|
Constitutional law -
Interpretation -
Article14(1)(a), (b), 19(11),
(12), (21) and 126(2) 72 and
296 - 1992 Constitution -
cContempt of court - Whether or
not the exercise of the
prerogative of mercy extends to
conviction for an offence
founded on contempt of court -
Whether the prerogative of mercy
is an affront to the
independence of the judiciary as
conceived under the Constitution
- whether the absence of
regulations disables the
President from exercising the
power conferred upon him by
article 72 of the Constitution.-
Whether or not the President and
the Council of State are by law
required to exercise that
discretionary power in a manner
that is not arbitrary or
capricious. - Whether or not the
President in consultation with
the Council of State to grant
refuse and pardon without
reasons being given for the
exercise of such power- Whether
or not there was a violation of
the principle of judicial
independence by the pesident
therefore his gant of pardon is
void and of no legal effect -
Whether or not whether contempt
of court is acriminal offence
HEADNOTES
On 24th and 29th
June 2016 Messrs, Alistair Tairo
Nelson, Salifu Maase (a.k.a
Mugabe) and Godwin Ako Gunn,
hereafter referred to as “Montie
3” while speaking on Montie FM,
an Accra based radio station
made several disparaging remarks
against the Supreme Court and
some justices of the supreme
Court which are so vile and
disparaging that they are not
worth recounting in this
judgment. On July 18, 2016 the
Supreme Court found the three
personalities to be in contempt
of the Supreme Court and on July
27, 2016 the Supreme Court
sentenced the three
personalities to four (4) months
imprisonment. This was after
their pleas in mitigation had
been heard and considered by the
Supreme Court. Subsequent to the
conviction and sentencing of the
trio, a vigil was held by a
group called the Research and
Advocacy Platform (RAP) to
gather support for a call for
their pardon by the President
under Article 72 of the
Constitution. The RAP also
opened a Petition Book aimed at
collecting One Thousand (1000)
signatures of Ghanaians to serve
as a petition to be presented to
the President to exercise his
powers of prerogative of mercy
in favour of the three (3) under
Article 72 of the Constitution.
Among the signatories were
Ministers of State (some of whom
are lawyers) and other
dignitaries appointed by the
President. Having gathered the
desired number of signatures,
the representatives of RAP on
Tuesday August 2, 2016 presented
a Petition to the President.
Meanwhile a similar petition
seeking the prerogative of
mercy, on behalf of the three
personalities, was also
presented by the legal team of
the three to the President. The
basis for both petitions for the
President to invoke article 72
of the Constitution were that
the three have shown remorse for
their reprehensible acts and
that the sentence imposed by the
Supreme Court was harsh in
relation to the offence
committed. Upon receipt of the
said Petition of signatures and
that from the Lawyers, same were
handed over to the chairman of
the Council of State which body
the President was required under
article 72 of the Constitution
to consult before invoking his
prerogative of mercy. The
Plaintiffs thereafter filed
their separate and independent
writs against the Defendant,
seeking inter alia declaratory
reliefs and an interim
injunction against the President
acting in consultation with the
Council of State from exercising
his powers under Article 72
until the final determination of
the suit. Whilst the writs were
pending, and awaiting
determination, of the
application for interim
injunction, the President
announced through a circular
issued by the Minister of
Communications on the 22nd
of August, 2016 that he has
exercised his prerogative of
mercy in favour of the 3
convicted persons on
compassionate grounds. On the 26th
of August 2016 the 3 persons
were released from prison.
HELD :-
(1)
In the light of the discussions
herein, it is held that the
President’s power under article
72 of the Constitution extends
to and covers convictions for
criminal contempt. Consequently,
the remission of sentence
granted to the convicts cannot
be questioned by this court as
it followed due process. All the
three writs are accordingly
dismissed.
(2) I accordingly agree with the
reasoning and conclusion of my
brother Benin that, criminal
contempt is an offence and
attracts criminal penalties as a
misdemeanour, whether it is
charged under Article 126(2) of
the Constitution or section 224
of Act 29; the consequences are
the same. Consequently, it is an
offence within the meaning of
article 72 of the 1992
Constitution; therefore the
prerogative of mercy extends to
persons convicted of criminal
contempt I will also dismiss
the three writs.
DISSENTING OPINION
(1)In my candid opinion, at the
moment, the last vestige of
semblance of authority is the
Judiciary. Erode the power of
the Judiciary and there will be
chaos in the country. One way
of losing this power is the
relegation or subjugation of
this power of contempt granted
the Judiciary by the framers of
the Constitution in Article 126
(2) I agree in substance with
the discussions of my brother
Benin JSC on the exercise of
discretionary power by the
President vis-à-vis Article 296
of the Constitution relative to
the scope of the powers in
article 72 of the Constitution
1992. Much as I think it is
desirable to have rules and or
guidelines to aid in the
application, scope and extent of
these discretionary powers,
their absence is not fatal
either. Indeed I also think the
guidelines or rules will be
flexible since it is impossible
and inconceivable to provide for
every known exercise of
discretionary power. This is
impossible. Under the
circumstances, since I have
already concluded that the
Presidents exercise of the power
is even unconstitutional, the
lack of discretion for me does
not arise because he followed
the due process. It is in the
exercise of the grant of the
pardon that I think the
President erred in committing an
unconstitutional conduct. I will
therefore hold and rule that the
exercise of the power of grant
of remission of sentence to the
Montie 3, constituted an
unjustified interference with
the Judiciary and an affront to
the constitution.Finally, since
the President in my opinion
acted unconstitutionally, all
other issues are subordinate to
this. I will therefore under
these circumstances grant the
plaintiffs the reliefs prayed
for excluding the injunctive
reliefs which are now moot.
(2) The framers of our
constitution together with the
Consultative Assembly had
adequately considered the
chequered history of our
judiciary and therefore wanted
to entirely free it from such
interference as it has happened
in this case. The President’s
power to pardon should not
therefore in contempt cases be
extended to cover contemnors
convicted by the court under its
inherent jurisdiction and under
Article 126 (2) read in
conjunction with Article 125(3)
of the constitution. As my
esteemed brother Dotse, JSC has
in his usual approach to
resolving such issues discussed
the other areas, I will adopt
same. These are my reasons for
the concurrence of the
dissenting opinion
STATUTES REFERRED TO IN JUDGMENT
1969 constitution
1992 Constitution
Criminal Offences Act, 1960 (Act
29).
Judicial Code No. 268 (Act of
March 2, 1831) U.S.A
Prisons Service Act, 1972 (NRCD
46)
CASES REFERRED TO IN JUDGMENT
Republic v. Special Tribunal, Ex
Parte Akosa [1980] GLR 592.
R. v. London County Quarter
Sessions, ex parte Metropolitan
Police Commissioner (1948) 1 KB
670
Republic v. Liberty Press Ltd.
and Others [1968] GLR 123
AG v. Leveller Magazine Ltd.
[1979] AC 440
Home Office v. Harman [1983] 1
AC 280,
Jennison v. Baker (1972) 1 All
ER 997
Ackah v. Acheampong & Another
[2005-2006] SCGLR 1
Republic v Numapau; Ex parte
Ameyaw II [1998-99] SCGLR 639
Asumadu-Sakyi v. Owusu [1981]
GLR 201, CA
British Airways v. Attorney
General [1996-97] 547
Tetteyga II v. Sarpor {1973}2
GLR 227, CA;
Republic v. Mensah-Bonsu; Ex
parte Attorney General
[1995-96]1GLR 377 SC;
Atta v. Mohamadu [1980] GLR 862.
O’shea v. O’shea [1890] 15 PD 59
Izuora v R [1953] 1 All ER 827,
PC.
Home Office v. Harman [1983] 1
AC 280,
Toledo Newspaper Co. v. United
States 247 U.S. 402 (1918).
State v. Padma Kanta Malviya &
Anor. AIR 1954 All 523.
State v. Schumaker, 519 P 2d
1116 (Kan. 1974).
State v. Schumaker, 164 N.E.408
(Ind. 1928).
Taylor v. Goodrich, (1897) 25
Tex. Cv. App. 114; 40 S.W. 515.
Rodd v. Verage 187 N.W. (Wis.)
830
Re Nevitt, 8th Cir.
117 Fed. Rep. 448.
State v. Magee Publishing Co. 29
N.M. 455; 31 N.M. 276; 242 P.
332 (S. Ct. 1925);
State ex. Rel. Van Orden v.
Sauvinet (1872), 13 AM. Rep.
(La) 115; Tennessee,
Ex parte Helkey (1899) 4 Smedes
& M (Miss) 751.
US v. Grossman, (1924) 1 Fed. (2nd)
941;
Ex parte Grossman, (1925) 267
U.S. 87; 45 Sup. Ct. Rep. 332.
Gompers v. United States, 233
U.S. 604 (1914
Bloom v. Illinois, 391 U.S 194
(1968)
Republic v. Numapau; Ex Parte
Ameyaw and Others (1999-2000)
GLR 283; (1998-99) SCGLR 639;
Republic v. Alhassan; ex parte
Abbey (1989-90) 1 GLR 139;
Gbadamosi v. Mohammadu (1991) 1
GLR 283.
Ex parte Garland 71 U.S. 4
(Wall) 333 (1866) at 334
R v. Secretary of State for Home
Department; ex parte Bentley
(1993) 4 All ER
442;
Burt v.
Governor-General (1992) 3 NZLR
672.
Horticultural and Forestry
Industry Training Board v.
Aylesbury Mushrooms (1972) 1 WLR
190; (1972) 1 All ER 280
Ransford France (No 3) v.
Electoral Commission & Anor
[2012] 1 SCGLR 705,
Prof. Stephen Asare v.
Attorney-General (J1/15/2015)
[2015] unreported,
Crawford v. Spooner, (1846) 6
Moore PC 1 at pp.8-9;
Stock v. Frank Jones (Tipton)
Ltd. Stock (1978) 1 All ER 948
at 951 (HL).
Vickers Sons & Maxim Ltd. v.
Evans (1910) AC 444 at 445,
(HL),
Republic v. Fast Track High
Court, Accra; ex parte Daniel
(2003-2004) SCGLR 364,
In Re Presidential Election
Petition; Akufo-Addo, Bawumia
and Obetsebi-Lamptey (No. 4) vrs
Mahama, Electoral Commission and
National Democratic Congress
(No.4) [2013] SCGLR Special
Edition, 73
Ackah v Adjei-Acheampong & Anor
[2005-2006] SCGLR
Abu Ramadan & Nimako (NO1) v
Electoral Commission & A. G.,
Danso-Acheampong v Electoral
Commission & A. G. consolidated
[2013-2014] 2 SCGLR 1654,
Tehn-Addy v Electoral Commission
[1996-1997] SCGLR 589
Ahumah-Ocansey v Electoral
Commission , Centre for Human
Rights and Civil Liberties (CHURCIL)
v Attorney-General and Electoral
Commission consolidated [2010]
SCGLR 575
Sunday Times v The United
Kingdom [European Court of Human
Rights Application No. 6538/74,
judgment of 26th
April 1979.
Brown v Attorney-General [2010]
SCGLR 183,
Republic v Special Tribunal;
Ex-parte Akosa [1980] GLR 592.
Tuffour v Attorney-General
[1980] GLR 637
Agbevor v Attorney-General
[2000] SCGLR 403
STATE v OTCHERE [1963] 2 GLR 463
MAYOR AGBLEZE DESTINY AWLIMEY
JEAN-CLAUDE KOKU AMENYAGLO VRS
THE ATTORNEY GENERAL & THE
ELECTORAL COMMISSION AND IN THE
MATTER OF AN APPLICATION FOR AN
ORDER FOR COMMITAL FOR CONTEMPT
OF COURT IN THE MATTER OF: THE
REPUBLIC VRS GLORIA AKUFFO
(HON.) JEAN MENSA DR. ERIC ASARE
BOSSMAN SAMUEL TETTEY EX PARTE
MAYOR AGBLEZE DESTINY AWLIMEY
JEAN-CLAUDE AMENYAOGLO WRIT NO.
NO. J1/28/2018 24TH
OCTOBER, 2018
SAM (NO.2) v ATTORYNEY-GENERAL
[2000] SCGLR 305
BOOKS REFERRED TO IN JUDGMENT
Halsbury’s Laws of England, 4th
Edition Reissue, vol. 9(1) para.
402 at page 241
Halsbury’s Laws of England, 4th
Edn. (reissue) vol. 9(1), para.
404 at page 242
DELIVERING THE LEADING JUDGMENT
BENIN, JSC:-
COUNSEL
DR. OWUSU DAPAAH FOR THE
PLAINTIFF IN SUIT NO J1/20/2016.
BRIGHT OBENG-MANU FOR THE
PLAINTIFF IN SUIT NO J1/21/2016.
AKPOTO AMPAW WITH HIM OFOSUA
AMAGYEI (MS) AND PRISCILLA
AKYEAMPONG FOR THE PLAINTIFF IN
SUIT NO J1/23/2016.
GRACE OPPONG, PRINCIPAL STATE
ATTORNEY WITH HER MODESTA LEGIFO,
ASSISTANT STATE ATTORNEY FOR THE
RESPONDENT.
BENIN, JSC:-This
matter calls for the court’s
interpretation of article 72 of
the Constitution, 1992, whether
or not the exercise of the
prerogative of mercy extends to
conviction for an offence
founded on contempt of court.
The court is also called upon to
decide whether the prerogative
of mercy is an affront to the
independence of the judiciary as
conceived under the
Constitution. There is yet a
third issue whether the absence
of regulations disables the
President from exercising the
power conferred upon him by
article 72 of the Constitution.
These are the core issues raised
in this case.
Background facts
On the 29th of June,
2016 three people namely, Godwin
Ako Gunn, Alistair Nelson and
Salifu Maase alias Mugabe,
uttered certain statements on a
talk show broadcast on an Accra
radio station known as Montie
FM, 100.1 FM, which were
believed to be contemptuous of
the Supreme Court, inter alia.
On the 5th of July,
2016, those people appeared
before this Court on a summons
issued by the court for them to
show cause as to why they should
not be held liable for contempt
of Court on the grounds of:
1.
Scandalizing the Court.
2.
Defying and lowering the
authority of the Court.
3.
Bringing the authority of the
Court into disrepute.
The radio discussions concerned
an ongoing case before this
court. Hence the title to the
contempt proceedings partly bore
the title to that case and it
reads: Civil Motion No.
J8/108/2016 Abu Ramadan & 1
other v. Electoral Commission &
1 other. In re 1. The Owner of
the Station-Montie FM 2. Salifu
Maase @ Mugabe 3. Alistair
Nelson 4. Godwin Ako Gunn. That
case became popularly known as
the Montie 3 case and will be so
described in these proceedings.
On the 18th of July,
2016 this Court convicted the
three named contemnors on their
own guilty pleas and on the 27th
of July, 2016 sentenced them to
four months imprisonment each
and fines of GH₵ 10,000 each.
Subsequent to the conviction and
sentence, the convicts on the 1st
August 2016 wrote a petition to
His Excellency, The President of
the Republic of Ghana, urging
him to exercise the prerogative
of mercy under article 72 of the
1992 Constitution in their
favour. This petition was
forwarded to the Council of
State for its advice. By a
letter dated 19th
August 2016, the Council of
State advised that the President
could exercise the Prerogative
of Mercy. By way of a circular
issued by the then Minister of
Communications on the 22nd
August, 2016, the President
announced that he had exercised
the prerogative of mercy in
favour of the three convicted
persons, by remitting part of
the jail term.
The above-mentioned decision of
the President provoked the
current suits before this Court.
In the first suit, one Elikplim
Agbemava, hereafter the 1st
plaintiff, sued the
Attorney-General, described
hereafter as the defendant,
claiming these
reliefs:
1.
On a true and proper
interpretation of articles 72
and 296 of the 1992 Constitution
of the Republic of Ghana, the
power of the President in
consultation with the Council of
State to grant pardons is
discretionary; as such the
President and the Council of
State are by law required to
exercise that discretionary
power in a manner that is not
arbitrary or capricious.
2.
On a true and proper
interpretation of articles 72
and 296 of the Constitution, the
exercise of the power of
prerogative of mercy ought to be
governed by regulations that set
out, in an open and transparent
manner, the grounds and
requirements for the submission
and consideration of
applications for pardon to
ensure certainty, consistency
and fairness in the processes
that lead to the grant of
pardons.
3.
In the supreme interest of the
people of Ghana in whose name
and for whose welfare the
President’s prerogative of mercy
is exercised, on a true and
proper interpretation of
articles 72 and 296 of the 1992
Constitution, the President and
the Council of State shall
exercise the prerogative of
mercy in a judicial manner that
assures the people of Ghana of
some clarity, consistency and
fairness in the process that
leads to the granting of pardon.
4.
A declaration that any decision
by the President in consultation
with the Council of State to
grant or refuse a pardon is not
one to be made on the basis of
the political question doctrine
that can be made without reasons
being given for the exercise of
such power.
5.
Interlocutory injunction to
restrain the President in
consultation with the Council of
State from taking a final
decision on the petition
submitted on behalf of the three
persons convicted for contempt
by the Supreme Court until the
final determination of this
suit.
