On JoyFM’s flagship news program, News File, Mr. Ayikoi Otto, still bathing in his Supreme Court performance, stunned the legal world when he stated in bold language that our Vice President is a legitimate candidate to be summoned for contempt. And what was our Vice President’s offence? He is reported to have said that the decision of the Supreme Court should have been unanimous. Mr. Ayikoi Otoo’s statement is not only outrageous, but absurd. In fact, we have watched with deep concern the bastardization of the law of contempt vis-à-vis our right to free speech by a section of the legal fraternity. Now that the Supreme Court had rendered its historic verdict and tempers had calmed down, it is imperative that we take a serious look at the law of criminal contempt and look for ways to streamline it to conform to modern trend.

I intend to make the following broad submissions just to stimulate public discussion on the now controversial topic, namely, criminal contempt of court. Indeed, this is not the platform for such an exercise. It is intended to drive home the ridiculousness of Mr. Ayikoi Otoo’s needless indictment of what our Vice President said.

1. I must state at the very outset that the law of contempt as applied in the recent cases of Sam Awuku, Ken Kuranchie, Atubiga, Hope Adoryeh and Sir John, must be viewed within the special and unique circumstances of the petition and its ramifications for the country. In other words, the Supreme Court order of June 24, 2013 that set down in bold and categorical terms how we should comment on the case as it unraveled in court did not ostracize or abridge our right to free speech. It never did. What the Supreme Court told us was to debate and write on events in the courtroom in a dignified, honest and fair manner so as not to scandalize and bring the administration of justice into disrepute. What the Supreme Court did and succeeded in doing was to enforce its touchline order of June 24, 2013 to maintain the proper functioning of its processes and to bring total discipline and dignity to the processes.

For example, it would have been irresponsible if the Supreme Court had not acted swiftly decisively in convicting Sir John for threats hurled at the Presiding Justice, Justice William Atuguba. If the Supreme Court had failed or refused to act, the public would have seen it as a court of frivolities and trivialities. Such a situation would have caused great harm to the integrity of the whole proceeding because Sir John’s contemptuous or contumacious statements were a direct and intentional assault on the court’s own touchline order of June 24, 2013. And I have never doubted the Supreme Court’s plenary jurisdiction or inherent power to summarily try him and the others for criminal contempt of court.

2. That is as far as the law of contempt must necessarily go in enforcing the Supreme Court order of June 24, 2013. In other words, the law of criminal contempt is almost extinct. No wonder, the offence of criminal contempt is now used sparingly and limited to areas where a contemnor violates an order of the court or disrupts proceedings. The purpose of the law of contempt has never been to punish citizens for their choice of words in describing a particular decision or judgment of the court. As citizens, should we allow our judges to hide behind the law of contempt to shun or avoid public scrutiny of their work? What about holding them accountable for their decisions? It is therefore troubling and disturbing to hear prominent social and legal commentators making outrageous statements to the effect that the law of contempt is still in force days after the Supreme Court’s historic verdict. Hence, Mr. Ayikoi Otoo’s needless attack on what our Vice President said. Interestingly, those who harbor such view are not telling us what we can say and what we cannot say. In vague language, they are telling us we should not say anything that will have the ill effect of scandalizing the court conveniently forgetting that even in the United Kingdom, the Law Commission, in its final report on December 12, 2012, recommended the abolition of the offence of scandalizing he court.

3. It is amazing that in the full glare of Article 21(1) of the Constitution, Mr. Ayikoi Otoo is telling us that as citizens we do not have the right to criticize our Supreme Court justices for political partisanship, conflict of interest, corruption and above all intellectual dishonesty? It is worth recalling here that even judges sitting on the same panel at times use very harsh language in criticizing their fellow judges. So I ask Mr. Ayiko Otoo: Was Justice Stevens , then of the United States Supreme Court, committing contempt of court when he made the following profound statement in a scathing dissent in Bush v Gore? This is what the highly respected judge said; “TIME WILL ONE DAY HEAL THE WOUND TO THE CONFIDENCE THAT WILL BE INFLICTED WITH TODAY’S DECISION. ONE THING IS HOWEVER CERTAIN. ALTHOUGH WE MAY NEVER KNOW WITH COMPLETE CERTAINTY THE IDENTITY OF THE WINNER OF THIS YEAR’S PRESIDENTIAL ELECTION, THE IDENTITY OF THE LOSER IS PERFECTLY CLEAR. IT IS THE NATION’S CONFIDENCE IN THE JUDGES AS AN IMPARTIAL GUARDIAN OF THE RULE OF LAW”.

In essence, is Mr. Ayikoi Otoo telling us that judges have superior freedom of speech to all other citizens of the land? I do not think so. The point here is that if even judges sitting on the same panel can and could call the integrity of their fellow judges into question, what stops ordinary citizens from doing the same in exercising their right to freely criticize the judicial system and judges?

4. Before I sign off, I want to leave the Ayikoi Otoos of Ghana these words by Mr. Allan Dershowitz, a Havard Law Professor of international repute delivered immediately after the controversial Bush v Gore decsion: “the decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This is cheating and a violation of the judicial oath”. Instructively, no contempt citation was issued by the Almighty United States Supreme Court to him or any of those who abrasively criticized its controversial decision.

5. In light of the above, I would like to ask Mr. Ayikoi Otoo: What is so contemptuous about what our Vice President said? I am compelled to believe that he is still smarting under the decision handed down by the Supreme Court to the extent that he wants to vent his spleen on our Vice President. As a seasoned lawyer, he must be mindful of the sort of legal principles he puts out there. They may be harmful to our constitutional development.

6. Lastly, I hope the General Legal Council is going to take up this important national matter with the view to streamlining this important aspect of our law. In the process it will build on the little confidence citizens have in our courts and the judicial system. Yes, the General Legal Council should wake up to its responsibility. It has been sleeping for a long time, now.

I stand accused.

AUGUST 31, 2013

KWADWO CRISTO - KUMASI, GHANA

KWADWOCRISTO1234@YAHOO.COM