Free speech is the foundation of every democracy. Citizen’s ability to freely express their opinions and thoughts is what holds people in power in check. One cannot accept to serve the people in a high public office, be paid with Ghanaian taxpayers’ money whether these Ghanaians are rich or poor, educated or uneducated and yet refuse to subject oneself to the people’s scrutiny.

These introductory comments are founded on the back of a letter dated May 23, 2021, purportedly issued by Justice Cynthia Pamela Addo, the Judicial Secretary of Ghana on behalf of His Lordship the Chief Justice, Justice Kwasi Anin-Yeboah, petitioning the Chairman of the Disciplinary Committee of the General Legal Council (GLC) to investigate comments by a Colleague Member of Parliament, Member of the Constitutional Legal and Parliamentary Affairs Committee of Parliament, and a very senior member of the Ghana Bar Association who also served as a Former Deputy Attorney General.

Dominic Ayine was questioning the independence of the Judiciary in its adjudication of the presidential petition filed by John Dramani Mahama seeking to challenge the declaration of presidential results in the presidential elections of December 2020.

His Lordship the Chief Justice must realize that his position is not a private one and he is equally subject to public accountability and criticism. Questioning the independence of the judiciary is an expression of an opinion which every Ghanaian retains the constitutional right so to do. Justice emanates from the people and dispensed on their behalf by the Judiciary.

Contrary to all assumption that the Judiciary is infallible and beyond public constructive, academic and political criticism, it is rather apodictic that no human institution is inerrable. The constitutionally empowered citizens and not spectators have an indefeasible right to not only question any judicial process but also how justice is dispensed.

The essence of this write up is to briefly discuss the parameters of free speech under international, regional and local laws and demonstrate why the indicting letter issued at the call of the Chief Justice is an affront to the judicial oath and a dent in the successes so far achieved in the country’s efforts at guaranteeing the constitutional right to freedom of expression. 

2. FREEDOM OF EXPRESSION UNDER INTERNATIONAL LAW

The right to freely express one’s self is guaranteed by both the 1992 Constitution and various international laws. For the purpose of this article I will make reference to few of the provisions.

2.1 Universal Declaration of Human Rights

Article 19 of the Universal Declaration of Human Rights provides as follows “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”

2.2 International Covenant on Civil and Political Rights (ICCPR)

The ICCPR expands the scope by adding that it is a right for our freedom of expression not to be interfered with. Not only does it provide for the right but also kicks against interference of that right to freely express one’s self just like the Chief Justice of Ghana wants to do. It seems the Chief Justice believes in Constitutionality and yet does not want to be bound by constitutionalism.

According to Article 19 of ICCPR, “Everyone shall have the right to hold opinions without interference” and also that “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

2.3 General Comment No. 10: Freedom of expression (Art. 19)

The Paragraph 2 of the General Comments requires protection of the right to freedom of expression, which includes not only freedom to "impart information and ideas of all kinds", but also freedom to "seek" and "receive" them "regardless of frontiers" and in whatever medium, "either orally, in writing or in print, in the form of art, or through any other media of his choice". Impartation of what another person believes about the judiciary cannot be a subject of Petition such as the one written by the Judicial Secretary.

2.4 International Convention on the Elimination of All Forms of Racial Discrimination

Article 5 provides that “in compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (viii) The right to freedom of opinion and expression;

3. REGIONAL PROVISIONS ON FREEDOM OF EXPRESSION

3.1 African Charter on Human and People’s Right

At the regional level, the African Charter also confirms and consolidates the provisions as provided for by the UN. Article 9 provides that “Every individual shall have the right to receive information, and “every individual shall have the right to express and disseminate his opinions within the law.”

3.2 The Declaration of the Principles of Freedom of Expression and Access to Information in Africa

This was adopted by the African Commission on Human and Peoples’ Rights (the African Commission) at its 65th Ordinary Session which was held from 21 October to 10 November 2019

The Declaration was in accordance with Article 45 (1) of the African Charter on Human and Peoples’ Rights (the African Charter) which requires the African Commission to promote human and peoples’ rights, among others, by formulating and laying down principles and rules to solve legal problems relating to human and peoples’ right and fundamental freedoms upon which African States may base their legislation. The Declaration establishes or affirms the principles for anchoring the rights to freedom of expression and access to information in conformance with Article 9 of the African Charter which guarantees individuals the right to receive information as well as the right to express and disseminate information.

