Petition to the Supreme Court Panel

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Created on Thursday, 11 July 2013 00:00

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Petition to the Supreme Court Panel

11 July 2013

Plea to the Panel Hearing Petition No. J1/6/2013 to immediately halt Criminal Contempt Proceedings based on Out-of-Court Statements on grounds that the Proceedings violate the Constitution, Due Process and Public Policy (July 9, 2013)

1. Petitioner, Professor Stephen Kwaku Asare (C12 Sapele Crescent, Dzorwulu), is a citizen who is deeply concerned by the criminal contempt proceedings that have already resulted in a citizen being banned from appearing in this Court and two others being sent to jail. Petitioner believes that the proceedings violate the Constitution, due process and public policy. Petitioner is taking the unusual route of petitioning this Court because of the unusual nature of the contempt proceedings and the urgency of the issues therein.

2. The facts are as follows:

a. On June 26, 2013, Justice Atuguba, the presiding judge of this august panel announced in court that Samuel Awuku had engaged in an improper conduct. The said conduct was related to comments that Mr. Awuku made on air, during a political discussion. In particular, he is said to have criticized the panel for “being selective and hypocritical,” in citing a Daily Guide reportage of the Court’s proceedings.

b. That same afternoon, Mr. Awuku appeared before the panel and after a short hearing, in which he apologized for his comments, the panel banned him from making further appearances in the Court.

c. The Court decided that Mr. Awuku’s out-of-court statements were contemptuous of the Court’s proceedings and it has been reported by some newspapers that he was found guilty of the contempt of scandalizing the Court.

d. On June 27, 2013, Justice Atuguba announced a new list of wrongdoers (Stephen Atubiga, Kwaku Boahen and Ken Kuranchie). The Court also issued oral instructions for these persons to appear before the Court to defend some comments attributed to them. Subsequently, it is my understanding that they were summoned. Several newspapers and websites posted their pictures and declared them wanted, in clear violation of their dignity.

e. In the case of Atubiga, he is reported to have said “Ghana cannot contain all of us if NPP wins the Court case.” In the case of Boahen, he is reported to have said “Do you think NDC will sit aloof and watch the court hand over power to NPP, never! It will never happen in Ghana and anyone can mark it on the wall.” In the case of Ken Kuranchie, he is to answer for a front-page comment published in his newspaper in which he justified Sammy Awuku’s alleged contemptuous comments.

f. On July 2, 2013 this Court sentenced Ken Kuranchie and Stephen Atubiga to a 10-day and 3-day prison term respectively.

g. According to the Court, “Mr. Stephen Atubiga has shown thorough remorse, having admitted his error readily and started his retractions before his appearance before this court. Nonetheless his utterances were very serious, they were intentionally made contemptuously. Accordingly we find him guilty of criminal contempt and sentence him to three days imprisonment.”

h. "Ken Kuranchie on the other hand, has hardly shown any remorse. We were left in no doubt that he understood those parts of his publication, which impute deliberate selectivity and hypocrisy with regard to our remarks about Daily Guide and Sammy Awuku’s sanction. Ken Kuranchie clearly says that Sammy Awuku was right in describing us as hypocritical and selective, the things Sammy Awuku himself fully retracted and apologised to this court. If this is not defiance of the authority of this court and the due administration of justice, we do not know what else it can be. We have no doubt that the said statements are made with intent by him to defy the authority of this court and the due administration of justice. Accordingly we find him guilty of criminal contempt of this court and sentence him to 10 days imprisonment.”

i. "With regard to Kwaku Boahen, it is clear that whatever he said fell outside the touchline drawn by this court. We accordingly dismiss the summons against him."

j. Stephen Atubiga has completed his sentence. Ken Kuranchie continues to be in prison, with media reports suggesting that he is being whisked from one prison to another. His wailing wife indicated that she does not know his whereabouts.

k. On July 8, 2013 the presiding judge of the Court announced that, “potentially contemptuous comments made by Kwadwo Owusu Afriyie have been brought to the attention of the Court. He also announced that, “the Court has also taken judicial notice of a publication in which someone is daring to behead supporters of the governing National Democratic Congress if the Supreme Court rules that President John Mahama won the 2012 elections fairly.”

l. The common thread among these persons who have been summoned to appear before the panel is that they commented on the on-going presidential case before the Court. It remains unclear how the Justices monitor these statements or how the statements are brought to their notice.