6.
Any other order or orders as
this Honourable Court may seem
meet.
Relief 5 became moot following
invocation of the prerogative of
mercy to release the three
persons from jail.
In the second suit between
Alfred Tuah-Yeboah, called the 2nd
plaintiff, and the defendant,
Attorney-General, the plaintiff
seeks the following reliefs:
1.
A declaration that upon a true
and proper construction and/or
interpretation of article 72 of
the 1992 Constitution of the
Republic of Ghana, the power of
the President of the Republic of
Ghana to exercise prerogative of
mercy is limited to convictions
for “criminal offences” and does
not include convictions for
“contempt arising from the
inherent jurisdiction of the
Court” under article 126(2) of
the 1992 Constitution and ones
initiated by private persons.
Or in the alternative:
A declaration that upon a true
and proper construction and/or
interpretation of article 72 of
the 1992 Constitution of the
Republic of Ghana, the power of
the President of Ghana to
exercise prerogative of mercy is
limited to criminal convictions
and convictions from contempt
proceedings initiated by the
Attorney General of the Republic
of Ghana only.
2.
A declaration that the grant of
remission of sentence to Godwin
Ako Gunn, Alistair Nelson and
Salifu Maase alias Mugabe who
were sentenced to four (4)
months imprisonment by this
Court based on its own inherent
Jurisdiction under article
126(2) of the 1992 Constitution
for contempt is contrary to
articles 72 and 296(c) of the
1992 Constitution and is
therefore void and of no legal
effect.
3.
An order of the Honourable Court
reversing the remission of
sentence which was granted to
the three (3) persons mentioned
supra and the said convicts be
made to serve the remaining
prison terms.
And in the last suit the
plaintiff, Nana Bediatuo Asante,
described herein as the 3rd
plaintiff, sought these reliefs
against the defendant,
Attorney-General:
1.
A declaration that upon a true
and proper interpretation of
articles 14(1)(a), (b), 19(11),
(12), (21) and 126(2) of the
Constitution 1992, the power in
the Superior Courts to commit
and/or punish for contempt of
court when exercised, is not the
same as a prosecution/trial for
a criminal offence under the
laws of Ghana.
2.
A declaration that by the
combined effect of articles
14(1)(a), (b), 19(11), (12),
(21) and 126(2) of the
Constitution 1992, contempt of
court is not a criminal offence
as constituted and known to the
laws of Ghana.
3.
A declaration that upon a true
and proper interpretation of
articles 14(1)(b), 19(12),
125(1), (3), 126(2) and 127(1)
of the Constitution 1992, the
power to commit and/or punish
for contempt of court has been
vested in the Superior Courts to
ensure the independence of the
Judiciary in its judicial
functions.
4.
A declaration that upon a true
and proper construction of
articles 14(1)(b), 19(12),
125(1), (3), 126(2) and 127(1)
of the Constitution 1992, the
scope of the President’s
prerogative of mercy does not
encompass the power to pardon,
grant a respite for, substitute
a less severe form of punishment
for or remit a punishment for
contempt of court.
5.
A declaration that upon a true
and proper construction of
articles 14(1)(b), 19(12),
72(1), (3), 125(1), (3), 72(1),
(3), 126(2) and 127(1) of the
Constitution 1992, the purported
grant of a remission of the
punishment of the four(4) months
imposed on Salifu Maase also
known as Mugabe, Alistair Nelson
and Godwin Ako Gunn, citizens of
Ghana held by the Supreme Court
of Ghana on 27th
July, 2016 for having acted in
contempt of the Supreme Court of
Ghana, is in excess of the
powers conferred on the
President of Ghana by article
72(1) of the Constitution 1992,
an unjustified interference with
the independence of the
Judiciary and thus, an affront
to the Constitution of Ghana.
6.
An order declaring as null, void
and of no effect the purported
grant of a remission by the
President of the four (4) months
imposed on Salifu Maase also
known as Mugabe, Alistair Nelson
and Godwin Ako Gunn, citizens of
Ghana duly held by the Supreme
Court of Ghana for having acted
in contempt of the Supreme Court
of Ghana.
7.
Any further order(s) as to this
Honourable Court may seem meet.
This Court, in an effort to
resolve overlapping issues
arising from the three suits,
decided suo motu to
consolidate them.
In brief, the plaintiffs contend
that the remission of sentence
that was granted to Godwin Ako
Gunn, Alistair Nelson and Salifu
Maase alias Mugabe (together
referred to as the “Convicts”)
who were sentenced to a term of
imprisonment by this Court based
on its jurisdiction under
article 126(2) of the 1992
Constitution for contempt is
contrary to articles 72 and
296(c) of the 1992 Constitution
and a violation of the principle
of judicial independence and is
therefore void and of no legal
effect.
The Attorney-General’s response
to the plaintiffs’ case, briefly
stated, is that the plaintiffs
have failed to appreciate the
different types of contempt and
that the act of scandalizing the
Court is a criminal offence
within the meaning of article 19
clauses (11), (12) and (21) of
the Constitution for which a
person can be charged, convicted
and sentenced. The defendant
goes further to say that
regarding article 296, at no
point did the then President
breach the said Article or any
other Constitutional provision
in relation to the exercise of
the prerogative of mercy and
that Article 72 has safeguards
which were not abused by the
then President.
Agreed issues
The parties herein agreed on the
following as issues for hearing
and decision:
1.
Whether or not the words
“convicted of an offence” in
article 72 of the Constitution
1992 includes committal and
conviction for the offence of
contempt of court by the
Superior Court under article
126(2) of the Constitution.
2.
Whether or not the prerogative
of mercy of the President of the
Republic under article 72 of the
Constitution, 1992, extends to
and covers a power to grant
pardon to persons, who have been
convicted for contempt of court,
by the Superior Courts under
article 126(2) of the
Constitution, 1992.
3.
Whether or not, if the
President’s prerogative of mercy
under article 72 of the
Constitution, 1992, extends to,
and covers, a power to grant
pardon to persons so committed
and convicted, such power or
prerogative of mercy is
discretionary in terms of
article 296 of the Constitution,
1992 and ought to be exercised
in accordance with article
296(a) & (b) thereof.
4.
Whether or not the exercise of
the discretionary power of the
President in favour of the
contemnors was arbitrary and
capricious.
5.
Whether or not the grant of
remission of the sentence of the
contemnors by the President
constitutes an unjustified
interference with the judiciary
and an affront to the
Constitution.
6.
Whether or not the power of the
President of the Republic of
Ghana to exercise prerogative of
mercy is limited to convictions
arising from criminal offence.
7.
Whether or not the grant of
remission of sentence by the
President to the contemnors
constitutes an abuse of the
President’s discretion.
Consideration of the issues
The President’s exercise of the
prerogative of mercy is provided
for in the Constitution (Article
72). It is in issue whether it
is undoubtedly discretional and
must therefore be exercised in
strict accord with the letter
and spirit of the Constitution
or it is an unfettered executive
power. The Supreme Court has the
power to enquire into the
exercise of this power. Indeed
the exercise of the power has
its roots in the common law
where the courts assumed the
jurisdiction to decide the
question whether or not the
power to exercise the
prerogative did exist or not in
a given case. In the same vein,
this court is called upon to
determine whether the
prerogative under article 72 is
exercisable in matters of
contempt of court; it is a
legitimate question. For, the
exercise of the power to grant
mercy is not an arbitrary
presidential act of grace or
favour, but one that must be
justified in terms of the
Constitution.
Article 72 of the 1992
Constitution under which the
power is exercised provides
that:
(1) The President may, acting in
consultation with the Council of
State-
(a) grant to a person
convicted of an
offence a pardon either
free or subject to lawful
conditions; or
(b) grant to a person a respite,
either indefinite or for a
specified period, from the
execution of punishment imposed
on him for an offence; or
(c) substitute a less severe
form of punishment for a
punishment imposed on a person
for an offence; or
(d) remit the whole or part of a
punishment imposed on a person
or of a penalty or forfeiture
otherwise due to Government on
account of any offence.
(2) Where a person is sentenced
to death for an offence, a
written report of the case from
the trial judge or judges,
together with such other
information derived from the
record of the case or elsewhere
as may be necessary, shall be
submitted to the President.
(3) For the avoidance of doubt,
it is hereby declared that a
reference in this article to a
conviction or the imposition of
a punishment, penalty, sentence
or forfeiture includes a
conviction or the imposition of
a punishment, penalty, sentence
or forfeiture by a court-marital
or other military tribunal. (the
emphasis supplied)
Article 126(2) which
grants the court the power to
commit for contempt unto itself
provides that:
The Superior Courts shall be
superior courts of record and
shall have the power to commit
for contempt to themselves and
all such powers as were vested
in a court of record immediately
before the coming into force of
this constitution.
The parties herein are seriously
contesting the scope and meaning
of article 72 of the
Constitution, thereby making it
a fit case to invoke the court’s
original interpretative
jurisdiction in the light of the
guiding principles set out in
the case of
Republic v. Special Tribunal, Ex
Parte Akosa [1980] GLR 592.
That decision, though it was
determined under the 1979
Constitution, (since abrogated),
is equally applicable to the
1992 Constitution since the
relevant provisions are in
pari materia.
Issues 1, 2 and 6
These issues will be
addressed together. It appears
that emphasis should be placed
on the expression “convicted for
an offence” as appears in clause
1 of article 72, for it is only
a person who has been convicted
of an offence who can benefit
from the exercise of the power
of the prerogative of mercy.
What is offence in the first
place? Is the word ‘offence’ as
used in this provision
synonymous with a criminal
offence? Having found the
meaning of offence, we would
proceed to consider whether in
its natural meaning, contempt of
court is an offence or criminal
offence, as the case may be.
Finally, if it is an offence or
a criminal offence whether
conviction for contempt of court
is caught within the meaning
expressed in article 72 of the
Constitution.
These questions have arisen from
the case set up by the 2nd
and 3rd plaintiffs.
The 2nd plaintiff’s
case is that contempt is not an
offence as stated in article 72.
According to him, contempt is
also not a criminal offence
because it is not defined and
punishment for it is not
prescribed in a written law;
this is obviously in reference
to article 19(11) of the
Constitution. He submitted that
the prerogative of the Crown in
England is not the same as that
envisaged under article 72 and
hence the President of the
Republic does not have the
power to grant pardon or
remission of sentence in all
matters for which a person has
been convicted and sentenced
especially in cases of contempt.
Besides, he also submitted that
since the President is amenable
to punishment for contempt, then
equally he does not have the
power under article 72 to
exercise prerogative of mercy on
persons convicted and sentenced
for contempt. For this
proposition, he relied on this
passage from Blackstone’s
Commentaries on the law of
England (1765-1769): “…..it can
only be applied to those rights
and capacities which the King
enjoys alone in
contradistinction to
others…..not those which he
enjoys in common with any of his
subjects.” The President enjoys
special rights under article
57(5) of the constitution, in
matters of criminal prosecution.
But when it comes to contempt
matters the President has the
same rights as the ordinary
citizen; hence he has no
prerogative of mercy in matters
of contempt, he submitted.
For his part, the 3rd
plaintiff is of the view that
the power of the courts to
commit for contempt has nothing
to do with the criminal laws of
the country, having regard to
the definition of criminal
offence from a combined reading
of article 19 clauses (11) and
(21) of the Constitution, 1992
and section 1 of Criminal
Offences Act, 1960 (Act 29). In
sum, contempt of court is not an
offence within the meaning of
article 72 of the Constitution,
he submitted.
The Defendant submitted that,
the plaintiff has failed to take
notice of the two
classifications of contempt,
namely criminal contempt as
against civil/quasi criminal
contempt. That criminal contempt
is a criminal offence as known
to the laws of the country.
The defendant further submitted
that Article 19(12) creates the
only exception to Article
19(11). As such, it recognises
that certain acts or commissions
amounting to contempt of court,
though not contained in any
written law with no penalties
prescribed, may constitute a
criminal offence which will
result in conviction and
punishment by a Superior Court.
It is instructive to note that
the contemnors in the instant
suit were charged, their pleas
taken and were convicted and
sentences were imposed on them.
The defendant further submitted
that, criminal contempt such as
an offence of scandalizing the
court under the common law, is a
criminal offence within the
meaning of Article 19(21) and
all relevant provisions in the
Constitution relating to fair
trial under Article 19 are
applicable.
The word “offence” while
sometimes used in various
senses, generally implies a
crime or a misdemeanour
infringing public rights as
distinguished from mere private
rights, and punishable under the
criminal laws.
Thus in its legal sense, offence
is used to mean crime or
criminal offence, once it
attracts a penalty of death
sentence, imprisonment or a
fine. See section 1 of Act 29
which defines crime to mean “any
act punishable by death or
imprisonment or fine.”.
The next point to address is
whether contempt of court is an
offence, in the context of
article 72(1) of the
Constitution. In order to
address this issue effectively,
it must be read together with
other provisions of the
Constitution, particularly
article 19 clauses (11), (12)
and (21). We should equally have
regard to what the criminal
statute law says in view of
clause 21 of article 19. The
constitutional provisions are:
19(11):
No person shall be convicted of
a criminal offence unless the
offence is defined and the
penalty for it is prescribed in
a written law.
19(12):
Clause (11) of this
article shall not prevent a
Superior Court from punishing a
person for contempt of itself
notwithstanding that the act or
omission constituting the
contempt is not defined in a
written law and the penalty is
not so prescribed.
19(21):
For the purposes of this
article, "criminal offence"
means a criminal offence under
the laws of Ghana.
From clause 12 of article 19,
even if contempt of court is not
defined in a statute and no
specific penalty is prescribed
for it, the court is nonetheless
empowered to commit and punish a
person for contempt. It follows
that contempt of court is an
exception to the provision in
article 19(11). Clause 21 of
article 19 buttresses the
position contained in clause 11
that an offence exists only
where there is a particular law
which has said so. The proviso
in clause 12 thus extends to
cover clause 21 as well. The
legal situation then is that for
there to be a conviction a
person must have been charged
with a criminal offence which
has been defined by law and the
penalty therefor prescribed by
the law, the only exception
being a charge of contempt of
court. In that respect contempt
of court is sui generis, a
peculiar type of offence. In
that respect, it is not the type
of sentence imposed which
determines whether a person has
been convicted of a crime or
not, but the fact that he is
guilty of a punishable offence.
As was observed by Atkinson J.
in R. v. London County Quarter
Sessions, ex parte Metropolitan
Police Commissioner (1948) 1 KB
670 at 679: “A conviction is an
act of a court of competent
jurisdiction adjudging a person
to be guilty of a punishable
offence…….A conviction is
nonetheless a conviction because
the ensuing penalty is not
imprisonment, nor fine, but the
finding of sureties for good
behaviour.”
It may be added that a
conviction remains a conviction
even if a convicted person is
merely cautioned and discharged.
The power of pardon may thus be
exercised even before sentence
is imposed by the court, once a
conviction has been pronounced.
It is only in matters of
remission of sentence that will
depend on the imposition of a
sentence. In short, under
article 72, once it is
established that a person has
been convicted of an offence,
the prerogative of mercy becomes
exercisable by the President,
acting in consultation with the
Council of State. Imposition of
sentence is not a requirement of
clause (1) of article 72 before
the power may be exercised to
pardon a person convicted.
However, if a sentence has been
imposed in addition to the
conviction, the other provisions
of article 72 come into play. A
sentence completes the process
of adjudication only, but not
for the purposes of exercising
the power to grant mercy.
What type of contempt, if any,
constitutes an offence? It is
noted that the common law has
always maintained a distinction
between criminal and civil
contempt. The key distinction
being that criminal contempt, as
the name implies, is punishable
as a criminal offence, whereas
civil contempt does not attract
a criminal tag even if
imprisonment results therefrom.
On what constitutes criminal
contempt, Akuffo-Addo C.J. had
this to say in the case of
Republic v. Liberty Press Ltd.
and Others [1968] GLR 123 at 135
“…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. Such conduct constitutes
the offence of contempt of
court, and the courts are vested
with the power of dealing with
it in a manner that is almost
arbitrary. For this reason, the
power is rarely invoked and only
when the dignity, respect and
authority of the courts are
seriously threatened. It has
been said that these powers are
given to the courts (and the
judges) to keep the course of
justice free …
It is contempt of court by deed
or word to scandalise the
courts. It is contempt of court
to make statements amounting to
abuse of the courts. It is
contempt of court to make
statements which tend to expose
the courts or parties who resort
thereto to the prejudice or
hatred or ridicule of mankind.”
As earlier mentioned, contempt
of court was a development of
the common law, and applied in
all common law jurisdictions.
Naturally, the construction of
what constitutes criminal
contempt in other common law
jurisdictions has been no
different from ours. The learned
editors of Halsbury’s Laws of
England, 4th Edition
Reissue, vol. 9(1) para. 402 at
page 241 define it as
“consisting of words or acts
which impede or interfere with
the administration of justice,
or which create a substantial
risk that the course of justice
will be seriously impeded or
prejudiced.”
The English case of AG v.
