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Constitution Law - Removal from
office of persons in the
category of superior court
judges- Article 146(8) of the
1992 Constitution-
Whether
or not the 1st
Defendant’s publication of its
petition to the President in the
media contravened Article 146(8)
of the 1992 Constitution and
therefore
unconstitutional.-Whether or not
the 2nd Defendant
acting through the Judicial
Secretary’s Press Release naming
the Plaintiff as one of the
twelve (12) High Court Judges
involved in the “Bribery
Scandal” is in contravention of
Article 146(8) of the 1992
Constitution and therefore
unconstitutional - Whether or
not the 1st
Defendant’s petition to the
President is null and void on
account of the 1st
Defendant’s contravention of
Article 146(8) of the 1992
Constitution.
HEADNOTES
The Plaintiff is a judge of the
High Court of the Republic of
Ghana, and brings this action
under Articles 2(1)(b) and
130(1)(a) of the Constitution,
1992. The Plaintiff’s case is
that he received a notification
from the Honourable Lady Chief
Justice, 2ndDefendant
herein, that a petition for his
removal from office had been
referred to her by His
Excellency the President of the
Republic of Ghana. The said
notification requested the
Plaintiff to answer to the
allegations contained in the
petition, prior to the Chief
Justice’s decision whether a
prima facie case was made
out or not. However, before the
appointed time for him to
respond had expired, the
Honourable Chief Justice caused
a publication to be made in the
media disclosing the names of
judicial officers, including him
(the Plaintiff), who were
alleged to have been involved in
various acts of bribery and
corruption as exposed by Tiger
Eye PI, 1st Defendant
herein. In the meantime the 1st defendant
had taken steps to give wide
publicity to the said
allegations by public viewing of
the video, and through social
network as well as newspaper
publications. The long and short
of all these is that the
Plaintiff complains that the
actions of the 1st and
2nd Defendants are in
violation of Article 146(8) of
the Constitution which he
believes restricts publication
of a petition under Article 146
to only the President. Any
publication beyond the President
violates the Constitution and
therefore renders the petition
null and void. Consequently,
The 1st Defendant, in
a nutshell, did not deny the
matters attributed to them by
the Plaintiff. However, in
their view their actions were
justified as the public have a
right to know of such matters of
bribery and corruption. It is
thus a matter of public interest
that they as journalists need to
broadcast in expression of free
speech.
HELD The UN
Principles on the Independence
of the Judiciary, paragraph 17
of which was quoted above, duly
acknowledges that a freeze on
free speech during
investigations against a judge
can only be applied as a
temporary measure, hence the
restriction of the
confidentiality principle to
only the ‘initial’ stage of the
investigation. To conclude this
question, it is our view that
free speech guaranteed by the
Constitution cannot be
permanently injuncted without
violating the Constitution
itself. As earlier explained
free speech is only suspended
temporarily whilst impeachment
proceedings under Article 146
are ongoing. A harmonious
interpretation thus enables
effect to be given to all the
competing constitutional rights
at play in this case. We
accordingly decline such an
invitation that seeks a
permanent injunction. For
reasons advanced in the
preceding analysis of the case,
we are able to grant reliefs
numbered (1), (2) and (3). All
the other are dismissed. In the
result, for the avoidance of any
doubt, we affirm the continued
validity of the petition against
the Plaintiff, and we do state
that nothing said herein is a
bar to the proceedings in
respect of the 1st
Defendant’s petition against the
Plaintiff.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution Article 146(8)
The Marriage Laws Amendment Act,
1976
India Criminal Procedure Code of
1973 section 327(2)
CASES REFERRED TO IN JUDGMENT
In
Re Presidential Election
Petition; Akufo-Addo, Bawumia &
Obetsebi-Lamptey (No. 4) v.
Mahama, Electoral Commission &
National Democratic Congress
(2013) SCGLR (Special
Edition)
Bivens v. Six Unknown Named
Agents of Federal Bureau of
Narcotics, U.S. 388 (1971)
Hlophe v. Constitutional Court
of South Africa & Others (2008)
ZAGPHC 289
Landmark Communications, Inc. v.
Virginia, 435 U.S. 829 (1978)
New York Times Co. v.
Sullivan, 376 U.S (1964).
Bridges v. California, 314 U.S.
252 (1941
R.
v. Horsham Justices; Ex Parte
Farquharson (1982) All ER 269;
(1982) QB 762
Attorney-General v. X and others
(1992) ILRM 401
Scott v. Scott (1913) UKHL 2;
(1913) AC 417.
BOOKS REFERRED TO IN JUDGMENT
IN-CAMERA-PROCEEDINGS’ Azizur
Rahman, Additional published in
J.T.R.I. Journal-First Year,
Issue 2-April-June, 1995,
DELIVERING THE LEADING JUDGMENT
BENIN, JSC:-
COUNSEL
COUNSEL
NII KPAKPO ADDO WITH HIM SIKA
ABLA ADDO AND STEPHEN OPOKU
FOR THE PLAINTIFF.
KISSI ADJEBENG WITH HIM SETH
ASANTE AND AKWAABA ACQUAAH AND
DENNIS ADJEBENG FOR THE 1ST
DEFENDANT
MRS. AFRIYIE ANSAH ( CHIEF STATE
ATTORNEY) WITH HER ZEINAB
AYARIGA (ASSISTANT STATE
ATTORNEY) FOR THE 2ND
AND 3RD DEFENDANTS.
JUDGMENT
BENIN, JSC:-
My
Lords, in this case we would
have to answer a very important
question listed as relief (4) on
the writ and also set down by
the Plaintiff herein as issue
(4) in the memorandum of issues.
The question is this: if Article
146(8) of the Constitution is
violated in terms of public
disclosure of the contents of a
petition, does it render the
original process, being a
petition to the President, null,
void and of no effect? This
question has been posed because
in the case of Ghana Bar
Association v. Attorney-General
and Another (1995-96) 1GLR 598,
hereafter called the GBA case,
as well as in the case of
Agyei-Twum v. Attorney-General
and Akwetey (2005-2006) SCGLR
732, hereafter called the
Agyei-Twum case, this question
was not addressed and answered
even though this constitutional
provision featured in both
cases. In the Agyei-Twum case
the court concluded that since
the petition was published to
persons other than the
President, it was done in
violation of Article 146(8) of
the Constitution and
consequently the publication was
declared an unconstitutional
act. The court did not, however,
proceed to say the petition was
as a result rendered void. It
might be because the plaintiff
in that case did not seek any
such relief. On the other hand,
as suggested by Counsel for the
Plaintiff herein at paragraph
8.9 of the statement of case, no
consequential order was made
under Article 2(2) of the
Constitution, 1992 because “there
was no conclusive evidence
on record that the 2nd
Defendant was responsible for
the publication in the media of
his Petition”, quoting from
the decision.
Both the GBA and Agyei-Twum
cases asserted the fact that
Article 146(8) should be
complied with, in proceedings
leading to the removal from
office of a superior court Judge
in the sense that it should be
conducted in private. We would
thus not belabour that point.
And as we shall show, the
resolution of this case will
come down to the answer that
will be given to the question we
have posed above.
Nonetheless, we would address
the issue whether we should
depart from the decision in the
Agyei-Twum case referred to
above as has been strenuously
urged upon us by Counsel for the
2nd and 3rd
Defendants.
