Matters Arising out of the Supreme Court’s Opinion in the Montie Gang Contempt Proceedings

I have had the benefit of reading the Supreme Court’s unanimous opinion to explain the Court’s conviction and subsequent sentencing of the Montie Gang, and some owners, directors and secretaries of the impugned media house. The Constitution of Ghana is sui generis in terms of the protection that it provides to the media. In particular, it has outlawed the punishment of media personnel for their editorial opinion, views and the content of their publications. It has also outlawed the use of summary proceedings to deprive citizens of their liberty. Because the Court used its contempt sword to traverse these otherwise impenetrable constitutional shields, I was disappointed that the Court’s opinion was short on constitutional analysis and long on flexing its contempt muscles. In this short analysis, I explain why the Court’s use of its contempt sword may have breached the Constitution.

The Court affirms the criminal nature of the threats made by the Montie gang to do harm to superior court judges and point out that it, “is a matter for a different branch of government, which, without need for any prompting, ought to be alive to its duties vis-à-vis enforcement of the criminal law of the land.” I agree with the Court. There is no place in a civilized polity for threatening to harm anyone, let alone those who dedicate their lives to the administration of justice and who are the custodians of the Constitution. Our superior court judges work under unusually harsh conditions. They are deprived of the resources that they need to do their work and are deserving of utmost respect not abominable threats. Even in the most advanced countries, where democracy and constitutionalism are firmly rooted, such threats are taken seriously and vigorously prosecuted. Thus, it is troubling that the Attorney General’s department has refused or failed to initiate prosecutions of these serious threats or to provide a rational for their inaction.

In view of the seriousness of the threat and the surprising prosecutorial inaction, it is proper for Parliament’s Judiciary Committee to invite the Attorney-General and Director of Public Prosecutions to explain their non-actions. The purpose of such an inquiry is to allow the citizenry and the legislators to get a better insight into how prosecutors exercise their undoubted discretion to prosecute cases and to establish whether reform is needed. In some jurisdictions, such inquiries have resulted in prosecutors providing public documents setting out general principles that prosecutors should follow when they make decisions on cases. Such an inquiry may also lead to constitutional reform. While the Attorney-General is currently appointed by the President with the approval of Parliament, it has not always been that way. Under the 1957 Constitution, the Attorney-General was a civil service officer who was appointed by the Governor General, acting on the advice of the Public Service Commission. By requiring the advice of the Public Service Commission to bind the Governor General, it was felt that the Attorney-General would be freed from political interference. Whether we need to go back to the appointment process of 1957 or some other process can be guided by such an inquiry. It is also plausible that the department lacks resources to carry out its prosecutorial functions and the inaction reflects prioritization. Whatever the reason for the inaction, the Attorney-General’s silence is neither satisfying nor sustainable. In any event, checks and balances require the legislature to hold the executive to account on a matter of such national importance and public interest.

Using the Contempt Sword to Traverse the Shield for Media Personnel

Article 162(4) states 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.” Thus, in penalizing these media men, the Court appears to be contravening Article 162 (4) and was under an obligation to explain why Article 162(4) did not bind it. Alas, the Court failed to even acknowledge Article 162(4).

The rational for this “media protection” clause is not far-fetched. The framers of the Constitution charged “all agencies of the mass media to uphold the responsibility and accountability of the government to the people of Ghana at all times” (Article 162(5)). However, the framers were also acutely aware that the country’s illiberal, sometimes brutal socio-political, history had stunted the growth of the media and left a media landscape populated by “journalists who had developed a culture of self-censorship and who tended to be sycophantic to governments as well as various centers of power (see National Reconciliation Commission Report).” This culture of media self-censorship was only compounded by the general culture of silence that had taken root in the polity.

For the media to overcome this legacy and perform its constitutional assignment, it had to be insulated from the ravages of and reprisals from all the arms of government. This is why the Constitution devotes a whole chapter to guaranteeing the freedom and independence of the media and why media personnel are not allowed to be penalized for the content of their publications. The Court would nevertheless be justified in its actions if the framers made an exception for punishment to be imposed to maintained the authority of the courts. However, a careful reading of the Constitution reveals that it did not impose any such limitations. The only limitation imposed on the “media protection” clause is that it is, “subject to 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.”