3. The summoning, summarily trial and punishment of people before this Court for their out-of-court statements raise the following constitutional questions:

a. Whether this Court’s inherent power to summarily punish for contempt in facie curiae extends to strangers? That is, does this Court have the inherent power to summarily punish for contempt ex facie curiae?

b. Whether this Court has the power to deprive defendants of their liberty without following the due process protections of Article 19 of the Constitution?

c. Whether this Court has the power to penalize or harass editors for their editorial opinions and views on this Court’s proceedings?

d. Whether the Court’s monitoring and punishing of out-of-court statements is discriminatory and violates citizens’ rights to free expression?

e. Whether the criminal contempt of scandalizing the court still exists as an offense?

f. Whether this Court’s contempt power extends to out-of-court comments that may threaten public safety but are only tangentially related to the Court’s proceedings?

4. Respectfully, this Court does not have the inherent power to summarily punish for contempt ex facie curiae.

a. Criminal contempt is a very serious crime as it entails the interference with the administration of justice. Under the common law, judges had the inherent power to summarily punish contemnors when the contumacious act occurred in facie curiae. While this is an awesome power to invest in individual judges, it is a necessary evil that allows judges to control their courtrooms. Without such broad powers, the administration of justice will be threatened and society will be faced with an even worse evil. It has always been so in the courts of the common law, and the punishment imposed is due process of law (see e.g., Cooke v. United States 267 U.S. 517).

b. The 1992 Constitution recognizes and preserves that broad and inherent power in Article 126 (2), which provides that the superior courts of record shall have the power to commit for contempt to themselves. Further, Article 19 (12) even permits “a Superior Court to punish 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.”

c. All judges, therefore, have the inherent power to maintain respect, dignity, and order during court proceedings. Thus, a judge may find anyone in criminal direct contempt by making a record of an in court finding of contempt. The judge can also immediately impose punishment, which takes immediate effect. Because the contumacious act is directly affecting the court’s proceedings, the contemnor’s usual rights as a criminal defendant (e.g., right to testify, right to call witnesses on his own behalf, right to an attorney, right to cross-examine witnesses, etc.) are necessarily truncated.

d. Notwithstanding these broad powers, the prosecution of criminal contempt, even when it is in facie curiae is still subject to some procedural safeguards (See for instance, Order 50 of the High Court (Civil Procedure) Rules, 2004 (CI 47), which outlines the process for committal of contempt by a high court).

e. It is respectfully submitted that judges do not have such broad powers to summarily punish for contempt ex facie curiae. Because the contumacious act occurs outside the immediate presence of the Court, and the administration of justice is not imminently threatened, a defendant accused of criminal contempt ex facie curiae is entitled to the full panoply of privileges afforded by the Constitution. Further, it is respectfully submitted that the full adversarial process must be activated, if the Republic desires to prosecute the contemnor.

f. It is settled law that contempt ex facie curiae cannot be summarily punished. In his renowned work on the history of contempt, Sir John Fox shows conclusively that “contempt out of court by “strangers” were, like trespass, tried either by jury or in the Star Chamber, although contempt in the actual view of the court were punished summarily (see The History of Contempt of Court: The Form of Trial and the Mode of Punishment 1927). Thus, he concludes that historically the summary procedure applied only to contempt in the face of the court and that other forms of contempt were only triable on indictment, and that “committal” or “attachment” in the earlier contempt ex facie curiae cases referred to committal to stand trial and not to imprisonment by way of punishment (see also 267 U.S. 517, holding that when the contempt is not in open court, however, there is no right or reason in dispensing with the necessity of charges and the opportunity of the accused to present his defense by witnesses and argument).

g. Further, if the criminal contempt involves disrespect toward or criticism of a judge, due process requires that the judge be disqualified from presiding at the contempt trial or hearing unless the defendant consents (see e.g., U.S. Federal Rule of Criminal Procedure Rule 42, which codifies this common law principle).