This matter has been brought by
the Plaintiff herein relying on
Article 146(8) of the 1992
Constitution. The entire Article
146 of which clause (8) forms a
part deals with the removal from
office of persons in the
category of superior court
judges, including the Chief
Justice. It is necessary to set
out the entire Article 146 here
in order to appreciate and
understand what clause (8)
really means. It reads:
(1)
A Justice of the Superior Court
or a Chairman of the Regional
Tribunal shall not be removed
from office except for stated
misbehaviour or incompetence or
on ground of inability to
perform the functions of his
office arising from infirmity of
body or mind.
(2)
A Justice of the Superior Court
of Judicature or a Chairman of
the Regional Tribunal may only
be removed in accordance with
the procedure specified in this
article.
(3)
If the President receives
a petition for the removal of a
Justice of the Superior Court
other than the Chief Justice or
for the removal of the Chairman
of a Regional Tribunal, he shall
refer the petition to the Chief
Justice, who shall determine
whether there is a prima
facie case.
(4)
Where the Chief Justice
decides that there is a prima
facie case, he shall set up
a committee consisting of three
Justices of the Superior Courts
or Chairmen of the Regional
Tribunals or both, appointed by
the Judicial Council and two
other persons who are not
members of the Council of State,
nor members of Parliament, nor
lawyers, and who shall be
appointed by the Chief Justice
on the advice of the Council of
State.
(5)
The committee appointed under
clause (4) of this article shall
investigate the complaint and
shall make its recommendations
to the Chief Justice who shall
forward it to the President.
(6)
Where the petition is for the
removal of the Chief Justice,
the President shall, acting in
consultation with the Council of
State, appoint a committee
consisting of two Justices of
the Supreme Court, one of whom
shall be appointed chairman by
the President, and three other
persons who are not members of
the Council of State, nor
members of Parliament, nor
lawyers.
(7)
The committee appointed under
clause (6) of this article shall
inquire into the petition and
recommend to the President
whether the Chief Justice ought
to be removed from office.
(8)
All proceedings under this
article shall be held in camera,
and the Justice or Chairman
against whom the petition is
made is entitled to be heard in
his defence by himself or by a
lawyer or other expert of his
choice.
(9)
The President shall, in each
case, act in accordance with the
recommendations of the
committee.
(10)
Where a petition has been
referred to a committee under
this article, the President may-
(a)
in the case of the Chief
Justice, acting in accordance
with the advice of the Council
of State, by warrant signed by
him, suspend the Chief Justice;
(b)
in the case of any other
Justice of a Superior Court or a
Chairman of a Regional Tribunal,
acting in accordance with the
advice of the Judicial Council,
suspend that Justice or that
Chairman of a Regional Tribunal.
(11)
The President may, at any
time, revoke a suspension under
this article.
The Plaintiff is a judge of the
High Court of the Republic of
Ghana, and brings this action
under Articles 2(1)(b) and
130(1)(a) of the Constitution,
1992. The Plaintiff’s case is
that he received a notification
from the Honourable Lady Chief
Justice, 2nd
Defendant herein, that a
petition for his removal from
office had been referred to her
by His Excellency the President
of the Republic of Ghana. The
said notification requested the
Plaintiff to answer to the
allegations contained in the
petition, prior to the Chief
Justice’s decision whether a
prima facie case was made
out or not. However, before the
appointed time for him to
respond had expired, the
Honourable Chief Justice caused
a publication to be made in the
media disclosing the names of
judicial officers, including him
(the Plaintiff), who were
alleged to have been involved in
various acts of bribery and
corruption as exposed by Tiger
Eye PI, 1st Defendant
herein. In the meantime the 1st
defendant had taken steps to
give wide publicity to the said
allegations by public viewing of
the video, and through social
network as well as newspaper
publications. The long and short
of all these is that the
Plaintiff complains that the
actions of the 1st
and 2nd Defendants
are in violation of Article
146(8) of the Constitution which
he believes restricts
publication of a petition under
Article 146 to only the
President. Any publication
beyond the President violates
the Constitution and therefore
renders the petition null and
void. Consequently, the
Plaintiff seeks these ten
reliefs from this court:
(1)
A declaration that the 1st
Defendant’s publication of its
petition to the President in the
media contravened Article 146(8)
of the 1992 Constitution and
therefore unconstitutional.
(2)
A declaration that the
conduct of the 1st
Defendant acting through its
Chief Executive Officer and
Acting Editor of the Crusading
Guide newspaper, Anas Aremeyaw
Anas in releasing the contents
of the petition, through
publications in the Crusading
Guide newspaper, his personal
Facebook page, public screening
of the audio visual recordings
in support of the petition at
the Accra International
Conference Centre on the 22nd
September, 2015, containing the
evidence in support of the
petition, is in violation of
Article 146(8) of the 1992
Constitution and therefore
unconstitutional.
(3)
A declaration that the 2nd
Defendant acting through the
Judicial Secretary’s Press
Release dated 11th
September 2015, naming the
Plaintiff as one of the twelve
(12) High Court Judges involved
in the ‘Bribery Scandal’ is in
contravention of Article 146(8)
of the 1992 Constitution and
therefore unconstitutional.
(4)
A declaration that the
petition presented to the
President by the 1st
Defendant is null and void on
account of the 1st
Defendant’s contravention of
Article 146(8) of the 1992
Constitution.
(5)
A declaration that all
proceedings however and
whatsoever described arising out
of the contents of the petition
be declared null and void.
(6)
A perpetual injunction against
any adjudicating body however
and whatsoever described from
determining any issues arising
out of the contents of the
petition.
(7)
A perpetual injunction
restraining the Defendants,
their agents, assigns, servants,
from any further publishing,
printing, reporting,
broadcasting, advertising,
publicizing, distributing and
disseminating the contents of
the petition.
(8)
A perpetual injunction
restraining the 2nd
Defendant, her agents, assigns,
servants and successors from any
further impeachment proceedings
against the Plaintiff.
(9)
An order restraining any
adjudicating body howsoever
described from determining any
issues arising out of the
content of the said petition
filed by the 1st
Defendant during the pendency of
the instant suit before the
Supreme Court.
(10)
Any other orders that this
Honourable Court may deem fit.
The 1st Defendant, in
a nutshell, did not deny the
matters attributed to them by
the Plaintiff. However, in
their view their actions were
justified as the public have a
right to know of such matters of
bribery and corruption. It is
thus a matter of public interest
that they as journalists need to
broadcast in expression of free
speech. The 1st
Defendant also sought to draw a
distinction between the
publication of the petition
itself and what they termed in
paragraph 3.3 of their statement
of case was the publication of
“…….the results of the first
defendant’s investigation into
the conduct of named judges….”
The 1st Defendant
also described the position
taken by the Plaintiff as
equating a petition under
Article 146 of the Constitution
to a State secret, which it is
not. In the view of the 1st
Defendant the remedy lies in
personal law remedies like
defamation if the allegations
against the judge are found to
be untrue. To quote them, per
paragraph 3.20 of the statement
of case: “The remedy does not
lie in voiding petitions because
of the publication of their
content. The answer lies in the
application of common law
remedies designed to ensure that
frivolous and unfounded
allegations of misconduct
against judges become very
costly.”
For their part, the 2nd
and 3rd Defendants
urged the court not to follow
the Agyei-Twum decision as it
did not take into account
several important factors
including public interest,
freedom of speech guaranteed by
the Constitution, and the fact
that mere publication of the
contents of a petition to the
press does not nullify the
petition itself. All the
material arguments will be
addressed in detail as we move
along.
The plaintiff set down four
issues for consideration of the
court whilst the 2nd
and 3rd defendants
set down two issues. The 1st
defendant was, however, content
with the issues set down by the
other parties. The four (4)
issues set down by the Plaintiff
are the following:
1.