Among others the Declaration discuses the Importance of the rights to freedom of expression and access to information. It provides that “Freedom of expression and access to information are fundamental rights protected under the African Charter and other international human rights laws and standards. The respect, protection and fulfillment of these rights is crucial and indispensable for the free development of the human person, the creation and nurturing of democratic societies and for enabling the exercise of other rights.

3.3 State Responsibility Under the Declaration

Under the declaration, States are required to “create an enabling environment for the exercise of freedom of expression and access to information, including by ensuring protection against acts or omissions of non-State actors that curtail the enjoyment of freedom of expression and access to information”.

3.4 Non-interference with freedom of opinion

Principle 2 under the Declaration provides for Non-interference with freedom of opinion. According to the principle, Freedom of Opinion including the right to form and change all forms of opinion at any time and for whatever reason, is a fundamental and inalienable human right indispensable for the exercise of freedom of expression. States shall not interfere with anyone’s freedom of opinion.

4. FREEDOM OF EXPRESSION UNDER THE 1992 CONSTITUTION OF GHANA

The Constitution of Ghana also provides great answers to the question of Fundamental Human Rights generally and more specifically provides for Freedom of Expression. In deed Article 12 guarantees fundamental rights and requires all agents of the Executive, Judiciary and the Legislature to respect these Fundamental rights. It is a bit worrying for the Judiciary which we run to for the enforcement of these rights under Article 32 of the Constitution to be the one endangering this right to freely express one’s self. The Chief Justice must realize that his action poses great danger to our democracy as it has the tendency of undermining freedom of Expression which is a building block of this democracy.

Freedom of Expression is provided for in Article 21(1)(a) of the 1992 Constitution. The constitution provides that “All persons shall have the right to freedom of speech and expression, which shall include freedom of the press and other media”.

Our Constitution is also mindful of the fact that the human Rights provisions in our constitution may not be exhaustive. Thus Article 33(5) provides that “the rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man”. It is based on this provision that the provisions on non-interference with this right to freedom of Expression must be upheld and any sign of that interference such as what the Chief Justice seeks to do must be fearlessly resisted.

The Chief Justice must realize that the Judiciary is a very important organ of state and has a duty to help build a society of freedom. Article 37 (1) provides that “the State shall endeavour to secure and protect a social order founded on the ideals and principles of freedom, equality, justice, probity and accountability as enshrined in Chapter 5 of this Constitution; and in particular, the State shall direct its policy towards ensuring that every citizen has equality of rights, obligations and opportunities before the law”. This obligation on the state is also on the Judiciary headed by the Chief Justice. The said letter by the Chief Justice clearly betrays this obligation.

It is also provided in Article 37(3) that in the discharge of the obligations stated in clause (2) of this article, the State shall be guided by international human rights instruments which recognize and apply particular categories of basic human rights to development processes. It is also in the light of the foregoing that I have taken time to draw readers attention to the various provisions under international and regional instruments on freedom of Expression.

I consider the Petition of the Chief Justice as a needless interference with freedom of expression of Dr. Ayine. Unless there is any clear legal provision that was violated by Hon. Dominic Ayine, the Petition has no legal basis at all. At best it is a means to suppress freedom of expression and a failed attempt to shield the judiciary from public accountability.

5. ANALYSIS OF ISSUES RAISED BY THE LETTER OF THE JUDICIAL SECRETARY

Three key issues emanate from the letter of the Chief Justice to the Disciplinary Committee of the General Legal Council.

• Whether the act of expressing an opinion on a matter already decided by the court violated any statute?

• Whether the the previous contempt charges against Dr. Ayine estopped him from commenting on the judgment after it was delivered?

• Whether or not the assertion that we did not have an independent judiciary violated the Legal professions Act or the Etiquettes Rules for Lawyers?

5.1 Commenting on a matter already decided by the court.

When a court delivers judgment in a case before it, the court becomes funtus officio. Thus, the court is stripped of its power and jurisdiction over the said matter. In other words, the mandate of the court in the matter has expired and the court does not exercise. That being the case any individual or lawyer who comments on such judgment would have the right to do so. There is no provision in the Legal Professions Act, 1960 (Act 32) that makes such conduct a crime or misconduct.

