The Lunatic Fringe Of Loose Talkers And The Polemic Of Free Speech

The apparent hypocrisy and the unpatriotic sentiments being exhibited by some members of the opposition NDC Party in relation to the ongoing impeachment process of the three Electoral Commissioners must be censured in no uncertain terms.

I have always maintained that some of us were old and fortunate enough to have witnessed the lawlessness which took place during the P/NDC administrations over a period of three decades (1970-1990s), and hence cannot accept any ridiculous pronouncements from members of such tradition.

No true patriot, as a matter of fact and honesty, would ever support lawlessness. In that regard, some of us will rightly upbraid the loose talkers who are disgustingly proclaiming doom on the nation, should the Chair Person of the EC be removed from her post following the impeachment process. How bizarre?

Dearest reader, it would be recalled that somewhere in 2015, Ex-President Mahama duly forwarded Mr Richard Nyamah and his partners previous petition issued against the then chairperson of the CHRAJ, Mrs Lauretta Vivian Lamptey to the Chief Justice to ascertain an unobjectionable constitutional violation.

The Chief Justice subsequently established a prima facie constitutional violation, and, Mrs Lamptey was impeached accordingly.

The all-important question then is: why didn’t the same NDC worrywarts object to Mrs Lamptey’s impeachment process back then?

The 1992 Constitution of Ghana, to be precise, Article 146 provides interesting steps or measures that need to be taken in order to impeach a Justice of the Superior Court or a Chairman of the Regional Tribunal.

The Article (146) states: (1), “A Justice of the Superior Court or a Chairman of the Regional Tribunal shall not be removed from office except for stated misbehaviour or incompetence or on ground of inability to perform the functions of his office arising from infirmity of body or mind.

“(2) A Justice of the Superior Court of Judicature or a Chairman of the Regional Tribunal may only be removed in accordance with the procedure specified in this article.

“(3) If the President receives a petition for the removal of Justice of a Superior Court other than the Chief Justice or for the removal of the Chairman of a Regional Tribunal, he shall refer the petition to the Chief Justice, who shall determine whether there is a prima facie case.

“(4) Where the Chief Justice decides that there is a prima facie case, he shall set up a committee consisting of three Justices of the Superior Courts or Chairmen of the Regional Tribunals or both, appointed by the Judicial council and two other persons who are not members of the Council of State, nor members of Parliament, nor lawyers, and who shall be appointed by the Chief Justice on the advice of the Council of State.

“(5) The committee appointed under clause (4) of this article shall investigate the complaint and shall make its recommendations to the Chief Justice who shall forward it to the President (The 1992 Constitution of Ghana).”

Patently, President Akufo-Addo was required by law to refer the petition brought against Charlotte Osei to the Chief Justice to determine whether there was a prima facie case.

Therefore President Akufo-Addo could not have erred by referring the petition brought against Mrs Charlotte Osei to the Chief Justice for determination of a prima facie case.

The crucial question again is: if for argument sake, President Akufo-Addo had knowingly withheld the petition issued against Charlotte Osei, wouldn’t he then had violated the Constitution of Ghana?

Clearly, there is an evidence of due process, and hence some of us cannot fathom how and why any group of people can carelessly threaten the peace of the country because of their parochial interests.

It is worth stating that although the right to freedom of opinion and expression stretches to queer and unpopular ideas and statements which “shock, offend or disturb”, a number of human rights treaties, conventions and declarations, including the ICCPR and the Universal Declaration of Human Rights obligate states to prohibit all forms of hate speech.

Apparently, the right to freedom of opinion and expression and the appropriate permitted abridgements are detailed in international law -Article 19 of the Universal Declaration of Human Rights and Articles 19 and 20 of the International Covenant on Civil and Political Rights.

It must, however, be noted that free speech does not give the right to individuals to say or write whatever they want, whenever they like, without permitted abridgement.

As a matter of fact and record, freedoms are restricted in the public interest on grounds of national security, to preserve public order, to protect public health, to maintain moral standards, to secure due recognition and respect for the rights and freedoms of others or to meet the just requirements of the general welfare of a democratic society.

Indeed, freedom of opinion and expression is not absolute and must of necessity be subject to limitations on the above lines. And more so the right of free speech and expression does not extend to sedition, slander, defamation and obscenity.

We must not and cannot lose sight of the fact that most wars, crimes and genocides which were perpetrated against humanity were arguably expedited through the use of hate speech aimed at securing popular support for illegal and violent action.

This can be witnessed continued in the past and in the modern era. For we can attest to the Nazi hate speech which preceded the Holocaust, the Radio and Television hate speech which preceded the Rwandan Genocide and al-Qaeda hate speech which preceded the attacks on ‘World Trade Centre on September 11, 2001.

In hindsight, we can infer that hate speech could spell doom for a nation. So it is necessary and proper for experienced politicians to stay away from any opprobrious pronouncements that can incite violence.

Strictly speaking, freedom of opinion and expression is not an absolute right in national and international jurisprudence. In fact, this right, like others, may be restricted to protect and balance other rights and interests. However, it is the complexion and the degree of these restrictions that is often contended in extant human rights and security jurisprudence.

Take, for example, Article 20(2) of the ICCPR requires states to prohibit hate speech: “Any advocacy of national, tribe, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”.

Even though some experts contend that restrictions on hate speech can be justified, Article 20(2) has proven highly controversial and is variously criticised as being overly restrictive of free speech or as not going far enough in the categories of hatred it covers.

In so far as Article 20(2) does not obligate states to prohibit all negative statements towards national groups, tribes, races or religions, if a statement “constitutes incitement to discrimination, hostility or violence,” it must be condemned in no uncertain terms”.

Actually, the two known restrictions on the right to freedom of expression are: The prohibition of advocacy of any national, racial or religious hatred and the prohibition of propaganda.

Nevertheless, the prohibition of propaganda is not innately contradictory to the right to freedom of expression.

The right holder, however, has to be cognisant of the duty and obligations which are encapsulated in the international human rights instruments.

Interestingly, however, while propaganda for genocide is codified as an international crime, the propaganda for the incitement to aggressive war is not.

Nevertheless, incitement to commit an illegal act is in itself illegal under international law.

Furthermore, incitement, instigation, abetment and solicitation are all common to various criminal codes world-wide.

These are generally considered "inchoate offense[s]" or "a step toward[s] the commission of another crime, the step itself being serious enough to merit punishment”.

In the English common law for instance, there are three general inchoate offenses: 1) attempt; 2) conspiracy; and 3) incitement.

“ Incitement conveys a "general label to cover any use of words or other device by which a person is requested, urged, advised, and counselled, tempted, commanded, or otherwise enticed to commit a crime."

To the unpatriotic loose talkers: even though you have inalienable rights as human beings to seek, receive and convey information and ideas of all kinds , such rights are subject to permitted abridgement, so stop misusing such inherent rights.

Ghana cannot and won’t burn! Long live Ghana!

K. Badu, UK.