Parliament versus The People: Contempt of Parliament or Contempt of the People? - Contempt of Parliament versus Freedom of Speech and Media

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Created on Saturday, 25 July 2015 00:00

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Contempt of Parliament versus Freedom of Speech and Media

Beyond the limitation that Chapter 5 of the Constitution imposes on the kind of punishment Parliament can lawfully impose on a person for alleged contempt of Parliament, the more fundamental question remains whether the kind of conduct involved in the Professor Dodoo and Blakk Rasta episodes can be prosecuted or punished as contempt of Parliament in the first place?

First, it is important to recall the specific conduct over which Parliament is trying to assert its contempt power. The cases here all involved persons who may be described as “strangers” to Parliament. They are not MPs. Nor are they persons who, prior to being summoned, had appeared before Parliament or were under a duty to do something required of them by Parliament or had done an act within the precincts of Parliament while Parliament was in session. But being a “stranger” alone is not sufficient. Sometimes, Parliament’s contempt can reach a stranger.

That, however, depends on the relationship between the allegedly contemptuous act of the stranger and the conduct of the business of Parliament. In the cases under discussion, the allegedly offensive acts of the strangers, namely Professor Dodoo and Blakk Rasta, were not acts that flouted the authority of Parliament or in any way interfered with the effective conduct of the business of Parliament.

What both individuals allegedly did wrong, in their capacity as private citizens, involved “speech” or words spoken in the course of everyday discussion in the public square (media). Before Parliament can turn such public speech by “strangers” into contempt of Parliament, it will have to contend, once again, with the Constitution. Specifically, Parliament must show that its attempt to use its contempt power to limit this kind of public speech can be reconciled with the protection the Constitution extends to freedom of speech and of the media.

Freedom of expression is guaranteed and protected by the Constitution in two separate chapters. First, chapter 5, which, as we have seen, is binding on Parliament, guarantees in Article 21(1) “the right to freedom of speech and expression, which shall include freedom of the press and other media”. Of additional interest, in the specific case of Professor Dodoo, is the fact that Article 21(2) also guarantees “academic freedom”. Second, “freedom and independence of the media” is also guaranteed in chapter 12 of the Constitution.

The fact that the Constitution goes through the trouble of guaranteeing these speech-related rights multiple times must mean something. For purposes of the present debate, what concerns us is the relationship between these constitutionally guaranteed rights and Parliament’s contempt power.

Often when one mentions a constitutionally guaranteed right as an objection to the exercise of some form of state power, one is met with the response that “Rights are not absolute”. Most of the rights guaranteed in Chapters 5 and 12 are indeed not absolute. But saying that is not saying much. The state’s power too, whether it is the power of Parliament or any other state institution, is far from absolute. What is important, then, is not the non-absoluteness of rights or power; it is how the two, rights and power, interact with each other in the context of a particular constitution.

Our Constitution, like most modern democratic constitutions, first enumerates and guarantees certain specific rights. It then states, often in a separate provision (called a “limitation clause”), the limited grounds and the specific ways by which a guaranteed right may be restricted. A common error is to read constitutional rights narrowly and the permissible limitations broadly, thereby treating the limitations as practically eviscerating the rights. This, of course, would make nonsense of the very idea of constitutionally protected rights. But modern limitation clauses are not to the read like the “clawback” clauses of old. When a modern constitution guarantees a right but allows certain limitations, the rights represent the “rule” and the limitations the “exception”; the rule applies generally, while the exception may be used only in very limited instances and only under certain specific conditions.

In the case of the general right to freedom of speech, Article 21(4)(e) of the Constitution allows the right to be restricted by ”a law” if that law is “reasonably required” “for the purpose of safeguarding the people of Ghana against the teaching or propagation of a doctrine which exhibits or encourages disrespect for the nationhood of Ghana, the national symbols and emblems, or incites hatred against other members of the community” and “is reasonably justifiable in terms of the spirit of this Constitution.”

Concerning the media specifically, Article 164 also allows restrictions to be imposed on them by “laws that are reasonably required in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of other persons.”