Such a comment also does not violate any known provision in the Legal Profession (Professional Conduct and Etiquette) Rules 2020, L. I 2423. It is also clear that a careful reading of the provisions of the Legal Professions (Disciplinary Committee) Rules, 2020, L.I 2424 shows that the committee’s jurisdiction is triggered by complaints under Rules 1, 2 and 3 by a complaint of dissatisfied professional conduct.

Clearly commenting or expressing one’s view on a judgment of the court does not constitute any misconduct under these laws, and the Disciplinary Committee’s jurisdiction has wrongly been invoked as the said letter by the CJ does not contain any fact as to misconduct or the breach of any professional code. There is no provision in the above laws for “Petition to Investigate”. The law only makes provision for a complaint of misconduct, and hence the said letter has no legal basis.

5.2 Previous Contempt Charge not a bar to Freedom to Express future opinion

References to previous contempt charges are clear attempts to prejudice any investigation, that is, if it even occurs. What has previous comments to which Dr. Ayine apologized got to do with any new complaint of professional misconduct? It stands to reason that as a senior lawyer, Dr. Ayine takes a cue from the bench to apologize for comments made during the pendency of the action on grounds that the comments could prejudice the outcome of the decision and is contemptuous. Everyone can make that mistake and taking responsibility for that and apologizing was the right thing any honourale member would do.

But it must be placed on record that apologizing for contemptuous comments made during the subsistence of action is not a bar to freely express your opinion on the eventual outcome of the court’s decision. That is what Article 19(1) (a) and the several International Human Rights instruments cited above guarantees. Freedom of expression and of opinion is a fundamental human right and its force cannot be whittled down by previous contempt charges. Dr Ayine committed no wrong for freely expressing his views on judicial independence in relation to the presidential petition.

5.3 Questioning Judicial Independence does not violate the Legal Professions Act and the Legislative instruments made pursuant to the Act

It is critical that we ask whether or not the assertion that we do not have independent judiciary violates the Legal professions Act or the Etiquettes Rules for Lawyers. Every Ghanaian can ask that question and every lawyer, law maker and even an accomplished academic like Dr. Ayine can question the independence of the judiciary. I have argued earlier that Article 125 (1) of the 1992 Constitution clearly provides that “justice emanates from the people and shall be administered in the name of the Republic by the Judiciary which shall be independent and only subject to the constitution”.

Any citizen who believes that justice is not properly being administered or the judiciary is not acting as being independent as it should be has a constitutional right to freely express that without restraints. That definitely would not constitute any professional misconduct for the purposes of disciplinary action or investigation as requested by the Chief Justice.

6. CONCLUSION

From the above, it is quite preposterous for no mean person other than the Chief Justice of the Republic of Ghana to seek to undermine fundamental freedoms provided for under the 1992 Constitution and other international laws through this backdoor approach of petitioning the Disciplinary Committee of the General Legal Council. As argued above, freedom of expression is a foundational right that guarantees the continued existence of constitutional democracy.

Take out freedom of expression and your democracy would have no meaning. Dr Ayine did no wrong with his speech. He was freely expressing his opinion in accordance with Article 21(1)(a) and did not breach any provisions in the Legal Professions Act, 1960 (Act 32) or the Legal Profession (Professional Conduct and Etiquette) Rules 2020, L.I 2423. Clearly, the mandate and jurisdiction of the Disciplinary Committee have wrongly been invoked contrary to the Legal Professions (Disciplinary Committee) Rules, 2020, L.I 2424.

The Chief Justice should do the most honourable thing to withdraw this shameful Petition to save the reputation of the Judiciary else he will reduce the revered institution to an institution of pettiness and demigods who are beyond criticism, this would make the institution a laughing stock. The Chief Justice has an opportunity to save his own reputation and that of the Judiciary. A Democratic state like Ghana deserves more from its Chief Justice than this needless pettiness that undermines the very essence of our democracy. 

*****

The writer, Francis-Xavier Sosu is a private legal practitioner, human rights lawyer, MP for Madina Constituency, Member of Appointments Committee and Deputy Ranking Member of the Constitutional, Legal and Parliamentary Affairs Committee of Parliament. He can be contacted via: francisxavier.sosu@gmail.com