Is the maintenance of the authority of the courts, hence penalizing media personnel for contempt, included in this limiting clause? The answer is an emphatic no! In fact, the framers specifically considered and rejected the “maintenance of the authority and independence of the courts” as a limitation on the media protection. That is, the use of the Court’s contempt sword was considered and rejected as proper grounds for penalizing media personnel for the content of their publications. To see why, one needs to remember that the framers of the 1992 Constitution operated on the cardinal principle of not reinventing the wheel and copied, with appropriate modifications, several of the provisions of the 1979 constitution. The limiting clause on freedom of expression in the 1979 Constitution was as follows:

Nothing contained in or done under the authority of any law shall be held to be inconsistent with, or in contravention of, this article to the extent that the law in question makes provision (a) that is reasonably required (i) in the interest of defense, public morality or public health, or to safeguard information the disclosure of which would be prejudicial to the security of the state; or (ii) for the purposes of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts or regulating telephony, telegraphy, posts, wireless broadcasting, television, public exhibitions or public entertainments” (see Article 28(4)(a) of the 1979 Constitution).

Plainly, “maintaining the authority and independence of the courts,” which is achieved through the exercise of the contempt power, was an explicit limitation on the right to free expression in the 1979 constitution. Further, in the 1979 constitution, “maintaining the authority and independence of the courts” is separable and distinct from “national security, public order, public morality and protecting the reputations, rights and freedoms of other persons.”

The framers considered the 1979 Constitution and retained the latter policy objectives while explicitly rejecting the policy of “maintaining the authority and independence of the courts,” as a legitimate ground for penalizing media personnel for the content of their publication. Thus, the framers concluded, in light of our peculiar history (culture of media self-censorship and general silence as well as the excesses of the public tribunals), that the courts could misuse and abuse the contempt sword to escape media accountability. It is because of this that “maintaining the authority and independence of the courts,” so prominent in the limiting clause of the 1979 Constitution is so prominently missing from the 1992 Constitution.

This can lead to only one reasonable conclusion − freedom of the media in the 1992 constitution is a limitation on the Article 126(2) contempt power. The Constitution does not allow the courts to punish media men for the content of their publication and the Supreme Court cannot do so on grounds that it allows it to maintain its authority. In effect, it was a conscious policy choice by the framers to bar the Courts from using its contempt power to jail media men for their editorial opinions. In consequence, the trial and subsequent punishment of the media men for expressing their editorial opinions, however vexatious and vitriolic, is of questionable constitutional validity. That the contempt ruling does not even acknowledge Article 162(4) shows the extent to which it is fatally flawed.

Using the Contempt Sword to Traverse the Shield against Summary Procedures

The Constitution’s preamble highlights that it establishes a framework of government that will secure the blessings of liberty for ourselves and our posterity. This is not a vain value but a reflection, culmination and memorialization of the struggles that procured the Constitution. Accordingly, Article 14 provides that no person shall be deprived of his personal liberty except in accordance with procedures permitted by law, which are laid out in details at Article 19. The latter Article provides the elements of the composite set of provisions that go to make up the fair trial protection afforded to an accused person in the Republic. These protections include the right to a fair hearing within a reasonable time; the presumption of innocence; the right to be informed of the charge with sufficient detail to answer it; the right to have adequate time and facilities to prepare a defence;
the right to a public trial before an ordinary court; the right to remain silent and not to testify during the proceedings; the right to adduce and challenge evidence and not to be compelled to give self-incriminating evidence; etc. In effect, Article 19 outlaws summary proceedings and inquisitions from the Republic and makes no exceptions for criminal contempt trials.

The blessings of liberty provided by Articles 14 and 19 notwithstanding, the Court says that, “we are mindful that the summary power of the court to punish for contempt of court that has been preserved by Article 126(2) of the Constitution is almost arbitrary and such awesome power calls for circumspection in its exercise.”

In fact, Article 126(2) does not provide any such arbitrary power to the Court to engage in summary proceedings. Article 126(2) provides that, “The Superior Courts shall be superior courts of record and shall have the power to commit for contempt to themselves and all such powers as were vested in a court of record immediately before the coming into force of this constitution.”