Whether or not the 1st
Defendant’s publication of its
petition to the President in the
media contravened Article 146(8)
of the 1992 Constitution and
therefore unconstitutional.
2.
Whether or not the conduct
of the 1st Defendant
acting through its Chief
Executive Officer and Acting
Editor of the Crusading Guide
Newspaper, his personal Facebook
page, public screening of the
audio visual recordings in
support of the Petition at the
Accra International Conference
Centre on the 22nd
and 23rd of September
2015, containing the evidence in
support of the Petition, is in
violation of Article 146(8) of
the 1992 Constitution and
therefore unconstitutional.
3.
Whether or not the 2nd
Defendant acting through the
Judicial Secretary’s Press
Release dated 11th
September, 2015, naming the
Plaintiff as one of the twelve
(12) High Court Judges involved
in the “Bribery Scandal” is in
contravention of Article 146(8)
of the 1992 Constitution and
therefore unconstitutional.
4.
Whether or not the 1st
Defendant’s petition to the
President is null and void on
account of the 1st
Defendant’s contravention of
Article 146(8) of the 1992
Constitution.
The two issues set down by the 2nd
and 3rd Defendants
are:
a.
Whether or not a breach of
Article 146(8) of the 1992
Constitution in publishing some
evidence touching on the
contents of a petition to the
general public violates the
Plaintiff’s right to procedural
fairness in the consideration of
the 1st Defendant’s
petition before the Chief
Justice and/or the 5-member
Committee under Article 146(2)
and (3) thereof.
b.
Whether or not a balanced
assessment of the competing
public interests in Article
21(1)(a) of the 1992
Constitution (guaranteeing
freedom of speech and expression
to the 1st Defendant)
and Article 146(8) of the 1992
Constitution (guaranteeing
confidentiality in impeachment
proceedings to the Plaintiff)
ought to be resolved in favour
of the 1st Defendant
or the Plaintiff having regard
to all the circumstances of the
instant case.
The court adopted all the six
issues set out above for
hearing. Apart from issue (4)
set out by the Plaintiff which
will be considered on its own,
we will discuss all the other
issues together.
We
would attempt to define the
scope of Article 146(8) of the
Constitution, in the light of
the GBA and Agyei-Twum cases.
Article 146(8) is repeated here
for emphasis and it reads:
All proceedings under this
article shall be held in camera,
and the Justice or Chairman
against whom the petition is
made is entitled to be heard in
his defence by himself or by a
lawyer or other expert of his
choice.
It
seems the operative expression
herein is ‘All proceedings under
this article shall be held in
camera……’ It is necessary to
find out what this expression
means in order to determine
whether it is restricted to the
proceedings before the committee
set up to investigate the
petition, as stated by Adjabeng
JSC in his opinion in the GBA
case or it extends to the
President upon receipt of the
petition as held in the
Agyei-Twum case. In his opinion
in the majority decision in the
GBA case, this is what Adjabeng
JSC said at page 660 of the
report:
“It is important to note that
article 146(8) of the
Constitution, 1992 provides that
the proceedings of the committee
appointed to deal with any such
petition ‘shall be held in
camera’. It is mandatory that
such proceedings be held in
private, not in public or open
court as has unfortunately been
done in this case. The reason
for this important provision is
obvious. It is to preserve,
protect and safeguard the
authority, dignity and
independence of the judiciary.”
All the other judges who spoke
for the majority in that case
took the position that an open
forum was not the appropriate
place to proceed against a judge
in impeachment proceedings. The
focus was on an open court and
for that matter a judicial
setting wherein the privacy in
Article 146(8) could be
guaranteed. On the contrary in
the Agyei-Twum case the court
took a position that could mean
the privacy extends even to the
moment the petition is presented
to the President and is referred
to the Chief Justice. In the
words of Date-Bah JSC:
“The constitutional requirement
that the impeachment proceedings
be held in camera would be
defeated if the petitioner were
allowed to publish his or her
petition to anyone other than
the President. This is likely to
lead to the petitioner’s
allegations being aired in
public while the judge’s
response can only be considered
in private. This would lead to
grave adverse public relations
consequences for the judiciary.
The institution of the judiciary
could be undermined without any
justification. Accordingly, in
my view, a petitioner under
article 146 may not disclose the
contents of his or her petition
to the media nor indeed to any
person other than the
President.”
What is the true intent and
purpose of this provision? Is it
limited in its terms? What is
the extent of the limitation, if
any? The true intent is not in
dispute, it is to protect the
integrity of the judiciary, the
personal reputation of the judge
under investigation, and it also
aims at protecting potential
witnesses from some form of
recrimination. The reasons for
confidentiality could be
endless, but integrity of the
administration of justice is at
the centre.
Is
the provision limited, if so to
what extent? Let us address this
as a twin question. To begin
with, we should carefully
examine the expression ‘all
proceedings….shall be held in
camera…’ We first have to define
the expression ‘in camera’. It
is a Latin expression which
literally means ‘in chamber.’
There is no doubt this involves
privacy. But the further
question is: in whose chamber?
Black’s Law Dictionary, 9th
edition at page 832 answers this
question by saying it is ‘1. In
the judge’s private chambers. 2.
In the courtroom with all
spectators excluded. 3. (Of a
judicial action) taken when
court is not in session.’
What then is the legal meaning
of the expression, ‘in camera
proceedings’? The same Black’s
Law Dictionary at page 1324
defines it to mean ‘a proceeding
held in a judge’s chambers or
other private place.’ Both ‘in
camera’ and ‘in camera
proceedings’ entail some privacy
in a judicial or quasi-judicial
setting, in which the
adjudicating person or tribunal
conducts the hearing behind
closed doors, to the exclusion
of the public.
All the foregoing discussions
weigh in favour of the GBA case.
However, there are compelling
reasons why we think the
Agyei-Twum case presents a much
more acceptable interpretation
of Article 146(8) of the
Constitution. Indeed there are
good reasons that motivate us to
go beyond the literal, narrow
technical legal meaning of ‘in
camera proceedings’ in order to
discover the true intent and
purpose of the framers of the
Constitution. These are:
i.
By clause (3) of Article
146, the Chief Justice is
required to make a prima
facie decision upon receipt
of the petition from the
President. The expression
prima facie signifies that
upon an initial examination of a
case there is sufficient
evidence to warrant further
detailed inquiry. It may also
mean that on the available
evidence it is sufficient to
prove a fact unless it is
rebutted. Under clause (3) of
Article 146 prima facie
is used in the first sense. In
the context of impeachment
proceedings, it means the
petition raises serious issues
bordering on misconduct,
misbehaviour or incompetence or
physical infirmity; and that
notwithstanding whatever
response the respondent has to
offer, the Chief Justice
believes the petition deserves
further investigations. There
are no hard and fast rules in
place but the rules of natural
justice and the right to fair
hearing will just dictate that
the Chief Justice should at
least seek a response to the
petition from a named respondent
before making a prima facie
determination under this
provision. The fact that it
involves examination of
available evidence in order to
make that determination whether
or not a prima facie case
exists, it is a quasi-judicial
decision-making. Thus even if
the technical legal meaning of
‘in camera proceedings’ is to be
adopted, it means it will cover
the prima facie decision
by the Chief Justice as well. It
would follow then that the GBA
case failed to take this
important provision into account
when it restricted ‘in camera’
to only the proceedings before
the committee. This would be
enough reason to depart from the
reasoning by Adjabeng JSC in the
GBA case quoted above.
ii.
