As a follow-up, we want to discuss the need for our judges not to be exercised about every comment and, particularly, to be cautious in jailing those who fall foul of the law.
The public have a natural right to be curious about matters of public interest, especially those which arouse curiousity.
The Presidential Election Petition is one matter on which Ghanaians are deeply divided. Therefore, it is likely to arouse sentiments and emotions that could culminate in outbursts, some of which could be prejudicial to the cause of the petitioners or respondents or undermine the authority of the Supreme Court or some of the judges.
The 1992 Constitution, which provides the Superior Court judges the power to commit for contempt, requires the media to hold government accountable to the people and since the judiciary is an arm of government; it would attract the scrutiny of the media.
It must also be appreciated that the law of contempt of court must aim at maintaining a balance between the fundamental rights, freedoms, obligations and responsibilities of individuals and the right of the public to be informed and access information. Thus, in applying the law, there is the need for caution. Indeed, the fact that there is no defined law with the prescribed penalty requires judges to be more open and tolerant, wary and hesitant in invoking the law.
That is what Lord Denning postulates when he submits that, “It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that, those who criticise us would remember that from the nature of our offices, we cannot reply their criticisms. We cannot enter into public controversy. We must rely on our conduct itself to be its own vindication.”
Some judges in other jurisdictions and our own Supreme Court judges have maintained that they would never be swayed by public comments in their determination of causes before them as they are able to discern the grain from the chaff.
In Ex-Parte The Telegraph (1993) 1 WLR 987, Justice Lindsay is reported to have quoted Lord Taylor as having noted that “in determining whether publication of matter, would cause a substantial risk or prejudice to a future trial, a court should credit the jury with the will and ability to abide by the judges’ direction to decide the case only on the evidence before them. The court should bear in mind that the staying power and the detail of publicity, even in cases of notoriety, are limited and that the nature of the trial is to focus the jury’s mind on the evidence put before them rather than on matters outside the courtroom.”
The courts themselves admit the crucial role of the media in the administration of justice. This is buttressed by the position espoused by a former Australian Chief Justice, Mr Justice Griffith, who submits that “it has become part of the ordinary course of life in civilised communities to publish through the medium of the press information as to matters of interest to the public, using the term to mean matters as to which the public entertains a natural and legitimate curiosity. It would be unfortunate for civilization if satisfaction of such a curiosity by this means is prohibited.”
Therefore, both the judges and public have roles to play to maintain the sanctity of the judiciary, whilst freedom of expression is not scuttled.
It appears, perhaps, that in our specific instance, the Supreme Court was indulgent and could have set the example from among the lawyers who are purportedly representing some of the parties and go from the court room to discredit the evidence from the other party. It is definitely prejudicial for a senior advocate to suggest that they have torn apart and shredded the evidence of the other party or to state that counsel for one party does not seem to know the essence of cross-examination.
As the Chief Justice, Mrs Justice Georgina T. Wood, was reported to have noted at the swearing-in of 12 Circuit Court judges and 10 magistrates last week, “the judicial power exercised by judges and magistrates are done for, and on behalf of the sovereign people of the country, and it is undisputed that the judiciary should be accountable and ethical.”
For instance, there are many who feel legitimately that the Supreme Court should resolve the matter of the number of pink sheets filed by the petitioners, rather than leave it to the lawyers since the order for the count came from the court.
These are all matters that are within the scope of the justices on the panel to determine. But, these are equally matters that excite the public and for which they have a curiosity to understand and for which they may make comments before our lordships make their views known. Some of the viewpoints might be uninformed but they have an inalienable right to ask questions about, make conjectures and speak freely.
Those who for partisan reasons put others in contempt, reproduce otherwise contemptuous statements, with or without embellishment, must note that such rebroadcasts or publications are equally in contempt. In R V Moffat, ex parte Allotey (1972) 2 GLR 391 at 402, all those who help in the dissemination of contempt statements are guilty or liable for contempt.
Our history tells us that whilst the majority of Ghanaians want the courts to be respected and taken serious, they do not approve of custodial sentences (jail terms) for contempt of court.
By Yaw Boadu Ayeboafoh/Ghana