5. Respectfully, this Court does not have the power to deprive defendants of their liberty without following the due process protections of Article 19 of the Constitution.

i. Article 19 of the Constitution provides that criminal defendants, inter alia, have the following entrenched rights.

ii. The right to a fair hearing.

iii. The presumption of innocence.

iv. The right to prepare a defence, which requires that they are given adequate time and facilities.

v. The right to cross-examine the witnesses against them.

vi. The right against self-incrimination

vii. It is important to emphasize that these privileges cannot be disturbed, even in criminal contempt proceedings. The limited exception is Article 19 (12), which arrests the privilege specified by Article 19 (11).

b. It is submitted that the three defendants (Awuku, Atubiga, Kuranchie) did not get a fair hearing. Under our constitution, all defendants are to appear before a neutral unbiased judge or panel. This is why the executive arm of government is in charge of investigations and prosecutions while the judiciary is charged with determining guilt. In Republic v. Mensa Bonsu, Ex Parte Attorney General ([1994-95] GBR 130), when the contemnor was said to accuse Justice Abban of being a liar, an ex facie curiae case, the Attorney General appropriately initiated the contempt proceedings against the contemnor. In the extant contempt proceedings, the Supreme Court identified the contumacious act. The Court has not disclosed the source of this policing and investigation power. Further, the Court prosecuted the case in a very unusual way, with each of the 9-member panel fielding questions to the defendants, in gross violation of their right against self-incrimination. I verily believe that, save as in the case of contempt in facie curiae, our constitution does not allow a criminal defendant to be investigated, prosecuted and judged by the same panel, and this is true even if the panel is this august Court, the Supreme Court of Ghana.

c. It is submitted that, in our criminal justice system, the burden of proof falls on those who allege that a wrong has been done. That means the accusers must present evidence, in the form of witnesses, documents, etc. to prove their case. And while they do this, the defendants do not have to say a word. Only after the accusers have met their burden will the defendant have to open their defense. In the proceedings of the 3 defendants (Awuku, Atubiga and Kuranchie), things were turned upside down. Your Lordships started to question the defendants, without advising the defendants of their right against self-incrimination. Even a mere request for the charge to be explained to one of the defendants (Kuranchie) was rebuffed and ridiculed by the Court. As I watched the proceedings, it appeared to me that the defendants had been judged guilty and they were there to prove their innocence.

d. It is submitted that all criminal defendants are entitled to a robust defense. They are entitled to question the investigators, cross-examine witnesses, test the credibility of their accusers, etc. Because an issue in two of the cases (Awuku and Kuranchie) revolved around whether the Court was selective in citing the Daily Guide reportage, a proper defence requires that the defendants be allowed to interrogate the investigators on how they settled on a particular reportage. We also learnt that Mr. Boahene ‘s investigation was ineptly done, raising questions about the quality of the other investigations. Who did the investigation and whether the law was followed in investigating these alleged crimes remain a mystery. It is well known that the manner in which evidence is obtained can affect whether it is admissible in a court’s proceedings. Unfortunately, no cross examination was allowed, hence we will never know and on such uncertainty, our criminal laws cannot and does not sanction a prison sentence.

e. With respect, this Court violated due process when Kuranchie’s attempt to defend himself was used as evidence of lack of remorse. As a result, he was given extra punishment for offering a defense, instead of apologizing profusely. Is a proffer of defense now equivalent to a lack of remorse? The proceedings will show that anytime Kuranchie tried to offer a defense, a Justice will cut in to intimidate, confuse or otherwise distract him. It is my opinion that situation by itself denied him the fair trial that he is entitled to under the constitution.

f. Robust defense also means a defendant must be given adequate time and facility to prepare his defense. In this case, the defendants learnt of the charges against them in Court. Even as a lawyer, I struggled to understand what they were being accused of. Yet, once the charges were read, they were expected to open their defense. The prosecution had automatically met their burden, merely by reading a charge sheet. There were no opening statements by the accusers to lay out the charges in the specificity needed to invite a defense. Other privileges that were traversed by the proceedings include failure of the Court to inform the defendants (at least, in the case of Kuranchie) in a language that he understands, and the details of the offence charged. Kuranchie seemed confused by what he was being charged with and he was ridiculed for asking.