Clearly, Article 126(2) constitutionalizes and affirms the Superior courts’ common law power to punish for contempt. This is appropriate to maintain the courts’ authority. No court can be functional without the power to commit for contempt. However, where the Court intends to use the power as a criminal weapon, then the manner in which that power is to be exercised has to conform with the provisions of the Constitution dealing with how to arrest defendants’ liberty.
Specifically, Article 19 (11) and (12) provide that:
 “(11) No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law.
(12) Clause (11) of this article shall not prevent a Superior Court from punishing a person for contempt of itself notwithstanding that the act or omission constitution the contempt is not defined in a written law and the penalty is not so prescribed.”
Article 19(12) is significant for what it allows and what it does not allow. It is situated under Article 19, which deals with fair trial protections, and allows the superior courts to depart from clause (11) but not the other clauses under Article 19. In effect, except for the specific exception in clause 12, which allows the Courts to punish for contempt even when the offence is not defined or a penalty is prescribed, the Constitution requires criminal contempt proceedings to conform to all the protections in Article 19. The presence of Clause 11 under Article 19 is extremely significant because it evidences the framers’ undoubted intent that criminal contempt proceedings must conform to all other aspects of Article 19. This means that the Constitution bars summary proceedings of the type that the Supreme Court has imposed on Ghanaians, first in the election petition contempt trials and now in the “Montie gang” trials.
Of course, the common law granted the Court the power to engage in summary proceedings but arguably only in those very limited situations where the contumacious conduct was occurring in the presence of the Court. However, whatever power the common law provided is moot since Article 19 has made it clear that the Republic of Ghana abhors summary proceedings when its citizens’ liberty is at stake, a view that Justice Afreh endorses (see, Republic v. The Governor et al., ex parte Gavor 2001, CA No. 19/2000). It follows that in a departure from the common law’s oft criticized power to judges to engage in summary proceedings, Superior court judges in Ghana can order the arrest of persons who engage in contumacious conduct in facie but such persons are then to be handed over the Attorney General for prosecution in accordance with Article 19. This is a unique aspect of our Constitution that deserves celebration not bastardization.

Using the Contempt Sword to Intimidate rather than to Clarify the elements of the Crime

The Court convicted the contemnors on three grounds: (a) Scandalizing the court; (b) Defying and lowering the authority of the court; (c) Bringing the authority of this court into disrepute. In the incipient paragraph of the opinion, the Court says that “we deem it necessary to clarify for the contemnors, and in fact the general public and media owners and practitioners in particular, why they are being punished, in the hope and expectation that valuable lessons will be learnt by all, and this nation will be spared the recurrence of such reprehensible behavior, which bodes no one well.” This is important because when the Court speaks it is supposed to bring finality, albeit not infallibility, and a minimum condition for that is clarity. Equally important, the Court’s claim on the contempt power extends to the high courts and courts of appeal. Thus, one nagging concern is the apparent power of judges of the high court and court of appeals to enter the public square to summon, prosecute and incarcerate people for their offensive speech, however defined.

My third beef with the Court’s opinion is that it failed in this objective of clarifying to the general public why the contemnors are being punished or more broadly what constitutes contumacious conduct that is punishable by the Superior court. More precisely, the Court woefully failed to delineate the elements of the three type of contempt and why the facts of the case justified the convictions. As a result, the Court does not provide sufficient guidance to the rest of the Superior court and does not give the citizenry enough information on what it takes to be convicted of the crimes.

It is also my opinion that the Court not only improperly punished the defendants in this case but its obiter may have the effect, perhaps unintended, of chilling speech and freezing judicial accountability. This is clear from the Court’s obiter to the effect that, “in an effort not to be seen as stifling public debate on the work of the Judiciary, this Court has, by and large, been very circumspect and reticent in the exercise of its power to punish for contempt and, has in recent times, restrained itself from reacting to certain commentaries on proceedings pending in this Court, some of them patently prejudicial and bordering on contempt of court.”

This is rather alarming. First, it creates the impression that the Court selectively punishes criminal contempt cases. Second, the message seemed designed to intimidate people who might otherwise comment on cases pending before the Court. It is almost as if the Court is saying we know you people and we can come and get you anytime. Learn from these summary proceedings and incarcerations. Third, it carries with it the unfortunate impression that the Court is obsessed with peoples’ commentaries. While such prejudice may very well be a potential threat in jury trials, it is highly unusual for our Lordships and Ladyships to be concerned by such commentaries. Fourth, the Court seem annoyed by criticisms, as evidenced by “we need to remind people who decide to criticize the Judiciary that within the right to publish and transmit, within the freedom of expression, there is a line that ought not to be crossed.” But where is the line? Lastly, the Court seem to give the impression that it was using these defendants to set an example, as evidenced by “however, we realize that reckless attack on judges of this court in particular and the Judiciary in general have become rampant in recent times and appear to be escalating in outrageousness and temerity. We need to make it universally unattractive for any person to indulge in such conduct.” It would have been far better for the Court to focus on the defendants’ actions and apply the law to the facts in the case rather than take into account increasing attacks on the judiciary, which is not entirely unreasonable considering the Anas tapes, and the desire to make it universally unattractive for people to engage in such criticisms.