Each of these limitation clauses has three elements. First, any restriction of a right must come in the form of “a law”. Second, the restriction must be “reasonably required” to accomplish certain specified purposes. The key principle here is one of proportionality and necessity. This means that, in terms of its effect or impact on the right at stake, the purported restriction must not go beyond what is required or needed to protect or achieve the stated objects or interests. Restrictions that are disproportionate or go too far are not constitutionally permissible. Third, there are only a limited number of legitimate grounds or reasons for which the restriction may be employed. Restrictions that are employed for reasons other than those specified in the limitation clause are not constitutionally permissible.

Does contempt of Parliament, as used in the Blakk Rasta and Professor Dodoo cases, qualify as a constitutionally permissible restriction of the right to free expression under these terms? Clearly not.

First of all, punishing a perceived offense or insult to MPs or public speech that allegedly “brings the name of Parliament into disrepute” (whatever that means) is not one of the grounds upon which a private individual’s constitutional right to freedom of expression may be restricted under either Article 21(4) or Article 164. It is important to note that, the right to freedom of speech is needed the most in a democracy when it is used to say things that those in power might find offensive or insulting to them in their capacity as public officeholders. The primary logic behind the right to freedom of speech would, therefore, be turned on its head if citizens were only free to say those things that our elected officials did not deem offensive or insulting.

Secondly, even if it could be argued that the use to which Parliament has sought to apply its contempt power in these two cases fell within the constitutionally permissible grounds, it would still be hard to defend or justify it as a proportionate or “reasonably required” restriction. As we have already seen, MPs have the freedom and opportunity, both in and out of Parliament, to respond to any attack on them or on Parliament as a whole that they deem unfair or wrong.

And for those individual MPs who may feel personally defamed by a public remark or statement, they are free to seek relief from the courts under existing defamation laws. Because of the availability of these alternative and less restrictive means of dealing with any public attack on MPs, Parliament’s contempt power, in the context in which it has been deployed here, is plainly excessive and disproportionate. In short, the use of contempt of Parliament to punish public speech cannot be reconciled with the exacting requirements of the constitution’s limitation clauses under either Article 21(4) or Article 164.

Standing Orders Cannot Expand the Contempt Power of Parliament

What about the Standing Orders of Parliament? What can it tell us about the permissible scope of Parliament’s contempt power? In the current debate, the Speaker and MPs have made repeated reference to Standing Order 30 (2). Standing Order 30(2) defines as contempt of Parliament as "Any act or omission which affronts the dignity of Parliament or which tends either directly, or indirectly to bring the name of Parliament into disrepute."

It is important to note at the outset that Parliament cannot, through the use of its Standing Orders, arrogate to itself powers or jurisdiction that it does not constitutionally possess. Article 110(1), which confers on Parliament the power to “regulate its own procedure” through its Standing Orders, also states, appropriately, that that power is “subject to the provisions of this Constitution”. Moreover, the power conferred on Parliament by Article 110(1) is to be used by Parliament only to regulate “procedure”. It is not to be used by Parliament to expand or increase the substantive powers bestowed on it by the Constitution.

Coming back to Standing Order 30(2), it repeats the “dignity of Parliament” language from Article 122 of the Constitution, but then add onto it any act or omission “which tends either directly or indirectly to bring the name of Parliament into disrepute.” This additional language goes beyond the constitutional definition of contempt of Parliament as set forth in Article 122.

An act or omission that affronts the “dignity of Parliament” is not necessarily the same as one that brings “the name of Parliament into disrepute”. The latter appears designed to reach much further than the former. But more importantly, the “dignity of Parliament” is affronted when Parliament’s authority as an institution is intentionally flouted or disregarded or when a Member or officer of Parliament does an act (such as taking a bribe or engaging in a public brawl) that tarnishes the image or diminishes the standing of Parliament in the public eye. Merely because a private citizen, fairly or unfairly, excoriates Members of Parliament or calls them names in the media does not mean the dignity of Parliament as an institution has been affronted.

Indeed, the duty of upholding the dignity of Parliament is a duty that falls squarely on the Speaker and MPs themselves; the dignity of Parliament rises and falls according to how the Members and officers of Parliament conduct themselves within the House and without. It is what MPs themselves do, not what citizens say about MPs, that determines whether Parliament is perceived as a dignified body or not.