g. The defendants were not allowed to call any witnesses who could have testified to their state of mind and hence traverse the Court’s maintained theory that they had the mens rea for the crime. Even the rudimentary principle that protects defendants against self-incrimination (no person who is tried for a criminal offence shall be compelled to give evidence at the trial) seems to have been suspended.

h. It is respectfully submitted that this Court’s original jurisdiction does not extend to criminal matters. It is trite law that jurisdiction must be specifically granted. The trial of criminal matters have been reserved for the lower courts to make a defendant’s right to an appeal meaningful. Where, as here, this august Court assumes original jurisdiction of a criminal matter, it upsets the Constitution’s carefully constructed trial and appellate architecture. Perhaps, it was because of this reason that the defendants were not advised of their right to appeal, as required by the criminal procedures Act.

6. Respectfully, this august Court does not have the power to penalize or harass editors for their editorial opinions and views on this Court’s proceedings.

a. The Constitution provides that, “Editors and publishers of newspapers and other institutions of the mass media shall not be subject to control or interference by Government, nor shall they be penalized or harassed for their editorial opinions and views, or the content of their publications (Article 162 (4)).” A whole chapter of the Constitution is devoted to guaranteeing the freedom and independence of the media. And understandably so, given our history of fighting against the culture of silence, which characterized the military era, and our collective desire and hope to never allow the reemergence of any regime wherein expressing an opinion, no matter how erroneous or even inflammatory, will be criminalized.

b. The main rational for this clause is to allow media men to discharge their functions without any fear of reprisals from the three arms of government. Because members of the judiciary are not subject to the usual form of political accountability, a vibrant media is an essential handmaiden of effective judicial administration. The media’s job is not restricted to a passive reporting of this Court’s proceedings but, more important, it guards against the miscarriage of justice by subjecting the judicial processes to extensive public scrutiny and criticism. The press cannot play this role if the sword of criminal contempt remains pointed at them.

c. Kuranchie’s supposed contumacious words were part of an editorial opinion in the Daily Searchlight. It seems rather plain that in choosing to penalize Kuranchie, the Court’s decision plainly contravened Article 162 (4).

d. In the editorial opinion, Kuranchie argued that the Court does not have the resources to monitor every newspaper, broadcasting station or the internet. As a result, the Court’s investigations will necessarily be selective. To the extent that the Court is selective, albeit unintentionally, some may view this as hypocritical. This is fair comment. This is reasonable. This is not contumacious. This does not scandalize the Court. This is what the Constitution charges the media to do.

7. Respectfully, this Court’s monitoring and punishing of out-of-court statements is discriminatory and violates citizens’ rights to free expression.

a. The Constitution is also emphatic that “all persons shall have the right to freedom of ?speech and expression.” Equally significant, the Parliament of Ghana has declared, as a matter of policy, that the people of Ghana abhor the criminalization of speech (see Repeal of Criminal Libel and Seditious Libel Laws, Amendment Act 602) . This policy follows a series of illiberal decisions rendered by this Court (see e.g., Republic V. Tommy Thompson Books (No. 2) et al; Republic v. Mensa-Bonsu). The Attorney General who spearheaded that effort, Nana Addo Dankwa Akufo Addo, has said of this policy: “by this singular deed, a historic victory was won in the struggle of our people for liberty and especially, for freedom of expression. This policy brings an end to more than a century-old regime of laws repressive of free expression.”

b. This Court has not given clear orders or directions on what Ghanaian citizens can say and cannot say about Petition No. J1/6/2013. The Court has said that “any person, be it in the media or not, who crosses the final touchline of proper coverage reportage will be met with the appropriate response.” It is well established that an order of a court must be clear, definite and unambiguous before it provides a basis for contempt. Uncertainty, indefiniteness, or ambiguity of a court order is a defense to criminal contempt adjudication.

