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If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and, in the next place oblige it to control itself – James Madison, 4th President of the United States.
Ghana’s judiciary contempt laws have several provisions, among them the power of a superior court to convict a private individual with no case before it for comments they made outside the court that the court may find either derogatory or obstructive to the delivery of justice – contempt ex-facie curiae. In this write-up, I’m taking issue specifically with this provision that effectively makes the Supreme Court a sacred cow. I will be arguing that, it undermines our constitutional rights to free expression (ironically, I’m a tad scared publishing this article :-(); that, this provision is unnecessary to achieve the objectives it is intended for; that, it poses too much risk for abuse of power; that, the reasoning behind it is absurd when taken to its logical conclusion, that, it is counterproductive in situations where it actually achieves its objectives; that social norms are superior in achieving its intended goal, and finally, that due to these aforementioned problems, it’s high time those provisions were expunged from the constitution through a constitutional amendment.
First, a backdrop to this writeup: the Supreme Court recently summoned Mr. Kpesa Whyte, a professor of Political Science at the University of Ghana, for allegedly passing derogatory comments (in a now deleted tweet) about the court. Mr. Whyte is reported to have pleaded guilty and apologized to the court and expressed regrets for those words. He withdrew them and was admonished like a child, so to speak, to go home and behave well. This was even after he (fearfully?) denied that he was referring to Ghana’s Supreme Court in an obvious attempt to obviate a summons from our Supreme Court overlords. If we want to live up to the ideals of a free, peaceful, and just society, then such a naked display of raw judicial power needs to be pushed back against and the law that allows this reconsidered. If superior courts and for that matter the Supreme Court has the authority to arbitrarily pick and choose what criticism it can tolerate, and even worse, put defendants to trial where they themselves act as both plaintiffs and judges, then we’re strictly speaking not free to critique it in any meaningful way. For unacceptably, it leaves us walking on eggshells when critiquing the court, defeating the whole point of the constitutional right to free expression — the freedom to say things people in government, including the justices at the Supreme Court, do not like to hear.
Some argue that criticism and insults are not the same, and others argue that ‘insulting’ the court (read; criticizing it in ways it finds offensive) undermines public confidence in the delivery of justice, so there’s a legitimate reason to make this exception to free expression. These arguments are problematic for several reasons, but I’ll try to address them with only three counterarguments, just three.
First, arguing that insulting the court can undermine confidence in them has it backwards; it is like saying that wet streets cause rain. In normal times, when the courts strive to stay impartial, how can an insult from a few angry persons be able to undermine public confidence in the courts? If we don’t trust the average citizen to ignore undeserving insults, why then do we even allow them to vote every 4 years to pick lawmakers and the President? More importantly, in an environment where the court is wayward and deserving of insults, censoring citizens from calling them out only leads to a groundswell of unexpressed distrust, which is far worse than open distrust since we’re able to see it happen and enact policies to restore confidence before the problem becomes intractable. Karl Popper was right when he argued that the main objective of democracy is to be able to peacefully get rid of bad leaders, not to select wise, infallible saints as leaders. By making it too risky for the first person to openly call a spade a spade when the nation’s leadership is going wayward, we kill the most vital tool in our toolbox for bringing a democratic society back on track when we find ourselves being ruled by incompetent people or bad actors. This applies to our courts too – I’m not saying the current court is manned by incompetent persons per se, I’m just saying the only way we can know how the public perceive the court is for us to allow them to express their views about it without any fear.