In a legal sense,
proceedings include the
originating process; and in the
context of Article 146 the
originating process is the
petition that is presented to
the President. Without a
petition no impeachment
proceedings could exist under
this article. Thus when Article
146(8) talks of ‘all
proceedings’ it will include the
originating process, the
petition. For that reason the
provision extends to the
President, as Agyei-Twum
decided.
iii.
Article 146(8) uses the
expression ‘all proceedings
under this article’ which means
the entire article 146. If it
was restricted to clause (8)
they would have said ‘this
clause’ instead of ‘this
article’. And from the ongoing
discourse, one cannot say the
use of ‘article’ instead of
‘clause’ was inserted by mistake
or through inadvertence. Every
word used in the provision is
significant; therefore it means
every proceeding in the entire
article 146, without exception.
iv.
In our view, rather than
the narrow technical legal
meaning of in camera
proceedings, what the
framers of the Constitution
really intended was that
confidentiality and privacy
should apply to impeachment
proceedings under this article.
It would indeed be meaningless
to make provision for
confidentiality if the entire
process is allowed to be placed
in the public domain even before
the respondent has been heard.
Commonsense could even be
brought to bear on this
interpretation that the framers
of the Constitution could not
have intended that even before
prima facie determination
has been made, or before the
committee has concluded its
investigations and submitted its
report, the whole world should
be told of the contents of the
petition. That would clearly be
defeating the purpose of the
confidentiality and privacy that
is required to attend to such
proceedings.
This position accords with the
principles adopted by the United
Nations in 1985 in respect of
the judiciary. The UN Basic
Principles on the Independence
of the Judiciary, adopted by the
7th UN Congress on
the Prevention of Crime and the
Treatment of Offenders held at
Milan from 26 August to 6
September 1985 and endorsed by
the General Assembly resolutions
40/32 of 29 November 1985 and
40/146 of 13 December 1985 has
this relevant provision in
paragraph 17:
A charge or complaint made
against a judge in his/her
judicial or professional
capacity shall be processed
expeditiously and fairly under
an appropriate procedure. The
judge shall have the right to a
fair hearing. The examination
of the matter at the initial
stage shall be kept
confidential, unless otherwise
requested by the judge.
(our
emphasis)
In
as much as the GBA case did not
directly deal with the question
whether ‘in camera proceedings’
applied to the petition
presented to the President and
whether it extended to the Chief
Justice’s prima facie
determination, it is not a
relevant case to consider in a
determination of the issues
raised herein. And as pointed
out earlier in so far as it
restricted the in camera
proceedings to the committee’s
work we would depart from it. Be
that as it may, the GBA decision
was considered in the Agyei-Twum
case before the latter decided
that the ‘in camera proceedings’
provision extended to the
petition presented to the
President, thus refusing to
follow the restrictive
interpretation in the GBA case,
supra. Consequently, our view is
that a disclosure of the
contents of the petition to
persons who are not entitled to
receive them, that is persons
besides the President, the Chief
Justice and members of the
committee that is set up to
investigate the complaint, will
be contrary to Article 146(8) of
the Constitution. Once the
Committee’s work is concluded
and it has submitted its report
the Constitutional injunction no
longer applies, as we shall
shortly explain. It suffices to
say at this stage that there
would be no proceedings pending
as to be protected by the
Constitution after the committee
has concluded its work and its
report has reached the
President.
It
is not disputed on the record
that the 1st and 2nd
Defendants at various times
disclosed the contents of the
petition to unauthorized
persons. The 2nd
Defendant caused a Press Release
in which it published the names
of the affected Judges and
Magistrates and the fact that
they were going to be
investigated for what the
release described as a ‘bribery
scandal’. The 1st
Defendant caused an extensive
publication of the contents of
their own petition to the public
at large. As at the time of
these publications, the decision
in the Agyei-Twum case had been
published and was therefore
binding on all the actors in
this case. Clearly therefore,
there was unconstitutional
disclosure of the petition to
the public. As decided in the
Agyei-Twum case, the right of
the public to know did not
detract from this provision
which was specifically designed
to achieve a certain effect.
That was why the court decided
in Agyei-Twum case that the
right to know was curtailed in
favour of the right to
confidentiality. But the
curtailment of free speech is
not a permanent act. The public
is not completely denied the
right to know, but certainly not
before a prima facie case
has been made by the Chief
Justice or the committee has
completed its work and submitted
its report, whichever of these
terminates the proceedings. The
rights of the people were merely
postponed for a time lest the
purpose of Article 146(8) should
be defeated. We would emphasize
that these clear constitutional
provisions must be respected if
the intent and purpose are not
to be rendered nugatory, which
is to keep the proceedings
private and confidential.
We
now turn to the question we
posed in the introductory part
of this decision: what
consequences flow from the
violation of Article 146(8)? To
begin with, this Court, relying
on a number of relevant
authorities, held in the case of
In Re Presidential Election
Petition; Akufo-Addo, Bawumia &
Obetsebi-Lamptey (No. 4) v.
Mahama, Electoral Commission &
National Democratic Congress
(2013) SCGLR (Special
Edition) 73, called the
Election Petition case, that it
is not every violation of a
constitutional provision which
results in the annulment of the
action. It depends on a number
of factors which the various
majority judgments read in that
case outlined. Apart from legal
considerations, there are also
public policy considerations
that support that general
principle of law. It does not
follow that a declaration that
an action or inaction is
unconstitutional has the effect
of nullifying the action in
question. The court must say it
does have such an effect having
regard to an express or implied
provision of the Constitution or
that it should have such effect
in the spirit of a particular
constitutional provision, and
proceed to give directions or
make the appropriate
consequential orders under
Article 2(2) of the
Constitution, 1992.
As
we have held earlier, Article
146(8) is violated when the
proceedings are published to
unauthorized persons, before the
termination of the proceedings.
The Constitution does not
provide any penalty for
unconstitutional disclosure and
does not also afford any
remedies that are available to a
party affected by the
disclosure. Unlike other
countries where, outside the
Constitution, there is
legislation in place that
prescribes what the consequences
will be for violating the in
camera proceedings provisions,
Ghana has no such legislation.
We may thus have to draw from
the experiences of other
jurisdictions in the light of
the spirit of our Constitutional
provisions.
We
have identified five different
modes of expressing disapproval
with breach of the in camera
provisions. These are: i. Treat
the breach as contempt of the
High Court. ii. Impose criminal
sanctions if there is such
legislation. iii. Award damages
as for a constitutional
infraction, where appropriate.
iv. Treat it as breach of an
injunction. v. The person who is
injuriously affected may sue in
tort for defamation. We would
explain each of these briefly
whilst expressing a view on
those that are available or
applicable in this country. But
before then we must state that
in none of these five situations
are the proceedings annulled,
which go to confirm the view
expressed in the Election
Petition case, supra.
In
India, the Contempt of Court Act
of 1971 makes a person who
violates a law prescribing
proceedings in camera liable in
contempt of court punishable by
a jail term of six months or a
fine of 2000 rupees or both. It
is reasonable to say that a
committee set up under Article
146 of the Constitution, 1992
may refer a person violating
this provision to the High Court
to commit for contempt if it is
believed that the publication
creates a substantial or real
risk that the course of justice
in the proceedings will be
seriously impeded or prejudiced.
At common law it is contempt,
with intent to impede or
prejudice the administration of
justice, to publish material
calculated to prejudice the fair
trial of a pending or imminent
cause. Common law is part of our
laws, per Article 11(1)(e) of
the Constitution, 1992. Thus in
the absence of legislation, this
common law remedy is available.
The Marriage Laws Amendment Act,
1976 of India, introduced
section 22(1) in the Hindu
Marriage Act of 1955 that ‘Every
proceeding under this Act shall
be conducted In Camera……..’
