Striking a Balance Between the Administration of Justice and Free Speech During the Live Broadcast of a Presidential Election Petition

Published date01 June 2015
Date01 June 2015

On 28 December 2012, the putative runner-up of Ghana's Presidential election filed an Article 64 petition, in response to the electoral commissioner's declaration of his opponent as President-elect of the country.1

Nana Akufo Addo et al. v John Mahama et al. [2013]. Supreme Court of Ghana, PetitionNo. J1/6/2013. The electoral commissioner declared that Nana Akufo Addo (of the New Patriotic Party (NPP)) and John Mahama (of the National Democratic Congress (NDC)) respectively garnered 47.7 per cent and 50.7 per cent of the valid votes cast. The petition alleged that the declared results were tainted by irregularities, malpractices, omissions and statutory violations.

An Article 64 petition conscripts the country's Supreme Court to determine whether the person declared as President-elect is validly elected and, where necessary, to invalidate the declaration and make other consequential declarations, including declaring a new President.2

Constitution of the Republic of Ghana (1992), Article 64.

The petition, and the ensuing hearings, were important in several important respects: (i) this was the first time the petition had been used in the history of the country; (ii) the petition captivated the public's interest given the petitioners’ political gravitas; (iii) the petition was quintessentially about a political matter, albeit litigated in a courtroom; (iv) the members of the panel hearing the petition, along with the Chief Justice, had participated in the inauguration and swearing in of the President, whose election's validity was now before them; (v) there was a realistic possibility of unseating an incumbent President, unheard of in Africa or even most of the advanced democracies; and (vi) the Chief Justice allowed live broadcast of the hearings, although it appeared that the panel hearing the case was not in support of such coverage.

The decision to broadcast the hearings created a demand for ‘analysts’ to explain the technical proceedings in the courtroom to the general audience. Self-styled analysts and politicians, known for their use of metaphor, hyperbole, colourful language, wishful analysis and emotive reasoning, filled this demand. In turn, these overnight analysts saturated the airwaves with irresponsible and dubious commentary, normal in ordinary politics, but unsettling to some in the virgin politico-judicial petition environment.

Matters appeared to have come to a head when the Court-ordered audit report of the pink sheets was leaked to the public and a newspaper report suggested that an alleged missing box of pink sheets had been found with the Presiding Justice of the Court.3

Pink sheets are the record of results declared at the polling stations and hence are the primary documents from which the electoral commissioner declares the overall results. See ‘Missing Pink Sheets Found’, Daily Guide, 18 June 18 2013, available at

Citing both incidents, the Presiding Justice reminded the public that the Court had awesome powers and issued a verbal warning in the form of

any person, be it in the media or not, who crosses the final touchline of proper coverage reportage will be met with the appropriate response. It is our bounding duty to uphold the authority of the state in its judicial sector and therefore this acquisition of uncontrolled power to do what people want in relation to twists and spins on our proceedings will be halted through the sanctions of the Court.4

‘Election Petition: Media's Uncontrolled Power Will Be Halted; Justice Atuguba Bares Teeth’,, 24 June 2013, available at

While the Presiding Justice did not expand on the nature and source of the Court's awesome powers, it was generally understood that he was referring to the contempt power.5

Constitution (1992), Article 126 (2).

It was not entirely surprising that live coverage of the Court's proceedings, in such a charged political environment, would degenerate into political hubris packaged as legal analysis. Politicians, after all, specialise in the manipulation of public opinion. What was immediately disturbing about the Justice's warning was the covert implication that the contempt power would be exercised to traverse other equally important constitutional values, including freedom of political speech, the media's independence and, possibly, the right to a fair trial. This was especially so as the warning failed to make clear how the hubris on the airwaves was interfering with the administration of justice. To the extent that there was any conflict, at all, it was expected that it would be resolved in such a way as to protect the administration of justice at a minimum sacrifice of freedom of speech, especially since the election season was still active and the live coverage of the petition whet the citizens’ appetite to dabble in coverage reportage