Leveller Magazine Ltd. [1979] AC
440 is relevant to consider. At
page 449, Lord Diplock said:
“Although criminal contempts of
court may take a variety of
forms they all share a common
characteristic: they involve an
interference with the due
administration of justice,
either in a particular case or
more generally as a continuing
process. It is justice itself
that is flouted by contempt of
court, not the individual court
or judge who is attempting to
administer it.”
There is the need to observe
that not all types of contempt
are punishable as crime.
Elsewhere in England, the courts
have cast doubt on the
distinction between civil and
criminal contempt. Lord Scarman
has pointed out in the case of
Home Office v. Harman [1983] 1
AC 280, p. 310, that the
distinction between the two may
have less relevance today, but
it is still useful for
classification purposes: The
distinction between ‘civil’ and
‘criminal’ contempt is no longer
of much importance, but it does
draw attention to the difference
between on the one hand contempt
such as ‘scandalizing the
court’, physically interfering
with the course of justice, or
publishing matters likely to
prejudice a fair trial, and
contempt which arises from
non-compliance with an order
made, or undertaking required in
legal proceedings. Prior to
that, Salmon, L.J. in Jennison
v. Baker (1972) 1 All ER 997 at
1002 had described the
distinction between civil and
criminal contempt as “an
unhelpful and meaningless
classification.”
But the position in this country
maintains the distinction,
albeit for reason of ascribing
criminality to one, whilst the
other does not. The case of
Ackah v. Acheampong & Another
[2005-2006] SCGLR 1 highlights
the distinction between civil
contempt and criminal contempt.
Atuguba JSC had this to say at
page 13:
“Contempt of court has been
judicially described in varying
terminology: as quasi-criminal;
see Republic v Numapau; Ex parte
Ameyaw II [1998-99] SCGLR 639;
as a criminal offence; see
Asumadu-Sakyi v. Owusu [1981]
GLR 201, CA and as an offence;
see British Airways v. Attorney
General [1996-97] 547.
Nonetheless, it is well settled
law that there are two types of
contempt, namely, civil contempt
which consists of disobedience
to a court order by a party to a
case and criminal contempt which
relates to the interference with
the administration of justice,
often by a third party: see
Tetteyga II v. Sarpor {1973}2
GLR 227, CA; Republic v.
Mensah-Bonsu; Ex parte Attorney
General [1995-96]1GLR 377 SC;
and Atta v. Mohamadu [1980] GLR
862.
The clear distinction between
civil contempt and criminal
contempt resulting in the former
not being a crime or offence but
the latter being an offence or
crime has been forcefully and
plainly made by O’shea v. O’shea
[1890] 15 PD 59 and Izuora v. R
[1953]1 Lord Scarman has pointed
out in the case of Home Office
v. Harman [1983] 1 AC 280, p.
310, that the distinction
between the two may have less
relevance today, but it is still
useful for classification
purposes: The distinction
between ‘civil’ and ‘criminal’
contempt is no longer of much
importance, but it does draw
attention to the difference
between on the one hand contempt
such as ‘scandalizing the
court’, physically interfering
with the course of justice, or
publishing matters likely to
prejudice a fair trial, and
contempt which arises from
non-compliance with an order
made, or undertaking required in
legal proceedings.…….In my view
therefore the expression
“quasi-criminal” applies to
civil as opposed to a criminal
contempt. I therefore hold that
where the contempt is civil no
offence or crime is
involved……….”
In summary, the punishment for
civil contempt is remedial in
favour of a complainant, in
vindication of private rights.
On the other hand, the
punishment for criminal contempt
is punitive, and in the interest
of the public in protection of
the authority and dignity of the
court.
Consequently, for a contempt of
court to come within the
provisions of article 72, it
must be criminal contempt for
which a person has been
convicted by a court of
competent jurisdiction.
Besides the inherent
jurisdiction and articles 19(12)
and 126(2) which enable the
court to suo motu act on
contempt matters, the law has
always criminalised contempt of
court in this country, and has
given recognition to the innate
power of the court to punish for
contempt, through the enactment
of section 224 of Act 29. This
is contrary to the categorical
statement made by counsel for
the 3rd plaintiff in
his statement of case that
“nowhere in the Criminal
Offences Act is contempt of
court mentioned as an offence.”
Section 224 of Act 29 says that:
Whoever in the presence of any
Court is guilty of contempt of
Court by any insulting,
opprobrious, or menacing acts or
words is guilty of a
misdemeanour.
“Presence”, as used in this
section should not be given a
restrictive meaning by applying
it to only contempt committed
in facie curiae. It
is absurd to consider that the
law maker will not make contempt
committed ex facie curiae
equally punishable as one
committed in the clear view or
hearing of the court. In these
days of massive electronic
communication, contempt of court
may be found to have been
communicated on the airwaves
thousands of miles away.
Thus under our laws, a charge of
criminal contempt of court may
lie by virtue of articles 126(2)
and 19(12) of the Constitution
or under section 224 of Act 29.
Whereas the court can initiate
contempt proceedings suo motu
under article 126(2) of the
Constitution, the
Attorney-General or somebody
else at his direction may do so
under section 224 of Act 29.
At this stage in the discussion
it is relevant to refer to the
famous case of Toledo Newspaper
Co. v. United States 247 U.S.
402 (1918). The law upon which
the facts of the case arose is
in similar vein to section 224
of Act 29. Judicial Code No. 268
(Act of March 2, 1831) declared
the inherent jurisdiction of the
federal courts to punish
summarily for contempt, and
provided that the power “shall
not be construed to extend to
any cases except the misbehavior
of any person in their presence
or so near thereto as to
obstruct the administration of
justice.” The wording of the
statute appeared to restrict
contempt to those which occurred
in the physical presence of the
court or within the court
premises. In that case there was
a newspaper publication which
was complained of as containing
contemptuous material. The court
upheld the claim for contempt
and held the company and the
editor liable. The court
reasoned that as it is the
reasonable tendency of such
publications that determines
their contemptuous character it
was immaterial that they were
not circulated in the courtroom
or seen by the judge. The
court stated that the criterion
whether an alleged misbehaviour
is within the "so near" (the
presence of the court) clause is
not the physical or
topographical propinquity of the
act to the court, but, having
reference to all the pertinent
circumstances attending its
commission, it is the nature of
the act as tending directly to
affect the administration of
justice.
From the wording of section 224
of Act 29, “presence” as used,
must be given liberal meaning to
include any conduct or utterance
that brings the administration
of justice into disrepute,
wherever such conduct or
utterance occurred, without
limitation as to time or space.
Section 224 of Act 29
characterizes contempt as a
misdemeanour. As was rightly
held in the case of Atta v.
Mohamadu (1980) GLR 862, a
person could only be convicted
and sentenced in a case of
contempt if the charge of
contempt of court was punishable
as a misdemeanour. Thus once
criminal contempt of court is a
misdemeanour and a misdemeanour
is a crime, it follows logically
that contempt of court is a
criminal offence. Thus the
provisions of article 19 (11)
and (21) are perfectly
satisfied, even though contempt
of court is excluded by clause
12 of the said article 19.
Indeed it is unreasonable and
absurd to suggest that a charge
of criminal contempt when laid
under Act 29 is an offence, but
it ceases to be so when laid
under article 126(2) of the
Constitution. The
characteristics of the
proceedings are the same, in
terms of arraignment, plea
taking, hearing in a summary
way, and the available
punishment.
This court in Ackah v.
Acheampong, supra, relying on
other authorities both local and
foreign, clearly stated that
criminal contempt is a crime and
I think it is a correct view
which we should affirm.
Before proceeding further, let
us quickly dispose of the
argument of the 2nd
and 3rd plaintiffs
which considered that article 72
will only apply to convictions
for contempt based on the
criminal statute, but not in
cases founded on the court’s
inherent jurisdiction or article
126(2) of the Constitution. This
last argument is clearly
untenable in the sense that it
violates the principle of
equality before the law. The
reason being that two persons
who have both been convicted for
contempt of court, now face
different consequences as a
result of who instituted the
action and in what manner. One
enjoys the prerogative of mercy
because he was charged and
prosecuted under Act 29 by the
Attorney-General whereas the
other is denied because he was
prosecuted under article 126(2)
of the Constitution. The effect
of a conviction for contempt of
court must be the same whether
prosecuted under Act 29 or the
Constitution.
We consider it necessary to
re-echo what counsel for the 3rd
plaintiff stated that there is
dearth of local authority on
this subject, hence he resorted
to some decisions from India and
the USA to support his argument
that contempt of court is not an
offence known to the laws of
Ghana for which reason it does
not come within the provisions
of article 72 of the
Constitution. We should have
thought that the two local cases
cited above sufficiently decide
this question. Having said that,
we would nonetheless consider
the external decisions counsel
referred to for their
persuasiveness and to consider
whether they could inform a
change in the existing position
in this country.
The Indian case that counsel for
the 3rd plaintiff
cited is State v. Padma Kanta
Malviya & Anor. AIR 1954 All
523. Counsel’s argument was that
the case decided that the word
‘offence’ as used in article
20{3} of the Indian Constitution
did not embrace contempt of
court, having regard to existing
statutory provisions which had
not made contempt of court an
offence. It is desirable to set
out the facts of that case
clearly in order to appreciate
the court’s decision. The matter
reached the apex court by way of
case stated. Three questions
were addressed to the court for
answers. The questions were:
1(a) whether contempt of court
is an offence within the meaning
of section 5(2) of the Code of
Criminal Procedure; 1(b) if it
is, whether the particulars
prescribed by that Code for the
investigation, inquiry and trial
of an offence must be followed;
(2) whether the alleged
contemnor is an accused person
within the meaning of section 5
of The Oaths Act, 1873; (3)
whether the alleged contemnor is
a person accused within the
meaning of article 20(3) of the
Constitution, and can he, if he
voluntarily makes an affidavit,
be cross-examined upon it.
The said Article 20(3) of the
Indian Constitution only deals
with the rule against
self-incrimination. It provides:
‘No person accused of any
offence shall be compelled to be
a witness against himself.’ And
section 5 of the Code of
Criminal Procedure states that
an accused person is one who has
been charged with an offence
defined by the General Clauses
Act. And section 5 of the Oaths
Act requires all witnesses
before a court to take an oath.
Having regard to the statutes in
question, the court provided
these answers to the questions
submitted to it:
“1(a) Contempt of court is not
an offence within the meaning of
section 5(2) of the Code of
Criminal Procedure. (b) In view
of our answer to the previous
question, this question does not
arise. (2) The alleged contemnor
is not an accused person within
the meaning of section 5 of the
Indian Oaths Act, 1873. (3) An
alleged contemnor is not an
accused person within the
meaning of Article 20(3) of the
Constitution and if he has
voluntarily filed an affidavit
he can be cross-examined on it.”
None of the questions raised the
specific issue whether or not
contempt of court was an
offence. The answers provided
took into account the state of
the law in India as at the time.
The Contempt of Court Act of
1926 which was one of the
statutes the court considered in
rendering its opinion has since
been repealed. A new one came
into being in 1971, in which a
clear distinction has been drawn
between criminal and civil
contempt and punitive sanctions
have been provided for criminal
contempt. Be that as it may,
both statute and court decisions
take contrary position in this
country, hence the Indian
decision is irrelevant and
inapplicable.
Next, counsel cited a case which
he said was decided by the
Supreme Court of the State of
Indiana in the USA. The title
and citation given by counsel is
State v. Schumaker, 519 P 2d
1116 (Kan. 1974). From the
abbreviation “Kan.” I knew it
was a case from the State of
Kansas and not Indiana. I went
through the citation and found
the case had nothing to do with
the issue of whether or not
contempt of court was an
offence. That case concerned a
lawyer who was charged with
contempt for violation of an
order barring him from practice
for a duration. However, in view
of the importance attached to
the issue, I searched through
the Supreme Court cases decided
in the State of Indiana, bearing
this title and found one which
is on all fours with the
arguments of counsel. That is
the case of State v. Schumaker,
164 N.E.408 (Ind. 1928). As was
rightly stated by counsel, that
case decided that under the
existing law of the State of
Indiana, the Governor had no
power to grant a pardon or
remission for persons who had
been convicted and sentenced for
contempt of court. Counsel
summed up the three reasons the
court relied upon for its
decision, and these are:
(a)
there is no provision for jury
trial in trials of individuals
accused of contempt of court;
(b)
proceedings are of a summary
nature; and
(c)
contempt of court is neither
defined nor is punishment
prescribed or fixed in any
statute.
These reasons will not apply in
our situation because with the
exception of indictable
offences, all other offences are
tried summarily without a jury.
Moreover, Act 29 has
criminalised contempt and
prescribed a penalty for it.
Besides, our jurisprudence has
established criminal contempt as
a misdemeanour, meaning it is a
criminal offence.
However, even in the USA,
counsel’s reference is not the
predominant view, for, the only
other State which has also
endorsed that view is the State
of Texas, in the case of Taylor
v. Goodrich, (1897) 25 Tex. Cv.
App. 114; 40 S.W. 515. There are
some obiter dicta coming
from the State of Wisconsin and
the US 8th Circuit
Court of Appeals respectively,
also endorsing that view. The
obiter dicta may be found in
these cases: State ex. rel. Rodd
v. Verage 187 N.W. (Wis.) 830;
In Re Nevitt, 8th
Cir. 117 Fed. Rep. 448.
On the flip side, the apex
courts of four States have held
the view that contempt of court
is an offence for which reason
the executive prerogative of
mercy extends to it. These
States are New Mexico in the
case of State v. Magee
Publishing Co. 29 N.M. 455; 31
N.M. 276; 242 P. 332 (S. Ct.
1925); Louisiana, in the case of
State ex. Rel. Van Orden v.
Sauvinet (1872), 13 AM. Rep.
(La) 115; Tennessee, in the case
of Sharp v. State (1844) 49 S.W.
(Tenn) 752; and Mississippi, in
the case of Ex parte Helkey
(1899) 4 Smedes & M (Miss) 751.
There was yet another decision
this time from the US court for
the Northern District of
Illinois, the case of US v.
Grossman, (1924) 1 Fed. (2nd)
941; in that case the court
denied the executive prerogative
in contempt convictions. It is
the only one I found which ended
up in the US Supreme Court,
reported as Ex parte Grossman,
(1925) 267 U.S. 87; 45 Sup. Ct.
Rep. 332. The court overturned
the decision, thereby affirming
that contempt of court was an
offence. I will return to this
case again in this decision.
The Ex parte Magee case, supra,
is of particular significance.
In that case the petitioner was
sentenced for contempt of court.
The State Governor issued him a
pardon. However, the Sheriff of
the County refused to recognise
the pardon on the ground that it
was beyond the executive power.
The petitioner brought an
application before the Supreme
Court of the State of New
Mexico. And the court upheld the
pardon, reasoning as follows:
“……….we have reached a firm
conclusion that criminal
contempt is an offense arising
from a contumacious act against
the authority of the
court………….The offense is
therefore one against the
community when considered as a
social entity…….It is against
the state, and the state being
the offending party, has the
power to extend grace and
forgiveness. That power is
exercised through another
department of the government,
namely the executive………It is
trite to say that the power to
pardon is not inherent in any
official, board or body. It is
vested in the sovereign people,
and they have the power to
repose it in any official or
body which they deem wise and
expedient.”
Thus, from the United States of
America it is accepted that
contempt of court is punishable
as a criminal offence for which
reason the prerogative of mercy
applies. In the case of Gompers
v. United States, 233 U.S. 604
(1914), whilst responding to the
argument that contempt was not a
crime, Justice Holmes stated at
page 610 that “These contempts
are infractions of the law,
visited with punishment as such.
If such acts are not criminal,
we are in error as to the most
fundamental characteristic of
crimes as that word has been
understood in English speech”.
Also in Bloom v. Illinois, 391
U.S 194 (1968) it was held that
criminal contempt was a crime in
every essential respect. At page
201 Justice White who delivered
the opinion of the Court said:
“Criminal contempt is a crime in
the ordinary sense; it is a
violation of the law, a public
wrong which is punishable by
fine or imprisonment or both…
Criminally contemptuous conduct
may violate other provisions of
the criminal law, but even when
this is not the case,
convictions for criminal
contempt are indistinguishable
from ordinary criminal
convictions, for their impact on
the individual defendant is the
same. Indeed, the role of
criminal contempt and that of
many ordinary criminal laws
seems identical – protection of
the institutions of our
government and enforcement of
their mandate”.
Besides all that has been said,
the standard of proof required
in a charge of scandalising the
court, scurrilous publication
about a judge and all matters
that bring the administration of
justice into public ridicule and
hatred or interfere with the
administration of justice is
proof beyond a reasonable doubt,
the same standard as in all
criminal offences. See these
cases: Republic v. Numapau; Ex
Parte Ameyaw and Others
(1999-2000) GLR 283; (1998-99)
SCGLR 639; Republic v. Alhassan;
ex parte Abbey (1989-90) 1 GLR
139; Gbadamosi v. Mohammadu
(1991) 1 GLR 283. In Ex parte
Ameyaw, supra, the court stated
that contempt of court has all
the characteristics of a crime,
hence there is the need for a
prima facie case to be made out
before all available defences
may be considered.