c. Several citizens have praised proceedings of the Court, without any reprisal from the Court. Notably, the Ghana Bar Association (GBA) has praised this Court for its swift handling of the Contempt proceedings and the related punishments. While such praises do not appear to cross the final touchline of proper coverage reportage, comments that are critical of the Court seem to cross the touchline. Thus, it appears that the Court’s order, whatever it means, is solely directed at harsh criticisms.

d. It is also now well established that criticizing a ruling on a pending case is not contemptuous and is protected by the right to free expression. For instance, in Bridges v. California - 314 U.S. 252 (1941), the Court held that “the publication in a newspaper of news articles, which unfairly reported events in a case pending in a state court, and an editorial which vehemently attacked the trial judge while a motion for a new trial was pending, did not constitute a clear and present danger to the administration of justice, and the conviction of the newspapermen for contempt violated the freedom of the press guaranteed by the First and Fourteenth Amendments. See also Craig v. Harney, 331 U. S. 367, and Pennekamp v. Florida, 328 U. S. 331.

e. All civilized jurisdictions have now accepted that “there is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor reports of occurrences in judicial proceedings.” (331 U. S. 374). Further, anyone reporting the news of a judicial trial may not be held for contempt because he missed the essential point in the trial or failed to summarize the issues to accord with the views of the trial judge. (331 U. S. 375).

f. In India, Justice G.S. Singhvi, dismissing a contempt charge, recently drew the line as follows: “In all civilized societies, the Courts have exhibited high degree of tolerance and accepted adverse comments and criticism of their orders/judgments even though, at times, such criticism is totally off the mark and the language used is inappropriate (Indirect Tax Practitioners Association v. R.K. Jain, 2010).”

g. It is further accepted in jurisdictions that have a bill of rights, such as ours, that the vehemence of the language used in a publication concerning a pending case is not alone the measure of the power to punish for contempt; the threat to the administration of justice must be imminent. (331 U. S. 376). The law of contempt is not designed for the protection of judges who may be sensitive to the winds of public opinion (331 U. S. 376).

h. To sum, there are important constitutional and statutory considerations that bars the Courts from using the sword of criminal contempt ex facie curiae to censor reports on judicial proceedings.

8. Respectfully, the criminal contempt of scandalizing the court can no longer be countenanced as an offence in light of the Constitution’s guarantee of free speech and public policy against criminalizing speech.

a. While the exact origins of the common law offence of scandalizing the court are still shrouded in some mystery, the English case of R v Gray ([1900] 2 QB 36) is generally acknowledged as the leading authority on the offense. In that case, a journalist was found to be in contempt, by scandalizing the court, for describing a judge as an “impudent little man in horsehair, a microcosm of conceit and empty-headedness.”

b. Although scandalizing the court as a common law offence is of ancient vintage, it was hardly ever used to successfully prosecute anyone in the UK, with the last successful prosecution dating as far back as 1930.

c. Indeed, as far back as 1899, the Judge, in McLeod v. St. Aubyn ([1899] AC 549, p. 56), wrote "Committals for contempt of court by scandalizing the court itself have become obsolete in this country.... But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of court for attacks on the court may be absolutely necessary to preserve in such a community the dignity of and respect for the court."

d. This suggests that it has always been recognized that the offense of scandalizing the court could be put to bad use, could interfere with free speech, could shield judges from public scrutiny and was, generally, illiberal and not an offence that civilized societies could tolerate. It was left on the books to be applied in the colonies to suppress dissent by the colored people in the colonies.

e. Justice Mumby summarizes the general lack of judicial appetite for punishing for this offence as follows: “that which is lawful if expressed in the temperate or scholarly language of a legal periodical or the broadsheet press does not become unlawful simply because expressed in the more robust, colorful or intemperate language of the tabloid press or even in language which is crude, insulting and vulgar ... Moreover, a much more robust view must, in my judgment, be taken today than previously of what ought rightly to be allowed to pass as permissible criticism. Society is more tolerant today of strong or even offensive language. Society has in large part lost its previous habit of deferential respect. Much of what might well, even in the comparatively recent past, have been considered by the judges to be scurrilous abuse of themselves or their brethren has today, as it seems to me, to be recognized as amounting to no more than acceptable if trenchant criticism.” ([2001] 2 FCR 193).

