The Ghana Center for Democratic Development (CDD-Ghana) has been following closely the ongoing public discourse triggered by the trial, conviction, and incarceration of two panellists and a radio host of Montie FM, as well as fines awarded against the owners of the station, for contempt of court.
Following the incarceration of the three individuals, public commentary has so far focused on the harshness or otherwise of the four-month jail sentence handed to the accused by the Supreme Court. While the Center acknowledges the importance of addressing the immediate concerns with the judgment, commentary so far obscures the more fundamental governance issues arising from the case that requires critical attention to prevent a recurrence of the unfortunate incident.
Having reflected carefully on the circumstances surrounding the case and the reactions from individuals, institutions and the public, the Center wishes to make the following observations with the hope that it helps to refocus public discourse on the matter and encourage policy responses to address the gaping deficits in democratic governance in Ghana.
Failure of Criminal Justice Institutions
The Montie FM case, once again, reflects the all too familiar failure of criminal justice institutions to enforce laws. The nation’s criminal justice institutions woefully failed in their duty to have stepped in to arrest the individuals who had issued threats to murder judges. The police, who have the responsibility for such matters, failed to act; and so did the Attorney General and Ministry of Justice, whose remit is to safeguard the integrity of the Judiciary. Rather, it was the BNI, which often is the security institution of last resort that took up the matter only to conclude that the alleged threats were empty and thus there was no need for prosecution.
The above institutional failures appear to have placed the judges in a position of being tempted to act on their own to defend the institution and uphold the law. However, it is highly problematic for judges to succumb to this temptation. Doing so betrays the cardinal element of judicial ethics that a judge cannot judge his own case. It is part of the role of judges to rise above such temptation and deal impartially with cases that are brought before them and not to initiate and adjudicate their own cases. Evoking the Supreme Court’s original jurisdiction in these instances undermines and conflicts with other equally important rights and protections under the Constitution, such as the right to fair trial and equality before the law. If the Supreme Court only evokes its original jurisdiction to protect the independence of the court rather than to enforce the constitution in general then it weakens its sacred role as custodians of our constitutional democracy.
Application of Contempt of Court Rules
The Supreme Court broad interpretation and enforcement of the contempt of court rule in the Montie case has transgressed the boundaries of the long-held understanding of what constitute a contempt of court. There are two main ways in which a person can be cited for contempt.
First, it is when a person disrupts court proceeding and therefore is deemed to have perverted the course of justice and the second instance is when a person disobeys a court order. The classification of the Montie case as contempt is problematic because it blurs the lines between legitimate public opinion on judicial rulings, which is encouraged under a democratic system of checks and balances, and traditional contempt cases. Far worse things are said about judges on the worldwide web. But it is simply not feasible for the Supreme Court to trace those people and haul them before the bench. Indeed, the actions of the court have encouraged continued taunting of the judiciary and, hence, a weakening of its legitimacy.
Sanitizing the Media Airwaves
The Montie case additionally raises questions about the lack of transparency and justification for awarding FM frequencies. It begs the question the kind of due diligence that informs the allocation of FM frequencies and what subsequent monitoring is done to ensure that FM stations comply with their stated objectives. Unfortunately, the licensing process appears to have become a political and partisan tool deployed in favour of partisans and political sympathizers to enable them to spew propaganda in defence and promotion of political parties. Some of these stations have been doing this for years and have not been held to account. The desire to respond effectively to this sort of menace appears to have motivated the National Media Commission’s sponsorship of the NMC (Content Standards) Regulations 2015 (LI 2224). However, this legislation, making prior approval of program content mandatory, among other things, seems to have failed to strike a fair balance between media freedom and accountability, which may end up censoring media content.
The Dearth of Civic and Democracy Education
This incident also confirms the dearth of civic and democracy education in Ghana today and the triumph of crude partisan logic over civic citizenship and statecraft. In the first place, why should sane adult citizens think it is okay to hurl invectives and threats of rape and death on public officials or political opponents they disagree with? Why is retaining or gaining political power or defending partisan interest placed before the public interest or even the obligations of common decency? And worse of all, why do such primitive actions and utterances enjoy guaranteed partisan support in Ghana today? If Ghana’s democracy is to survive and progress, then “party politics” syndrome in Ghana must change.
The President’s Prerogative Mercy
Finally, since the incarceration of the three individuals, their lawyers have submitted a petition to the President requesting him to exercise his discretion under Article 72 of the Constitution to pardon their clients. Similarly, the Montie FM Station has opened a petitions book at the radio station where a number of ruling party leaders, ministers and deputy ministers of state have gone to sign. If there was ever a terrible case to be made for exercising a presidential pardon, the Montie case will be a prime candidate. If the President was to succumb to the pressure from the party and pro-government activists to exercise his power this way it would represent the most vulgar misuse of executive power and, worse still, set a dangerous precedent. In a sense, it will institutionalize an already unfair practice of incumbent party sympathizers being treated differently before the law and by the state. Montie FM and its owners are avowed NDC and Mahama administration supporters and promoters. No matter the depth of sympathy for the individuals involved in the Montie case, this cannot be a constructive cure. Moving forward, to arrest the gradual erosion of the democratic governance gains made under the 4th Republic, we need to examine the deficiencies that have allowed the 1992 Constitution to be understood and applied in this bizarre manner.
Source; Ghana Center for Democratic Development