From the foregoing discussions,
it is manifestly clear that the
three charges brought against
the three convicts fall within
the category of interference
with the administration of
justice, which is in the realm
of criminal contempt. This court
reached a similar conclusion in
the Montie 3 case when it said:
“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.” And as decided in
Bloom v. Illinois, supra, a
conviction for criminal contempt
is no different from a
conviction for any other crime.
Hence, a conviction for a
criminal contempt is a
conviction for a criminal
offence; consequently, it is an
offence within the meaning of
article 72 of the 1992
Constitution.
Consequently, in the light of
the analysis made herein, issues
1, 2 and 6 are answered in these
terms. Criminal contempt is an
offence and attracts criminal
penalties as a misdemeanour,
whether it is charged under
article 126(2) of the
Constitution or section 224 of
Act 29; the consequences are the
same. Consequently, it is an
offence within the meaning of
article 72 of the 1992
Constitution; therefore the
prerogative of mercy extends to
persons convicted of criminal
contempt. As long as the
executive president is given the
discretionary power to pardon,
he must have the right and
priviledge to exercise it
untrammelled by any narrow and
restrictive construction of the
constitutional grant. Unlike the
US Constitution, which excludes
impeachment from the power to
grant pardon, article 72 of our
Constitution makes no
reservation. Hence in the US,
the Supreme Court has held in
the case of Ex parte Garland 71
U.S. 4 (Wall) 333 (1866) at 334
that “the power conferred on the
President is unlimited except in
cases of impeachment, it extends
to every offence known to the
law.” Again in the USA, in the
light of the Supreme Court
decisions cited above, the
President has the power to
exercise this power in such
situations. And it was lately
invoked on 25th
August 2017, when the President
granted full pardon to Joe
Arpaio, a Sheriff in the State
of Arizona, who had been
convicted on a charge of
criminal contempt and was
awaiting sentence by the
District Court in Arizona State,
in the case of Melendres v.
Arpaio. In Ghana the power is
broad and unqualified.
The same position applies under
the common law from where the
power derives its source. The
position under the common law is
stated briefly in Halsbury’s
Laws of England, 4th
Edn. (reissue) vol. 9(1), para.
404 at page 242 thus: ‘The
prerogative of the Crown extends
to the remission of a sentence
for criminal contempt, but the
Crown never interferes in the
case of a contempt that is not
criminal.”
Issues 3, 4 and 7
These issues will also be
addressed together. The issue 3
as well as issues 4 and 7 cover
the exercise of discretionary
power under article 296, in
relation to the exercise of the
power to grant mercy under
article 72 of the Constitution.
Article 296 of the Constitution
1992 provides that:
Where in this Constitution or in
any other law discretionary
power is vested in any person or
authority-
(a) that discretionary power
shall be deemed to imply a duty
to be fair and candid;
(b) the exercise of the
discretionary power shall not be
arbitrary, capricious or biased
whether by resentment, prejudice
or personal dislike and shall be
in accordance with due process
of law.
(c) where the person or
authority is not a judge or
other judicial officer, there
shall be published by
constitutional instrument or
statutory instrument,
regulations that are not
inconsistent with the provisions
of this Constitution or that
other law to govern the exercise
of the discretionary power.
The 1st plaintiff
sought to challenge the exercise
of this power on ground, inter
alia, that no regulations have
been enacted to guide the
exercise. He stated this in
paragraph 48 of his statement of
case thus:
“The Supreme Court is humbly
invited to……reject the
isolationist and restrictive
interpretation of Article 72,
for a broader and a holistic
interpretation of the
Constitution and declare that
the President’s power under
article 72 is discretionary
which by the nature of the
prerogative of mercy should be
governed by laid down rules.”
In his view, the absence of a
constitutional instrument to
regulate the exercise of the
power under article 72 is a
clear breach of article 296(c)
which requires the exercise of
discretionary power by
non-judicial officers to be
governed by regulations enacted
in an instrument for that
purpose.
He further contended that
prerogative of mercy has never
been a remedy or power reserved
for dis-satisfied convicts and
their sympathisers, nor is it a
power meant to revise the
decisions of courts. According
to him the prerogative of mercy
is supposed to be a
constitutional safeguard against
judicial mistakes, and he cited
these cases in support: R v.
Secretary of State for Home
Department; ex parte Bentley
(1993) 4 All ER 442; Burt v.
Governor-General (1992) 3 NZLR
672. He submitted that no
mistake occurred in this case to
warrant the exercise of the
power under article 72. He
therefore called for a judicial
review of the exercise and
should not be made subject to
the political question doctrine.
In response to these arguments,
the defendant made reference to
some decisions of this court
which he said set the criteria a
plaintiff must prove in an
action founded on article 296.
There was no evidence of a
violation in the exercise of the
power. All what is required is
fairness and candour, citing in
support the case of
Agricultural, Horticultural
and Forestry Industry Training
Board v. Aylesbury Mushrooms
(1972) 1 WLR 190; (1972) 1 All
ER 280. He submitted that the
consultation with the Council of
State raises a presumption of
fairness unless otherwise proven
by the plaintiff.
The 2nd plaintiff
made reference to section
34(3)(d) of the Prisons Service
Act, 1972 (NRCD 46) which
disables persons convicted and
sentenced for contempt of court
from enjoying a remission of
sentence. He submitted that the
President is bound by this
provision and therefore has no
discretion under article 72 to
grant remission to a person
convicted and sentenced for
contempt of court. He also
endorsed the view that the legal
test or criteria for the
exercise of discretion under
article 296(c) had not been met.
The defendant responded that
section 34 of NRCD 46 was
inapplicable when the President
exercises the power under
article 72.
Before proceeding to address the
issues raised, it must be
pointed out that the exercise of
this power in this country has
never been subjected to the test
whether or not there was a
mistake in the court’s decision
which the pardon sought to
rectify. Even in English law,
that is not the practice or
policy of the law, so the
decisions cited should be read
in context, lest the Presidency
should be turned into an
appellate chamber, which clearly
is not the object and purpose of
the law. Article 72 does not
impose or even imply any such
condition.
Let us now talk about the
provisions of the Prisons
Service Act, called the Act,
which are said to be binding on
the President. The relevant
provisions of the Act read:
Section 34-Remission for Good
Conduct
(1)
Subject to subsection (3), a
prisoner serving a sentence of
six weeks or more may by steady
industry and good conduct earn a
remission not exceeding
one-third of his sentence.
(2)
All or any of the remission so
earned may be forfeited in
accordance with regulations for
failure by the prisoner to
maintain steady industry or good
conduct.
(3)
This section shall not apply in
the case of a prisoner who is-
(a)
serving a sentence of
imprisonment for life;
(b)
detained at the pleasure of the
National Redemption Council;
(c)
committed to prison for debt; or
(d)
committed to prison for contempt
of court.
The argument is that the
President is bound by these
provisions and thus he cannot
grant remission of sentence to
persons committed to prison for
contempt of court. If this
argument is stretched to its
logical conclusion, it will mean
that even in life imprisonment
jail term, the President cannot
exercise the prerogative,
reading the section as a whole.
Certainly, that cannot be the
case. Thus the two enactments,
namely section 34 of the Act and
article 72 of the Constitution
must be read independently, and
effect given to each of them.
That is particularly so in view
of the significant differences
in the two enactments, both
procedurally and substantively.
At any rate, if section 34 of
the Act is inconsistent or
incompatible with article 72, it
has to give way to the latter.
The provisions in the Act and
article 72 are distinct one from
the other in six areas. These
are:
(i)
the bodies that advise on the
remission of sentence are not
the same;
(ii)
there are exceptions to the type
of offences for which a
remission may be granted under
the Act, whereas no exception
applies under article 72;
(iii)
remission under the Act is
dependent upon good behaviour,
but no such restriction applies
under article 72;
(iv)
unlike article 72, a total
pardon is unavailable under the
Act;
(v)
the quantum of remission is
limited by the Act itself,
whilst there is no restriction
under article 72;
(vi)
under the Act a remission earned
may be revoked once the
beneficiary does not continue to
exhibit good conduct, but under
article 72 a remission cannot be
revoked unless such right was
reserved in the instrument
granting the remission.
These clear dissimilarities
confirm the view that the
provisions of the Act cannot be
imported into article 72. The
two enactments can co-exist
independently else the Act will
have to give way for obvious
inconsistency and
incompatibility. An instance is
that whereas the President has
power to grant absolute pardon
for all offences under article
72 of the Constitution, it means
that if he is bound by section
34(3)(d) of the Act, he could
grant a pardon but he could not
grant a remission of sentence
for the same offence. This is
absurdity at its zenith. The
President is not bound by these
provisions of the Act when he
exercises the power conferred on
him under article 72 of the
Constitution, for the simple
reason that they are
inapplicable.
In addressing the other
questions raised by the issues
under consideration, we are
aware that in some jurisdictions
clear rules and regulations have
been put in place to guide the
exercise of the prerogative of
mercy. Such rules and
regulations guide prospective
applicants and the advisory body
to the Head of State. They
ensure a certain level of
transparency and certainty as
what considerations go into the
advisory process. For instance,
under the 2009 Constitution of
the Cayman Islands, there is a
provision similar to article 72
under consideration. In sections
39 and 40 of their Constitution,
the Head of State exercises the
prerogative of mercy upon
consultation with a body called
the Advisory Committee on the
Prerogative of Mercy (ACPM). The
ACPM has in place a document
called Policies and Procedures
Manual, which contains the
entire process culminating in
its advice to the Head of State
on the exercise of the power. It
is this type of document the 1st
plaintiff is saying should be
published as an instrument under
article 296(c) before the
exercise of the power.
However, when this provision
came up for interpretation in
the case of Ransford France (No
3) v. Electoral Commission &
Anor [2012] 1 SCGLR 705,
the court held the non-existence
of an instrument setting out
guidelines for the exercise of a
discretionary power was not
fatal. One of the issues raised
in that case was the impact of a
breach of article 296(c) on the
validity of an instrument. The
court held that an expansive
literal meaning of the provision
of article 296(c) would lead to
grave mischief. It would lead to
a nuclear melt-down of
government. It would be
impractical for public officials
and agencies in general to
publish regulations governing
their discretion before they
could exercise them, on pain of
invalidity of those
discretionary decisions. The
court therefore dismissed the
action because to accede to it
would mean undoing a whole lot
of decisions that had been taken
in the past that did not conform
to article 296(c).
However, that decision should
not be construed to mean that
failure to comply with the
provisions of article 296(c)
attracts no consequences in all
cases or situations. Each
situation should be examined to
determine whether or not the
provision is applicable and must
therefore be complied with. That
is so because, on a daily basis,
public officials exercise some
form of discretion in taking
decisions. It would be
inconceivable to suggest that in
exercising such discretionary
power, regulations must be
published beforehand. Such
absurd and unreasonable
expectation could not be
attributed to the framers of the
Constitution.
Having regard to the wide
executive powers conferred on
the President by the
Constitution, it would be
literally impossible for him to
function if he were to go to
Parliament with an instrument to
guide him in taking
discretionary decisions. Thus
the Constitution has in-built
mechanisms to guide most
Presidential actions, whether in
consultation with, or on the
advice of or with the approval
of, etc. and once the President
acts in accordance with the
particular constitutional
mandate, as in the instance, he
is not required to comply with
article 296(c).
Article 296(c) applies
particularly to persons to whom
the Constitution has ascribed
some duties involving the use of
discretion, without prescribing
how those duties are to be
performed or supervised. The
practice has been that the
advisory bodies to the President
must have rules and regulations
to guide their functions, like
the Judicial Council, Police
Council, the Council of State
etc. And even with these
advisory bodies, it would
suffice if they have general
rules to guide their operations,
unless a clear intention to the
contrary exists, For, it would
be absurd and impractical for
them to have regulations for
each type of activity or advice
they undertake or offer by law.
In the Cayman Islands situation,
the only function the ACPM
performs is to advise on the
prerogative of mercy so it is
necessary for it to be guided by
laid down rules and regulations.
The Council of State performs
several functions besides
advising the President under
article 72 on the exercise of
the prerogative of mercy.
From the foregoing, the proper
exercise of discretion should be
marked by fairness and candour
and thus any conduct in the
exercise of such discretion
which may be described as being
capricious, borne out of
resentment, or bias by personal
dislike, or falls short of due
process, is not the proper
exercise of discretional power
and constitutes abuse of same.
The rational for article 296 is
to check the abuse of
discretionary power.
Thus in situations where the
Constitution itself provides the
safeguards like the instant case
(Article 72), it is our opinion
that the use of the said power
must be viewed in the light of
the safeguards provided and
where it is found that the
safeguards were complied with,
then that power would be deemed
to have been properly utilised
in terms of the said provision,
unless there is clear evidence
that the advice to the President
was tainted in some way, as
stated above.
The safeguard under Article 72
is the consultation with the
Council of State which seems to
have been satisfied per Exhibit
“AG 3”. And we do not have any
evidence that the Council of
State was in any way unlawfully
influenced in its opinion to the
President, which would undermine
the exercise of the discretion.
In the Supreme Court decision in
the case of Prof. Stephen Asare
v. Attorney-General (J1/15/2015)
[2015] unreported, Her Ladyship
Chief Justice Georgina Wood had
this to say:
“… the President’s
Constitutional authority under
article 278(1) involves the
exercise of discretionary power.
I find no breaches or violations
of constitutional or other legal
requirements proven in the
exercise of this lawful
authority. Thus, once the
President, in the lawful
exercise of his discretionary
authority under article 278(1),
was satisfied that the work of
the CRC, were matters of public
interest, was well-suited to be
addressed by a Commission of
Inquiry, I do not think I can
legitimately question the
exercise of that executive
discretionary decision in the
manner and terms requested, in
much the same way that in our
jurisprudence, the exercise of
judicial discretionary authority
cannot be interfered with,
except in those extreme or
exceptional cases, which have
been carefully circumscribed by
the decisions of this Court.”
In the light of the reasoning
above quoted, it is re-stated
that the discretionary power in
article 72 when used in
accordance with its provisions,
such exercise of the power of
mercy will not be questioned by
the Courts. Hence, so far as the
exercise of the power under
article 72 does not infringe any
provisions in the Constitution,
the Courts will not interfere.
Issue 5
Admittedly, the debate on the
question whether or not the
prerogative of mercy extends to
convictions for contempt of
court has been raging for a long
time and there does not appear
to be an end in sight. The
argument has largely centred on
the independence of the
judiciary, which the proponents
believe is undermined and its
authority weakened if the
executive has the power to
pardon or remit sentence for
contempt of court. Others are of
the view that the offence of
contempt of court is an offence
committed against the general
public and not the judiciary as
an institution so a pardon is in
order. Thus the latest pardon
granted to Joe Arpaio by the
President in the USA in August
2017 has provoked several
challenges before court. So
various jurisdictions have taken
position depending on which side
of the argument is more
appealing, in the context of
existing legislation or the
common law. We have stated the
position under the common law
and the USA as far its Supreme
Court is concerned. But some
States in the USA, as earlier
mentioned, have taken a contrary
position depending on how they
perceive the State
constitutional provisions on the
subject. It is our turn to take
a position.
In this country, it appears this
is the first time the question
is receiving the full attention
of the apex court. Hence there
is dearth of local opinion, even
among the academia on it. I
remember when the convicts were
sentenced and subsequently
pardoned, albeit partially, the
debate ensued particularly on
the air waves and in the social
media, whether the exercise of
the power by the President did
not amount to an interference in
the affairs of the judiciary, in
the sense that it was a direct
affront to the independence of
the judiciary.
The proponents of the view that
the prerogative of mercy
violates the concept of judicial
independence have some
compelling arguments to make. In
an editorial comment published
in the Notre Dame Law Review on
an article by Francis T. Ready
titled 'Pardon for Contempt' in
the Vol. 5 Issue 1 dated October
1, 1929, Article 5, this is what
was written:
"It is a function of the
judiciary to declare and enforce
private rights. The power to
punish for contempt is an
inherent power to enforce its
orders and decrees and, in
general, to enable it to perform
the functions for which it was
created. The founders of our
government intended that the
three branches of our government
- legislative, executive, and
judicial- should be distinct and
independent; that in the
exercise of their respective
constitutional functions each
should be free from interference
on the part of every other. The
judiciary, more than any other
department of the government,
should be immune from outside
influence and interference. If
the government is permitted to
pardon those guilty of contempt
of court, the judicial branch of
the government is, to that
extent, made dependent on the
executive branch. It is obvious
that the judicial branch of the
government cannot effectively
perform its functions in the
administration of justice unless
its authority and dignity are
accorded the highest respect,
and it's dignity and authority
are imperiled when the executive
branch possesses a veto over the
exercise of its power to punish
for contempt and disobedience."
Counsel for the 3rd plaintiff
urged the court to be guided by
the series of questions posed by
way of ‘obiter dicta’ from
Justice Owen in the case of
State ex rel. Rodd v. Verage,
supra at 841:
"Now is it possible that the
people intended that executive
should possess a veto over the
exercise of the power vested in
the courts to punish for a
contempt and disobedience of
their lawful orders? Is not such
a power repugnant to the entire
governmental scheme of our
Constitution? Is it not
destructive of a power of the
judiciary essential to enable it
perform its functions? Does it
not make the judiciary a
dependent, and not an
independent, branch of
government? Does it not
constitute power in the governor
to grant absolution to those who
scout and scoff the authority of
the court? That such a power
would not generally be exercised
by the governor may be conceded,
but is not the fact that it's
exercise would have such effect
sufficient reason for believing
that the people never intended
to lodge the power with the
Governor? Does not the power to
pardon in such cases involve the
power to nullify the authority
of the court to enforce
obedience, just as the power to
tax involves the power to
destroy? Does not the very
purpose of the power, inherent
in the courts, negatived by the
strongest implication the
existence elsewhere of authority
for its nullification?"
