminal nature of
the threats made by the 2nd
- 4th
contemnors to do harm to High
Court and Supreme Court judges,
that is a matter for a different
branch of government, which,
without need for any prompting,
ought to be alive to its duties
vis-à-vis enforcement of the
criminal law of the land. Our
sole focus in this matter is on
protecting the paramount public
interest in maintaining the
independence, dignity and
effectiveness of the
administration of justice.
Article 125(1) of the
Constitution states that:
“Justice emanates from the people and shall be administered in the
name of the Republic by the
Judiciary which shall be
independent and subject only to
this Constitution.”(emphasis
supplied)
To this end and for the
achievement of the all-important
principle underpinning this
article,
the 1992 Constitution, in
Article 127 (2) provides as
follows;
“Neither the President nor
Parliament nor any person acting
under the authority of the
President or Parliament nor any
other person whatsoever shall
interfere with Judges or
judicial officers or other
persons exercising judicial
power, in the exercise of their
judicial functions; and all
organs and agencies of the State
shall accord to the courts such
assistance as the courts may
reasonably require to protect
the independence, dignity and
effectiveness of the courts,
subject to this Constitution.”
Among the three arms of
government in this country, it
is only in respect of the
Judiciary that the Constitution
has in plain words commanded
every State authority and
persons in Ghana to accord
assistance in protecting its
independence, dignity and
effectiveness. The reason is
simple. In order to sustain the
democratic system of government
established by our Constitution
the Judiciary is the arm of
government that has been given
authority to police the other
arms, i.e. the Executive and
Legislature as well as all
governance institutions. The
Court is, therefore, deserving
of the utmost respect and
reverence if our democratic
enterprise, as a nation, is to
succeed.
In the case of Republic v
Liberty Press Ltd and Ors [1968]
GLR 123, at page 135, the
Court in explaining the
rationale for the power of the
courts to commit for contempt of
court said as follows;
“……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
subject 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.” (emphasis
supplied).
Indeed, it is because the
judicial function is for the
cohesion of society at large
that, even during all the
various periods of military rule
which this country endured in
times past, the courts were
always preserved with their
powers intact. There cannot be
an efficiently run State wherein
all persons could thrive in
peace and security, without an
independent and dignified
Judiciary, operating fearlessly
and competently, beholden to no
one. By the Judicial Oath
prescribed by the Constitution
each judge has sworn to
“…truly and
faithfully perform the functions
of my office without fear or
favor, affection or ill-will;
and that I will at all times
uphold, preserve, protect and
defend the constitution and laws
of the Republic of Ghana. So
help me God.”
This (i.e. our responsibility to
the Almighty God and the
Republic of Ghana) is our
guiding light and it is not the
current Chief Justice and the
other judges that are our
primary concern in this matter.
It is the institution of
Justice.
We are very conscious of the
constitutional right of citizens
to criticize the Judiciary and
hold it accountable to the
people of Ghana from whom
justice emanates. As was said
by Lord Atkin in the case of
Ambard v Attorney-General of
Trinidad and Tobago [1936] AC
322 at 335;
“Justice is not a cloistered
virtue, she must be allowed to
suffer the scrutiny and
respectful, even though
outspoken, comments of ordinary
men.”
In an effort not to be seen as
stifling public debate on the
work of the Judiciary, this
Court has, by and large, been
very circumspect and reticent in
the exercise of its power to
punish for contempt and, has in
recent times, restrained itself
from reacting to certain
commentaries on proceedings
pending in this court, some of
them patently prejudicial and
bordering on contempt of court.
We have been compelled to act in
the instant matter because of
its gross nature in that it bore
all the marks of a calculated
attack on the Judiciary, which
is detrimental to the
administration of justice, and
we would have been reneging on
our Constitutional duty if we
failed to act.
We summoned the directors and
secretary of Network
Broadcasting Co. Ltd because, as
owner of Montie FM, the
company provided the physical
facilities for the contemptuous
statement to be aired to the
public. It is trite law that
where a corporation is held in
contempt of court, it is the
directors and officers who
answer for it, since they
constitute the human face of the
legal entity. Where the contempt
is committed by an
unincorporated body, then it is
the members of the body that
answer for it. Hence in the
case of Republic v. Liberty
Press Ltd (supra), it was
the Managing Director of the
Liberty Press Ltd, the printer
and 28 professors and lecturers
who were members of “Legon
Society on National Affairs”,
publishers of Legon Observer,
who answered for a
publication in that magazine
that scandalized the Judiciary.
It appears that this aspect of
the law on corporate liability
for contempt of court has been
lost on media operators of this
age. The directors and officers
bear ultimate responsibility for
things done in the name of a
media house and, therefore, must
take more than a casual interest
in what is aired from their
station. We are not at all
impressed by the statements by
the officers of the 1st
contemnor who parroted each
other to the effect that prior
to our summons they had not been
paying close attention to what
happens on their radio station
since there is a management body
in charge of its operations.
Indeed, their said statements
were a demonstration of total
irresponsibility since the Board
members of a corporate body are
in charge of policy setting and
direction – that is why they are
called ‘Directors’. We were
indeed not only shocked, but
also saddened to hear each of
them, as well as their Company
Secretary, say that, until a
recording of the offending
programme was played in Court
they had not listened to nor
heard the reprehensible
utterances of the 3rd
and 4th contemnors, despite the
fact that, for a couple of weeks
both the print media and radio
stations of this country had
been full of discussions of the
diatribe that was aired by their
station, Montie FM. Were
they just dissimulating or were
they truly that careless of
their duties; one wonders.