A violation of this provision
attracts a fine under section
22(2) thereof. In India again
under section 327(2) of the
Criminal Procedure Code of 1973
it is mandatory that inquiries
into, and trial of, rape should
be conducted in camera.
Subsection (3) makes a violation
punishable by a jail term. There
is no analogous provision in our
laws. We know that penal laws
must be legislated by
Parliament. But these references
have been made to show that
breach of in camera proceedings
provision does not affect the
validity of the proceedings per
se; it may attract other forms
of sanctions.
We
shall next consider damages. The
US Supreme Court took the view
in the case of Bivens v. Six
Unknown Named Agents of Federal
Bureau of Narcotics, U.S. 388
(1971) that money damages were
an appropriate remedy for a
violation of the right to
privacy conferred by the 4th
Amendment. Indeed it was the
first time such a decision was
rendered by the court that money
damages would be an adequate
remedy for constitutional
violation of a right conferred
by the Constitution. This case
is cited for its persuasive
value only, that in appropriate
cases the court could award
damages for violation of a
constitutional right without
necessarily annulling the act in
question if that would be an
appropriate remedy.
In
an article titled
‘IN-CAMERA-PROCEEDINGS’ Azizur
Rahman, Additional Judge,
Farrakhabad, published in
J.T.R.I. Journal-First Year,
Issue 2-April-June, 1995, wrote
this relevant passage that
“…..where the enactment itself
makes it mandatory to proceed in
camera, it required no order…(of
a court)….The said provision
shall have the force of an
injunction in itself.” This is a
true representation of such
provision. It prohibits
publication of the proceedings
to outsiders, thus inherently it
is an injunction that is placed
on disclosing the proceedings to
unauthorized persons.
Consequently, an unlawful
disclosure should be treated as
though a court injunction has
been violated. Whatever a
violation of an injunction
entails could then be effected
by a court, which in our
jurisdiction includes contempt
proceedings. To our mind that is
the extent that the committee
appointed under Article 146 can
treat a violation of the
confidentiality of its
proceedings. That remedy is
available to the committee.
Counsel for the 1st
Defendant took the view that in
the event of a violation of the
confidentiality rule the party
affected may take action in
defamation. It is a view we
share. That is a right open to a
party to pursue independent of,
or in conjunction with, other
remedies available for the
violation.
Having dealt with various
remedies available to the
committee as well as a party
affected by an unconstitutional
disclosure, we proceed to
address the question we posed at
the start of this decision,
whether annulment of the
petition is also a remedy
available to a respondent to the
petition. Let us briefly state
the views of all the lawyers for
the parties on this issue at
this stage. We have earlier
referred to the position of
Counsel for the Plaintiff that
no consequential order was made
in the Agyei-Twum case because
the court found the publication
was not caused by the
petitioner, the 2nd
defendant in that case. It
should be pointed out that the
court did not address that
question at all, let alone to
give any reason why it did not
draw any such conclusion to
annul the petition. The
reference to the 2nd
defendant in that case was
actually addressing a factual
issue whether or not he was
responsible for the publication
of his petition to other
persons. In the instant case
Counsel for the Plaintiff gave
reasons why their relief 4
should be granted, that is
annulment of the impeachment
proceedings. These are:
6.37 ‘……the 1st
Defendant’s conduct has created
grave adverse public relations
consequences for the judiciary
which is being undermined by the
1st Defendant without
any justification.’
6.40 ‘The 1st
Defendant was only concerned in
prejudging his Petition in the
public, a conduct calculated to
bring the authority and
administration of the law into
disrespect, disregard and to
interfere with the course of
justice.’
6.41 ‘The 1st
Defendant’s conduct is in bad
faith, is malicious and is
prejudicial to the determination
of any impeachment proceedings
against the Plaintiff.’
7.5 ‘The finding of a prima
facie case against the Superior
Court Judges being an
administrative or quasi-judicial
function, the 2nd
Defendant is bound by the
provisions of Article 296 of the
1992 Constitution.’
7.9 ‘The Plaintiff further
contends that the disclosure of
his identity and the identity of
the other judges against whom
the 1st Defendant
filed the Petition discloses an
unfair bias and prejudices his
right to a fair hearing and is
not in accordance with due
process of law.’
Counsel for the 1st
Defendant said this in his
statement of case at paragraphs
3.31 through 3.35 that “…..even
if this court were to
affirm its Agyei-Twum stance,
that position does not affect
the constitutionality and
validity of the first
defendant’s petition for the
removal of the plaintiff as a
superior court judge-and that
the petition remains valid and
of full effect……..the Agyei-Twum
case…merely declared the
publication of the petition to
persons other than the President
as unconstitutional. The
petition itself and its validity
were untouched…….The question as
to whether the publication of
the petition and its contents
and the publication by the
Judicial Secretary were proper
or otherwise should be totally
separate from the legal effect
and validity of the first
defendant’s petition………It cannot
be said……that the petition has
been tainted with procedural
unfairness. This is because the
plaintiff will be afforded
procedural fairness at
the enquiry as to the veracity
of the petition. There is a
world of difference between
a procedural fairness in hearing
the merits of a petition and the
publicity of a petition. The
latter does not encroach upon or
encumber the former since the
veracity of the petition will
not be decided by a jury, that
is to say, the publications do
not contaminate the petition qua
petition. We submit that
publicity of the
existence of the petition and
its contents alone cannot
vitiate the consequential
proceedings for removal unless
it is shown that the
publications influenced the body
set up to enquire into the
merits of the petition……..”
In
paragraph 44 of the statement of
case for the 2nd and
3rd Defendants,
counsel wrote that “………..the
position taken by the
Plaintiff that any publication
of any aspect of a petition
alleging a misconduct
against a judge is a violation
of the judge’s right to
confidentiality as to vitiate
the entire proceedings will lead
to great mischief and
absurdity……..” Counsel
gave reasons for the position
she took, and these reasons are
addressed in the ensuing
discussions.
Let us briefly dispose of the
question concerning Article 296
of the Constitution which is
about how to exercise
discretionary power. We took
note of the submissions by
Counsel for the Plaintiff on
what he perceived to be an
unfair exercise of discretionary
power by the 2nd
Defendant in releasing the names
of the affected Judges to the
media. It is observed that there
is no relief sought in respect
of the alleged breach of Article
296. Hence we considered these
submissions as part of the
Plaintiff’s relief (3) that the
2nd Defendant
violated Article 146(8) of the
Constitution.
We
should first consider the
authorities cited by Counsel for
the 2nd and 3rd
Defendants on how other
jurisdictions have dealt with
similar issues, which we
consider relevant in support of
the present discussion, even
though she cited them to
persuade us to depart from the
decision in Agyei-Twum case. A
case decided by the South Africa
High Court (Witwatersfand Local
Division) which was cited by
Counsel for the 2nd
and 3rd Defendants is
apt; that is the case of Hlophe
v. Constitutional Court of South
Africa & Others (2008) ZAGPHC
289, herein called the Hlophe
case. In this case the applicant
was a sitting judge against whom
the judges of the South African
Constitutional Court lodged a
complaint to the Judicial
Services Commission (JSC) which
was the body constitutionally
mandated to receive that
complaint. But like the facts in
the Agyei-Twum case, the
complaint was copied to several
other bodies. And even more than
that, a copy was released to the
Press. The applicant went to the
High Court complaining about
violation of his constitutional
rights by the publication of the
complaint to other persons, like
the Agyei-Twum case, and by the
publication to the media, like
the complaint herein. And just
like the Agyei-Twum case, the
court upheld some declaratory
reliefs that his rights were
violated. What is relevant for
our purposes is what the court
said of the effect of the
violation of his constitutional
rights. At paragraph (53) of the
judgment the learned judge P. M.