The opponents have equally
compelling arguments to make. In
the Ex parte Magee case, supra,
at 278-280 the court said this:
"It is sometimes said that, if
the Governor may pardon an
offense of this kind, the
independence of the judiciary as
a co-ordinate branch of the
government may be destroyed;
that a Governor may, from
personal or political bias or
hatred, or from a mistaken sense
of duty, absolutely destroy the
power and usefulness of any
given court in the state. The
reason for the suggestion is
manifold. In the first place, no
assumption can be indulged that
a Governor will ever so far
violate his oath, and so far
depart from his duty, as to be
guilty of such conduct.. In the
next place, if such calamity
should ever befall the state,
the remedy is by impeachment if
the conduct should be
flagrant.........
Again the proposition that the
three departments of the state
government are independent of
each other is only relatively,
and not absolutely true. For
example, we are engaged in this
very inquiry in an examination
into the power and action of the
Governor in granting the pardon.
Should we conclude his action
was without power, his whole
proceeding would be undone. We
may likewise pass upon the
validity of the acts of the
Legislature and undo its work,
if it be beyond legislative
power. The Legislature may
impeach and remove from office
both executive and judicial
state officers. The Governor may
veto acts of the Legislature and
defeat legislation, unless it be
passed by certain required
majorities. All these things are
familiar to all lawyers, and
they show, as has been often
said, that the co-ordinate
branches of the government are
not independent, but there has
been wisely introduced into
American governments a system of
checks and balances whereby
justice is secured to the
people, and public affairs are
wisely administered.
It may also be said that while
the power to punish for contempt
is inherent in the courts, and
its exercise is the exercise of
the highest form of judicial
power, it nevertheless is true
it is a one-man power, exercised
without the aid and advice of a
jury. Judges are human, the same
as Governors and legislators.
The power to punish for contempt
in cases like the present is
exercised under the stress and
sting of insult, and human
nature may not always be able to
withstand such stress without
losing the poise and calm
judgment so necessary to the
proper exercise of judicial
power. It may be wise, then, to
have a check upon such arbitrary
power in the form of pardons by
the executive."
One notable article written at
the time the convicts were
released from jail was
attributed to Mr. Martin Amidu,
a renowned jurist, currently the
Special Public Prosecutor. I
found the article on the website
called Ghanaweb.com, on
Wednesday 17 August 2017 under
the general heading
"Presidential pardon not an
affront to Judiciary." The
learned lawyer wrote this
relevant piece: "As for the
argument that it will be an
interference with the
independence of the judiciary to
grant any pardon, I will like
the proponents of that doctrine
to tell the whole world which
exercise of the President's
powers of pardon cannot be said
to be an interference with
judicial independence in the
sense that it pardons
convictions and/or sentences
already imposed in exercise of
the court's judicial power. That
is why it is a prerogative of
mercy!: to grant to a person
convicted of an offence a
pardon………….It will be an insult
to the integrity,
professionalism and maturity of
our judicial system to say that
the Court will be offended by an
exercise of the powers of mercy
by the President, simply because
the conviction was for contempt
of the court."
The USA Supreme Court had
occasion to take a comprehensive
look at the whole concept of
pardon in respect of conviction
for contempt in Ex parte
Grossman, supra. The arguments
presented in that case were in
similar vein as the various
views presented by the
plaintiffs herein. The facts of
that case were as follows. The
defendant sold liquor at his
business in violation of
Prohibition. The District Court
issued an order that the
defendant stop. Less than two
months later, the defendant was
caught selling liquor again. The
court found defendant guilty of
contempt of court and sentenced
him to imprisonment for one year
and a fine of one thousand
dollars ($1000.00). By way of a
pardon, the President reduced
the sentence to the fine. The
court denied the President's
power to pardon for contempt of
court. The Supreme Court upheld
the pardon. What is relevant to
recount from that decision is
the summary of the arguments
which as I have said are similar
to those argued by the
plaintiffs herein and the
court's responses to the
arguments. The arguments as
summed up Taft, CJ were these:
"The argument for the defendant
is that the President's power
extends only to offenses against
the United States and a contempt
of court is not such an offense;
that offenses against the United
States are not common law
offenses, but can only be
created by legislative act; that
the President's pardoning power
is more limited than that of the
King of England at common law,
which was a broad prerogative
and included contempt against
his courts chiefly because the
judges thereof were his agents
and acted in his name; that the
context of the Constitution
shows that the word 'offenses'
is used in that instrument only
to include crimes and
misdemeanors triable by jury,
and not contempt of the dignity
and authority of the federal
courts; and that to construe the
pardon clause to include
contempts of court would be to
violate the fundamental
principle of the Constitution in
the division of powers between
the legislative, executive and
judicial branches, and to take
from the federal courts their
independence and the essential
means of protecting their
dignity and authority."
The court rejected each one of
these arguments, holding that
contempts are offenses within
the meaning of the
constitutional power of pardon;
that the power of pardon is the
same as that exercised by the
King of England prior to the
separation of the colonies. On
the effect that it has on the
independence of the judiciary
based on the principle of
separation of powers, the court
pointed out the many instances
where the three arms of
government overlap each other,
and demonstrated that they are
not absolutely independent, but
only relatively so.
Independence of the Judiciary
Basically, the concept of
separation of powers underpins
our Constitution, employing
checks and balances to sustain
it and ensure a healthy and
stable balance of power, lest
any branch of government should
become too powerful and tend to
become dictatorial. It is for
such reason that the people have
entrusted executive power to the
President but have not allowed
him freedom to appoint anybody
of his choice to sit in Cabinet
without approval from
Parliament. It means Parliament
can tell the President it does
not want his nominee to become
his Minister, and that is the
end of the matter. Will that
amount to interference in the
power and authority of the
executive President? The
President's budget can be shot
down by Parliament, or that
Parliament can deny the
President funds to do a specific
project. Will that amount to
interfering with the operations
and authority of the President?
All these actions do not amount
to an interference with the
independence, as well as the
functions and authority of the
President because article 58(1)
of the Constitution which vests
executive power of the state in
him subjects the exercise of
executive power to the
Constitution itself.
In respect of Parliament,
article 93(2) of the
Constitution vests it with the
legislative power of state, but
it is also subject to other
provisions of the Constitution.
Thus the President has the power
to veto a bill passed by
Parliament, and the latter
requires a certain majority of
its membership to override a
presidential veto. And even
after a bill has been passed
into law, the Suprême Court can
strike it down as
unconstitutional and void. In
none of these situations could
it be said that the authority or
independence of Parliament has
been interfered with. That is
the will of the people expressed
in the Constitution.
In all the instances mentioned,
the clear intent and purpose is
to ensure that these organs of
state do not enjoy absolute
power or authority without any
check on possible abuse, since
they are manned by human beings
who are subject to the frailties
of life. Why should we believe
that the members of the
judiciary, being human as they
are, also do not act in excess
in situations where they adjudge
themselves to be under attack.
Justice emanates from the
people, according to article
125(1) of the Constitution. So
the people can decide that if
they err against the law and are
found liable, they could be
forgiven, and they have
entrusted the power of
forgiveness to the President,
under article 72 of the
Constitution, without limitation
or exception. Akuffo-Addo, CJ in
the case of Republic v. Liberty
Press Ltd, supra, at 135
conceded the point that the
courts deal with contempt
matters in “in a manner that is
almost arbitrary”. American
jurisprudence equally
acknowledges its arbitrariness;
see the Ex parte Magee case
quoted supra. The arbitrariness
of contempt charge was admitted
by this court in the Montie 3
case; the court said 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.”
Therefore, is it not just fair
and reasonable justification
that there should be a body to
tamper justice with mercy when
the court has applied its almost
arbitrary power to punish
somebody, if the people want the
transgressor to be forgiven?
The judiciary is entirely free
in taking judicial decisions and
that is where its independence
is absolutely guaranteed by the
Constitution. So the
Parliament’s authority in
passing legislation is equally
guaranteed by the Constitution,
and so too is the executive
decision making power
guaranteed. But after the act or
decision, the Constitution says
these could be tampered with in
appropriate cases, and it is the
court's duty to respect the
limitation on the power enjoyed
by each organ, including the
judiciary.
It is thus a total misconception
and misapplication of the
doctrine of judicial
independence to suggest that the
judiciary is an island unto
itself in the scheme of
governance under the concept of
separation of powers.
The Constitution
The Constitution itself explains
what judicial independence
entails. Article 127 of the
Constitution 1992 states:
(1) In the exercise of the
judicial power of Ghana, the
Judiciary, in both its judicial
and administrative functions, is
subject to this Constitution and
shall not be subject to the
control or direction of any
person or authority.
(2) 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.
(3) A Justice of a Superior
Court, or any person exercising
judicial power, shall not be
liable to any action or suit for
any
act or omission by him in the
exercise of the judicial power.
(4) The administrative expenses
of the judiciary, including
salaries, allowances, gratuities
and pensions payable to or in
respect of, persons serving in
the judiciary shall be charged
to the Consolidated Fund.
(5) The salary, allowances,
privileges and rights in respect
of leave of absence, gratuity,
pension and other conditions of
service of a Justice of the
superior court or any judicial
officer or other person
exercising judicial power shall
not be varied to his
disadvantage.
(6) Funds voted by Parliament,
or charged to the Consolidated
Fund by this Constitution for
the Judiciary, shall be released
to the Judiciary in quarterly
installments.
(7) For the purposes of clause
(1) of this article, “financial
administration” includes the
operation of banking facilities
by the Judiciary without the
interference of any person or
authority, other than for the
purposes of audit by the
Auditor-General, of the funds
voted by Parliament or charged
on the Consolidated Fund by this
Constitution or any other law,
for the purposes of defraying
the expenses of the Judiciary in
respect of which the funds were
voted or charged.
The language used is succinctly
lucid, that the independence of
the judiciary relates to its
core mandate, that of
administering justice, and with
it its administrative support.
Indeed the judicial power has
been explained in article 125(4)
to mean jurisdiction in all
matters, civil and criminal,
including matters relating to
this Constitution, and such
other jurisdiction as Parliament
may, by law, confer on it.
Thus it is in the course of
performing this core mandate
that the judiciary is completely
insulated against any external
interference. In criminal
matters, the process of
adjudication ends in a trial
court after sentence is
pronounced. After the imposition
of a jail term on a person, the
execution of the sentence is by
executive action, and not
judicial. Criminal Contempt of
court is a public wrong, in as
much as high treason or robbery
is, so it is unreasonable to
suggest that the people would
allow the President to pardon
for all criminal offences except
criminal contempt of court,
without using express words to
that effect. In our view if it
was intended that conviction for
contempt of court should be
excluded, clear words to that
effect would have been employed.
Under the American Constitution
for instance, impeachment is
specifically excluded from the
prerogative of mercy.
It is a cardinal principle of
construing statutes that the
court should not supply words
which the lawmaker did not
intend to insert, in Latin
parlance called ‘cassus
omissus’.The principle is that
there is no presumption that a
‘cassus omissus’ exists, so the
court should not create one.
Countless decisions have been
rendered stressing that the
court cannot add to or amend the
words used in an enactment. See
these cases: Crawford v.
Spooner, (1846) 6 Moore PC 1 at
pp.8-9; Stock v. Frank Jones
(Tipton) Ltd. Stock (1978) 1 All
ER 948 at 951 (HL). However,
this is not an inflexible
principle as the courts have
imported words into a statute in
circumstances or situations
where the section of the
legislation, as it stands, is
meaningless or of doubtful
meaning. But even then as stated
in Vickers Sons & Maxim Ltd. v.
Evans (1910) AC 444 at 445,
(HL), the justification must be
found within the four corners of
the legislation.
This court had occasion to talk
about attempt to write words
into legislation, be it the
constitution or statute. That
was the case of Republic v. Fast
Track High Court, Accra; ex
parte Daniel (2003-2004) SCGLR
364, at 369-370, where the
court, speaking through Kludze,
JSC, said this:
“The provision in article
139(1)(c) empowers the Chief
Justice to request, in writing
signed by him, a Justice of the
Superior Court of Judicature to
sit in the High Court for any
period. The only requirement of
this constitutional provision is
that the person so requested
must be a justice of the
Superior Court. In this context,
it means that the person
requested by the Chief Justice,
must be a Justice of the Court
of Appeal or of the Supreme
Court. The applicant, however,
is asking us to hold that
article 139(1)(c) must be read
subject to article 145(2). In
other words, we are being
invited to add a proviso to
article 139(1)(c) of the
Constitution to say something to
the effect that ‘the person so
requested shall not be 65 years
or older’. We know of no
authority that confers the power
on this court to amend the
Constitution of Ghana. We must
decline the invitation……………..We
cannot, under the cloak of
constitutional interpretation,
rewrite the Constitution of
Ghana. Even in the area of
statutory interpretation, we
cannot amand a piece of
legislation because we dislike
its terms or because we suppose
that the lawgiver was mistaken
or unwise. Our responsibility is
greater when we interpret the
Constitution. We cannot and must
not substitute our wisdom for
the collective wisdom of the
framers of the Constitution.
Where the words of a statute are
unclear or ambiguous, it is only
then that we must try to apply
the well-known canons of
construction to ascertain and
enforce the law……….We must not
insert our own words or remove
words from the legislation in
order to arrive at a conclusion
that we consider desirable or
socially acceptable. If we do
that we usurp the legislative
function…..”
The 3rd plaintiff
wants the court to expand
article 72(1) to include a
proviso, to read: ‘The President
may, acting in consultation with
the Council of State (a) grant
to a person convicted of an
offence, other than the offence
of criminal contempt, a pardon
either free or subject to lawful
conditions;……..‘ The court is
bereft of power or authority to
do that, it will amount to
legislating and not
adjudicating.
Moreover, there is no provision
in the Constitution, whether in
its letter or spirit, on which
one could rely to say that the
meaning of article 72 is not
clear and that the framers of
the constitution intended to
create a proviso to it. Indeed,
the antecedents of this
provision, both from its roots
under the common law and in this
country’s constitutional history
leave no room to doubt that no
exception was intended.
As earlier mentioned, if it was
intended to exclude convictions
for contempt of court from the
application of article 72, clear
words to that effect would have
been employed, just like the
American Constitution which
specifically excludes
impeachment from the prerogative
of mercy. The meaning and import
of article 72 is clear and
precise, and therefore does not
call for the importation of any
words to bring out its meaning.
Conclusion
In the light of the discussions
herein, it is held that the
President’s power under article
72 of the Constitution extends
to and covers convictions for
criminal contempt. Consequently,
the remission of sentence
granted to the convicts cannot
be questioned by this court as
it followed due process. All the
three writs are accordingly
dismissed.
A.
A. BENIN
(JUSTICE OF THE SUPREME COURT)
ADINYIRA, JSC (MRS.): -
I had the privilege to read
beforehand the well-written and
erudite opinions of my learned
brothers Dotse and Benin JJSC.
Although I agree with my
brother Justice Dotse of the
need to preserve a truly
independent judiciary to ensure
the rule of law in Ghana and
that it is vital also to protect
it from unbridled interference
by the over bearing and
sometimes intrusive powers of
the executive and the
legislature as clearly
established under Article 125(3)
of the Constitution; and that
Article 126(2) is one of the
constitutional safeguards to
achieve this purpose;
nevertheless, with due respect,
to my esteemed brother I depart
from his reasoning and
conclusion that the framers of
the Constitution 1992, did not
intend, to attribute the power
of the superior courts to commit
for contempt, as a criminal
offence, within the meaning
ascribed in the Constitution and
Act 29.
The basis for my departure is
that contempt of court as
envisaged under Article 126(2)
is an offence arising from a
contumacious act against the
authority and dignity of a
Superior Court that attracts
punishment as allowed by Article
19(12), which places such an
act, if proved beyond reasonable
doubt, in the class of criminal
contemp. Furthermore, the
Constitution makes no
reservation
to exclude convictions for
contempt of court from the
application of Article 72.
I accordingly agree with the
reasoning and conclusion of my
brother Benin that, criminal
contempt is an offence and
attracts criminal penalties as a
misdemeanour, whether it is
charged under Article 126(2) of
the Constitution or section 224
of Act 29; the consequences are
the same. Consequently, it is an
offence within the meaning of
article 72 of the 1992
Constitution; therefore the
prerogative of mercy extends to
persons convicted of criminal
contempt
I will also dismiss the three
writs.
S. O. A. ADINYIRA (MRS.)
(JUSTICE OF THE SUPREME COURT)
BAFFOE-BONNIE, JSC:-
I agree with the conclusion and
reasoning of my brother Benin,
JSC.
