Thursday,
March 21, 2013
When I consider how the NPP’s
lawsuit is being “tried” at the bar of public opinion, I can’t help but ask
whether anybody fears the Ghanaian courts anymore. Or whether the Supreme Court
has abolished the “contempt of court” injunction.
Everywhere in the world, courts
of competent jurisdiction exercise their power to curb wanton interference in
their work. One of the mechanisms by which they do so is the injunction
captured under the phrase “contempt of court”. They do so irrespective of the
citizens’ right to freedom of expression.
Indeed, in press law, journalists
are warned against this “contempt of court” because it really bites and can
doom one’s career and personal dignity. Categorized under the legal frame of “sub
judice,” this injunction functions to restrict people from making comments
deemed to be prejudicial to a case that is before a court for adjudication. This
injunction doesn’t apply to only journalists; it applies to everybody in the
society and is to be enforced as such.
Offenders are punished without
trial, in most cases. It is up to the trial judge to conclude that one is in contempt
of the court, and BAM! A sentence (custodial or fine) is imposed on the
culprit. It is as simple as that and is at the judge’s discretion. That’s how
the courts really exert their coercive influence.
This injunction is not only meant
to protect the trial court/judge’s integrity but it is also designed to prevent
any unwarranted comments on the matter being adjudicated which might either
prejudice the trial or create impressions likely to amount to trial of the case
outside the confines of the judiciary.
Of course, the bar of public
opinion may be good for public discourse but not for “trying” cases already
before a court of competent jurisdiction. To ensure that the determination of such
cases is not unduly prejudiced, the “contempt of court” injunction comes in
handy.
From what has been happening in
the country over the past few months, it seems this “sub judice” aspect of the
legal regime is no more functioning, which is disturbing. I am tempted to draw
this conclusion because of how people openly make public pronouncements on
cases before court without the judiciary saying anything for us to know that
there is a “contempt of court” injunction to be respected. And those making the
comments openly do so with impunity too!
Let’s take the NPP’s landmark
petition at the Supreme Court challenging the legitimacy of President Mahama
after Election 2012 as the frame of reference. Since January 28, 2013, when the
NPP filed that lawsuit, no moment passes by without anybody commenting on the
merits or demerits of the case while the Supreme Court judges look on
unconcerned.
In fact, the NPP petitioners
themselves blazed the trail when they held a press conference at the Alisa
Hotel in Accra just after filing their petition at the Registry of the Supreme
Court. Comments made by them were directly prejudicial to the lawsuit but no
one in the judiciary batted an eyelid.
Then, as if possessed, all manner
of people jumped in; and there has been a mad rush to air views on the case
ever since. While the political camps involved in the lawsuit are busily saying
anything to impress the public about their stance, the legal teams of the
petitioners and the respondents (except the Electoral Commission) have also
been busy telling their side of the story.
But the EC itself came to notice
when its leaders made prejudicial comments at the recent review conferences in
the regions to assess Election 2012 but claimed they won’t have any bearing on
the NPP’s petition. If you doubt it, just go back to read the news reports on
such pronouncements.
The NPP’s lawsuit is being more
actively “tried” in the public sphere than in the dark chambers of the Supreme
Court, where it is legitimately expected to be restricted to, anyway. What
comes out from this public discussion of the matter is certainly prejudicial to
the Supreme Court’s work, but no one seems to care.
Indeed, all the mass media (both
print and electronic) are choked with discussions, comments, and assessments of
the lawsuit to such an extent that some people have already drawn conclusions
as to which party is the winner. Yet, we know that the substantive case itself
hasn’t even begun being heard by the 9 judges constituting the Supreme Court
panel determining this election-related case.
Are we to believe that the
opinions being publicly exchanged on this case aren’t prejudicial to the
Supreme Court’s work? Or are we to believe that the 9 judges are insulated
against any prejudice emanating from such public discussions of the lawsuit? Or
are we to assume that the judges are polymaths (all-knowing) and, therefore,
can’t learn anything new from the viewpoints being bandied about on the case?
I don’t think that these judges
are all-knowing and that they will not see anything new in the pronouncements
being made to influence them. They are human beings with finite brains/minds
which they feed with snippets of what they see, hear, watch, or read about in
the news or in public discourse. Certainly, they form opinions about what they see,
hear, watch, or read, which means that opinions being bandied about concerning
this case reach them.
We understand that they deal with
the law; but we also know that the law is an ass and that it is amenable to
manipulation, depending on whose logic or sophistry (not to mention rhetorical
manouevres) wins the day. The law is nothing but opinions clothed in legality
and legal arguments, supported by evidence adduced in conformity with
procedures.
That is why if anybody tells me
that the judges can’t be swayed by what is doing the rounds, I look closely at
that person more than once to see if his head is properly screwed on his shoulders
or if there is an imbalance within the head itself. These judges are fallible
mortal beings. Otherwise, why is it possible that a case determined by one
judge is overturned on an appeal by another judge? Aren’t both the judge of the
first instance (trial) and the one who overturns his judgement using the same
knowledge of the law and their training to determine the outcome of that one case?
Sometimes, I even wonder how
judges feel when their cases are overturned upon appeal under the impact of
better arguments. For instance, when a High Court judge gets his case
overturned by the Appeal Court, what goes through his/her mind? Is it the
feeling of being degraded for not knowing the law or for being flippant in
his/her handling of the case?
Certainly, we know that there are
many ways in which the law can be viewed, interpreted, and applied; but more
often than not, the “assness” of the law makes it obvious that the judges and
lawyers defending clients before them are only playing a game of wits. And they
have to sharpen their wits with much reading (on case laws, law reports, and
precedents) so that they can outwit each other at will.
