The vetting of Chief Justice nominee, Justice Gertrude Araba Esaaba Sackey Torkonoo, was not short of combative exchanges, entrenched political posturing and subtle accusations, with contentious issues such as contempt of court, citizenship and judicial independence taking centre stage.
With the National Democratic Congress (NDC) member, Prof. Michael Kpessa-Whyte, being summoned to appear before the Supreme Court tomorrow for allegedly making contemptuous comments against the court, contempt was a major subject of scrutiny by some NDC members on the Appointments Committee.
The Minority Leader, Dr Cassiel Ato Forson, and the MP for Madina, Francis-Xavier Sosu, particularly, raised concerns about the use of the power of contempt by the Supreme Court, describing it as an abuse by the apex court.
However, Justice Torkornoo justified the use of contempt by the Supreme Court, describing it as a necessary tool to protect the dignity of the administration of justice and ultimately the democracy and peace of the country.
“The Supreme Court is the ultimate voice of authority for the entire judicial stream. If the Supreme Court is not alert and alive to its responsibility to ensuring that the justice systems are not denigrated beyond boundaries, those below us are likely to suffer more,” she said.
Mr Sosu was of the opinion that the Supreme Court had in recent times had the penchant for summoning people for contempt for making disparaging comments about decisions of the court, a situation he said was not the practice in other common law jurisdictions such as the USA, Canada and the UK.
However, Justice Torkonoo disagreed and said it was not the case that the Supreme Court had consistently been summoning people for contempt, adding that the power of contempt had always been with the court but the court sparingly used it unless it was necessary.
She noted that during her 35 years of legal profession, she could only remember the Supreme Court summoning people for contempt on not more than five occasions.
Another aspect of contempt which came up had to do with the lack of clear guidelines or rules of court on how judges could apply the power of contempt.
The First Deputy Speaker of Parliament and Chairman of the Committee, Joseph Osei Owusu, suggested to the nominee that it was necessary for the judiciary to set up rules on contempt, just as Parliament had standing orders on how it exercised its power of contempt, a suggestion the nominee said she would be ready to explore when approved by the House.
Contempt of court featured prominently during the two presidential election petitions adjudicated by the Supreme Court in 2012 and 2020.
During the 2012 Election petition, the Editor of the Daily Searchlight, Kenneth Agyei Kuranchie, and a member of the National Democratic Congress (NDC) communication team, Stephen Atubiga, were sentenced to 10 and three days’ imprisonment, respectively, for contempt of court for making prejudicial comments about the petition, while the General Secretary of the New Patriotic Party (NPP), Kwadwo Owusu Afriyie, and a member of the party’s communications team, Hopeson Adorye, were slapped with GH¢5,000 and GH¢2,000, respectively, for the same offence.
A former Deputy Attorney-General (A-G) and MP for Bolgatanga East, Dr Dominic Akurutinga Ayine, was also cited for contempt during the 2020 election petition for making some disparaging remarks against the court and was ordered by the court to retract them and apologise.
Arguably, the best example of the Supreme Court’s use of the power of contempt was the infamous “Montie trio” case – the two radio panellists and a programme host - who were sentenced to four months’ imprisonment each in July 2016 for scandalising the court.
The two panellists - Alistair Tairo Nelson and Godwin Ako Gunn - and the host, Salifu Maase, alias Mugabe, were also ordered by the apex court to pay GH¢10,000 each or in default serve an additional one month in prison.
On citizenship, the issue of whether a birth certificate was proof of Ghanaian citizenship became topical, with the Minority Chief Whip, Kwame Governs Agboza, taking a position that a birth certificate should be proof of citizenship.
That was, however, rejected by Justice Torkornoo who affirmed the Supreme Court’s decision in 2020, which held that a birth certificate was not proof of citizenship and subsequently dismissed a suit by the NDC asking the court to order the EC to accept the birth certificate as source document for voter registration.
She said unlike other countries, Ghana did not confer citizenship on persons born in the country but by their lineage.
According to her, a birth certificate recorded place of birth and helped to determine nationality but was not proof of nationality.
“One’s nationality is derived from the information on the birth certificate. It is not the evidence of nationality, it is the beginning of appreciating how your nationality must be determined,” she said.
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