Debacles Of The Supreme Court

“Justice must be rooted in confidence and confidence is destroyed where right minded people go away thinking ‘the judge was biased’.” ~Lord Denning

In view of the recent case and misunderstanding regarding the issue of contempt and whether it is appropriate for same judges to adjudicate upon it, I would be glad if we all reason together on this issue. But before we do, we must understand that it is imperative that we speak in legal context and our reasoning must be in conformity with the Law. We must also be aware that the matter is sub-judice and so we cannot talk about it as candidly as we would have desired.

Not long ago, Ghana was faced with an election dispute where some persons were cited for contempt of court. If our memories will serve us right, these persons were brought before the courts and sanctioned. These sanctions could not be faulted because the 1992 constitution of Ghana, specifically in Articles 19(2) and 126(2) gives power to the courts to punish for contempt of themselves. So clearly, let’s understand that the courts are given power to do so.

Now, the concerns that may arise are whether judges upon whom contempt is committed should be allowed to preside over the same case, and whether or not the courts is in breach on the second rule or principle of Natural Justice, which is “no man should be a judge in his own case”. The question is, would the judges be fair to the Law in terms of administering Justice? Or they will employ the personal egos in dispensing justice? These are concerns I believe must be taken seriously and also in upholding the Constitution and the Law as a whole.

“Nemo judex in causa sua”, which literally translates, “no man should be a judge in his own case”. This principle of Natural Justice on many occasions has been breached by the Supreme Court of Ghana, which undermines the administration of Justice.

The possibility of bias is very clear when a judge presides over a case he has an interest. The question we now ask is, do these judges have an interest in the current case of contempt (involving Montie fm and other three persons)? The answer is YES. In fact, we must be fair in our ways by admitting that the case is Quasi-Criminal (Lawsuit or equity proceeding that has some, but not all, of the qualities of a criminal prosecution). In this case of contempt, the two panelists were heard abusing and threatening the said judges, and as human as our judges are, there is likelihood that they will employ their personal ego in administering Justice.

For instance, one may be scandalized by the words of the contemnors and so his Judgment may not represent the Law. In the case of Tsatsu Tsikata v Chief justice and Attorney General, this second principle of natural justice was faulted. The essence of the need for impartially was observed by Lord Denning, the master of Rolls, in Metropolitan Properties Co. (F.G.C) Ltd V Lennon (1969): “Justice must be rooted in confidence and confidence is destroyed where right minded people go away thinking ‘the judge was biased’.”

In this case, can one challenge or raise an objection to the court’s jurisdiction, in that, the same judges upon whom the contempt was made against, be the same people to administer justice? Well, we leave that to our esteemed justices to answer. They are the custodians of the Law.

As Daniel Korang Esq will put it:
“Experience and available legal literature must teach us that when a court extends invitations to persons to be trialed for contempt of itself, there is a real likelihood of substantial prejudice and bigotry. The court always has a prior inclination that the person appearing before it has already committed contempt”. Where then lay the constitutional principle that says, “A person charged with criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty”? In recent, within the media, many learned lawyers at one point or the other, gave prescriptions of punishments that should be meted on our recent contemnors. That is extremely prejudicial and unethical of the profession. These contemnors cannot be said to be guilty unless proven beyond reasonable doubt.

Our legal system sometimes suffers when issues of these kinds arise. Occasionally, we are told that, the administrative works of our judges are undermined when some principles of the Law is adhered to. And so, they tend to adopt the doctrine of necessity which clearly does not play in this regard. The doctrine of necessity is meant to bring sanity and justice and not to create a situation where many will lose hope in the rule of Law.

I wish to end with the words of Daniel Korang Esq…

“It must be suggested that judges should not deal with contempt committed of itself but should refer the contemnors to another judge or to the Attorney general. This would also have the advantage of meeting the requirements in the 1992 constitution whereby anyone accused of a criminal offence should have ‘adequate time and facilities for the preparations of his offence’ (see Article 19(2)(e) thereof)”.

I stand corrected.
Mahama Socrates Samuel
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