By Dr. Michael J.K. Bokor

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… • E-mail: mjbokor@yahoo.com • Join me on Facebook at: http://www.facebook.com/mjkbokor to continue the conversation.