Mojapelo, Deputy Judge Presiding
whose judgment was concurred in
by two other Justices on the
5-man panel namely Moshidi, J.
and Mathopo J., said this:
“The
finding that the applicant was
treated unfairly and his rights
violated in the manner in which
the lodging of the complaint and
the decision to publish the
complaint was handled is totally
separate from the question
whether the applicant is guilty
of the complaint lodged against
him. That complaint stands to be
and will be adjudicated upon by
the JSC. It can also not be
said, as the applicant submits,
that the complaint is tainted by
the procedural unfairness in
lodging it, because the
applicant will be afforded
procedural fairness in the
consideration of the complaint
by the JSC when it deals with
that complaint…………There is a
difference between procedural
fairness in lodging the
complaint and publishing same
prior to the JSC dealing
therewith, on one hand, and
procedural fairness before the
JSC when the complaint is dealt
with, on the other.”
After a detailed examination of
the case and his decision, the
learned judge concluded the
point concerning the effect of
his decision on the pending
complaint against the learned
judge in the following words, at
paragraph (103) of his judgment:
“I
also do not share the
applicant’s view that a
declaratory order in his favour
may have the effect of vitiating
or tainting the process before
the JSC, particularly the
complaint against the applicant,
remains totally uncontaminated
and will be determined on a
different basis from the issues
decided in this judgment. It is
in fact in the interest of
public policy, justice and the
judiciary as a whole that the
complaint be fully investigated
by the JSC. Nothing in this
judgment and the proceedings
before this Court prevents that
and nothing should be construed
as preventing that from
happening.”
It
is significant to note that the
other two justices on the panel
namely Marais J. and Gildenhuys
J. who did not grant any of the
declaratory reliefs sought by
the applicant for violation of
his rights, nevertheless agreed
with the majority and dismissed
the claim to annul the complaint
for alleged misconduct.
The court’s decision quoted
above stemmed from the argument
of counsel for the applicant
referred to by Justice Mojalepo
at paragraph (108) of his
judgment that “once the
applicant’s constitutional
rights are violated the court
has no discretion, but is
obliged to declare the lodging
of the complaint to be invalid.”
The court roundly dismissed
this argument as not justified,
for violation of the applicant’s
constitutional rights had no
effect on the validity of the
complaint, in Ghana called a
petition.
Next we will consider this case
of Landmark Communications, Inc.
v. Virginia, 435 U.S. 829 (1978)
decided by the US Supreme Court,
hereinafter called the Landmark
case. In that case The Pilot
newspaper had reported that
Judge H. Warrington Sharp, who
sat on the Juvenile and Domestic
Relations Court, was under an
investigation by a judicial
fitness panel. They were
deciding whether or not to begin
disciplinary proceedings against
Judge Sharp. Under a Virginia
statute, each complaint against
a judge was to be reviewed in
secret, it would be announced
only if deemed serious enough to
require a public hearing. The
trial court found the publisher
guilty and imposed a penalty on
him , as prescribed by existing
legislation. He appealed
against the conviction to the
Supreme Court of Virginia, but
the appellate court affirmed the
lower court’s decision. By a
majority of 6 to 1 the court
held that in view of the purpose
the confidentiality rule was
intended to serve, a violation
was punishable as an offence.
The court set out the three
purposes as follows: (i)
protection of the judge’s
reputation; (ii) protection of
public confidence in the
judicial system; (iii)
protection of complainants and
witnesses from possible
recriminations. This
protectionist stance did not
impress the US Supreme Court
when it upheld the appeal and
reversed the lower court’s
conviction of the publisher for
illegal disclosure of
confidential proceedings before
the Judicial Inquiry and Review
Commission about Judge Sharp’s
alleged misconduct. Counsel for
the 2nd and 3rd
Defendants quoted this relevant
passage from the judgment of the
court which was read by Chief
Justice Burger:
“……neither
the Commonwealth’s interest in
protecting the reputation of the
judges nor the interest in
maintaining the institutional
integrity of the courts is
sufficient to justify the
subsequent punishment of speech
at issue here, even on the
assumption that criminal
sanctions do, in fact, enhance
the guarantee of
confidentiality. Admittedly, the
Commonwealth has an interest in
protecting the good repute of
its judges, like that of all
other public officials. Our
prior cases have firmly
established, however, that
injury to official reputation is
an insufficient reason ‘for
repressing speech that would
otherwise be free’, New York
Times Co. v. Sullivan,
376 U.S (1964). …….The
remaining interest sought to be
protected, the institutional
reputation of the courts, is
entitled to no greater weight in
the constitutional scales……..”
The relevance of this decision
for our purposes is that in
spite of the violation of the
confidentiality disclosure law,
the court believed it should not
have precedence over free speech
guaranteed by the Constitution;
both rights were entitled to
respect. For that reason the
impeachment proceeding against
Judge Sharp was not nullified as
a result of the public
disclosure of the impeachment
proceedings. The court did
acknowledge the problem caused
by the premature disclosure, but
yet allowed proceedings to
continue. In the concluding part
of the decision in the Landmark
case, this is what Berger CJ
said:
“It
is true that some risk of injury
to the judge under inquiry, to
the system of justice, or to the
operation of the Judicial
Inquiry and Review Commission
may be posed by premature
disclosure….” yet it
concluded it posed no danger to
the administration of justice.
It reversed the lower court’s
decision and ordered “the
case remanded for further
proceedings…….”
Indeed the underlying reason for
the position taken by the court
in the Landmark case, supra, was
derived from an earlier case
decided by the same court. That
is the case of Bridges v.
California, 314 U.S. 252 (1941)
per Justice Black at pages
270-271: “The assumption that
respect for the Judiciary can be
won by shielding judges from
published criticism wrongly
appraises the character of
American public opinion…….an
enforced silence, however
limited, solely in the name of
preserving the dignity of the
bench, would probably engender
resentment and contempt much
more than it would enhance
respect.” At pages 291-292
of the same case and speaking in
the same vein, Justice
Frankfurter, though dissenting,
agreed that speech cannot
be punished when the purpose was
simply “to protect the court
as a mystical entity or the
judges as individuals or as
anointed priests set apart from
the community and spared the
criticism to which in a
democracy, other public servants
are exposed”
Finally, the case involving the
then Deputy Chief Justice of
Kenya which was cited by Counsel
for the 2nd and 3rd
Defendants is also relevant to
the ongoing discussion. That is
the case of Nancy Makokha Baraza
v. Judicial Service Commission &
9 others (2012) eKLR, herein
called the Baraza case. The
whole case started when the
petitioner, the serving Deputy
Chief Justice had a
confrontation with a security
personnel at a shopping centre.