Regarding the owner of the
frequency over which Montie
FM transmits, Zeezee Media Ghana
Ltd, represented by Mr. Harry
Zakour, that is the person who
provided what we may term the
soft facility for the offending
statements to be aired,
consequently, he aided the
commission of the contempt.
Frequencies are allocated to a
country and constitute a very
valuable national resource,
intended to contribute to
uplifting the consciousness of
the citizenry and national
ethos. Those fortunate members
of the public, to whom
frequencies are granted,
therefore, owe a responsibility
to the People of Ghana to assure
that such valuable national
resource is not wantonly
dissipated; they must not allow
the frequencies to be used to
hurt or otherwise jeopardize the
public interest.
The 2nd contemnor
who, as host of the programme,
was expected to moderate
it and keep any obstreperous or
vituperative panelist in line,
rather joined the 3rd
and 4th contemnors
with supporting comments to
denigrate the Chief Justice and
the Court. Moreover, he spurred
them on to ‘open the fire’,
adding his own vicious words to
theirs, in the most
disrespectful and deadly terms.
He was heard, in the recording,
ranting and raging in the most
unmeasured terms against the
Judiciary. That is not the
proper role of the host of a
radio station programme and we
expect that other hosts in other
broadcast networks will learn
from this and stay within
bounds, acting at all times with
the utmost professionalism which
Ghanaian journalist were once
upon a time known for.
As for the panelists, 3rd
and 4th contemnors,
it is clear that when they
entered the studio on the days
in question, they held nothing
back and could not be bothered
by any codes of ethics, decency
and decorum. They completely
forgot that they were on planet
Earth in a country called Ghana
with laws, regulations and
customary rules of etiquette and
decorum. They were totally
reckless and insensitive in
their comments having regard to
the fact that they were speaking
on the eve of the anniversary of
the murder of the three judges,
a very painful and sorrowful
period for most patriots of
Ghana.
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.
In lzuora v R (1953) 13 WACA
313 at 316, PC Lord Tucker
delivering the judgment of the
Board of the Privy Council said:
"… it is desirable to bear in
mind what was said in the
judgment of the Board delivered
by Lord Goddard in the case of
Parashuram Detaram Shamdasani v
The King-Emperor [1945] A.C. 214
at 270] where these words are to
be found: 'Their Lordships would
once again emphasize, what has
often been said before, that
this summary power of punishing
for contempt should be used
sparingly and only in serious
cases. It is a power which a
Court must of necessity possess;
its usefulness depends on the
wisdom and restraint with which
it is exercised…”
We have taken due note of the
ready admission of guilt by all
the contemnors and the apologies
they have rendered in this
Court. We have also taken into
consideration statements made on
the same Montie FM by 2nd
Respondent aimed at purging
himself of the contempt before
appearing in this court. The
main culprits appear to be
somewhat remorseful as they
stand in the dock. The officers
of 1st contemnors
have expressed their revulsion
at what the 2nd, 3rd
and 4th contemnors
said about the Judiciary and
have suspended them from the
radio station. They promised to
put in place policies and
measures to prevent a similar
occurrence on their network.
Four lawyers have also put in
pleas of mitigation for the
contemnors and pleaded with the
court to temper justice with
mercy and that the Respondents
are first offenders who lost
their heads out of excitement
over the liberal nature of the
airwaves we have under the 1992
Constitution.
However, we realize that
reckless attacks on judges of
this court in particular and the
Judiciary in general have become
rampant in recent times and
appear to be escalating in
outrageousness and temerity. We
need to make it universally
unattractive for any person to
indulge in such conduct. Despite
the fact that four persons were
punished for contempt of this
Court during the Presidential
Election Petition hearings in
2013, we have noticed a
resurgence of contumacious
statements about the court that
have the tendency to bring the
administration of justice into
disrepute. We need to remind
people who decide to criticize
the Judiciary that within the
right to publish and transmit,
within the freedom of
expression, there is a line that
ought not to be crossed. This is
encapsulated in the Directive
Principles of State Policy,
Article 41 which states, inter
alia, that:
“The
exercise and enjoyment of rights
and freedoms is inseparable from
the performance of duties and
obligations, and accordingly, it
shall be the duty of every
citizen -
a)
to promote the prestige and good name of Ghana and respect the
symbols of the nation;
b)
to uphold and defend this Constitution and the law;
c)
to foster national unity and live in harmony with others;
d)
to respect the rights, freedoms and legitimate interests of others,
and generally to refrain from
doing acts detrimental to the
welfare of other persons;
e)
to work conscientiously in his lawfully chosen occupation;
i.
to co-operate with lawful agencies in the maintenance of law and
order
In these regards the contemnors
have failed dismally.
It is on account of the
preceding observations that we
sentence the contemnors herein.
(SGD)
S. A. B. AKUFFO (MS)
JUSTICE OF THE
SUPREME COURT
(SGD)
J. ANSAH
JUSTICE OF THE
SUPREME COURT
(SGD)
ANIN YEBOAH
JUSTICE OF THE
SUPREME COURT
(SGD)
A. A. BENIN
JUSTICE OF THE
SUPREME COURT
(SGD)
G. PWAMANG
JUSTICE OF THE
SUPREME COURT
COUNSEL
NANA ATO
DADZIE FOR IST CONTEMNOR APPEAR
WITH KWABENA ADDO-ATTUAH
NANA
ADJEI AMPOFO FOR 2ND
CONTEMNOR
GEORGE
LOH WITH GODWIN TAMEKLO FOR 3RD
AND 4TH CONTEMNORS
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