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
APPAU, JSC:-
I agree with the conclusion and
reasoning of my brother Benin,
JSC.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
PWAMANG, JSC:-
I agree with the conclusion and
reasoning of my brother Benin,
JSC.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
DOTSE, JSC:
- I have been privy to the
opinion of my respected and very
distinguished brother Benin JSC
in which he has dismissed the
reliefs claimed by the
Plaintiffs in this consolidated
suit. I have applied myself very
diligently to the scholarly and
detailed analysis made therein,
but unfortunately I am unable
with respect to go with my
brother and other brethren who
agree with his conclusion. Even
though I agree with his
narration of the facts, the
analysis of the law, I am with
respect unable to agree with the
conclusions reached that the
writs in this consolidated
action be dismissed.
For the reasons herein after
stated, I will set out in some
detail, the reasons why I hold a
contrary view.
In my opinion which I rendered
“In Re Presidential
Election Petition; Akufo-Addo,
Bawumia and Obetsebi-Lamptey
(No. 4) vrs Mahama, Electoral
Commission and National
Democratic Congress (No.4)
[2013] SCGLR Special Edition,
73, at 303 to 304, I
prefaced my opinion therein with
the following quotation and
analysis.
“In 1776, John Adams, one of the
United States’ most respected
statesmen and author, wrote in
his “Thoughts of Government”
the following profound statement
on the working relationship
between the three arms of
government, to wit, the
Executive, Legislature
and Judiciary. He stated
thus:
“The dignity and stability of
government in all its branches,
the morals of the people, and
every blessing of society depend
so much upon an upright and
skillful administration of
justice, that the judicial power
ought to be distinct from both
the legislature and executive,
and independent upon
both, that so it may
be a check upon both, and both
should be checks upon that.”
After a brief narration and
reference to the election
petition case of 2013, I
continued as follows:-
“It is generally understood that
there are three branches of
government, to wit, the
Executive, the
Legislature and the
Judiciary. Of the three, it
is only the Judiciary that is
not elected. Whilst both the
Executive and the Legislature
are elected and appointed for
fixed terms, the Judiciary to a
very large extent, are appointed
by the Executive sometimes with
the approval of the Legislature
in the case of the Supreme Court
Judges, but once appointed in
democratic states, the Judges
have security of tenure and
cannot be removed from office
unless upon stated and proven
misbehavior.
In most parts of the civilized
world, including Ghana, the
three arms of government are
separate, distinct and
independent, at least on paper.
In practical terms however, even
though there are close working
relationships between the
Executive and Legislature
since their memberships overlap,
that of the Judiciary is
expected to be truly independent
in order to ensure strict
adherence to the “rule of law”.
It is in this respect that I am
of the view that the statement
quoted above, and attributed to
John Adams has become a
certainty and a road map for the
Ghana Supreme Court to navigate
delicately during this case
as it does in other cases.
It cannot be gainsaid that
the stability and progress of
any nation depend upon an
upright and skillful
administration of justice.
Secondly, in the exercise of
judicial power, the courts
should be seen as being distinct
and independent from both the
Executive and Legislative organs
of state.
Thirdly, in the performance of
its duties, all the organs of
government must be seen to be
independent one of the other, so
however that each may become a
check on the other.
Finally, whilst the Judiciary is
independent of the Executive and
Legislature and a check on both,
the other two should also be
a check on the Judiciary not so
however in the performance of
its duties.” Emphasis
The above statement clearly
epitomises the principles of
separation of powers which is
the bedrock of all modern and
truly democratic constitutions
of the free world of which Ghana
is indeed a proud member.
In Ghana, article 125 (3) of the
Constitution 1992 gives
constitutional endorsement to
the above statements. It states
as follows:-
“The Judicial power of Ghana
shall be vested in the
Judiciary, accordingly, neither
the President nor Parliament nor
any organ or agency of the
President or Parliament shall
have or be given final judicial
power”. Emphasis
Articles 127 (1) and (2) of the
Constitution 1992, further
amplify these hallowed and
fundamental principles which
underpin the independence of the
Ghana judiciary as follows:-
127 (1) “In the exercise of the
judicial power of Ghana, the
Judiciary, in both its judicial
and administrative functions,
including financial
administration, is subject only
to this Constitution and shall
not be subject to the control or
direction of any person or
authority.”
127 (2) “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.”
Emphasis
The philosophical underpinnings
of the above provisions take
their source from the report of
the Committee of Experts which
states in their report on the
Judiciary as follows:-
“Paragraph 247: The chequered
history of the rule of law and
democracy in this country hardly
leaves room for doubt that a
strong and independent judiciary
is a critical ingredient of a
viable constitutional order. As
to the role of the Judiciary in
sustaining the Constitution, the
Committee can do no better than
to invoke the ringing words of
the Akufo-Addo Report in this
regard:-
In considering our proposals for
the Judiciary we have had one
objective in view. Having
proposed a Constitution in which
is enshrined the sovereign will
of the people and which
therefore becomes the
fundamental, that is the Supreme
Law from which all persons and
authorities derive their
constitutional existence,
duties, rights and powers, we
conceive it to be indispensable
for the effective operation of
the Constitution to have a
strong, courageous and
independent judiciary capable in
all circumstances of holding the
balance evenly between the
over-reaching zeal of
bureaucrats and politicians on
the one hand and the God-given
rights of the individual on the
other.” Emphasis
See Report of the Committee of
Experts (Constitution) on
proposals for a Constitution of
Ghana – page 115.
My distinguished and respected
scholar, a former law lecturer
of mine and a distinguished
member of this court Dr.
Date-Bah JSC, in his seminal
book, “Reflections on the
Supreme Court of Ghana”,
writing on this subject at pages
207-208 stated as follows:-
“The independence of the
Judiciary is obviously an
important element in the checks
and balances of the Ghanaian
constitutional system. Several
constitutional provisions and
their underlying polices
coalesce to enable the
maintenance of a reasonable
degree of independence for the
Judiciary. These include
provisions for relatively
independent appointment process
for Judges and Magistrates and
security of tenure for superior
courts justices.
Security of tenure requires that
Judges should only be removed
from office after independent
due process. The forum for
Ghana’s impeachment process for
judges is an independent
quasi-judicial tribunal which
has the jurisdiction to make
determinations on accusations of
judicial misconduct. As
already mentioned, there is also
the provision made for the
separation of powers between the
Judiciary and the two other
branches of government.
Consequently, the Chief
Justice heads a separate and
distinct administration for the
Judiciary which is
independent of the executive and
is accorded financial autonomy
guaranteed by the Constitution.”
Emphasis
Continuing further from page 207
to 208 the distinguished author
and jurist writes as follows:-
“In the same way as the
President and members of
Parliament ground their
legitimacy on their electoral
mandate, the judiciary’s
mandate to exercise judicial
power derives from this
constitutional delegation of
power from the people.
Judges are anointed so to speak,
by the people to do justice on
their behalf. The judicial
power thus conferred on the
Judiciary is expressly separated
from the other powers of
government in the following
terms by article 125 (3) supra –
emphasis
In all of the above, it should
be properly understood that the
framers of the Constitution
1992, carefully arranged a
skillful architecture such that,
whilst the Judiciary is vested
with exclusive judicial and
penal sanctions, it also
protects it from unbridled
interference by the over bearing
and sometimes intrusive powers
of the executive and the
legislature. This therefore in
my opinion insulates the
Judiciary from interferences of
any nature whatsoever in the
exercise of their judicial
functions.
Since my brother Benin JSC, has
already set out all the reliefs
being claimed in his judgment, I
will adopt them as duly referred
to and considered herein.
FACTS OF THE CASE
On 24th and 29th
June 2016 Messrs, Alistair Tairo
Nelson, Salifu Maase (a.k.a
Mugabe) and Godwin Ako Gunn,
hereafter referred to as “Montie
3” while speaking on Montie FM,
an Accra based radio station
made several disparaging remarks
against the Supreme Court and
some justices of the supreme
Court which are so vile and
disparaging that they are not
worth recounting in this
judgment.
On July 18, 2016 the Supreme
Court found the three
personalities to be in contempt
of the Supreme Court and on July
27, 2016 the Supreme Court
sentenced the three
personalities to four (4) months
imprisonment. This was after
their pleas in mitigation had
been heard and considered by the
Supreme Court.
Subsequent to the conviction and
sentencing of the trio, a vigil
was held by a group called the
Research and Advocacy Platform
(RAP) to gather support for a
call for their pardon by the
President under Article 72 of
the Constitution.
The RAP also opened a Petition
Book aimed at collecting One
Thousand (1000) signatures of
Ghanaians to serve as a petition
to be presented to the President
to exercise his powers of
prerogative of mercy in favour
of the three (3) under Article
72 of the Constitution. Among
the signatories were Ministers
of State (some of whom are
lawyers) and other dignitaries
appointed by the President.
Having gathered the desired
number of signatures, the
representatives of RAP on
Tuesday August 2, 2016 presented
a Petition to the President.
Meanwhile a similar petition
seeking the prerogative of
mercy, on behalf of the three
personalities, was also
presented by the legal team of
the three to the President.
The basis for both petitions for
the President to invoke article
72 of the Constitution were that
the three have shown remorse for
their reprehensible acts and
that the sentence imposed by the
Supreme Court was harsh in
relation to the offence
committed.
Upon receipt of the said
Petition of signatures and that
from the Lawyers, same were
handed over to the chairman of
the Council of State which body
the President was required under
article 72 of the Constitution
to consult before invoking his
prerogative of mercy.
The Plaintiffs thereafter filed
their separate and independent
writs against the Defendant,
seeking inter alia declaratory
reliefs and an interim
injunction against the President
acting in consultation with the
Council of State from exercising
his powers under Article 72
until the final determination of
the suit.
Whilst the writs were pending,
and awaiting determination, of
the application for interim
injunction, the President
announced through a circular
issued by the Minister of
Communications on the 22nd
of August, 2016 that he has
exercised his prerogative of
mercy in favour of the 3
convicted persons on
compassionate grounds. On the 26th
of August 2016 the 3 persons
were released from prison.
The joint memorandum of agreed
issues that was filed by the
parties and agreed to by this
court are the following:-
1. Whether or not the
words “convicted of an
offence” in article 72 of
the Constitution 1992 includes
committal and conviction for the
offense of contempt of court by
the superior courts under
article 126 (2) of the
Constitution?
2. Whether or not the
prerogative of mercy of
President of the Republic under
article 72 of the Constitution,
1992, extends to, and covers, a
power to grant pardon to
persons, who have been convicted
for contempt of court, by the
superior courts under article
126 (2) of the Constitution
1992.
3. Whether or not, if
the President’s prerogative of
mercy under article 72 of the
Constitution, 1992, extends to,
and covers, a power to grant
pardon to persons so committed
and convicted, such power or
prerogative of mercy is
discretionary in the terms of
article 296 of the Constitution,
1992 and ought to be exercised
in accordance with article 296
(a) & (b) thereof.
4. Whether or not the
exercise of the discretionary
power of the president in favour
of the contemnors was arbitrary
and capricious.
5. Whether or not the
grant of remission of the
sentence of the contemnors by
the President constitutes an
unjustified interference with
the Judiciary and an affront to
the constitution.
6. Whether or not the
power of the President of the
Republic of Ghana to exercise
prerogative of mercy is limited
to convictions arising from
criminal offences.
7. Whether or not the
grant of remission of sentence
by the President to the
contemnors constitutes an abuse
of the President’s discretion.
For the purposes of this
judgment, I will deal with
issues 1, 2, 5 and 7. This is
because in my considered
opinion, the resolution of these
issues will effectively and
completely resolve all the
issues germane to this case.
ISSUE 1
Whether or not the words
“convicted of an offence” in
article 72 of the Constitution
1992 includes committal and
conviction for the offense of
contempt of court by the
superior courts under article
126 (2) of the Constitution?
Article 126 (2) of the
Constitution 1992 provides as
follows:-
“The superior courts shall be
superior courts of record and
shall have the power to commit
for contempt to themselves and
all such powers as were
vested in a court of record
immediately before the coming
into force of this
constitution.” Emphasis
At this stage, it is also
considered prudent to quote in
full the entire provisions of
article 72 (1) of the
Constitution 1992 which states
as follows:-
“Prerogative of
mercy
72 (1) The President may,
acting in consultation with the
Council of State,
(a) grant to a person
convicted of an offence a pardon
either free or subject to lawful
conditions; or
(b) grant to a person
respite, either indefinite or
for a specified period, from the
execution of punishment imposed
on him for an offence; or
(c) substitute a less
severe form of punishment for a
punishment imposed on a person
for an offence; or
(d) remit the whole or
part of a punishment imposed on
a person or of a penalty or
forfeiture otherwise due to
Government on account of any
offence.”
In view of the far reaching
effect of the provisions of
Article 19 (11) and (12) of the
Constitution 1992, I deem it
expedient to reproduce them for
ease of reference
19 (11) “No person
shall be convicted of a criminal
offence unless the offence is
defined and the penalty for it
is prescribed in a written law.”
Emphasis
19 (12) “Clause (II) of this
article shall not prevent a
superior court from punishing a
person for contempt of itself
notwithstanding that the act or
omission constituting the
contempt is not defined in a
written law and the penalty is
not so prescribed.” Emphasis
A perusal of the relevant
constitutional and statutory
provisions, to wit, Articles 19,
with special emphasis and
reference to articles 19 (11) ,
(12) and 21, Article 126 (2) all
of the constitution 1992, and
Act 29, the Criminal and Other
Offences Act, 1960 with emphasis
on sections 1 and 10 thereof,
among others makes it quite
clear to me that committal for
contempt of court is not one of
the Criminal Offences intended
under the scope of Article 72.
From my analysis and evaluation
of the said constitutional and
statutory provisions, I am of
the considered view that, the
framers of the Constitution
1992, did not intend to
attribute the power of the
superior courts to commit for
contempt as a criminal offence
within the meaning ascribed in
the constitution and Act 29 to
criminal offences. This is
because, article 19 (21) of the
Constitution defines a criminal
offence as meaning a criminal
offence under the laws of Ghana.
Furthermore, Section 1 of Act 29
defines “criminal offence as
having the meaning assigned to
it by Article 19 of this
Constitution. It is worthy of
note that, section 10 of Act 29,
just as Article 19 (12) does,
excludes from the purview, the
provisions of Article 126 (2) of
the Constitution when dealing
with what constitutes a criminal
offence under the laws of Ghana.
Since it is this article 126 (2)
of the Constitution which
created contempt of court, and
article 19 (12) further excludes
it from it being evaluated as a
criminal offences it follows
that it is not a criminal
offence under the laws of Ghana.
I have perused the statements of
case of all the parties in this
case as well as their scholarly
further arguments of law which
they filed pursuant to orders of
this court. In this respect, I
must concede that I am impressed
with the written submissions by
counsel for the Plaintiffs in
their collective conclusions
that, criminal offences as
denoted in the Constitution 1992
and the laws of Ghana does not
include the power of the
superior courts to commit for
contempt that they have been
granted pursuant to article 126
(2). I must also state that I
have not been impressed with the
arguments of learned counsel for
the Defendants in the
consolidated suits and
accordingly reject them.
It is significant to note and
observe that a fundamental
principle of our criminal law
regime has been stated in
article 19 (11) of the
Constitution 1992. This bears
emphasis to the fact that, in
Ghana, nobody can be charged and
convicted of a criminal offence,
unless
i. The offence is
defined and
ii. The penalty for the
crime is prescribed in a written
law
However, in view of the special
nature of the power of the
superior courts in respect of
contempt of court, these
fundamental principles have been
excluded.
See the case of British
Airways v Attorney-General
[1996-97] SCGLR 547
where the Supreme Court, per
Bamford Addo JSC, underscored
the above principle when the
court held that once before
conviction the offence was no
longer a crime, it does not
matter whether it was a crime at
the time the offence was
committed or not. What mattered
most was the status of the
offence at the time the trial
was concluded.
My understanding of the
Constitution 1992 and the powers
of the Superior Courts to punish
for contempt indicates that, the
framers of the Constitution did
not intend to make this contempt
a criminal offence in the manner
and scope in which it has been
dealt with by Defendants.
Reference article 14 (1) (a)
where the word offence is not
added to the contempt where it
was recognised that restrictions
may be imposed on persons
convicted and or punished for
contempt. See also article 88
(3) and (4) of the Constitution.
It is therefore not out of place
that, the operating
constitutional provision in
article 126 (2) which grants the
power to the Superior Courts to
commit for contempt
conspicuously avoids the use of
the word offence.
When reference is also made to
the decision of this court in
the case of Ackah v
Adjei-Acheampong & Anor
[2005-2006] SCGLR where
the Supreme Court spoke with one
voice through Date-Bah JSC, at
page 11, it is clear “offence”
as used in the constitution has
the same meaning or, is in the
words of the court, an
“elliptical reference to
criminal offences” which
of course has been defined in
Article 19 and has been
illustrated to exclude the
power of the superior courts to
punish for the common law
quasi-criminal offence of
contempt.
Based on the above rendition,
I will respectfully hold and
rule that the “words convicted
of an offence” in article 72 of
the constitution does not
include committal and conviction
for the offence of contempt of
court by the superior courts
under article 126 (2) of the
Constitution.