f. The offence remained dormant on the books until 2012 when the Attorney General for Northern Ireland obtained leave to prosecute an MP for statements in his book, criticizing a judge’s handling of a judicial review application. The prosecution was later discontinued. However, it led to calls to abolish the offence. After a review of the law of contempt of court in general, law of scandalizing the court was finally repealed (Clause 22 of the Crime and Courts Act 2013).

g. A similar lack of appetite for prosecuting this offence exists in Australia, where it was said that: “There is no more reason why the acts of courts should not be trenchantly criticized than the acts of public institutions, including parliaments. The truth is of course that public institutions in a free society must stand upon their own merits: they cannot be propped up if their conduct does not command the respect and confidence of the community; if their conduct justifies the respect and confidence of a community they do not need the protection of special rules to protect them from criticism.”

h. Needless to say, the offence has always been a problem in countries, such as ours, with written bill of rights that expressly guarantee the right to free expression. In Canada, a lawyer said of a court decision: “This decision is a mockery of justice. It stinks to high hell. It says that it is okay to break the law and you are immune so long as someone above you said to do it.?Mr. Dowson and I have lost faith in the judicial system to render justice. We’re wondering what is the point of appealing and continuing this charade of the courts in this country, which are warped in favor of protecting the police. The courts and the RCMP are sticking so close together you’d think they were put together with krazy glue.”

i. It was almost as if the lawyer had crafted the statement to traverse all the elements of the common law offence of scandalizing the court. Yet, he was found not guilty on a charge of scandalizing the court. The court held there must be a showing of a “clear and present” or “imminent” danger to the administration of justice. As a result of their importance the courts are bound to be the subject of comment and criticism. Not all will be sweetly reasoned. An unsuccessful litigant may well make comments after the decision is rendered that are not felicitously worded. Some criticism may be well founded, some suggestions for change worth adopting. But the courts are not fragile flowers that will wither in the hot heat of controversy.... The courts have functioned well and effectively in difficult times. They are well-regarded in the community because they merit respect. They need not fear criticism nor need to sustain unnecessary barriers to complaints about their decisions or operations.”

j. In the United States, the power of the courts to punish for scandalizing the court is almost non-existent. The general rule for restricting speech is whether it portends “clear and present danger” to the administration of justice. This means the prosecutor must prove beyond reasonable doubt that the speech could bring about a substantial imminent evil. Of course, it is hard to imagine what that speech could be, allowing all forms of language to be directed at judges, in the cloak of criticisms. Notwithstanding this liberal stand, judges and the judiciary in the United States are among the most respected professionals and institutions in the country, perhaps, largely because of the unfettered scrutiny to which they are subject.

k. Although this Court, in Republic v Mensa Bonsu, Ex Parte AG, allowed the prosecutor to prosecute two defendants (and a company) on the offence of scandalizing this Court, it is submitted that public policy has since moved in the direction of not criminalizing speech. Further, in Mensa Bonsu, a particular Justice (Justice Abban) was described as a liar, accused of “political chicanery and bamboozlement,” and “doctoring his version of his judgment as a subterfuge to free himself from scandal.” While the Court decided that the prosecution had met its burden, Justice Adade, in his dissent, urged the Court to be more accommodating of criticisms. Even Justice Bamford Addo, who wrote for the majority, cautioned that the Court should use the contempt power sparingly.

l. It is submitted that the time is ripe to declare the common law contempt of scandalizing the Court as an obsolete relic from our colonial past, not consistent with the country’s modern view on speech. m. It is further submitted that the offence in the instant proceedings does not appear to be sub judice contempt, which is the common law offence of publishing material that has a tendency to interfere with the administration of justice while proceedings are sub judice (under a judge). Generally, the tendency to prejudice proceedings must be real and definite, for which reason, it is now essentially established that a publication or broadcast will not be regarded as presenting a substantial risk of prejudice by influencing a judge. That is, this offense is more likely to be relevant in a trial by jury.

