Introduction
Contempt of court is not a crime against the judge, but a crime against justice itself.
Free speech is the oxygen of democracy. Accordingly, Article 21 of Ghana’s 1992 Constitution guarantees it boldly, allowing citizens to criticize power, question decisions, and speak truth without fear. Yet no right is absolute. When speech turns from critique to contempt, the law steps in – not to silence dissent, but to protect the institution that settles disputes when all else fails. Words that lower the authority of the judiciary or bring it into public disrepute are referred to as “scandalous to the court” and its status. A society that cannot question its judges risks tyranny, however a judiciary that cannot command respect risks collapse. This essay explores that thin line. When does robust commentary become an attack on the court itself? How have Ghanaian courts drawn the boundary between protected opinion and punishable contempt? In a democracy, people should be allowed to speak freely – but where free expression ends, scandal should not begin.
The power to punish for contempt of court
At common law, it is recognized that judges have an inherent power to exercise authority and control over judicial proceedings and thus, punish conduct which brings the judicial process into disrepute. Article 19(11) of the 1992 Constitution provides that 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. However, Article 19(12) of the Constitution makes an exemption by providing that clause (11) of Article 19 shall not prevent a Supreme Court from punishing a person for contempt of its proceedings, notwithstanding that the act or omission constituting the contempt is not defined in a written law and the penalty is not so prescribed. This means that it is constitutionally permissive for a superior court to punish for contempt of court and its proceedings. Contempt of court occurs when someone disobeys a court order, shows disrespect for the judge, or disrupts judicial proceedings. There are two (2) types of contempt, namely: civil contempt and criminal contempt. Also, contempt can be either direct, in the case where it occurs in the presence of the judge and disrupts the court proceedings (in facie curiae) or where it occurs outside the immediate presence of the judge (ex facie curiae), for example, as in the case of Ken Kuranchie, Kweku Boahen and Stephen Atubiga who were summoned before the Supreme Court in June 2013 for publishing a story about court proceedings of the Presidential Election Petition which at the time of publication were on-going and was likely to undermine the fair trial of the accused.
Drawing the line: Free Speech and Contempt of Court
In Montie 3 case, the issue of when free speech would be regarded as contemptuous was discussed by the Supreme Court. In this case, the Supreme Court of Ghana invoked its undoubted powers to punish the contemnors for contempt on 18thJuly 2016. The contemnors were brought before the Court, by its own summons, for them to show cause why they should not be committed to prison for contempt of court on three (3) grounds namely, scandalizing the court; defying and lowering the authority of this court; and bringing the authority of this court into disrepute. The Supreme Court stated that the attack, which was directed at the Chief Justice of the Republic of Ghana and the apex Court of the land, amounted to criminal contempt of the Judiciary. The Supreme Court, regarding the freedom of speech and expression stated that while being mindful of the “valuable role that the media, as the fourth estate of good governance, has to play in affording the citizenry and the state valuable information and fostering national discourse…the constitutional freedoms and protections guaranteed to the media in Ghana are intended to be exercised and enjoyed with professionalism, good faith and self-control… and are not to be abused wantonly and contumaciously.”
In justifying the need to exercise its power to punish for contempt in the Montie 3 case, the Supreme Court stated 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. We have been compelled to act in the instant matter because of its gross nature in that it bore all the marks of a calculated attack on the Judiciary, which is detrimental to the administration of justice, and we would have been reneging on our Constitutional duty if we failed to act.”
In the Supreme Court case of Republic v High Court (Land Division), Accra, Ex Parte: Kennedy Ohene Agyapong (Applicant), Susan Bandoh (Interested Party) Supreme Court, dated 20th October 2020, Civil Motion No. J5/62/2020, the Supreme discussed the issue of contempt of Court vis-a-viz free speech. The Supreme Court stated that “the primary purpose of contempt proceedings is not to vindicate any particular judge but rather to ensure that the administration of justice, the primary duty of the court is not put to disrepute and public confidence in the Court, its officers or processes is not eroded. Therefore, where the conduct of an individual has the potency of defying, scandalizing or lowering the authority of the court or bringing the administration of justice into disrepute, a court differently constituted may hear the matter.”
In the case of Republic v. High Court Accra; Ex parte Laryea Mensah [1998-99] SCGLR 360 per Bamford Addo, JSC, it was stated by the court that “a person commits contempt and may be committed to prison for wilfully disobeying an order of court requiring him to do any act other than the payment of money or to obtain from doing some act; and the order sought to be enforced should be unambiguous and must be clearly understood by the parties concerned”. The reason is that a court will only punish as contempt, a wilful breach of a clear court order requiring obedience to its performance. It means, therefore that, disobedience which is found not to be wilful cannot be punished. A wilful act must thus be a deliberate conduct of a person who knows what he is doing and intends to do what he is doing.
In Republic v. Nana Bonsu II [2006] 9 MLRG 204 C.A. per Amonoo-Monney J.A, it was decided that some degree of fault or misconduct must be established against the contemnor to show that his or her disobedience was wilful. There must be a judgment or order requiring the contemnor to do or abstain from doing something; it must be shown that the contemnor knows what precisely he is expected to do or abstain from doing; and it must be shown that he failed to comply with the terms of the judgment or order, and that his disobedience is wilful. In the Presidential Election Petition (2013) and Montie 3 cases, the Supreme Court never considered the comments made by the contemnors as accidental or inadvertent. They were considered to be wilfully made based on the fact that they were professionally capable of understanding what they were doing and they had good knowledge of the consequences of disobeying court orders.
Conclusion
In conclusion, free speech and respect for courts are not enemies. They are twin pillars of a democracy that works. The right to criticize a judgment keeps the judiciary honest and accountable. The law of contempt keeps the judiciary authoritative so that its decisions mean something. Scandalizing the court remains punishable not because judges fear critique, but because justice itself cannot function in ridicule. As Ghana’s democracy matures, we must learn to speak boldly without speaking destructively. We can attack arguments, not institutions. We can demand better justice, without demeaning the very courts that deliver it. That is the line – and we cross it at our collective peril.
God bless!