Second, who will determine what constitutes an insult and what tools exist to keep such persons from abusing such authority? To be a bit more direct, if we’re to admit, which we should, that justices are fallible human beings, who can sometimes do something worth insulting, how do we determine when they ‘deserve’ the insult? Is it when 10%, 50%, or 100% of the population in a referendum or a committee of ‘wisemen’ think so? Why are any of these options better than one person? That a court manned by unelected justices can wield such power to decide what criticism they can tolerate should simply have no place in a liberal democracy. Just like all institutions in our country, the court must earn its respect, trust, and legitimacy from the citizenry voluntarily. You may be thinking how about some nuance? You may say it is not too hard to tell apart deliberate insults in their most extreme form and besides history of our courts have shown that they can do that job well and have exercised self-restrain for the most part so these supposed risks are unrealistic. Indeed, some nuance is needed when dealing with this important issue but it is my view that the nuance has to live within the bounds of norms and cultural debates not as a legislation that places too much power in the hands of the enforcer. it is particularly worse when it comes to the topic under discussion where the superior courts have absolute discretion on the matter.
Third, and this follows from the previous point, even if we were to grant this central argument in favor of these contempt laws, I pose a serious question, must we legislate everything? Just because something is undesirable doesn’t mean it should be prohibited, and just because something is desirable doesn’t mean it should be mandated. We need to leave a space between what’s legal and illegal for rich and diverse norms and ideas to emerge, and I believe that’s the case here with regards to derogatory remarks towards courts and other state institutions. Basic social disapproval for hurling undeserving invectives at state institutions is sufficient in preserving their legitimacy if they really stick to their constitutional mandates; The 20th-century British stateman, Lord Moulton, called this ‘Obidience to the Unenforceable’. In situations where the courts (and justices) deserve to be insulted, these norms will give way in one form or another until the courts are back on track to be deserving of broad respect from society.
It goes without saying that I’m not in any way encouraging anyone to use offensive words towards the court or even laymen on the street; a society where everyone is kind and respectful towards each other is absolutely desirable, but that’s not the point here. The point is that pursuing this objective through means that can lead to us losing our ability to critique the court without fear is far worse than a few invectives that may be hurled at the court from time to time when unrestricted criticism of the court is allowed. In other words, I’m saying that we must choose our poison carefully. This sounds like a false dichotomy, so an obvious counterargument would be: why can’t we have both, i.e., a court that we can critique freely and one that no one is allowed to ‘insult’? My response to this is that if the court itself has full discretion on what it considers unacceptable criticism, it is hard to imagine how these two objectives aren’t contradictory.
We may be sitting on a time bomb after all, since it is an authority far too susceptible to abuse. Hitherto, the court has arguably been measured in its use of this power, but in an environment where the courts become co-opted, this unbounded authority can be used as a tool to silence dissenting voices, the most important tool in keeping our constitution from destruction. This is not even speculative anymore since a growing number of people, civil soceity organizations like Imani Ghana and nearly every member of the largest opposition party, NDC, including their leader, feel the court is failing to check executive power. This is a party that has ruled the country several times and consistently wins 40%+ in all elections, effectively implying that about half of the population do not trust the court to be impartial. In fact, the national security minister admitted this disquieting shift in sentiment towards the court in a recent remark. If there’s a point in time when it is crucial that the court can be critiqued without fear, it is in this environment of rising levels of distrust. Regardless of whether there’s merit to this sentiment, given that several violent civil wars started purely because of sentinment of injustice and abuse of power, including even that of the United States we should bury our heads in the sand at our own peril, but I digress.
The courts are the most delicate of all our institutions, as they derive their legitimacy through norms, an earned reputation of impartiality and commitment to protecting our constitutional rights without fear or favor, never through force of law. Therefore, what we ought to aim for is not a court everyone respects out of fear but a court people can freely critique, a court people trust, and above all, a court people largely voluntarily respect and to which they’re willing to bring their disputes for settlement; None of these can be achieved through the subtle coercion these contempt laws indirectly seek to impose. In short, we should let the Supreme Court be solely a Supreme Court, not a sacrosant institution manned by infallible saints that concurently acts as a speech and public decency police. We must restrict it to its sole mandate of defending our constitutional rights and leave private individuals with no case before it alone. Amending the contempt clause in Article 126 of the constitution to limit contempt of court to only refusing to obey court orders resulting from disputes one is directly involved in would be a great starting point.
Aminu Abdul Manaf,
Independent Tech Consultant.