9. Respectfully, this Court’s contempt power does not extend to out-of-court comments that may threaten public safety but are only tangentially related to the Court’s proceedings?

a. Atubiga is reported to have said “Ghana cannot contain all of us if NPP wins the Court case.” Boahen was wrongly charged for saying “Do you think NDC will sit aloof and watch the court hand over power to NPP, never! It will never happen in Ghana and anyone can mark it on the wall.” An, as yet, unidentified person has said he “would behead supporters of the governing National Democratic Congress if the Supreme Court rules that President John Mahama won the 2012 elections fairly.”

b. Without any doubt, these are odious, highly offensive, inflammable and sickening comments of no social value. There is no place for such demented speech in the polity. Further, the speech may threaten public order or even national security. As national security has not responded to any of these sick comments, it is reasonable to assume that it sees no threat. Or if it does, it is taking steps that remains invincible to us but that is sufficient to mitigate or contain the threat.

c. In any event, power has been divided such that national security and law enforcement functions have been assigned to the executive. Notwithstanding this Court’s legitimate concern for preserving the peace, this Court has no power to address national security concerns. Nor can the Court’s contempt power be extended to cover national security matters.

d. With respect, it is hard to see how any and all of these comments challenge the authority of the Court, where any Court order in this Presidential petition will not be directed to the accused contemnors and where no orders have been issued.

10. I further say that the following:

a. That the manner in which the Court singles out and summons people to appear before the justices violates their dignity. It violates their dignity for their pictures to be pasted all over the internet and the media declaring them wanted. To be sure, the Court has not given any directions for this to happen but the pictures are a logical consequence of how the Court goes about summoning these people.

b. That parading people before the Court to rebuke them for expressing their opinion on the happenings in the Court brings the Court into disrepute.

c. That out-of-court statements made by commentators, no matter how erroneous, illogical, annoying or even untruthful, have no chance of interfering with the proceedings of the Supreme Court, save as a Justice admits that such comments affect him (or her), in which case the Justice should recuse himself (herself) from the case.

d. That the Constitution and the public policy on speech allow citizens to comment on cases pending before our courts, in so far as those comments do not pose a clear and imminent threat to the administration of justice.

e. That where the Courts believe that odious comments affect their work, the best way to reconcile their concerns with the right to free expression is to refrain from reading newspapers and listening to chatter.

f. That the best way for the Court to address any misleading reportage is to provide the public with the facts.

Wherefore, I petition this august Court to

1. Free Ken Koranchie immediately.

2. Halt immediately the on-going exercise of monitoring what people are saying about the case.

3. Halt immediately the on-going exercise of suppressing what can be said about the case.

4. Halt immediately the on-going exercise of using the Supreme Court as a vehicle to intimidate those who hold strong opinions about the conduct of the case, whether or not such opinions are logical, fanciful, mistaken or otherwise ridiculous.

5. Halt immediately the on-going practice of prejudging people as guilty of unspecified, amorphous charges before a formal charge has been filed and a trial has been held.

6. Halt immediately the on-going exercise of declaring people wanted from the bench on grounds that it violates their dignity.

7. Halt immediately the on-going exercise of declaring people wanted from the bench on grounds that it brings the Court into disrepute.

8. Halt immediately the on-going attempts by the Court to restrain speech and expression, unless such speech portends a clear and imminent danger to the administration of justice.

9. Halt immediately the on-going exercise of banning citizens from appearing at the Supreme Court merely because of their out-of-court statements on grounds that it is unusual, cruel and humiliating punishment.

10. Alternatively, this matter can be listed for hearing, following the usual process, if the contempt proceedings are frozen.

Respectfully Submitted

Professor S. Kwaku Asare

Cc:

Justice William A. Atuguba

Justice Julius Ansah

Justice Sophia Ophilia Adjeibea Adinyira

Justice Rose Constance Owusu

Justice Jones Mawulom Dotse

Justice Anin Yeboah

Justice Paul Baffoe-Bonnie

Justice Sule N. Gbadegbe

Justice Vida Akoto-Bamfo

Chief Justice Georgina Wood

 

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