Judiciary under fire: Mob mentality versus siege mentality?

On February 25, 2021 the Judicial Service of Ghana took an unprecedented step of issuing a warning to all media houses, through its lawyers, against “publication and/or permitting the publication of…incendiary, hateful and offensive statements, and speeches on their various platforms against…Justices”. The legal warning urged affected media houses to, among others, “pull or cause to be pulled down and cleared from your platforms, all statements and speeches which convey and/or insinuate hateful, spiteful, vengeful and incendiary communication against Justices…especially those hearing the election petition”.

While some people have criticised the Judicial Service by describing the legal warning variously as gagging the media, gagging freedom of speech, contempt of the people, et cetera, others have suggested that it is the conduct of Judges that erode confidence in the Judiciary and not the opinion of the people. I’d like to focus this short article on the suggestion that it is the conduct of Judges that erode confidence in the Judiciary, not the opinion of the people.

First of all, it is very dangerous to generalize grievances in order to justify every other conduct, legitimate or illegitimate. What specific conduct of Judges are we talking about here? What specific concerns has the Judicial Service raised? Were those concerns as a result of the people’s reaction to the conduct of Judges in general, or specific to those people’s unhappiness with rulings of the Justices of the Supreme Court in relation to the 2020 Election Petition? Any suggestion that some people are justified in threatening Justices of the Supreme Court as a result of “the conduct of Judges” is totally misconceived and only creates a mob mentality among such people, who feel emboldened to pursue their agenda because everything they say or do is justified under the broad umbrella of freedom of speech and “the conduct of Judges”.

What really is the cause of the current impasse between the Judicial Service and a section of the media/public? It is simply that some people who are not satisfied with the rulings of the Supreme Court in the ongoing Election Petition, have gone to what the Judicial Service sees as extreme ends to attack the Court and to threaten Justices of the Court. The Judicial Service has not suggested that the public cannot express any opinion on the Court and its rulings. Indeed, framing the issue as ‘the conduct of Judges versus opinion of the people’ is to deliberately create the impression that the Judicial Service is fighting against freedom of speech of the citizenry. Are we saying there is no legal limit or responsibility to freedom of speech?

In any case, when it comes to some people being unhappy with the rulings of the Court, in an adversarial legal system such as ours, we will always have people who would be unhappy with the rulings of the Court! In the case of Mechanical Lloyd Assembly Plant v Nartey [1987-88] 2GLR 598 at 603-604, Adade JSC stated, inter alia:

“A person who has lost a case will almost instinctively feel that the judgment must be wrong. And why not? If he had won, the decision would be right; so, if he lost, how could the court be right?”

If the argument is that some people are justified in threatening Justices because they are unhappy with the rulings of the Court in the 2020 Election Petition, what we are actually advocating for is that whenever people are dissatisfied with the decisions of Judges, they can take the law into their own hands by threatening the Judges involved. This has nothing to do with people exercising their democratic right to freedom of speech. These are real threats against real citizens who happen to be Justices doing their job, and if history is anything to go by, it would be foolish to ignore threats against Justices of the Supreme Court!

That said, I also think the Judicial Service could have written to only specific Media Houses complaining about only the specific texts that were deemed as threatening or inciting hate against the Justices. Writing to all media houses and broadening the scope of concerns creates a sense of a Judiciary under siege, which would also be an exaggeration in the larger scheme of public engagement with the judiciary. While attempting to nib any threats in the bud, it is also important not to create the slightest impression that the Judicial Service is unable to cope with intense scrutiny.

Let me conclude by saying, in our adversarial judicial system, and especially in a politically-charged election petition, there will be winners and losers. In 2013, there was a winner and a looser. What happened? The loser disagreed with the Court but accepted the verdict. What is happening is not a criticism of the judgments and/or rulings of the Supreme Court, but vile attacks on the Court, which is not acceptable in any decent country or democracy. There are always legitimate avenues for losers to express their unhappiness. Anything else which bothers on threat to life and property and general criminality, cannot be condoned in the name of freedom of speech, freedom of expression or freedom of assembly. I wonder if many Ghanaians endorsed or justified the incitement to and the violent insurrection that took place on the US Capitol on January 6, 2021. If not, why would we continue to justify threats and violent rhetoric against our Supreme Court Justices by people who are dissatisfied with rulings of the Court in an election petition?