Before I consider the resolution
of issues 2, 5 and 7 in the
agreed memorandum of issues, I
propose to set out the
historical background that led
to the institution of the writs
in the Supreme Court which
formed the basis of the exercise
of the power of contempt by this
court against the Montie 3.
HISTORICAL ANALYSIS OF THE CASE
The facts which have given rise
to these writs have been
graphically stated elsewhere in
this judgment. Suffice it to be
that, they arise out of the
preparations of the Electoral
Commission, the body mandated by
the Constitution to compile the
Voters Register and revise same
at such periods as may be
determined by law and mainly to
conduct and supervise all public
elections and referenda inter
alia other functions, that have
been spelt out in Article 45 of
the Constitution 1992.
Following preparations of the
Electoral Commission towards the
Presidential and Parliamentary
elections of 2016, serious
constitutional issues were
raised about the preparations of
the voters register. The crux of
these issues concerned the use
of the NHIS cards as an
identification by persons to
register.
The failure of the Electoral
Commission to address the
concerns of the parties
concerned led to the institution
of two writs in the Supreme
Court as consolidated writs Nos.
J1/11/2014 and J1/9/2014
intitutled. Abu Ramadan &
Nimako (NO1) v Electoral
Commission & A. G.,
Danso-Acheampong v Electoral
Commission & A. G. consolidated
[2013-2014] 2 SCGLR 1654,
where the Supreme Court
speaking through Georgina Wood
C.J, held as follows:-
“Upon a true and proper
interpretation of article 42 of
the 1992 Constitution, providing
for the right to vote, the
use of the National Health
Insurance Scheme (NHIS) card to
register a voter pursuant to
regulation 1 (3) (d) of the
Public Elections (Registration
of voters) Regulations, 2012 (C.
I. 72), was inconsistent with
the said article 42.
Additionally, the court would
grant the plaintiffs in Suit No.
J1/11/2014 an order of perpetual
injunction restraining the
Electoral Commission from using
the National Health Insurance
Scheme Card in its present form
and a voter identification card
referred to in regulation 1 (3)
of C. I. 72 other than as
explained under relief (2) for
the purposes of registering a
voter under article 42 of the
1992 constitution.
Tehn-Addy v Electoral Commission
[1996-1997] SCGLR 589 at 595
per Acquah JSC (as he then was)
at 594-595, and Ahumah-Ocansey v
Electoral Commission , Centre
for Human Rights and Civil
Liberties (CHURCIL) v
Attorney-General and Electoral
Commission consolidated [2010]
SCGLR 575
cited.
The court qualified this
judgment by stating as follows:-
“If the right to vote is
important in participatory
democracy, the right to register
is even more fundamental and
critical. It is the gold key
that opens the door to
exercising the right to vote.”
Emphasis
Following the inability of the
Electoral Commission to satisfy
the Plaintiffs, Abu
Ramadan and Evans Nimako in Writ
No JI/11/2014 supra, the
duo returned to the Supreme
Court in writ No. J1/14/16
intitutled Abu Ramadan and
Anr. v Electoral Commission and
A.G., and this time the
Supreme Court speaking through
our respected and distinguished
brother Gbadegbe JSC granted
substantially the reliefs of the
Plaintiffs in unreported
judgment dated 5th
May 2016 in the case referred to
supra.
In the course of it’s rendition,
the Supreme Court, speaking
through Gbadegbe JSC , stated
in part as follows:-
“However before we end the
consideration of the independent
status of the Electoral
Commission, we wish to say
that the independent status of
the first defendant does not
make it immune from action for
the purpose of declaring that it
has exceeded its authority or
acted in a manner that having
regard to its unreasonableness,
irrationality, or unfairness
cannot be accorded the sanction
of legality in view of articles
23 and 296 of the Constitution.
We do not agree with the
contention pressed on us by the
first defendant that the
constitution “forbids any
control or direction of the 1st
defendant as to how to
accomplish its work. Plainly
the said statement is erroneous
as article 46 itself recognises
that it’s independence may be
derogated from either in the
constitution or by any other law
including but not limited to the
instances referred to in regard
to articles 48 (1) and 49 (1).
There is also the point that as
a creature of article 43, the
Electoral Commission is subject
to the Constitution, to deny
that it is not subject is to
misconstrue the nature of the
independence bestowed on it in
relation to our exclusive
jurisdiction, which is critical
to effectuating the supremacy of
the law”. Emphasis
The events following the
delivery of the above judgment
is what led to the contempt
proceedings instituted in the
Supreme Court against Salifu
Maase, Godwin Ako Gunn, Alistair
Nelson, hereafter, the “Montie
3” and the Directors of the
Radio Station.
Out of abundance of caution, I
reiterate the salient facts as
captured by the court itself
during the contempt proceedings.
“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 favouring
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… They
cruelly and callously reminded
the justices of the murder of
three High Court Judges on 30th
June 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.”
Apart from being insulting,
these specie of conduct by the
Montie 3, should be considered
as highly intimidating and
calculated to bring fear, panic
into the Judiciary and the
Court, as well as bring the
court into disrepute, ridicule
and thereby bring the entire
administration of justice to its
knees.
HOW DID THE SUPREME COURT DEAL
WITH PREVIOUS CASES OF CONTEMPT
Before I proceed further, I wish
to make a detour to the
Presidential election petition
2013 In re Presidential Election
Petition already
referred to supra.
During the said proceedings, the
court had occasion to deal with
instances of persons who
committed contempt ex facie
curiae by scandalizing the
courts and bring it into hatred
and ridicule. People like Sammy
Awuku, now the National
Organiser of the New Patriotic
Party (NPP), Ken Kuranchie, an
editor of a national newspaper,
Kwadwo Owusu Afriyie, then
General Secretary of the New
Patriotic Party (NPP), and
Atubiga, an activist of the
National Democratic Congress,
(NDC).
§
For his punishment, Sammy Awuku
was banned from attending
further hearings of the
presidential election petition
for daring to describe a
decision of the court as”
hypocritical and selective”.
§
Ken Kuranchie on the other hand
was convicted on 2nd
July 2013 for writing in his
national newspaper that Sammy
Awuku was right in describing
the decision of the Supreme
Court in those terms and
sentenced to 10 days
imprisonment.
§
Kwadwo Owusu Afriyie on the
other hand was convicted on 14th
August 2013 as he was found
guilty of intentional criminal
contempt of the Supreme Court.
He however did not get a
custodial sentence but was
bonded over to be of good
behaviour.
§
Atubiga was also not lucky as he
also spent time in prison
following his conviction for
contempt.
In his seminal book
“Reflections on the Supreme
Court of Ghana”, Justice
Date-Bah stated on page 227 on
these incidents as follows:-
“The Supreme Court clearly
considered it, its duty to
safeguard the public peace
through a firm application of
its powers of contempt of court
during the tense period of the
hearing of the Presidential
Election Petition. Its view was
that offending statements did
not only impugn the integrity of
the Justices, but also
threatened the security of the
state”
emphasis
I agree entirely with the above
observations of our
distinguished brother Date-Bah
JSC. Every right thinking person
in Ghana during the hearing of
the presidential election
petition will agree with me that
the entire country was sitting
on a time bomb. The collective
decision and wisdom of the
Supreme Court in those days to
crack the whip on all these
contemnors is what led to the
prevalence of peace in the
country.
Issue 2
Whether or not the
prerogative of mercy of
President of the Republic under
article 72 of the Constitution,
1992, extends to, and covers, a
power to grant pardon to
persons, who have been convicted
for contempt of court, by the
superior courts under article
126 (2) of the Constitution
1992.
Issue 5
Whether or not the
grant of remission of the
sentence of the contemnors by
the President constitutes an
unjustified interference with
the Judiciary and an affront to
the constitution.
Issue 7
Whether or not the grant of
remission of sentence by the
President to the contemnors
constitutes an abuse of the
President’s discretion.
What was the situation in 2016
when President Mahama granted
the pardon to the Montie 3?
Before we proceed any further,
it is important to reflect on
the words of the Supreme court,
and consider the rationale they
gave for imposing the custodial
sentences on the contemnors i.e
the Montie 3.
The rationale the Supreme Court
gave to justify the reason why
it handed the custodial
sentences to the contemnors is
very instructive and worth
recounting at this juncture.
Speaking through Sophia Akuffo
JSC, (as she then was), the
Supreme Court stated
“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.”
Emphasis
After a consideration of
relevant provisions of the
Constitution, which have been
set out above already, the court
made the following poignant and
important observations at pages
5-6 of the ruling as follows:-
“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
the 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…
Indeed, it is because the
judicial function is for the
cohesion of society at large
that, even during the various
periods of military rule which
this country endured in times
past, the courts were always
preserved. 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:” Emphasis
It is not surprising that the
court, did not mince words in
reiterating the now popular view
that it is the Judiciary that
has the absolute responsibility
of ensuring that the other two
main arms of Government namely
the Executive and Legislature
are put in check and within
manageable limits. This is in
sync with the opening quotation
from John Adams referred to
earlier in this judgment.
I have already stated supra
that, the framers of the
Constitution 1992, conscious of
the enormous powers and
responsibilities that the
Judiciary would be expected to
play to ensure that the
Constitution works perfectly in
harmony, granted it the power of
contempt in Article 126 (2) of
the Constitution 1992.
To further buttress the smooth
exercise of this power of
contempt, the Constitution again
in article 19 (12) excluded a
very important and fundamental
human rights and common law
principle in Article 19 (11), of
the Constitution to wit, that
“no person shall be convicted of
a criminal offence unless the
offence is defined and the
penalty for it is prescribed in
a written law.”
It must thus be fully understood
that, the framers of the
Constitution must have had
confidence in the ability of the
Judiciary to navigate these
enormous powers of contempt that
they had been granted.
In my understanding of the
powers of the Judiciary in cases
of contempt, there appears to be
little or no problem with
contempt “in faciae curiae”
meaning contempt committed in
the face of the court. For
example, when a person
misbehaves in the court, or
utters insulting behaviour in
the court or misconducts himself
within the court whilst the
court is in session, there is
little doubt that such a person
needs to be penalized for
contempt.
This is the type of contempt
dealt with in section 224 of Act
29. That type of contempt is not
what we are with respect
concerned with here.
On the other hand, there is this
other criminal contempt which is
called, contempt “ex faciae
curiae” meaning contempt
committed outside the court such
as we had in the Montie 3 case.
These aspects of contempt lie in
the person scandalizing the
court as had been referred to
supra. What must be noted is
that the offence of contempt of
court, committed through
scandalizing the courts must be
dealt with promptly such that
the authority and dignity of the
courts is not thrown away to the
dogs. In these days of media
pluralism and free expression, a
delicate scheme must be
maintained in striking a balance
between where free expression
ends and where the courts have
been scandalized. Otherwise we
run the risk of endangering the
security of the state and it’s
independent constitutional
bodies, such as the Judiciary.
One of the first cases to have
been handed down by the Supreme
Court in this area of criminal
contempt committed ex faciae
curiae is the locus classicus
case of Republic v
Liberty Press Limited [1968] GLR
123 at 135, where
Akufo-Addo CJ, laid down the
basic principles as follows:-
“I
need hardly say that the
judiciary has never claimed to
be above criticism. Indeed I
have on more than one occasion
stated in public that the
judiciary, like any other
democratic institution, must
justify its continued existence.
This implies that its actions
and conduct must be subject to
the same measure of public
scrutiny as any other
governmental institution.
Justice, it has been said, is
not cloistered virtue, and those
who have the responsibility to
dispense justice will certainly
not want to live in cloisters.
But 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. Such conduct
constitutes the offence of
contempt of court, and the
courts are vested with the power
of dealing with it in a manner
that is almost arbitrary. For
this reason the power is rarely
invoked and only when the
dignity, respect and authority
of the courts are seriously
threatened. It has been said
that these powers are given to
the courts (and the judges) to
keep the course of justice free;
power of great importance to
society, for by the exercise of
them law and order prevail;
those who are interested in
wrong are shown that the law is
irresistible.
It is contempt of court by deed
or word to scandalise the
courts. It is contempt of court
to make statements amounting to
abuse of the courts. It is
contempt of court to make
statements which tend to expose
the courts or parties who resort
thereto to the prejudice or
hatred or ridicule of mankind.
Within these limits and within
the further limits set by the
legitimate exercise of the
freedom of thought and
expression criticism of judicial
acts is free. The press both
high and low must fully realise
and appreciate that there is no
such species of the freedom of
thought and expression as press
freedom. The freedom which the
press enjoys is no less and no
more than the freedom of thought
and expression which the
humblest illiterate citizen of
Ghana enjoys. Emphasis
On these principles, see also
the case of Republic v
Mensa-Bonsu, Ex-parte
Attorney-General, [1994-95] GBR
130 .
Contrast these Ghanaian cases
which the case of Sunday
Times v The United Kingdom
[European Court of Human Rights
Application No. 6538/74,
judgment of 26th
April 1979. See also
page 220 of Dr. Date-Bah’s book
referred to supra in the Sunday
Times case, the European Court
of Human Rights in reversing the
House of Lords stated as
follows:-
“As the court remarked in its
Handyside judgment, freedom of
expression constitutes one of
the essential foundations of a
democratic society, subject to
paragraph 2 of Article 10
(Article 10 -2), it is
applicable not only to
information or ideas that are
favourably received or regarded
as inoffensive or as a matter of
indifference, but also to
those that offend, shock or
disturb, the state or any sector
of the population (page 23,
para 49). Emphasis
Back to the crux of the instant
case. Was President Mahama
within the remit of his powers
when he exercised the power of
pardon in Article 72 of the
Constitution in granting the
Montie 3 who were convicted of
criminal contempt?
Having evaluated the case in its
proper historical context as
well as its constitutional and
statutory status, my answer to
the above question is that,
President Mahama acted
unconstitutionally when he
sought the advice of the Council
of State and exercised the
prerogative of mercy to the
three convicted Montie 3 and
granted them the Presidential
pardon.
In my considered view therefore,
the prerogative of mercy of the
President in Article 72 of the
Constitution does not cover and
or extend to persons who have
been convicted for contempt of
court by the superior courts
under article 126 (2) of the
Constitution 1992. In this
respect, it must be noted that,
this power extends to only
superior courts and does not lie
to lower courts. The power to
commit for contempt by the lower
courts, in my opinion, lies
under Section 224 of Act 29,
where a person commits an
offence which is known as
contempt in faciae curiae.
Relief 2 is thus resolved in the
affirmative.
As a matter of fact, if the
Supreme Court had not skillfully
handled and dealt with the many
commentaries that plagued the
country during the hearing of
the 2013 presidential election
petition, only God knows what
would have become of this
country.
Assuming without admitting that
the President at the material
time had granted pardon to those
who were dealt with by the
Supreme Court in 2013, for
having committed contempt of the
court, the signal would have
been given that the Executive
had endorsed the specie of
conduct complained about against
the Supreme Court.
In my opinion, if this power
that the Judiciary has is
subjected and surrendered willy
willy to the Executive, then it
may sound the death knell of the
Judiciary. This is because,
politics in this country has
become so polarized that we need
to be very circumspect in
surrendering this power of
contempt vested in the Judiciary
under Article 126 (2) of the
Constitution 1992, bearing in
mind that our forebears took our
chequered political history into
consideration before deciding to
clothe the Superior courts with
this power.
Furthermore, in my opinion in
the case of Brown v
Attorney-General [2010] SCGLR
183, at 236, I stated on use of
foreign authorities as follows:-
“I have always held the view
that in interpreting a
constitution, one must resort to
the constitution itself to
determine the spirit the framers
of the constitution intended to
give it in its interpretation.
Where the constitution contains
guidelines or principles which
can be used to interpret the
constitution these must be
applied. Where in the case of
our Constitution, 1992, there
are no such express guidelines,
the Supreme Court itself must
fashion out its interpretative
principles on a case by case
basis taking into account the
contextual nature of the
provisions concerned. It is
however my firm conviction that
in fashioning out these
guidelines and interpretative
principles which underpin the
Constitution 1992, one must
first and foremost look at the
Constitution itself, that
failing then resort will be made
to previous decisions of the
Supreme Court in the 1st
2nd and 3rd
Republican Constitutions of
1960, 1969 and 1979
respectively. I am also of the
view that principles of
constitutional interpretation
and decided cases from foreign
countries must be sparingly
referred to and whenever these
are used, the provisions of
those constitutions upon which
the cases have been decided must
be thoroughly digested and
analysed to prevent the
wholesale and corrupted adoption
of foreign rules of
constitutional interpretation
which have no nexus to our home
grown situation. “
I have had to refer to the said
opinion because all the learned
counsel for the Plaintiffs and
Defendants had made copious and
extensive references to the use
and reliance on foreign
authorities. Much as I agree
that, as a common law
jurisdiction, we can rely and
indeed quite frequently use some
of these foreign opinions, the
unbridled reliance and use of
them where the constitutional
provisions as in the instant
case are to me clear and
unambiguous, it makes reliance
on them needless. Where the
constitutional provision in
Article 126 (2) of the
Constitution 1992, and all other
provisions to wit, Articles 19
(11) (12) and (21) are clear and
admit of no ambiguity, effect
must be given to it in our
interpretative jurisdiction as
was decided in the case of
Republic v Special Tribunal;
Ex-parte Akosa [1980] GLR 592.
