Author, Samson Lardy Ayenini
What marriage has or can ever exit between the two extremes of mercy and justice? Well, in the heat of the present dilemma and debate among “my ‘unlearned’ friends”, I take a few minutes to show that the two do rarely meet in law, and when they do, it most likely contempt that brought them together, and guess what, for a rollicking good marriage.
My aim is an attempt to properly inform, clear the confusion fueled mostly by holders of wrong opinions on the subject pursuant to the summoning by the Supreme Court of NPP’s General Secretary Kwadwo Owusu-Afriyie and Communication Team Member Hopeson Adorye. Here we go …
A HINT OF THE CONTEMPT PROCEDURE
Contempt of the nature said to scandalize the court is criminal contempt. The Ghanaian law grounding it is found in Articles 19 (12) and 126 (2) which give the Superior Courts clear authority to “commit for contempt to themselves”. The precedent and practice is that it is punished SUMMARILY if the said contemptuous comment or remark (or act) is “clear and unambiguous”. If the reverse is the case, it is tried on INDICTMENT. Traditionally, a party to the suit files a motion and swears to the facts of the alleged contempt in an affidavit. The applicant would always attach copies of pictures of or other material of the allege contempt to the application.
Or in very rare cases, the court itself will (suo motu) make the observation and do as the SC is currently doing. If their Lords thought the present case was not obvious contempt on the face of it, they would have referred it to the Attorney General to initiate committal proceedings against the alleged contemnors for a trial. These men would then have deposed to affidavits admitting and pleading or denying or justifying the comments in their defence before a sole jurist. Since they have chosen to invite them to show cause why they should not be punished, it means they have invoked their summary powers to punish the offence.
I have said that if I were the two and I was sure I authored those comments and also that they authored after the court’s final touchline warning, I would have started mitigating/purging by renouncing them and apologizing before the 14th day of August appearance in court. It’s pretty obvious, criminal contempt is a strict liability offence. Its more like the definite penalty that awaits you when you jump the red light. This is part is part of the reason I support respected senior Ace Ankomah’s suggestion for a Contempt Act. You may have heard me say that Sir John who is a Lawyer would be irrebuttably presumed to know the confines of the offence and so could be up for a higher punishment if pronounced guilty – to whom much is given, much is required.
PURGING CONTEMPT IS A PERSONAL BUSINESS
The Supreme Court is not bound to, but just may not ignore the outpouring of pleas for clemency for the two alleged contemnors – Kwadwo Owusu-Afriyie and Hopeson Adorye, General Secretary and Communication Team Member of the NPP respectively. What matters, though, in purging the offence of contempt and here the contempt of scandalizing the court is not the pleas of some members of the public, a party, group or individuals. What traditionally and really works and is considered by the court is the alleged contemnor’s own posture and attitude after the said contemptuous matter has been brought to his or her notice either by the court (which is rarely the case) or a party to the suit.
So the point is, my wish for suspended sentences if they are found guilty, for the reasons to be discussed here shortly, Alliance for Accountable Governance –AFAG and Young Patriot’s plea cum petition demands for what they deem should be a fair and balanced approach for the contempt summons, vigil or fasting prayer-plea meetings are irrelevant and of no consequence. What counts is the acts of mitigation and efforts at purging their alleged offence before and during the hearing if they admit their comments are contemptuous of the court.
COUNSEL CORPORATE TEMPER JUSTICE WITH MERCY PLEA
My courtroom experience over the last four years, and I go to court almost every day, is that it is a practice for Lawyers including and especially those who have no business in a particular case to take turns to rise to their feet and plead with the court to temper justice with mercy in dealing with a contemnor who shows contrition. So what was on display during Sammy Awuku’s appearance as well as Kenneth Kuranchi and Stephen Atubiga was no special situation.
I have chanced upon a few such situations and almost impulsively associated myself with a couple of the pleas in the same manner I would usually feel compelled to act as a friend of the court in defence of obviously underprivileged persons appearing in the circuit and district courts without attorneys. And there is great fulfillment in seeing them benefit from such interventions. One such person who was late last year found guilty of a motor offence but only cautioned calls me once in a while just to say “thank you”.
JUDICIAL NOTICE OF PLEAS
Justice is expected to be done though the heavens fall – Fiat justitia ruat caelum. That is the maxim upholding the belief that the court must dispense justice regardless of the consequences. The question though is whether the courts, in deed, completely ignore and don’t often least situate decisions and judgments (applying the law to facts for a solution to problems of society) in the context of what is practical within a community to avoid rendering their decisions brutum fulmen – empty or unenforceable.
I have noted that the court can but is not bound to take judicial notice of the pleas transmitted via press releases and conferences, petitions or vigils. Yes, the judges live among us and would become aware of these. By judicial notice here, I simply mean the court itself acknowledging the notorious facts of the said events in relation to the contempt invitations without same being formally brought to their attention in court. I repeat that the court is not bound to take notice or allow the noise within a section of the public to influence it. So the pleas might end up as wasted efforts and not cause a chink in the process.
