Contempt versus Freedom of Expression

For the first time since I started writing newspaper columns, which dates back thirty-one years, I have to censor myself in a manner that must be considered unnecessary in the light of the 1992 Constitution’s liberal provisions on freedom of expression. This is because I am making bold to comment on the subject of contempt of court which arguably could land me in very hot waters. I shall tread very carefully, but even so, I do apologise profusely ahead of any perceived wrongdoing and plead vehemently that I will not knowingly commit the same offense again.
Last Tuesday’s controversial jailing of Mr Ken Kuranchie, the Editor of the Daily Searchlight and Mr Stephen Atubiga, a leading member of the ruling National Democratic Congress marked a significant occasion in the history and politics of freedom of expression in this country, but it was an event waiting to happen. This piece is not about whether the two convicted men committed the offense or whether the judges did the right thing by jailing them for ten and three days respectively. However, without seeking to flog the arguments further, one has to argue that in a democracy it has to take almost unbearable provocation or serious threat to stability or the state for people to be jailed for what they say rather than what they do.
The jailing of the two men for contempt brings into sharp relief the conflicts inherent in the real operations of the 1992 Constitution and the different contexts in which political processes are carried out on a daily basis. The framers of the Constitution sought to create a balance between competing demands and notions based on known assumptions about statecraft but heavily influenced by this country’s history. The main balancing act was to seek to provide different counterweights to an over-mighty executive arm of government and at the heart of this strategic constitutional balancing act is almost unlimited freedom of expression.
The ability of the people to comment on any and every issue has become the hallmark of Ghana’s democracy and this has happened for reasons probably not foreseen by the framers of the Constitution. The most important explanation is the development of communication technology which has made it possible for almost everyone who wishes to comment on any issue to do so. Specifically, the rapid expansion of broadcasting has been an unmatched opportunity in a way that could not have been imagined 20 years ago.
In the 20 years since the return to constitutional rule, politics has become one of the most lucrative businesses in our country and the winner-takes-all character of political spoils has introduced a hard and bitter edge to our politics that is not only corrosive but tends to undermine the very essence of democracy as a factor in promoting economic development and the overall wellbeing of the citizens and residents of this country. Compounded by the unfortunate blending of electoral choice with pure money-making and ethnicity, politics has become mostly a power struggle between individuals fighting for their self-interests; the perception that the rest of us appear to take sides for emotional reasons only adds to the confusion.
At the same time, broadcasting, especially radio, has turned politics into a mass sport, and as in any sport, the fanatical supporters cheering from the side-lines are more passionate than the actual players on the field of play. However, unlike sports, which can be enjoyed for displays of strategy, acumen, strength, endurance of even style, in the game of politics only one thing matters: the result. In this kind of atmosphere, almost every expression in the social sphere— economy, culture, including religion— has taken on political significance.
This is what has given inevitable rise to a group of people commonly known as “social commentators” and “communication teams” whose true calling is that of propagandists for political parties. I travelled to many parts of this country courtesy of STAR-Ghana during the run-up to the last General Elections; and as I changed radio stations, I was astonished at the number of people, usually young men who appeared to devote their entire waking hours to doing nothing apart from spinning for their political party hour after hour on radio.
It was inevitable that the current election dispute at the Supreme Court would become the biggest issue in this media circus. Personally, I lamented the decision to telecast the proceedings live because of a foreboding sense that apart from disrupting the little productivity there is, it would lead to interminable political quarrels as every faction tried to bend our viewing minds to its will. Herein lies an irony of television propaganda: the argument was that the live telecast would enable “all of us” to watch it and therefore keep us directly informed of what is going on at the court. What rather happens is that while “watching” television, what people “see” is mostly coloured by their own prejudices. (I know for a fact that when I watch any Hearts versus Kotoko match I see Accra Hearts of Oak playing fine football and Kotoko committing needless fouls…).
We have to thank God that we have a judiciary to take on the task of resolving an election dispute that elsewhere might have led to a violent conflict. The court can only do its work if all of us give it the space and respect it needs to accomplish its onerous task. This is where the culture clash comes in because the court process and the political media process, different as chalk and cheese they may be, are but two sides of the same coin. As far as the social commentators are concerned, the court process is a continuation of politics by other means; but the judges, (bless their pure souls) either see or want to see their role as completely judicial and devoid of any political context. It was inevitable that this culture clash would cause severe and dislocating battle of wills that would leave blood on the floor.
That is what has happened. We will all need time to sort out the relationships between different “stakeholders” in the grand institutional coexistence devised by the framers of the Constitution because there is a lot they could not have foreseen. What judges may rightly or wrongly see as “contumacious” behaviour by journalists and social commentators is now the everyday fare of political commentary in this country, and no person, institution or topic is deemed immune as a target or subject of their outbursts and abuse.
Without any reliable opinion polls, it is difficult to come to any scientific conclusions about public reaction to the jailing of the two gentlemen, but my own reading is that it has been received “politically” but also with sympathy because most people are probably put off by the incessant rambling of the social commentators on radio. In that sense, the Supreme Court judges have mined a rich seam of public opinion moving in their direction. But please let us stop and think.
The 1992 Constitution enshrined freedom of expression as a response to executive abuse to which institutions and citizens of this country, including the judiciary and judges had been subjected for years. In good times and bad times, the media and journalists are required to amplify our different voices and more importantly defend the rights of ordinary people through the media space. It is true that we have a very loud and boisterous media landscape, but would we rather have a tame and pliant media?
In its wisdom, the 1992 Constitution created the institution known as the National Media Commission (NMC) and tasked it with among other mandates, promoting the “highest journalistic” practice in this country. The NMC has developed instruments for ensuring that journalists and media institutions do not tolerate abuses including those that are contemptuous of our courts. Perhaps, the Court and all state institutions could strengthen this constitutional mechanism by engaging with it, because like the judiciary, it is also seen as a becalming influence in the inevitable conflicts that arise in the operation of a constitution that tries in its balancing act to be all things to all people.
It was probably envisaged that the day would come when the liberal political culture being promoted by the Constitution would clash with the necessarily austere outlook and demands of the court process; it was probably hoped that both cultures would survive.
I hope I have steered clear of contempt (So far).
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*The columnist is a member of the National Media Commission