It must be noted in this
instance that, the provisions of
the Constitution that call for
interpretation by this court
relate to the powers and
independence of the Judiciary in
it’s quest to ensure that it’s
authority is not diminished and
ridiculed in the eyes of the
public.
I believe that, it was for this
reason, that the Court of
Appeal, sitting as the Supreme
Court, stated in the monumental
case of Tuffour v
Attorney-General [1980] GLR 637
particularly at 647 – 648 as
follows:-
“A
written Constitution such as
ours is not an ordinary Act of
Parliament. It embodies the
will of a people. It also
mirrors their history. Account,
therefore, needs to be taken of
it as a landmark in a people’s
search for progress. It contains
within it their aspirations and
their hopes for a better and
fuller life. The
Constitution has its letter of
the law. Equally, the
Constitution has its spirit. It
is the fountain-head for the
authority which each of the
three arms of government
possesses and exercises. It is a
source of strength. It is a
source of power. The executive,
the legislature and the
judiciary are created by the
Constitution. Their authority is
derived from the Constitution.
Their sustenance is derived from
the Constitution. Its methods of
alteration are specified. In our
peculiar circumstances, these
methods require the involvement
of the whole body politic of
Ghana.
Its language, therefore, must be
considered as if it were a
living organism capable of
growth and development.
Indeed, it is a living organism
capable of growth and
development, as the body politic
of Ghana itself is capable of
growth and development. A broad
and liberal spirit is required
for its interpretation. It does
not admit of narrow
interpretation. A doctrinaire
approach to interpretation would
not do. We must take account
of its principles and bring that
consideration to bear, in
bringing it into conformity with
the needs of the time. And so we
must take cognisance of the
age-old fundamental principle of
constitutional construction
which gives effect to the intent
of the framers of this organic
law. Every word has an
effect. Every part must be given
effect. Perhaps it would not be
out of place to remember the
injunction of St. Paul contained
in his First Epistle to the
Corinthians, Chapter 12, verses
14-20 (King James Version):
“For the body is not one member,
but many. If the foot shall say,
Because I am not the hand, I am
not of the body; is it therefore
not of the body? And if the ear
shall say, Because I am not the
eye, I am not of the body; is it
therefore not of the body? If
the whole body were an eye,
where were the hearing ? If the
whole were hearing, where were
the smelling . . . ? But now are
they many members, yet but one
body.”
That Supreme Court, concluded
thus:-
And so a construction should be
avoided which leads to
absurdity. And when a particular
interpretation leads to two,
shall we say “inconsistent”
results, the spirit of the
Constitution would demand that
the more reasonable of the two
should be adhered to. We must
have recourse to the
Constitution as a whole.”
Emphasis
If we consider the above words
of wisdom which has to be taken
into consideration when issues
of constitutional interpretation
such as the instant arise for
our determination, then it
behoves on us as the apex court
to consider these cautions very
seriously.
The above quote is also
consistent with the report of
the Committee of Experts who
drafted the Constitution 1992,
supra in the sense that it also
make reference to our history as
a people, aspirations and hope
for a better and fuller life. It
also states categorically that
the Constitution is a living
organism capable of growth. It
is in respect of this that I am
of the view that, the conditions
prevailing in Kansas city, in
the U.S, India, United Kingdom,
Australia etc. are different
from what prevails in Ghana. The
level of discipline and respect
for law and order are also
different from country to
country. In my opinion, it will
be a travesty of justice to
import wholesale certain
criteria and make them
applicable to conditions in
Ghana as if the security
situation, level of discipline,
respect for law and order etc.
are the same.
In my candid opinion, at the
moment, the last vestige of
semblance of authority is the
Judiciary. Erode the power of
the Judiciary and there will be
chaos in the country.
One way of losing this power is
the relegation or subjugation of
this power of contempt granted
the Judiciary by the framers of
the Constitution in Article 126
(2) and the other provisions
already referred to supra.
Once the framers of the
Constitution had taken our
history as a nation into
consideration, and we have also
noted with concern the
deteriorating conditions
prevailing in the country where
there is apparent recklessness
and no respect for law and
order, there is the absolute
need for some form of
“arbitrary” power to sanitise
excesses as happened in the
Montie 3, without Executive
Presidential intervention. I am
however mindful that these
powers should not be exercised
recklessly.
In Agbevor v
Attorney-General [2000] SCGLR
403 Kpegah JSC whilst
concurring with the court in its
unanimous decision which
nullified the removal from
office of the plaintiff therein
as a Judicial Officer, had this
to say:-
“That the President took this
advice on the recommendation of
the Judicial Council devastates
me. The President should expect
and indeed, deserves quality
professional legal advice from
the Judicial Council”.
The learned Judge continued
thus:-
I agree that the letter is an
unnecessary intrusion into the
administration of the Judiciary
and infringes upon article 127
(1) of the 1992 Constitution.
Also the President has no power
to sanction any judicial officer
and his letter to the Plaintiff
directing his removal from the
Judicial Service as contrary to
article 151 (1) of the
Constitution.”
Very strong words indeed. But
when the situation demands, it
must be said just as it is. It
is possible for all the arms of
government, i.e. Executive,
Legislature and the Judiciary to
err, and they do sometimes err.
It is however safer for the
citizenry to bear with the
errings of the Judiciary than
the other two. This is because,
it is only the Judiciary that is
truly independent of the other
two arms of government. Our
history and aspirations as a
people are such that we must be
wary of entrusting too much
power into the hands of the
Executive President. It is for
all the above reasons that I
will uphold the writs of all the
Plaintiffs that the President
acted unconstitutionally in
granting pardon to the Montie 3.
CONCLUSION
I agree in substance with the
discussions of my brother Benin
JSC on the exercise of
discretionary power by the
President vis-à-vis Article 296
of the Constitution relative to
the scope of the powers in
article 72 of the Constitution
1992.
Much as I think it is desirable
to have rules and or guidelines
to aid in the application, scope
and extent of these
discretionary powers, their
absence is not fatal either.
Indeed I also think the
guidelines or rules will be
flexible since it is impossible
and inconceivable to provide for
every known exercise of
discretionary power. This is
impossible. Under the
circumstances, since I have
already concluded that the
Presidents exercise of the power
is even unconstitutional, the
lack of discretion for me does
not arise because he followed
the due process. It is in the
exercise of the grant of the
pardon that I think the
President erred in committing an
unconstitutional conduct.
I will therefore hold and rule
that the exercise of the power
of grant of remission of
sentence to the Montie 3,
constituted an unjustified
interference with the Judiciary
and an affront to the
constitution.
Finally, since the President in
my opinion acted
unconstitutionally, all other
issues are subordinate to this.
I will therefore under these
circumstances grant the
plaintiffs the reliefs prayed
for excluding the injunctive
reliefs which are now moot.
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
YEBOAH, JSC: -
My respected brother Benin, JSC
has already stated the facts of
this case with his usual
accuracy that it would be
unnecessary for me to repeat
same. I, however, offer my brief
dissenting opinion in support of
the opinion of my worthy brother
Dotse JSC.
I proceed accordingly to do so
on the basis that, the
determination of this case,
which is to test the
independence of the judiciary in
contempt matters, may have
far-reaching consequences in the
administration of Justice in
this country since this occasion
appears to the first that the
issue before us has been raised.
The judicial power of this
country, under article 125(3) of
the constitution is vested in
the judiciary as follows:
“125(3)
The judicial power of Ghana
shall be vested in the
Judiciary, accordingly,
neither the President nor
Parliament nor any organ or
agency of the President or
Parliament shall have or be
given final judicial power”
As if this is not enough, the
framers of our constitution
(which was subjected to a
national referendum) proceeded
to provide further safeguards
under article 127(2) thus:
“127(2)
Neither the President nor
Parliament nor any person acting
under the authority of the
President or Parliament not any
other person whatsoever shall
interfere with judges or
judicial officers or other
persons excersing judicial
power, in their 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”
According to the defendant, the
President is entirely empowered
under Article 72 of the
Constitution to grant a pardon
to a person convicted for
contempt of court by the
superior courts. The plaintiffs
disagree on the basis that the
Presidential powers exercised
under Article 72 should be
limited to contempt proceedings
initiated at the instance of the
Attorney-General. Enough
material and substantial
research went into the
preparation of the respective
statements of case presented by
the parties for our
consideration. As the issues
raised for our determination are
being raised for the first time
upon the coming into force of
the 1992 constitution, a careful
approach is needed to resolve
the issues the determination of
which will certainly put to rest
the extent of the powers of the
President in pardoning persons
convicted for contempt by the
court under article 126(2).
In my respectful view, the
difference between civil
contempt and criminal contempt
which the Attorney-General has
endeavored to stress in the
statement of case is well
recognized in the common law
jurisprudence. In judicial
proceedings, as pointed out by
the plaintiff in suit number
J1/21/2016, the distinction
is crucial and should always be
drawn. A civil contempt will
usually arise when a party to
any proceedings forms the view
that an order of a court of law
has been disobeyed or interfered
with. Criminal contempt usually
arises when a party or stranger
to the proceedings scandalizes a
court by bringing the
administration of justice into
disrepute.
It is usually the case that both
the Attorney-General or the
court on its own motion can
initiate criminal contempt
proceedings. In this country,
the first notable case was the
case of THE REPUBLIC v
LIBERTY PRESS & ORS [1968]
GLR 123 in which the
Attorney-General initiated
contempt proceedings against the
contemnors for scandalizing the
courts. The more recent one was
the case of THE REPUBLIC v
MENSAH-BONSU & ORS; EX PARTE
ATTORNEY-GENERAL [1995-96]
GLR 377. My research into local
case law did not unearth any
other reported case in which the
Attorney-General applied for
contempt against any person
scandalizing the courts.
None of the parties is doubting
the power of the President to
grant pardon in criminal cases
but the issue is whether in
exercising his constitutional
powers vested in him under
Article 72 of the 1992
Constitution, the President can
do so in criminal contempt cases
initiated by the court itself.
It must be pointed out that
Article 72 is not a new
provision introduced into
Ghana’s constitution since
independence and indeed granting
of pardon to convicts have been
done on regular basis in
constitutional dispensations.
However, Article 124(3) of the
1992 Constitution has, in my
respectful opinion prohibits the
President and Parliament from
any interferences in judicial
decision in any manner or form.
In my view the purpose for this
all-important prohibition is as
a result of the chequered
history which our judiciary had
gone through. Perhaps it may be
useful for a brief moment to
glance at history of Ghana’s
judicial independence. This
country in 1963 witnessed a
judiciary which had its judgment
declared null and void in the
case of STATE v
OTCHERE [1963] 2 GLR 463
when the Special Criminal
Division Instrument, 1963 (E.I.
161) was passed after acquittal
of some accused persons in a
treason case. This was done
when the 1960 Constitution was
in force and subsequent to the
passage of E.I. 161 some
Superior Court judges were
dismissed under the powers
vested in the President. The
military intervention in 1966
also witnessed the dismissal of
several superior court judges
under the guise of retirement on
1/10/1966. The 1969 second
republican constitution afforded
protection of the judiciary from
executive interference. Indeed
after the military intervention
in early 1972 the National
Redemption Council sacked the
Chief Justice and passed a
decree to abolish the Supreme
Court and judges who had been
appointed to the Supreme Court
under the 1969 constitution,
were made to revert to their
previous positions before their
appointments. Under the same
military regime the Chief
Justice was dismissed in 1977.
The 1979 constitution came into
force to restore the
independence of the judiciary
but when it was overthrown in
1981 the judicial intervention
continued and on 3/04/1986
several superior court judges
were dismissed also under the
guise of retirement. I have
taken a short trip to the
history of the judiciary to
demonstrate how executive
intervention had plagued the
Ghana’s judiciary since
independence.
In my view, it was to serve a
purpose that the judiciary in
every modern democracy ought to
be protected from executive and
legislative interference that
led the framers of the
Constitution to put beyond doubt
and in unambiguous language in
Article 125(3) of the
constitution which forms the
basis of the protection of the
judicial independence from
anybody in any manner or form.
In the very recent case of
MAYOR AGBLEZE & 2 ORS v
THE ATTORNEY-GENERAL & THE
ELECTORAL COMMISSION – AND –IN
THE MATTE OF: THE REPUBLIC v
GLORIA AKUFFO (HON.), JEAN
MENSA, DR. ERIC ASARE BOSSMAN &
SAMUEL TETTEY; EX PARTE MAYOR
AGBLESE & 2 ORS, unreported
ruling of the Supreme Court
instituted as suit No.J1/28/2018
delivered on 24/10/2018 the
worthy president of this court
Adinyira, JSC stressed the need
for judicial independence under
Article 125 (3) as follows:
“The judicial power of Ghana
by article 125(3) of the 1992
Constitution has been vested in
the judiciary. This power
cannot be fettered by any
person, agency or organ
including the President and
Parliament. Any conduct that
contravenes this provision is
clearly unconstitutional and a
breach of the principle of
legality which embraces the rule
of law and the independent of
the judiciary”.
In my respectful opinion, the
above pronouncement is a caution
to organs of state and
institutions to observe this
clear constitutional
prohibition. Criminal
proceedings, both summarily and
on indictments are all initiated
at the instance of the
Attorney-General who under
Article 88(3) exercises
exclusive powers. As pointed
out earlier, the
Attorney-General can also
initiate contempt proceedings in
appropriate cases.
In my view, I think if contempt
proceedings is initiated by the
Attorney-General who is the
principal legal adviser and a
Minister of State under Article
88(1) of the 1992 Constitution,
the President, upon the
conviction of the contemnor can
exercise his powers under
Article 72 of the constitution
as the initiation of the
proceedings would be deemed to
have been done on his behalf.
However, under Article 126(2)
where the initiation of the
criminal contempt proceedings is
done by the Superior Court ex
proprio motu, the powers of
the President, in my respectful
opinion is ousted. For Article
126(2), beyond the fact that it
is an acknowledgment of the
Superior Court’s inherent power
to commit for contempt, it is in
my opinion superfluous for it to
be even stated in the
constitution. It is indeed
inherent in every Superior Court
to convict for contempt of
court. In the opinion of perhaps
the most authoritative jurist in
civil procedure of the 20th
Century, Sir I.H. JACOB, in his
article on THE INHERENT
JURISDICTION OF THE COURT, in
Current Legal Problems, Volume
23, ISSUE 1, 1 January 1970 at
page 29 the famous jurist stated
the position thus:
“The power of the court to
punish by summary process for
contempt of court provides a
protective umbrella under which
the litigant parties may
fairly proceed to the
determination of the issues
between them free from bias and
prejudice and free from any
interference and obstruction of
the due process of the court”
It stands to reason that this
power of the Superior Courts
should not be subjected to any
interference from the President
and other organs of state when
it convicts any person for
contempt summarily under it. In
my respectful opinion, if the
Attorney-General acting on
behalf of the President had
initiated the proceedings, I
would have had no objection
whatsoever to the pardon
granted.
Before I conclude, I will like
to briefly dwell on the court’s
reliance on the several decided
cases from United States of
America where Presidential
pardons are exercised on regular
basis. One of our esteemed
sisters, Bamford-Addo JSC in the
case of SAM (NO.2) v
ATTORYNEY-GENERAL [2000]
SCGLR 305 said at page 315 as
follows:
“In interpreting our
constitution, it is important
that the constitution should be
interpreted in the light of its
own wording and not by reference
to other constitutions in other
jurisdictions, for example, that
of the United States. Our
constitution is peculiar to us
and we must therefore interpret
it in accordance with its clear
words as well as its spirit…
Therefore cognizance must be
taken only of the expressed
provisions in our constitution
and in accordance with the clear
intentions of the drafters of
the constitution. No reliance
should be placed on the
requirements of the
constitutions in other
jurisdictions,
whose constitutions are
structured to suit their
individual needs”
The framers of our constitution
together with the Consultative
Assembly had adequately
considered the chequered history
of our judiciary and therefore
wanted to entirely free it from
such interference as it has
happened in this case. The
President’s power to pardon
should not therefore in contempt
cases be extended to cover
contemnors convicted by the
court under its inherent
jurisdiction and under Article
126 (2) read in conjunction with
Article 125(3) of the
constitution. As my esteemed
brother Dotse, JSC has in his
usual approach to resolving such
issues discussed the other
areas, I will adopt same. These
are my reasons for the
concurrence of the dissenting
opinion.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
COUNSEL
DR. OWUSU DAPAAH FOR THE
PLAINTIFF IN SUIT NO J1/20/2016.
BRIGHT OBENG-MANU FOR THE
PLAINTIFF IN SUIT NO J1/21/2016.
AKPOTO AMPAW WITH HIM OFOSUA
AMAGYEI (MS) AND PRISCILLA
AKYEAMPONG FOR THE PLAINTIFF IN
SUIT NO J1/23/2016.
GRACE OPPONG, PRINCIPAL STATE
ATTORNEY WITH HER MODESTA LEGIFO,
ASSISTANT STATE ATTORNEY FOR THE
RESPONDENT. |
