Contempt of court in Ghana's constitution

Articles

Contempt of court in Ghana’s constitution

Published by:

Omar Glenn

Reviewed by:

Alistair Vigier

Last Modified: 2024-05-07

Are you curious about contempt of court in Ghana’s constitution? This article is part of our “law journal” series. You can see other articles written by law students.

Goodnuff Appiah Larbi is a Law (LLB) Student and Legal Researcher, at the time of writing this article was awarded the Student Author of the year 2020 under the auspices of the National Students’ Award.

The first time I heard of contempt of court was in 2013 during the hearing of the election petition. Where some political parties’ activists and other editors have cited contempt for their misconduct towards the court. The 2013 election petition aside from it being history, was a very educative hearing.

Safeguarding Judicial Integrity in Ghana

Last year September 2020, Mr. Kennedy Ohene Agyapong the Honorable Member of Parliament for Assin Central Constituency cited contempt due to his comments allegedly made in connection with a land matter.

One of the issues raised by the lawyers of Kennedy Agyapong (contemnor) was the learned trial judge His Lordship Amos Wuntah Wuni J.‘s use of the phrase ‘severely punished’ in the contempt summons.

His conduct and disposition in the course of the proceedings before him amount to bias, prejudice, and bad faith which will disable the learned trial judge from being able to exercise his discretion fairly.

Is it justifiable for a judge to hear a contempt matter of which he was attacked?

One key question that may arise in contempt cases is whether it is appropriate for a judge to hear a contempt matter of which he was attacked.

And that is the major issue for discussion in this article. Before I delve into the gravamen of this issue, I would like to briefly discuss the concept of contempt of court.

A person may be held in contempt for many different reasons. Some of the most common reasons include:

(i) Failure to obey an order of the court (as long as that order was lawful). An example is an injunction order.

(ii) Showing disrespect to the Judge or Magistrate in the courtroom, including violent behaviour.

(iii) Disrupting the court’s proceedings with noise or other “acting up”.

(iv) Publishing matters which may prejudice the right to a fair trial (“trial by media”) or criticisms of courts or judges which may undermine public confidence in the judicial system (“scandalizing the court”).

The rationale of contempt, therefore, is not to bolster the power, dignity and ego of the judges as an individual. On the other hand, criminal contempt involves conduct that interferes with or obstructs justice delivery.

Contempt of law in Ghana

With criminal contempt, the act constituting the contemptuous conduct has been completed and the contempt cannot be “purged”. The punishment is imposed to vindicate the authority of the court. (Emmanuel Kwabena Quansah “Ghana Legal System”).

There are two forms of contempt: contempt in facie curiae: and contempt ex facie curiae. Contempt in facie curiae is committed inside the court during court proceedings.

The other form of contempt is contempt ex curiae; this contempt is been committed outside the court. The cases of Republic v. Liberty Press Ltd & 28 Others and Republic v. Kwabena Mensa-Bonsu & 2 Others both cases are examples of ex-facie curiae.

Historical Evolution of Contempt of Court Provisions in Ghana

In proving contempt, the prosecution must prove the same standard as in all criminal offences (Elikplim Agbemava v. Attorney-Genera). The essential elements of contempt are stated in the case of Republic v.Sito I Ex-parte Fordjour. They are:

(i) There must be a judgment or order requiring the contemnor to do or abstain from doing something;

(ii) It must be shown that the contemnor knows what precisely he is expected to do or abstain from doing; and

(iii) It must be shown that he failed to comply with the terms of the judgment or order and that the disobedience is willful.

The Superior Courts

It is a trite law that, in Ghana, only the Superior Courts have the power to punish for contempt of court as stated in article 126(2) of the 1992 Constitution.

“The Superior Courts shall be superior courts of record and shall have the power to commit for contempt to themselves and all such powers as were vested in a court of record immediately before the coming into force of this constitution”.