This paper is about the contempt proceedings that sprang up during the hearings of the election petition, which resulted in the sentencing of a newspaper editor and four political operatives. The proceedings divided and shocked the nation and led to petitions to the Supreme Court6

See, for example, S. K. Asare, ‘Petition To The Supreme Court Panel’, 10 July 2013, available at

and other hastily convened public forum.7

CDD-Ghana, ‘The Courts, Free Speech and Judicial Accountability in a Democracy: Defining the Boundaries’, 9 June 2013, available at

The contempt proceedings raised constitutional questions about free speech, media rights and the Court's power to curtail the liberty of citizens without following due process. The paper's primary objective is to discuss and evaluate the contempt proceedings and these constitutional questions. Based on the analysis, I conclude that the proceedings fell short of the procedural and substantive requirements under both the common law and the Constitution. As such, the Court missed an opportunity to strike a proper balance between the competing demands of freedom of speech and fair administration of justice, thereby substantially undermining the gains from the unprecedented live broadcast of the proceedings.

Nor should it be entirely surprising that the Court opted for a swift and authoritarian path, rather than the constitutionally mandated substantive and procedural route, to resolve what it probably perceived as an extraordinary problem. While the Constitution and the common law, under which the country have chosen to live, put emphasis on balancing competing rights, the Justices, who are supposed to do the balancing, are more familiar with and lean towards the cultural and swifter way of addressing conflicts. Whether at home, in school, at the office or at the tribe level, respect for hierarchy is paramount and offensive speech directed at authority figures is frowned upon and instantly, as well as severely, punished. Thus, while the Constitution and analysis of the common law may suggest that, ‘commoners can speak truth to power’, the Justices’ experience will suggest that doing so is not only unacceptable and disrespectful but also it is a social cancer that cannot be allowed to metastasise. In fact, it must be treated as and with contempt and punished instantaneously. In effect, the law to the Justices is not simply what is on the books. The law is what their cultural experience has taught them.

In the next two sections, I describe the contempt cases and the ensuing public reaction. These sections are followed by a general overview of the common law of contempt, followed by an analysis of the contempt of scandalising the court, which was the specific offence implicated at the proceedings. The purpose of this section is to define the contours of the offence, as it existed at common law as a benchmark for evaluating the Court's proceedings. I, next, discuss the country's constitutional guarantees of free expression and due process as limitations of the contempt power. I conclude that the contempt proceedings were deficient, from both a substantive and procedural perspective, when evaluated against either the common law or the country's Constitution. However, the contempt proceedings and the outcomes are neither surprising nor deficient when one considers the cultural backdrop and the Justices’ experiential foundations. This raises an unresolved question: whether culturally wired illiberal justices can enforce the rights and values enshrined in a liberal constitution?

The Contempt Cases

Sammy Awuku, an NPP communication official, was found guilty of scandalising the Court, apparently because he described the panel as ‘selective and hypocritical’, for citing only one out of several newspaper reports of the Court's proceedings. The Court banned him from making further appearances in the courtroom.8

‘Supreme Court Bars Sammy Awuku’, Daily Graphic, 26 June 2013, available at

Stephen Atubiga, an NDC political operative, was deemed to have scandalised the Court because he reportedly said: ‘Ghana cannot contain all of us if NPP wins the Court case.’9

See Supreme Court Officially Issues Summons to Kuranchie, Boahen & Atubiga., June 30, 2013, available at

He was sentenced to three days’ imprisonment.10

See ‘Criminal Contempt: Ken Kuranchie Jailed 10 Days, Atubiga Gets 3’,, 2 July 2013’ available at

Ken Kuranchie, an editor of a newspaper, justified Awuku's remarks and the Court found that scandalous enough to sentence him to 10 days’ imprisonment.11

Supra note 9.

The extra punishment meted to him was because he showed no remorse.12

Supra note...

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