The NPP petition challenging the legitimacy of John Mahama’s presidency was expected to be fact based, and seamlessly tried. Rather there have been unexpected diversions such as debates on courtroom outbursts, media misreporting, KPMG count of pink sheets, and now a debate on freedom of expression. At issue is Justice Atuguba’s hardline stance on out-of-court commentary. Perhaps it is appropriate to approach this debate from a legal perspective. But let us not lose site of the political aspect of Justice Atuguba’s handling of commentary, which others see as dictatorial, and others see as prudence.

Let us take a look at the principle of freedom of expression versus the proverbial shouting-‘fire’-in-a-crowded-theater. The key word here is “crowded.” Why is it not a crime when one shouts ‘fire’ in an empty theater, but a crime when the theater is crowded? It is the same act of shouting fire, but the crime is in the reaction of other human beings, and the potential calamitous result.

Now let us transpose this scenario into the current situation in Ghana versus the relative political normalcy in, say, the United States. If a commentator in America remarked that a Supreme Court decision will result in war, or he would support a coup d’etat, no one would raise an eyebrow because the likelihood of civil conflict and a coup d’etat arising out of a Supreme Court decision is virtually non-existent in the first instance and completely non-existent in the second. In Ghana on the other hand, that likelihood is very much present due to the reputation of the so-called foot soldiers, and the history of military interventions.

To this end, Justice Atuguba may be erring on the side of caution, but only on inflammatory statements. When it comes to fair and tactful criticisms of the court’s handling of the case, he cannot infringe upon citizens’ right to free expression given to them by the 1992 constitution. Ghanaians have left that culture of silence era in their rear view mirror, and they are not about to revisit it.

If Justice Atuguba must punish, he must punish what comments are indeed punishable.

Let’s face it; the statements “if the Supreme Court decides for Nana Akufo-Addo, I would support a coup d’etat” and “if the NPP wins the court case, there will be civil war” (both paraphrased), are more inflammatory and more likely to cause mayhem than Samuel Awuku’s statement also paraphrased thus: “the Supreme Court is being hypocritical and guilty of selective justice.” Legally speaking, both statements should be protected by the principle of freedom of speech. But in a near-martial law environment, which Atuguba would have us believe, only the first two must be punishable. Furthermore, there are two main reasons why the NPP must not complain. And it is welcomed that the party has embarked upon a nation-wide sensitization exercise to control comments from its camp. First, the less side commentary and the resulting distraction, the more probable that the case receives the necessary focus and expediency. Second, even if Atuguba shuts everyone up, it is the loudest mouth that loses the propaganda war, and there is no doubt which of the two parties in court has the loudest mouth.

Finally it is my humble opinion that the most effective way for the Supreme Court to allay or reduce criticisms of its handling of the case is through fairness and impartiality. Thus far, how it has fared in those two departments is qualified by a question mark. May be it gets better from here.