Turning now to the conviction on the first count, the Court states that “scandalizing the court consists of scurrilous abuse of a judge or impugning the integrity or impartiality of a court or a judge.” According to the Court, “in this case the 3rd and 4th contemnors, willfully attacked the Chief Justice, whom they mentioned by name and accused her and the rest of the court of favoring the plaintiffs in Suit No. J1/14/2016 intituled Abu Ramadan & Anor v Electoral Commissioner & Attorney General while exhibiting bias against the electoral Commission. They alleged that the Court was motivated by a desire to assist the opposition New patriotic party (NPP) in the forthcoming elections.”

Thus, stripped of the unconscionable threats to harm some of the judges, which is universally condemned and acknowledged as prosecutable as a second degree felony, the charge of scandalizing the court is animated by the Gang’s averment that the Court is biased. That is, the Gang has impugned the impartiality of the Court and the question is whether that is contemptuous?

To be sure, scandalizing the court could take the form of scurrilous abuse of a judge or impugning the integrity or impartiality of a court or a judge. However, this hardly constitutes a useful delineation of the elements of the crime that could help a trial judge or the citizenry at large. At common law, the contempt of scandalizing the court refers to (i) the publishing of material or doing of other acts; (ii) calculated to undermine the administration of justice or public confidence therein; and (iii) carrying a real and substantial risk that, in the circumstances the published material or act will undermine the administration of justice or public confidence therein.

This definition of the offense emphasizes the conduct, context and consequence of the crime and is consistent with the general definition of contempt offered by Justice Ollenu in Antwi v. Amponsah and Another (1961 GLR 751 756). There, the learned Justice said, “improper conduct by itself is not enough to constitute contempt. The act or conduct must be of such a nature as would unduly interfere with the administration of justice (i.e., prevent the court from, or make it impossible for it to exercise jurisdiction in a case, or if it exercises the jurisdiction it leads to miscarriage of justice). One could see that the Ollenu test, laid down under a less liberal constitution in 1961, was more stringent than that of the common law of the early 20th century. This is to be expected because the common law evolves and in the case of scandalizing the court, most societies have become more tolerant of criticisms and offensive speech.

Thus, the proper question in this case is not whether the conduct is improper but whether the Montie Gang’s allegations that the Court was motivated by a desire to assist NPP or to be biased against the Electoral Commission carried a substantial risk that in the circumstances of their radio broadcast it will undermine the administration of justice or public confidence therein. In my opinion, the allegations had no chance of undermining the administration of justice or of public confidence therein.

It seems to me that to punish someone who alleges that the Court is biased is to misappropriate the Court’s contempt power to uphold the dignity of the Justices rather than to further the administration of justice. Will a constitutional scholar who has studied the Justices’ opinions who opines that the Chief Justice has chosen a particular panel to guarantee an outcome be scandalizing the Court? Ultimately, whether the Court is biased or not cannot be settled by how many people the Court punishes but only by the Court’s conduct and its opinions. The Court must allow criticisms, whether fair or unfair and whether elegantly made by scholars or in the rambunctious style of political journalists.

It is important to note that while scandalizing the court originated in the United Kingdom, it was hardly ever used to successfully prosecute anyone, with the last successful prosecution dating as far back as 1930. Indeed, as far back as 1899, a judge of the Privy Council wrote that,

“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” (see McLeod v. St. Aubyn [1899] AC 549, p. 56).”

Today, the offence of scandalizing the court is no longer recognized in the United Kingdom. Our Court must not be seen as vindicating the Judge of the Privy Council. Given the speech protections in the Constitution, can it be reasonably said that the common law offence of scandalizing the court remains viable? I doubt it! In any event, just as the political branches have outlawed punishment for speech, it is time for the courts to be similarly restrained.

With respect to the second count, the Court said, “they defied, insulted and lowered the authority of the Court when they stated that they will not accept the decision of the court on the voters’ register and they incited listeners in the general public to reject it.”

