Tony Aidoo and the Ghanaian Judiciary - Commentary

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Parent Category: Justice & Security

Created on Monday, 01 July 2013 00:00

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COMMENTARY AND ANALYSIS

I need counsel in getting my head around as to whether or not the Supreme Court of Ghana has the power to act both as a police, prosecutor and a judge in an allege contempt case. Article 19(11) of the 1992 Constitution of Ghana states that no person shall be convicted of a criminal offence unless the offence is defined and penalty for it is prescribed in a written law. Indeed sub-clause (12) of the same article provides that this 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.

So it seems to us that the Supreme Court Judges in the on-going Presidential Election Petition hearing, invoked this power when on 25th day of June 2013, the Court ordered Sammy Awuku- a Deputy-Communication Director of the New Patriotic Party, to remain on his feet while the Court, was on recess for the determination of his alleged contempt “voire dire” hearing. In the words of Professor Quansah(2011), contempt of court serves the primary function of protecting the integrity of court proceedings. “At common law, it is recognised that judges have an inherent power to exercise authority and control over judicial proceedings and punish conduct which brings the judicial process into disrepute.” But I think, respectfully, that the Court’s procedure on Sammy Awuku’s confinement was hastily wrong.

Yes, the UK Crown Prosecution Service (Guide to Contempt) observes that once a contempt of court breach has come to light, it is the responsibility of the court to summon the alleged contemner. However, it is advised that because it is undesirable that the court should then act as prosecutor, and judge, it is appropriate for the CPS , and in our case, the Attorney-General, to assist by instructing an advocate to place the circumstances of the matter before the court and question the alleged contemner in case of any dispute. Yes, it is submitted that such cases will be very rare in the Kingdom of Great Britain but in the event of such an occurrence, steps should be taken to instruct the original advocate at the hearing. The responsibility for providing the CPS with the relevant transcripts and post trial documents lies with the Ministry of Justice. The established legal rule here is that we cannot be a judge in our cause.

What, then, if at a hearing, a counsel at the bar shows an open-distrust for a Supreme Court’s registry or to his/her learned opposing counsels in an open court? According to Professor Emmanuel Kwabena Quansah, the practical danger to the continuance of judicial independence, is either to take it for granted and not strive to maintain it or the Judiciary itself compromises its independence by bending to the will of vested interests be it the executive or otherwise. Fortunately, the Judiciary, Quansah states, seems to be alive to the latter danger as exemplified by the dictum of Atuguba JSC in his dissenting opinion in Tsatsu Tsikata (No. 1) v Attorney-General (No. 1) in which the Law Lord said: “The judiciary itself cannot waive its independence under articles 125(1) and 127(1) of the 1992 Constitution by acquiescing in the name of the President [? J. A. Kufuor] or other authority or person, rather than the Republic.”

On 24 June 2013, Atuguba JSC hoisted the powers and the independence of the Judiciary in the administration justice in the Republic. Reading the unanimous decision of the 9-member court in relations to commentaries on the presidential election petition hearing, he said: “We have seen the Kenyan precedent in this context and much as we are concerned not to exercise our undoubted powers as a court of law with iron fist, we cannot allow the emergence of over mighty subjects in this country. However, in order to show that we mean well for this country with regard to the exercise of our awesome powers we have decided to stop short of invoking our powers of contempt and invoke in the alternative, our power to control the attendance of our proceedings as a public court by members of the public...We think that the exclusion of Mr. Sammy Awuku from attending the proceedings of this court for the rest of the duration of this case should suffice for a start in this direction. That is our ruling.” Awuku had criticised the SC for being “selective and hypocritical” in its reference to Daily Guide’s court coverage.

In the words of Professor Quansah, there are two types of contempt- namely civil and criminal and that contempt can be either direct, in cases where it occurs in the presence of the judge and disrupts the court proceedings (in facie curiae) or indirect, where it occurs outside the immediate presence of the judge (ex facie curiae). Civil contempt occurs when a person refuses to obey a court order or breaches an undertaking given to the court either directly or by necessary implication shows disrespect for the judge, or disrupts judicial proceeding. Per Prof Quansah, criminal contempt may take a variety of forms but they all have one thing in common: they are designed to interfere with the due administration and dispensation of justice either in an ongoing case or generally. The well-known punishment imposed by the court for the said court contempt is performance of undertaking, a fine, imprisonment or both.

But within the European Union, any restriction on reporting [commentary] could be [mis]construed as contrary to the general rule in favour of open justice, and the fair and accurate reporting of public court proceedings. Article 10 of the European Convention on Human Rights (the right to freedom of expression- the freedom both to impart and to receive information, regardless of frontiers), is a qualified right, and interference of it in the form of restrictions may be appropriate and necessary where for example, it relates to protecting the identity of defendants appearing in the youth court; sexual nature; or the rights of others to a fair trial (Art 6 ECHR), or to privacy (Art. 8 ECHR). For most journalists, contempt of court and defamation suits had been their greatest perils in relation to balancing the law with the public interest matters. For example, JusticeGhana Group could be in contempt if it intentionally or journalistically, irresponsibly, carries a story about the Pink Sheets auditing at Supreme Court’s Registry with the aim of subverting a fair trial of or ridiculing KPMG firm?