A: Introduction

Writing is my love. And a jealous lover it is. Once you fall into its grip, you are done for. It takes over every waking hour of your life. When that love shifts from being platonic to economic in mid-life, its grip turns brutal. You tend to miss out on small gatherings you used to attend to let your hair down and soak up some fresh gossip in town every now and then. Even the occasional pleasure of social media ‘sight-seeing’ is lost. You seem like you were back in the 1970s and ‘80s when you were growing up with less technological distractions and more authentic human relationships.

B: The Celebrity Tour

With my face perpetually hidden behind legal texts, I missed the rise of a certain young man called “IShowSpeed.” How did I hear of him? The few times I drifted off for a few seconds to read news headlines last week, I saw this fresh-faced lad in the news. On one occasion, he was reportedly in Nigeria. On another, he had arrived in Ghana. Who is this guy? I asked rhetorically. Usually, I would have gotten immediate answers from the youngsters in my yard. In their absence, I had to find out for myself. Here it went: IShowSpeed is an American. He is a YouTuber. He is on an African Tour. Ghana was one of his chosen stops, Etc., etc. All well and good, I said to myself.

A day later, young ‘bro’ was touring Accra. Bukom, check. Nkrumah Mausoleum, check. Both are standard tourists’ sites. Then the tourism discovery of the year - Hamamat Shea Butter Museum! The sheer innovation of the concept blew me away. To see a young Ghanaian woman set up such an authentic business and positioning herself for the global audience was a delight. But the real delight was when I learned that IShowSpeed was going to be massaged by ten maidens with shea butter! Holy God of hosts!! This was going to be the highlight of the tour, I guessed. And boy, it was.

I understand IShowSpeed was billed to go and savour waakye at Reggie Rockstone’s as part of the tour. But after the 10-maiden massage, the guy was completely knocked out. Reggie, ever the affable, concurred in a social media post later that after such a thriller, he understood why his waakye had to take a backstage.

Local tourism needs be encouraged. In that regard, I have made a mental note to contact Hamamat Shea Butter Museum and enquire whether they have similar packages for middle-aged women. If so, whether those packages come complete with ten ‘lads’ as well. Most importantly, whether the lads could, in addition to the full body component, massage “mpԑsԑ mpԑsԑ”[1] with shea butter, one locked strand at a time. The prospect of the adventure is exhilarating enough. There is better tourism at home!

C: The Supreme Tour

It so happened that as IShowSpeed was touring Ghana and having the time of his life, the Supreme Head of Ghana’s Judiciary had similar ideas. Unlike the young man’s tour that was literally pressed into our eyes – thanks to the internet and its offspring, social media – the Supremo’s was benign. Underground, so to speak. It must be placed on record that The Supremo was not found anywhere near Hamamat’s; in case Ataa Ayi had, by stroke of an impossible luck, done a prison break and gone there  for a 10-maiden treat. But Mr. Markin and friends (collectively called “the Minority in Parliament”) decided to blow the Supremo’s cover. A Press conference was held and bam: “Is the CJ on a ‘thank you’ tour?” became the by-line.

As it later emerged, the Supremo had been moving from office to office, on what has been dubbed as “institutional visits,” visiting the Vice-President at Jubilee House, Speaker and Members of Parliament at Job 600, Minister of Finance, Minister of Education and the Inspector-General of Ghana Police Service.[2] This “tour de Accra” was an industry first. I am not sure what the next stops will be but I suspect they will include Metro Mass Transit Company (to discuss the recent heavy traffic in Accra), Youth Employment Agency (to discuss ways to curb thousands of youth queuing to apply for non-existent military jobs) and NADMO (on ways to assist victims of bushfires in this Harmattan season). How else will the high and mighty trend before the journey into oblivion?

It seems, as lawyers, we have been so saddened by the intended obliteration of Ghana Bar Association (GBA) from the 1992 Constitution that, we missed H. K. Prempeh’s Constitutional Review Committee’s recommendation for the removal of the doctrine of separation of powers under the Constitution. Perhaps, it is in the latest spirit of “all play all” that a CJ will leave the fortress of the Supreme Court Building and go about town, hobnobbing with the heads of potential current and future litigants. When the Minority raised issue and touted the “visits” as politically-motivated, the Judiciary went silent. Our GBA, the Judiciary’s regular mouthpiece, is sitting somewhere reflecting on its mortality and impending demise. The GBA cannot continue to love its neighbour more than itself when the neighbour is tittle-tattling with their imminent executioners.

As an Association, we are utilizing our final energy prior to our eventual erasure from the Constitution to self-reflect. We have left the Judiciary to be its own voice. It is a shame, though, that we feel so beaten by the proposed amendment that we have been crippled into inaction. Not a Press Conference. Not an emergency general meeting. Not a Press Statement. Nothing. Are we taking this constitutional coup d’état without demurrer? “Fie on it!” as Hamlet would say. Is this the same GBA that birthed Ghana Bar Association v Attorney-General (The Abban Case)[3] Ghana Bar Association v Attorney-General (The High Court’s jurisdiction in chieftaincy matters case),[4] Kuenyehia v Archer[5] and Ward-Brew v Ghana Bar Association (No. 1),[6] among others?

In the nature of things, the Constitutional Review Committee would not strip the GBA of its constitutional privileges and leave a vacuum. As the saying goes, ‘soldier go, soldier come.’ In the circumstances, the GBA’s intended-successor-and-sibling-of-half blood is gearing up its boots to step into GBA’s footprints. Not surprisingly, once the CJ’s “tour de Accra” came under the Minority’s radar, the duty fell on the President of the GBA’s intended-successor - known as Law Society of Ghana or Ghana Law Society or Law Society Ghana or Society of Law Ghana (choose whichever tickles your fancy, please) - to step forward and defend the CJ.