JUDICIAL DISCRETION
But why should the court, if it chooses, take any notice of any happenings outside the courtroom? It doesn’t do so but it might depending on the nature of the case. It is wrong to equate the court’s handling of contempt proceedings to the main Petition. There are matters a court has discretion or perhaps wide discretion on and there are those that the law does not give room or at least very limited room for discretion. But whatever the discretion, it ought to be judicial. That is, it must accord with law and established legal principles etc.
You don’t need to ask why Sammy Awuku was found guilty but not convicted and sentenced, or why Stephen Atubiga and Ken Kuranchi didn’t get the same punishment for the same offence.
EQUALITY BEFORE THE LAW AND FAIRNESS
So people ask and vehemently contend that lesser sentences for the two alleged contemnors will not be justice and will be unfair to Steve and Ken or that that will amount to inequality before the law or an animal farm situation. Guess what, the court is absolutely empowered (depending on aggravating circumstances) to hand them up to six months jail terms.
It could also in its discretion order that any sentence handed them is suspended (depending on extenuating circumstances). In which case they don’t get to go to jail but will live with the criminal record all their lives. If you think that won’t be justice and fairness, check this, the court could even decide to simply caution and discharge them or exact a bond of good behavior from them and let them go. Whose justice are you looking for, and justice is in the bosom of their Lords. You see how useless all the pleas could be?
AGGRAVATING AND EXTENUATING CIRCUMSTANCES
Crimes are mostly punished depending on what the aggravating or extenuating circumstances are, and these are often based on the posture and attitude of the offender. This may not be the best example but it could drive home the point practically and I am referring to what happened to Sammy and Steve on the one hand and Ken on the other. Yet, the court could also take account of or judicial notice of the posture of those holding press conferences, making press releases or sending petitions and calling for the intervention of the Chief Justice.
The posture of the last bit by the Young Patriot in flagrant disregard to the same court’s earlier education to the public that such acts inviting a court to act in one way or another in a pending suit could be held to interfere with the administration of justice and so in contempt of the court. I have had occasion to gently advise respected politicians and professors who all mean well for this country, that the CJ just cannot assist in such a situation because she is not on the panel and the request cannot be for an administrative decision.
To the extent that they sought to make demands that some other persons had also acted in contempt of the court and suggest to the court that it is only when these are also summoned that the court would have done a fair job, they were wrong. A good friend Gabby Okere-Darko aptly describes such acts and others as “totally disrespectful, needlessly tasteless and counter-productively insane”. That is my humble opinion.
You don’t dictate to the court. You don’t look for political equalization in the courtroom, in the chamber of the Supreme Court. You don’t seek to intimidate or pressure the independent court. I know the court to be a court and of law not of politics and the judges to be judges practicing law not politicians practicing politics in the public square. This can be counter-productive but it is worthy of note that the group and its spokespersons seem to have toned down on that demand in the last few days, obviously upon good counsel. 1 Cor 6: 12 – All things may be lawful, but not all such may be expedient.
The other mitigating circumstances in the present case are that commentary or criticisms of and on the developments of the ongoing Petition have been largely measured and refined and more on facts and law since the jailing of Steve and Ken. That tells me the purpose of the contempt exercises, deterrence and due regard for due process have been largely served. The case is almost over amid massive prayers and calls for peace because of seeming political tension ahead of the Judgment. I would have been deterred right from the day the court hinted I might invite …over the matter.
JUSTICE AND MERCY
How does Shakespeare explore the theme Mercy vs Justice through the Merchant Of Venice? – “The quality of mercy is not strained, it droppeth as the gentle rain from heaven upon the place beneath. It is twice blest: it blesseth him that gives and him that takes…Mercy is above this sceptered sway, it is enthroned in the heart of kings, it is an attribute to God himself.” This condensed quote means that mercy is divine, and mutually beneficial (good for both the giver and receiver), as compared to justice.
The “sceptered sway” in this refers to justice, or the earthly law that goes By The Book. Mercy is also given freely, and is a great blessing to the receiver. I came upon this at answers.yahoo.com while googling the exact quotation by William Shakespeare and I choose to adopt it. I quote the Bible or Shakespeare and critics say we are in the court not church or …You may want to ask any officer of the court, ask the eminent Barrister Tsatsu Tsikata or his friend another very respected legal brain and former AG Joe Ghartey about the value of quoting scriptures in court – they love it because it works.
I end with my facebook post of July 8, 2013 – “Last Saturday I referred to reckless statements of impunity attributed to the NDC’s host of Majority Caucus on multitv – it attracted attacks that I am NPP and hypocritical and selective in sections of the rented press and careless propagandist. This Saturday, I refer to even more reckless statements by Sir John and co, and you say what? You think I care who makes these statements or which party they belong to? I have got an equal stake in Ghana – that’s my motivation. I can keep playing the ostrich and watch your politics that endangers this country.
But don’t think all of us will close our ears and eyes and await a bloodbath. # “There is nothing to be gained by championing extremist liberty”. LONG LIVE GHANA. Respectfully submitted. I am unable to read over this work this moment. I have got to hurry to find parking space at the court and a seat in the CJ’s Chamber.