Feature Article of Sunday, 30 June 2013

Columnist: Ata, Kofi

By Kofi Ata, Cambridge, UK

In the wake of the Supreme Court hauling the Deputy Communication Director of NPP before it on Wednesday June 26, 2013 to explain his accusation of the Justices being selective and hypocritical in singling out the Daily Guide and the subsequent invitation to three others to appear before it on July 2, 2013, a number of articles have appeared on Ghanaweb not only attacking the actions and decisions but also the Presiding Justice as well as accusing him or the Justices of threatening freedom of expression and press freedom. In this article, I will briefly examine the right to free speech and press freedom and their limitations with specific reference to Prof Stephen Kwaku Asares two articles (Justice Contempt, Ghanaweb July 28, 2013 and Petition to the Chief Justice of Ghana, Ghanaweb, July 29,2013).

I should point out that, I am not dialectically opposed to all the views expressed by Prof Asare in the two articles, except to say that, I take a different approach to discussing the subject of freedom of expression and or press freedom within the specific context of the current environment in Ghana, and specifically, the presidential petition.

Prof Asare has quoted various legal authorities to support his view that, by their actions, the Supreme Court is either stifling freedom of expression or intimidating the public from expressing their opinions on the petition or their decisions. I need not repeat those authorities, except to re-examine those of Lord Denning and Judge Salmon, which he quoted in both articles and I quote:

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 will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done. On that same case, Judge Salmon said the authority and reputation of our courts are not so frail that their judgments need to be shielded from criticism.

In my view, Asare has misinterpreted or misapplied the above by not taking cognisance of two critical issues that Lord Denning justified the right to freedom of expression and or free press vis--vis the offence of contempt of court. I am referring to the first two sentences of the quote. The question we must ask or answer is, are those who have been making comments and or criticising the Justices are doing so fairly and faithfully?

I am tempted to say that Sammy Awuku might have been fair in saying that the Justices were selective in singling out one newspaper but was he fair in describing that decision as hypocritical? Was he making the comment and or criticisms faithfully? The obvious answer is, absolutely not. All those who have been the subject of the Supreme Courts directives have not commented and criticised the Justices in good faith. They all have both partisan and personal interests in doing so. For example, Sammy Awuku is by association, a party to the petition and therefore he stands to gain from the petition being upheld either by becoming a minister in an Akufo-Addo government or being appointed into some public position. The same is applicable to those from NDC because they stand to lose the opportunities they may be enjoying or hope to enjoy if the party continues to be in government. The same applies to the pro NDC and NPP media because they stand gain by way of advertisement and contracts depending on which party is in government.

Can we also confidently say that the authority and reputation of Ghanas judiciary are not so frail that their judgments need not be shielded from criticism as Judge Salmon stated? In fact, it is not only the Judiciary in Ghana that is weak but all the three institutions of governance are weak (the Executive, Legislature and the Judiciary). Indeed, almost every institution in Ghana is weak and may not withstand such hostile, erroneous and misleading criticisms which could lead to loss of confidence in the judgement of the Justices. Such loss of confidence could directly lead to supporters of the losing party not accepting the final verdict of the justices and resorting to violent demonstrations and agitations across the country that could trigger conflict in the country and threaten the peace and security of Ghana.

More here:

Is Supreme Curtailing Freedom of Expression?