That is the essence of the law
and the thrill of the game of wits. Therefore, if one gets to know what the
other doesn’t, there is the likelihood that his arguments will be richer. How
about those who make the laws? Don’t they have vested interests in the language
in which they couch those laws, which is why it is mostly the small fries that
get punished (e.g., a poor farmer who steals a bunch of plantains is sentenced
to 10 years in jail while a former Speaker of Parliament who strips his
official bungalow of all its furnishings and state property is even not booked
for trial)?
We turn back to the “contempt of
court” issue. What is happening in the case of the NPP’s lawsuit has taken the
matter a notch higher, especially considering the initial concerns expressed by
the NPP’s legal team against Justice Atuguba and the counter-accusations by the
NDC against Justice Dotse and Baffoe-Bonnie—all on political grounds. Against
this background, the fact that the case is “sub judice” but is freely being
discussed in the public sphere without any intervention by the Supreme Court to
enforce the “contempt of court” injunction makes me wonder if matters are not
getting out of hand.
Some may claim it is freedom of
expression at its best. I don’t think so. To me, it is freedom of stupidity at
its peak because the dimensions assumed by the public discussion of this
election matter have already given the public the material they need to take
entrenched positions.
As is evident already, those in
the NPP are certain of victory because their leaders have already persuaded
them that the “water-tight evidence” they have cannot fail to win the case for
them. On the other hand, those in the NDC are convinced that all the noise that
the NPP petitioners and their propagandists are making is nothing but the cries
of sore losers.
What I am saying is that because
of the Supreme Court’s laxity and inability to invoke the “contempt of court” injunction
to curtail open and prejudicial discussions of this lawsuit, the parties
involved and their followers have bought into the proceedings at the bar of
public opinion to determine the outcome of the case far in advance. The more
public discussion that goes on, the deeper and more grounded the entrenched
positions become.
This taking of entrenched
positions is dangerous because it means that these NPP and NDC followers
already have a premeditated stance and won’t accept anything to the contrary.
The problem, then, will be that when the Supreme Court finally determines the
case and pronounces judgement, its verdict will trigger trouble. Those
convinced that their “watertight evidence” has already won them the day will
fiercely reject any ruling that deflates them.
On the other hand, those in the
NDC already sure that nothing bad went on and that the Electoral Commission’s
confirmation of President Mahama as the winner of Election 2012 is without
blemish and irrevocable will resist anything from the Supreme Court which
discounts that confirmation. In effect, then, whichever way the Supreme Court’s
ruling goes, there is bound to be some resistance—which has the potential to
spark a major national catastrophe.
Already, the NPP members are
unhappy that the case is not being expeditiously determined. Some have speculated
when the Supreme Court would conclude its work. Others have given ultimatums, asking
for the end of March, then, by Easter, and now stretching it to two months
hence.
As the two parties (the NPP
petitioners and the respondents) couldn’t agree on common items in the their memoranda
for the Supreme Court to begin determining the petition, the moments of
uncertainty and anxiety will stretch further and muscles will be unnecessarily flexed
while the “trial” continues at the bar of public opinion. Meantime, these
public discussion of the case will add more fuel to the fire already lit.
On the periphery, the pro-NPP
pressure group (“Let My Vote Count Alliance”) has stepped up its agitations and
open public conscientization campaigns. Utterances from the NPP surrogates
leading this group indicate that they are hell-bent on presenting the NPP’s
case in the best light. That is why they are organizing rallies in the country
and mobilizing others to stage street protests in as far away a place as
Washington, DC. This show of force is not being mounted for nothing. It reinforces
the open discussion of the lawsuit to favour the NPP.
Although the NDC has restrained
its followers from counteracting such public muscle-flexing manouevres, there
is a lot happening on the quiet to convince me that the government and its
supporters will not be mere pushovers. We can see how the situation is
gradually being created for something ominous.
I can hazard the guess that the
open discussion and mobilization of opinions concerning the lawsuit is going on
with so much impunity because no one cares about any restraint from the Supreme
Court. But we know that the Supreme Court can inject order into the situation
by invoking its powers. What is preventing it from doing so, especially seeing
that the free-for-all public discussion of this case is potentially pushing the
country toward the edge of the precipice?
The Supreme Court has one window
of control open to it to manage the situation. It must stamp its authority on
the lawsuit by invoking the “contempt of court” injunction to stop any further public
discussion of this lawsuit.
I am more than certain that if it
does so and drags some culprits before it, all of us will learn how not to
infringe the “sub judice” injunction. Of course, the online media may appear to
be out of the loop, but can be dealt with appropriately if the Supreme Court
does the right thing.
Ghanaians may appear to be
anxiously waiting for the outcome of this election petition, but they will have
to respect the norms and allow the Supreme Court to do its work as is
determined by the circumstances surrounding the case itself. The Supreme Court
shouldn’t allow itself to be stampeded because of the dire consequences for
itself and the country. But it can save itself and the country from needless
catastrophe if it exercises its authority to determine the case and not leave
it for the bar of public opinion to do. I am saying so because of the danger
that looms.
Indeed, if those now convinced
that their side will win the case reject the Supreme Court’s ruling and rather
accept what the bar of public opinion gives them, there will definitely be very
serious consequences. The Supreme Court must do what will restore public
respect and dread for it as the final judicial arbiter in the country. It has
to enforce the “contempt of court” injunction now or risk losing control over
the situation.
I shall return…
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E-mail:
mjbokor@yahoo.com
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