The Director of Newspapers at the Graphic Communications Group Limited, Yaw Boadu Ayeboafo, has counseled caution in criticizing judges and their decisions, explaining that while the courts are not above criticism, no one dares impute ill motives on the part of judges for their decisions.
He says the crime of contempt of court has such a vague boundary on what may constitute an offence such that perhaps it is time to discuss and refine it so as to demarcate clearer boundaries, but until such an exercise is carried out, critiques must stay within the bounds of fact-based criticism.
Mr. Ayeboafo who gave the admonition while speaking on TV3 Network’s programme, Agenda on Thursday which discussed “Free Speech and Contempt”, said a while all other crimes and corresponding sanctions are prescribed by the constitution of Ghana, the crime of contempt is only defined by judges of the higher courts and as such makes it an elusive challenge as to where to draw the line.
“It is one crime that is not defined,” he said, “and the penalty for it is also not defined, but the constitution allows that and recognizes that it is legitimate. And that is why it is very difficult because if you knew what it was and you fall into it, you yourself can know that you have fallen into it, but where you don’t know, that is why it is a very dangerous thing …”
He said the general philosophy behind the law of contempt of court and others like defamation, is to help society strike a balance between the enjoyment of the rights of an individual as against the rights of all other persons so that if the enjoyment of one’s right may undermine another’s interest, then society may curtail that right.
Quoting the celebrated English judge, Lord Denning, Ayeboafo said nobody is clothed with the right to stop another person from freely expressing a viewpoint, however, in expressing that viewpoint one must take responsibility if that viewpoint affects another person. He emphasized that the law of contempt is not intended to gag anyone from commenting on issues before the Supreme Court, however, such discourse must be held on the basis of the principles.
“For instance if they (judges) erred in a certain way about the law, you get the law (and) you can quote the law. But to say that they did what they did because of the face of Justice ‘A’ or Justice ‘B’, that is part of the problem. When we are talking about contempt, we are talking about anything that you do that has the tendency to scandalize (the court),” he said.
Dr. Richard Amoako Baah, a Senior Lecturer of the Political Science Department of the Kwame Nkrumah University of Science and Technology, also on the programme, said contempt simply means a refusal to obey a court order, and in a court situation a variety of issues can constitute contempt.
He said it is applied appropriately in the courtroom to sanitise proceedings between angry litigants and it gives the judge control of the courtroom. However, he said what is presently a challenge, and which must be addressed is how far judges must extend their control beyond their courtrooms into public discourse.
For Dr. Amoako Baah, judges by their training must be seen to be on top of their job and know their stuff, so they are insulated from what is discussed in the public, be it in the media or on other platforms. Judges, he maintained, have no business listening to public discourses and allow themselves to be affected by them since they make that choice to listen on their own volition. Besides, they are not put in charge of cases to engage in popularity contests with the public.
“Look in many places that I’ve seen and been to, a lot of judges don’t pay attention to anything anybody is saying. That preserves the freedom of speech. It is assumed that the judge knows his stuff, it does not matter what anybody says. You are insulated…”
He said once the judges’ decisions are not based on sentiments but on the application of the law, justice can be assured. “The integrity of the court is not based on intimidation; it is based on how cases are decided with integrity, fairness and according to law, that is where we have to pay attention to.”
Mr Ayeboafo, however, disagreed that the issue is about any popularity contest for the judge. “The issue is not about the popularity of the judge. The issue is about how the public will react to decisions of the court based on information available to them.”
He explained that it is inimical to prejudice the minds of an expectant public since the public could be misled into making wrong calls, a situation he said must be avoided. He cited as an example, media exposure of suspected robbers due for an identification parade, saying that that exposure can eke in the minds of witnesses the wrong persons who then may be picked wrongly.
Dr. Amoako Baah contended again that the Supreme Court may have achieved the reverse of what it sought to achieve with its sanctioning of Kenneth Agyei Kuranchie of the Daily Searchlight newspaper and Stephen Atubiga of the ruling National Democratic Congress since their conviction appears to have put fear in people and now everyone is running for cover. That curtailment, he said, was an unhealthy development.
He said due process demanded that the convicted duo should have been brought before another court to be indicted properly and their case determined. It should not have been the same court they were deemed to have offended.
“Suppose somebody goes to court and threatens the judges, would they call that person before them? No! You have to report this case to the Attorney General’s office or even to the police. Get the person arrested or charged with a crime, brought to court – most likely not your own court. That is due process, and that is what preserves all these freedoms we take for granted. When the court itself takes unto itself more powers like this, freedom is imperiled,” he said.
Source: Daily Graphic
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