To put it mildly, I find this count hard to fathom and the facts to sustain even more perplexing. To defy means to fail to follow the order of the Court. I cannot see the nexus between what the defendants said and defying the Court. What specific order are they defying? Punishing someone who says he will not accept the decision of the Court is akin to the father who whips his excited son merely because the latter says he will ride the horse that the former is planning to buy. At the time of the statements, the Court had not issued any orders to be defied. Further, any orders to be issued by the Court would not be directed to them. I do not know what it means to insult or lower the authority of the Court. Nor, frankly, can I see how their asserting that they will not accept the Court’s ruling insults and lowers the Court’s authority. The Court’s authority must surely rest on firmer foundations and cannot be wounded by such idle talk.

For the same reasons, I am unable to figure out the elements of the contempt of “bringing the authority of this court into disrepute” from the following: “Statements that attempt to dictate the orders or other dispositions that a court should make or should not make are calculated to interfere with and obstruct the course of justice and thereby bring the authority of the court and the administration of justice into disrepute. That is exactly what the 3rd and 4th contemnors did when they threatened to deal with the judges if, in a motion filed by the applicants in CM/J/108/2016 intituled Abu Ramadan & Anor v Electoral Commissioner & Attorney General, the Court delivered a verdict that displeased them. They cruelly and callously reminded the justices of the murder of three high court judges on 30th June, 1982 (a day that will forever remain in the annals of this country as a day of infamy). This was, doubtlessly, intended to browbeat and prevent the court from performing its duty to administer justice as it deemed fit.”

No doubt, threatening superior court justices is a second degree felony and prosecutable as such, as the Court admits and as I have urged. No doubt, it was cruel, callous and unconscionable for the Montie Gang to refer to the senseless abduction and cowardly execution of three high court judges (may they rest in peace).

But what constitutes an attempt to dictate the orders or dispositions that a court should make and how does that bring the authority of the court and administration of justice into disrepute? How do these radio comments prevent the court from administering its duty or browbeat the judges? On balance, it does not seem to me that the Court clarified the elements of each of these type of contempt. Nor am I sure that they are different types of contempt.

My last beef with the Court is its casual imposition of vicarious liability on the company’s owners, directors and secretaries. Vicarious liability is a legal theory of liability that allows the court to hold a person accountable for acts he or she did not directly commit. This often occurs in the context of civil contexts. In a criminal context, vicarious liability assigns guilt, or criminal liability, to a person for wrongful acts committed by someone else. Given the protections of Articles 14 and 19 and the requirements for actus reus and mens rea, any imposition of vicarious criminal liability must come with justification for making an exception to the general rule that vicarious liability has no application to criminal proceedings. Current exceptions include accomplice liability, felony murder and conspiracies.

The Court’s words on vicarious liability is as follows: “we summoned the directors and secretary of Network Broadcasting Co. Ltd because, as owner of Montie FM, the company provided the physical facilities for the contemptuous statement to be aired to the public. It is trite law that where a corporation is held in contempt of court, it is the directors and officers who answer for it, since they constitute they constitute the human face of the legal entity.” Well, it may be trite law but the trite law must square off with the protections of the Constitution. In the extant case, the Court did not impose custodial sentencing on the directors and secretaries but the prospect that directors and secretaries could be held strictly liable in criminal law for the contempt of their workers is one that should lead most owners to restructure their current employment contracts into independent contractor relationships.

The Pardon Power

What results if one accepts that due process has not been followed in the trials of the Montie gang? Ordinarily, the gang could appeal the judgment at a higher court. But where the trial is at the Supreme Court, which should be a highly unusual occurrence, is there any possibility that their liberty could be restored? As a judicial matter, the answer is in the negative. The Supreme Court has the last word on judicial matters as it should be. Are they condemned to prison, in spite of the procedural violations and if so what happened to the blessings of liberty in the preamble to the Constitution?

Situations like this excited the minds of those who framed the Constitution and they resolved it with Article 72(1), which is reproduced below:

“The President may, acting in consultation with the Council of State-
a) grant to a person convicted of an offence a pardon either free or subject to lawful conditions; or
b) (b) grant to a person a respite, either indefinite or for a specified period, from the execution of punishment imposed on him for an offence; or
c) (c) substitute a less severe form of punishment for a punishment imposed on a person for an offence; or
d) (d) remit the whole or part of a punishment imposed on a person or of a penalty or forfeiture otherwise due to Government on account on any offence.”