The security guard made a report
to the police against the Deputy
Chief Justice complaining of
assault, intimidation and
threat. Police began their
investigations into the
complaint. Somehow the press
picked up the story and it
became the subject of extensive
discussion in both the print and
electronic media. This naturally
generated a lot of elaborate and
sensational public debate as
regards the conduct of public
officers. Whilst police
inquiries continued, the
Judicial Service Commission
(JSC) which under the Kenya
constitution has responsibility
to make initial investigations
into the conduct of judicial
officers before deciding whether
to recommend to the President to
set up a tribunal to investigate
a complaint, decided to conduct
the initial investigations. To
cut a long story short, the JSC
decided to make a recommendation
to the President to set up a
tribunal to hold the final
inquiry into the conduct of the
petitioner, the Deputy Chief
Justice. She considered that
having regard to her status and
position, her constitutional
rights had been violated by the
entire process, from the
publicity given to the whole
affair up to the decision to
recommend to the President to
set up a tribunal to inquire
into the affair. She therefore
brought a petition before the
Supreme Court seeking several
reliefs one of which, relief
(a), was for a declaration that
the acts of the JSC were
unconstitutional and thus null
and void and another relief (i)
sought for an order of
prohibition restraining the JSC
from taking any further step in
the matter. The court set down
several issues for
determination. Among them was
one numbered (6) ‘whether the
level of publicity generated by
the incident can be such as to
render a fair trial of the
issues impossible and
improbable.’
The issue of publicity is
relevant for this case. At
paragraph 104 of its judgment,
the court had this to say:
“The
Petitioner has extensively dwelt
on the media coverage that was
generated by the incident, as
having influenced the decision
of the Commission and therefore
lending credence to the fact
that the decision may have been
based on irrelevant factors,
more so taking into account the
fact that one of the
publications namely the Nairobi
Law Monthly, which covered the
episode, is published by a
Commissioner. We must
acknowledge the fact that the
incident was given an
exceptionally wide media
coverage. The Petitioner, it is
undisputed, is not an ordinary
person taking into account her
position both in Kenyan
Judiciary and in the society. An
incident surrounding her would,
not unexpectedly, attract more
than average media coverage. In
Abuse of process and
fairness in court
proceedings by David
Corker and David Young it is
stated that ‘modern media is
able to create and orchestrate,
an unprecedented level of
hostility towards a particular
defendant which has attracted
substantial, predominantly
hostile media publicity.’
However, publicity alone does
not vitiate proceedings unless
it is shown that the coverage
was such that the Commission is
likely to have been influenced
or affected by the media reports
provoked by the incident.”
The court at paragraph 105 of
the judgment made reference to
the English case of R. v.
Horsham Justices; Ex Parte
Farquharson (1982) All ER 269;
(1982) QB 762 at page 794 where
Lord Denning held that the risk
must be substantial since the
sole consideration is the risk
to the administration of justice
and whoever has to consider it
should remember that at trial,
judges are not influenced by
what they may have read in the
newspapers.
The underlying reasons in the
Landmark case from the USA, the
Hlophe case from South Africa
and the Baraza case from Kenya
quoted above are sound in law
and we do adopt same. However,
we would proceed further to show
that there are provisions in the
Constitution, 1992, that would
justify such a conclusion.
The entire Article 146 is
devoted to proceedings leading
to the removal of a superior
court judge from office, thus it
must be read as a whole and not
in isolated bits. The process
begins with the receipt of a
petition by the President for
the removal of a superior court
judge from office on account of
misbehaviour, incompetence or on
ground of inability to perform
the functions of his office
arising from infirmity of body
or mind. From the moment the
President accepts the petition,
the process of impeachment has
commenced. And that process
cannot be truncated except in
terms as clearly expressed in
Article 146. And there are only
two situations in which this can
occur, firstly where the Chief
Justice decides that there is no
prima facie case
under clause (3) and secondly,
after the committee set up to
investigate the complaint has
submitted its report. Apart from
these two modes of terminating
proceedings commenced under
Article 146 which are expressly
provided for, it is
impermissible to import any
other mode into the Article to
truncate the process. On this
ground alone relief 4 of the
Plaintiff’s action cannot stand.
But we will proceed further.
Next we believe that the attempt
made by the Plaintiff herein to
abort the process because of the
violation of clause (8) of
Article 146 by the public
disclosure of the petition and
its contents brings it in direct
conflict with the very
constitutional provisions which
say the process cannot be
truncated except in the two
situations mentioned already.
The petition that commences the
impeachment proceedings derives
its validity from the
Constitution; and thus unless
clear intention is expressed,
that validity cannot be taken
away only because there is a
procedural infringement. The
duty imposed on the Chief
Justice to make a prima facie
determination is derived from
the validity of the petition.
And that duty, by the terms of
the Constitution, prevails until
the Chief Justice has performed
it. There is nothing in the
Constitution that prevents the
Chief Justice from performing
that constitutionally imposed
duty once the President has
referred the petition to her.
Any attempt to stop that process
will be subverting the
Constitution. It goes to confirm
that the substantive process
commenced by the petition is
divorceable from the procedural
steps that are, or may be put in
place, to resolve the petition;
the procedural steps cannot
override the validity of the
originating process.
Finally the attempt to abort the
proceedings also brings it in
conflict with the provisions of
Articles 128(4), 136(3) and
139(4) of the Constitution which
require that only persons of
higher moral character and
proven integrity shall be
appointed to the various
branches of the superior court
bench, read side by side with
Article 146(1) which requires,
inter alia, that when a judge is
alleged to have fallen short of
the qualities for which he was
appointed he should be
investigated. It is also a
matter of public policy that
allegations of misconduct or
misbehaviour against a public
official, including a judge,
should not be swept under the
carpet. Indeed the very
integrity of the Judiciary is at
stake if such allegations are
unexamined and found to be
false. In the words of Berger CJ
in the Landmark case “The
operations of the courts and the
judicial conduct of judges are
matters of utmost public
concern.” Thus we are faced
with these competing rights
under the Constitution, that is,
the requirement to investigate
the alleged misconduct against
the Plaintiff and the protection
of his personal reputation as
well as the integrity of the
judiciary itself. It would be
appropriate to apply what the
Irish Supreme Court called the
doctrine of harmonious
interpretation. This doctrine
requires that where two
constitutional rights come into
conflict, for example the right
to privacy and the freedom of
the press, the conflict should
be resolved in the manner which
least restricts both rights.
That was in the case of
Attorney-General v. X and others
(1992) ILRM 401. In short the
court was saying that effect
should be given to both rights.
The plaintiff is entitled to
private and confidential process
which has been breached by the
public disclosure of the
petition and its contents; at
the same time the State has a
constitutional right to
investigate the allegations
contained in the petition as a
matter of express constitutional
provisions, and also on account
of public policy which requires
that such allegations should be
investigated. The plaintiff has
other remedies available to him
as mentioned earlier when we
identified the five possible
consequences for such violations
some of which are available
under our laws. But the State
and for that matter the people
from whom justice emanates as
per Article 125(1) of the
Constitution, 1992, will lose it
all if the proceedings are
truncated without
investigations. The State and
the people of Ghana have cause
to demand that, like Caesar’s
wife, judges should live above
suspicion. More importantly, the
Plaintiff’s right to a fair
hearing cannot be said to have
been violated. The Chief Justice
has given him the chance to be
heard before a decision is made
whether or not a prima facie
case exists. The committee is
yet to be set up to go into the
petition. There is thus no cause
to complain at this stage about
any unfairness in procedure or
prejudice to his cause. For
these reasons too the
plaintiff’s request cannot fly.
It
may be seen that we have shied
away from dealing with the
question of publication since it
was the subject of the decision
in the Agyei-Twum case.
Publication is at the heart of
Article 146(8) and since we have
taken the view that the privacy
of the proceedings covers the
entire gamut of the article we
would consider that the decision
in the Agyei-Twum case should
stand. But the breach
notwithstanding, we believe the
process should continue for
reasons explained herein. Indeed
it is unconscionable to void the
petition because its contents
have been divulged to others,
knowing full well that neither
the Chief Justice nor the panel
is going to rely on the public
opinion but on what is contained
in the petition and the
responses that will be provided
by the Plaintiff. As Lord
Denning pointed out in the case
of R V. Horsham Justices, supra,
courts are not influenced in
their decisions by what is
published in newspapers.
