A former Justice of the Supreme Court, Mr Justice Stephen Alan Brobbey, has cautioned that the law on ‘Contempt of Court’ should be applied in conformity with Ghana’s statute books and not as it ought to be.
He said failure to do so would result in uncertainty in the application of the law.
“We do not apply the law as it ought to be because that will mean espousing uncertainty in our jurisprudence,” the former justice stated.
He said although the law had been open to many interpretations, the duty of judges and magistrates before its application, was to first seek what the law was on the statute books, as decided by the superior courts, as contained in the common law or mandated by customary law.
Mr Justice Brobbey was delivering a paper at this year’s Ghana Academy of Arts and Sciences (GAAS) inaugural lecture on the topic, “The Law and the Practice of Contempt of Court in Ghana”.
Premising his one-and-half hour lecture on the judicial power of the state, the law as it is and the practice by which the courts stand by and apply decisions given by superior courts (the principle of stare decisis), the former Justice cited Article 129 (3) of the 1992 Constitution as having the highest authority on the principle.
“This Article simply means that when the Supreme Court has decided a case and has settled a principle of law, that principle is binding on all courts in the country. At the same time, the same article empowers the Supreme Court to give a different decision on an issue when it finds it appropriate to do so,” he said.
Need for Contempt Law
Stating that the laws on contempt were the product of the reaction of litigants, Mr Justice Brobbey said the law was necessary to make the different sides in a case behave appropriately.
“Law is, thus, the glue that bonds society together. It is the foundation on which social stability is sustained,” he said.
Explaining how the expression “Contempt of Court” evolved, Mr Brobbey stated; “Where people frustrate court investigations or defy court decisions or orders, they obviously proceed on the assumption that they can look down upon the courts or that they can take for granted what the courts stand for.
“That is another way of saying that they contemn the courts by their actions and omissions. From these was evolved the expression, ‘contempt of court,”
He said contempt of court was any act, omission or conduct that undermined the authority of the court or prejudiced fair trial and that its objective was to ensure effective administration of justice, by furthering fair trial and ensuring public faith in the administration of justice.
“It is not and has never been for the protection of the person of the judge who tries the case,” he stressed.
Judges not above criticism
Mr Justice Brobbey said the law on contempt did not mean that judges and magistrates could not be criticised, as indeed they welcomed such criticisms as they were the only means by which the courts could correct themselves and meaningfully serve humanity.
“Courts are presided over by judges and magistrates who are human beings. Being humans, the judges and magistrates are fallible and bound to err at one time or the other. Because we are fallible, we are susceptible to criticism,” he declared.
Mr Justice Brobbey, however, stated that in order for such criticisms not to attract the contempt charge, there should be a genuine exercise of the right to criticism, be a fair and accurate comment and must not be used to prejudice the proper trial of the action in court.
How it could be changed
While not advocating expunging of the law on contempt from the statute books, the former justice outlined four methods by which it could be changed by anyone or group of persons who desired to see that happen.
These, he listed as filing of a writ in the Supreme Court for interpretation of the constitutionality of the law on the procedure for investigating and punishing common law contempt of court cases and filing a review of the order in the Presidential petition, to be preceded with an application for the extension of time within which to file the review.
The third is by waiting for another chance when the issue of scandalising the courts arises in the Supreme Court or by getting Parliament to amend the law.
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