In Republic v High Court (Land Division), Accra; Ex – Parte Kennedy Ohene Agyapong (Susan Bandoh as Interested party) (unreported) where the learned Supreme Court, Kulendi, JSC stated in paragraph 12 that;

“It must however be noted that the Superior Courts when dealing with a summons for contempt suo motu under article 126 of the Constitution, have a wider latitude and cannot be held to the terms of a subordinate statute such as the Criminal and Other Offences Procedure Act, 1960 (Act 30)”.

The law about article 126 (2) as stated supra mandates the judges to adjudicate any contempt proceedings and possibly punish the contemnor(s) if found guilty whether the comment or action was against the Judge in question or the court either in facie or ex facie curiae.

Considering the principles of Nemo Judex in causa sua

In the famous case of R v. Sussex Justices, ex parte McCarthy Lord Hewart CJ’s classical and celebrated statement is…

“It is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done’’ is very relevant when discussing the principle of nemo judex in casua sua.”

A fuller version of this maxim is…

Nemo debet esse judex in propria causa sua, quia non potest case judex et pars.

That means “nobody is to be a judge in his cause because he cannot simultaneously be judge and party.”

Contempt of Court in Ghana’s Legal Framework

With minor differences in emphasis, the common object of these maxims is to express disapproval of any blurring of the dividing line between “a judge” and “a party”.

The reason for these maxims is the recognition of the incompatibility of the judicial function with any personal involvement of a member of the Bench in a case before the court.

This principle is intended to ensure fairness in adjudication and eliminate bias in favour of one party against the other.

This maxim has been at the heart of the administration of justice for centuries to the extent that the rule denies the Head of State the right to sit in her courts to administer justice.

The credibility of the Judiciary cannot be discussed without reference to it. Also, the power of the trial court to commit contempt is not retained for the personal aggrandizement of the Judge or whoever mans the court.

Punishment for contempt of court in Ghana

Anyone who allows any judicial decision to be influenced by partiality or prejudice violates one of the most fundamental principles underlying the administration of justice.

Where such prejudice or partiality is shown, the contemnor will have irresistible grounds for objecting to the trial by that judge (if an objection is made before the hearing) or for applying for judgment to be set aside.

The credibility of the judiciary is paramount to every democratic state. Any case where a judge is shown to have an interest in the outcome of the matter which he has to decide gives rise to automatic disqualification.

For example, where a judge is shown to have an interest in the outcome of the case.

Case Studies: Notable Contempt of Court Incidents in Ghanaian History

The basic rule is not in doubt. Nor is the rationale of the rule; that if a judge has a personal interest in the outcome of an issue that he is to resolve.

He is improperly acting as the judge in his cause. That such a proceeding would, without more, undermine public confidence in the integrity of the administration of justice.

This second rule of natural justice or fair hearing, also known as the rule against interest and bias, is a bedrock principle of natural justice and constitutionalism.

It is meant to prohibit any person who has a real or apparent interest or bias in a matter from sitting as a judge in that matter.

Cases of contempt of court in Ghana

In this circumstance, an interest that will operate to disqualify a judge makes him desire that the matter should go in favour of a particular side or that will occasion a miscarriage of justice.

Therefore, this maxim requires that a judge must not be an interested party in a matter or be in a position where there is a substantial likelihood of bias on his part.

Penalties and Consequences of Contempt

In Temporal Authority Luther King Jr. only reminds his readers that God has reserved judgment to himself. Also, he implies that they ought, therefore, to refrain from acting as judges on their behalf.

From the above analysis, can it be said that the principles of natural justice, particularly the principle of Nemo Judex in Causa Sua have been religiously observed if a judge who has been attacked is allowed to determine his case?

Without any modicum of doubt, a judge who has been attacked personally becomes a complainant and there is a real likelihood of bias to show from his side.

Judges Should Recuse Themself

The foregoing represents the Author’s opinion that thou the court in their suo motu can commit a contemnor for contempt if found guilty. In any case, where a judge is shown to have an interest in the outcome of the matter which he must decide, in the interest of justice.

Such a judge should recuse himself and allow a different judge to adjudicate on the contempt matter for justice to openly manifest without question.