Coming events, the sages say, cast their shadows. Even before the Society’s legal existence is decided by the courts, its President is defending the CJ. Even before the Society’s writ filed at the Supreme Court challenging the GBA’s sole recognition under the Constitution as the only association of lawyers in Ghana is heard, its President and plaintiff in the pending suit is defending the CJ’s actions. And even before its application for recognition to issue solicitors license pending before the General Legal Council (chaired by the CJ) is heard, its President is the person publicly defending the CJ.

Obviously, ‘Association’ and ‘Society’ are different sides of the same coin. Both have developed a morbid attachment to the Judiciary. To be fair, for the ‘Association,’ the attachment to the Judiciary became eminent only a couple of years ago when they decided to collect money (solicitors license fees) that should have gone into the Government’s Consolidated Fund into their private account on behalf of the General Legal Council – which is chaired by the Head of the Judiciary. As for the Society, they have started to embrace the Judiciary even before their existence is established. Methinks should go for a “Union” or “Assembly” next time. For example, Ghana Lawyers Union; Assembly of Ghanaian Lawyers. Not bad. But the only determinant of its survival will be whether it will inoculate itself against the Judiciary-ingratiating virus.

D: Criticism is not contempt

Our American tourist, IShowSpeed, breezed through town for a couple of hours and got a Ghanaian passport as souvenir. His Eminence, B-B, CJ, stepped out for fresh air and it gave the Minority enough content for a presser. In fact, at the presser, the Minority warned the Supreme Court to tread cautiously when dealing with some newly filed (but unnamed) cases. They openly called into question His Lordship, the CJ’s mode and means of ascension to the coveted throne. In a democracy, these are every day stories. Or so we thought.

Just around the same time, a gentleman posted a piece on social media commending Kenya’s High Court for declaring certain public service appointments unconstitutional. He wondered whether our Supreme Court could, or would do same in similar circumstances. Unbeknownst to the gentleman, internet crawlers had picked up his piece and sent it to His Lordship, The Scott, JSC, a Justice of the Supreme Court and member of the CJ’s ‘tour de Accra’ team. As for Mr. Markin & Co., The Scott, JSC watched them live on YouTube, along with ISpeedShow’s 10-maiden massage with his own eyes. He realised it would be a long shot trying to accost Mr. Markin & Co. and give them a befitting response to their press conference tales. They might take cover under Parliamentary immunity and cause more havoc with further press conferences. The weather permitting, they could even occupy the grounds of the Supreme Court Building on their bare butts. No sane person would risk such outcomes.

God, indeed, answers prayers. The Kenya High Court story commentator reportedly found himself in the Supreme Court Building a day or so after his social media post. He met face to face with His Lordship, The Scott. According to unconfirmable reports, as soon as The Scott spotted the gentleman in the Supreme Court, his jaws locked, his sinews tightened, his eyes narrowed and his heart rate reached 200 bpm. In that moment, he decided not to miss the opportunity to use Mr. Kenya as a conduit to warn all perennial Judiciary critics nationwide. His Lordship, The Scott decided to transmit the CJ’s – and perhaps, his own – anger at what he considers to be incessant criticisms of the Supreme Court and the CJ unto the poor guy. His Lordship reportedly had some rich words for him, not least of which were threats to commit him for contempt.

Some lawyers reportedly spoilt the show by pleading for mercy for the gentleman, who by then was as shocked at the outburst as all persons present. Those pleading lot should have allowed the feast to run its full course: Charges preferred and read by the complainant against the accused, accused tried by the complainant and sentenced by the complainant. By pleading, they deprived us of enriching our knowledge regarding the intersection of the law of contempt “ex facie curiae” and citizens’ right to free speech.

It is interesting to recall that ever since the Judiciary issued threats - and even, on occasion, through private lawyers - to seek to gag citizens, citizens have largely ignored those acts of intimidation. Is it now the case that a lawyer who criticizes the courts – nay, praise courts in another Common Law jurisdiction over ours on a particular subject – risks being charged with contempt? I, with all due deference, find myself unable to condescend to the fallacy of asserting that criticizing a court or its decision is contemptuous.

Our courts must realize - and the law is quite clear - that criticism of the court and of judicial decisions, however rumbustious, whether or not in good taste, and despite its inaccurate statement of fact, is not a contempt of court. It is within the limits of the inalienable right of every individual to freedom of speech.[7] The right of citizens in a democracy to criticize public office holders and their decisions, coming through the Executive, the Legislature and the Judiciary is as old as time itself. The Supreme Leaders must rest assured that no amount of threats of contempt will suffice to curtail criticism and commentary on and about the courts and their decisions. It is the citizens' constitutional right to do so, in the same manner as Justices are free to proffer dissenting opinions, even if serially. As The Osahene, flanked by his Kontire and Akwamu divisional chiefs recently declared, citizens will rather occupy Nsawam than hold their tongues in fear.

E: Conclusion

I cannot help but conclude this piece with Lord Denning, MR’s wise dicta on reasoned criticism of judges and judgments in R v Commissioner of Police of the Metropolis; Ex parte Blackburn.[8] Speaking as a Justice of the English Court of Appeal, he expressed himself as follows:

“We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even out-spoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication." (Emphasis supplied)