We
fully appreciate and share the
fear expressed by Counsel for
the 2nd and 3rd
Defendants that any person who
wants to favour a judge can
instigate the public disclosure
of the contents of a petition
under Article 146 and then the
judge gets away with it, thereby
rendering otiose the entire
provisions of Article 146.
Indeed the framers of the
Constitution could not have
intended that if for some reason
the confidentiality principle is
breached the impeachment process
should be terminated, in view of
the meticulous provisions
requiring that only persons with
unblemished character and
integrity be appointed to serve
and continue to serve on the
superior court bench. The
invitation to us to nullify the
proceedings is thus absurd and
subversive of the constitutional
order. This is sufficient to
dispose of issue (4) set down by
the Plaintiff and for that
matter the question we posed at
the start of this decision.
We
proceed to consider other
ancillary matters arising in
this case. Counsel for the 2nd
and 3rd Defendants
was quite equivocal in her views
on the outcome of the Agyei-Twum
case. In one breadth she thought
it did not void the petition, in
another she thought it did. That
led her to all that lengthy
submission urging us to depart
from that decision. We think
that apart from granting the
declaratory relief that the
unlawful disclosure violated the
provisions of Article 146(8),
the Agyei-Twum case did not go
on to conclude that the petition
was void. We have to say that we
discountenance any view that the
Agyei-Twum case decided that a
petition was rendered void as a
result of illegal disclosure of
the contents of the petition,
and we would disaffirm any such
decision if it did.
The Plaintiff’s complaint
contained in paragraph 7.9 of
the statement of case, supra,
does not hold. He was afforded
the opportunity by the Chief
Justice to respond to the
petition to assist her to make a
prima facie
decision. And from the practice
that has so far been in vogue in
as far as impeachment
proceedings under Article 146
have been conducted, the
respondents have been given full
opportunity to defend the
petition in accordance with law,
including the prima facie
decision by the Chief Justice.
We believe it will be no
different on this occasion as no
facts have been disclosed to
make us think otherwise. Article
146(8) even guarantees due
process. The Plaintiff can only
complain if, at some step in the
proceedings, due process is not
followed. Until then he has no
cause to complain.
Lastly, there is the issue of
perpetual injunction sought
against the Defendants from any
further publication of the
petition or its contents. We
understand this to be a
permanent gagging order that is
being sought, or an injunction
order in perpetuity. That throws
up the question whether the
confidentiality rule applies in
perpetuity including even after
the committee has submitted its
report. For that is the effect
of a perpetual injunction: it
operates even after the court
has delivered its judgment and
upheld the claim. Article 146(8)
clearly protects the proceedings
so long as something remains to
be done. Thus the injunction we
spoke of earlier is an
interlocutory one pending a
determination of the petition. A
perpetual injunction will stifle
the free speech guaranteed by
Article 21(1)(a) of the
Constitution. We would even
venture to say that it would
amount to judicial censorship of
press freedom also guaranteed by
the Constitution, under Article
162(2) thereof. In the absence
of express words to that effect,
the prohibition contained in
Article 146(8) could not
reasonably be extended beyond
the proceedings to which it
relates.
A
relevant case in point is the
English House of Lords case of
Scott v. Scott (1913) UKHL 2;
(1913) AC 417. It was a divorce
case in which the trial judge
ordered in camera hearing. After
the conclusion of the
proceedings, one of the parties
sent the transcript of the
recorded proceedings to third
parties. Contempt proceedings
were taken against him. The
matter travelled all the way to
the House of Lords which held
that the order could not enjoin
perpetual silence on all persons
with regard to what took place
at the hearing and therefore the
publisher was not guilty of
contempt. In the words of the
Earl of Halsbury, “….as to
injunction of perpetual secrecy,
there is not a judgment
or authority to justify it…..”
Earl Lorebun expressed it this
way:
“In
nullity and divorce cases it may
be that justice would be
frustrated as much by the terror
of publicity after trial as by
publicity at the hearing. But to
say that all subsequent
publications can be forbidden
and every one can be ordained to
keep perpetual silence as to
what passed at the trial is far
in excess of the jurisdiction,
and an unwarrantable
interference with the rights of
the subject. It is not that a
Court ought to refrain from
exercising its power in such a
way. It is that the Court does
not possess such a power, the
jurisdiction must surely be
limited to willful and malicious
publication going beyond the
necessity.”
While concurring in this view,
Lord Atkinson went further to
say that a party affected by
such publication was entitled to
some remedies including damages
for defamation.
In
the Indian case of Naresh and
Others v. State of Maharashtra
and Anor, 1967 AIR 1, the
Supreme Court upheld the
reasoning in Scott v. Scott,
supra, that publication cannot
be permanently injuncted. They
were considering a case that
bordered in part on freedom of
expression as that would be in
violation of Article 19(1)(a) of
the India Constitution, which
like Article 21(1)(a) of our
Constitution, 1992, guarantees
free speech. The court said
that:
“……the order…..imposing
suppression of the reporting of
deposition….was illegal and
without jurisdiction. It was not
in his power to make such an
order……….because the order
either purports to impose a
perpetual ban or leave the
matter in doubt, thus placing
those concerned with the
publication of the report under
a virtual sword of Damocles, the
order cannot be sustained.”
In
R v. Horsham Justices, supra, a
blanket ban on publication of
the entire proceedings was ruled
to be too wide, after the
evidence had been led; that the
reporting of only that part
which was necessary, in the
interest of justice, to suppress
for the time being should have
been postponed.
The UN Principles on the
Independence of the Judiciary,
paragraph 17 of which was quoted
above, duly acknowledges that a
freeze on free speech during
investigations against a judge
can only be applied as a
temporary measure, hence the
restriction of the
confidentiality principle to
only the ‘initial’ stage of the
investigation.
To
conclude this question, it is
our view that free speech
guaranteed by the Constitution
cannot be permanently injuncted
without violating the
Constitution itself. As earlier
explained free speech is only
suspended temporarily whilst
impeachment proceedings under
Article 146 are ongoing. A
harmonious interpretation thus
enables effect to be given to
all the competing constitutional
rights at play in this case. We
accordingly decline such an
invitation that seeks a
permanent injunction.
For reasons advanced in the
preceding analysis of the case,
we are able to grant reliefs
numbered (1), (2) and (3). All
the other reliefs numbered (4),
(5), (6), (7), (8) and (9) are
dismissed. In the result, for
the avoidance of any doubt, we
affirm the continued validity of
the petition against the
Plaintiff, and we do state that
nothing said herein is a bar to
the proceedings in respect of
the 1st Defendant’s
petition against the Plaintiff.
(SGD) A. A. BENIN
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD)
ANIN - YEBOAH
JUSTICE OF THE
SUPREME COURT
(SGD) P. BAFFOE - BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) J. B. AKAMBA
JUSTICE OF THE SUPREME COURT
COUNSEL
NII KPAKPO ADDO WITH HIM SIKA
ABLA ADDO AND STEPHEN OPOKU
FOR THE PLAINTIFF.
KISSI ADJEBENG WITH HIM SETH
ASANTE AND AKWAABA ACQUAAH AND
DENNIS ADJEBENG FOR THE 1ST
DEFENDANT
MRS. AFRIYIE ANSAH ( CHIEF STATE
ATTORNEY) WITH HER ZEINAB
AYARIGA (ASSISTANT STATE
ATTORNEY) FOR THE 2ND
AND 3RD DEFENDANTS |