What this Article does it to confer the pardon power to the President to allow him to restore the liberty victims of lack of due process. The pardon power, one of the prerogative powers that has survived constitutionalism, serves three distinct purposes. First, it acts as a check against judicial abuse. Judges are human and can abuse the law. Second, it is a way of showing mercy. Most societies believe mercy is virtuous and revenge is vicious. Third, it can be used for public policy and interest purposes. For instance to procure testimony from witnesses, get national reconciliation, reduce overcrowding at the prisons, etc.

There is very little that is debatable or exciting about the pardon power and all of our Presidents have exercised without much fanfare. To commemorate Republic day, President Kuffuor pardoned 1,410 prisoners deemed not to be a threat to society. President Mills pardoned 1,021 prisoners on the occasion of the centenary birthday of President Kwame Nkrumah. President Mahama pardoned about 900 prisoners just weeks ago.

The pardon power is not the exercise of judicial power and its exercise does not mean the President has usurped same from the judiciary. The final judicial power still resides in the judiciary. The President does not hear from witnesses, he does not take evidence, he has no standard of proof, etc. when he exercises the pardon power.

Some have suggested that because the pardon is at the discretion of the President, it must be reviewable under Article 296. This argument misses the prerogative nature of the power. While constitutionalism has placed fetters on most presidential actions, the pardon power is one of the few powers that allows the President to act almost as a monarch. This is why it is called a prerogative power. The pardon power comes with no fetters and cannot be reviewed for abuse of discretion. Of course, Article 72 requires consultation with the council of state and one can have a justiciable claim that such consultation did not occur. But if the President has consulted with the Council of State, then the Courts cannot question the pardon as long as the pardon is not conditioned on some unconstitutional act (for instance, a death sentence cannot be commuted to 10 years sentence as a slave, because slavery is unconstitutional).

Most criminal sentences are passed at the trial level. That is, at the high courts and the inferior courts. Occasionally, these are appealed. So rarely will the pardon power be exercised over a decision by the Supreme Court.

About 99% of the work done by the Supreme Court are not subject to the pardon power. The Court has the last word on constitutional interpretation. We are not here talking about the President being able to set aside judicial opinions like “advice is advice.”

What we are talking about here is pardon for criminal convictions. To the extent that the Supreme Court has decided to engage in trials, the nation should then brace itself to Supreme Court convicts pardoned by the President. The Pardon Power is not an evil constitutional device. It is part of the constitutional scheme of protecting our liberties and it serves as an important tool for the President to effectuate public policy.

Going Forward

It is beyond doubt that threats to judges have no place in a civilized polity and must not just be discouraged but also vigorously punished. In this regard, I stand with the threatened Justices. However, such threats must be punished using the constitutionally permissible processes. In this regard, I stand with due process and a Presidential Pardon followed by lawful prosecutions. The Constitution clearly outlaws punishing media personnel for the content of their publication and this is so even if the content is abusive of members of the Superior Court. Further, the Constitution abhors the use of summary proceedings to arrest the liberty of individuals. When one considers the backdrop to our Constitution (i.e., the culture of silence and self-censorship, tyranny and the summary procedures of the public tribunals), it is not difficult to understand why the framers made these choices.

The Supreme Court’s foray into the public square to inquisition citizens who are deemed to have made contemptuous remarks about them is not just impermissible, it carries the risk of a potential showdown with a President who might not countenance the emerging judicial tyranny. Further, it will chill speech and plunge us into another culture of silence. It creates the appearance the Court has something to hide and is resorting to custodial sentencing to silence critics. Lastly, silencing critics, even the obnoxious ones, only lead to pent up resentment.
We have transitioned from a society in which the expression of opinion was inhibited by fear. This was an unpleasant society and we have given ourselves a Constitution that protects us from such inhibitions. Punishing speech and its concomitant accumulation of resentment can only lead to instability in the long term. In the last 4 years, the Wood Court has engaged in more criminal contempt trials than the Abban, Wiredu and Acquah (AWA) Courts did in their combined 12 years. This is not because the AWA Courts were faced with less contemptuous Ghanaians but rather reflects the sound judgment of those Courts to give the public space to operate. It is time for the Wood Court to exit the criminal contempt enterprise.

S. Kwaku Asare

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