This article is prompted by the Supreme Court’s handling of the thorny issue of contempt outside of court, technically referred to as “ex facie curie,” in the ongoing presidential petition. I begin on the simple premise that what enhances our progress as a nation in one sphere stifles our progress in other spheres.
Specifically, our unique cultural virtue of forgiveness and tolerance make us a peaceful people…but at what cost? “Could there possibly be a down side to a good virtue that is exercised with the best of intentions?” you might ask almost absent-mindedly. My answer is yes. I will explain, but first, let me mention that I will use President Mahama and Mr. Awuku to represent different power hierarchies in the Ghanaian political system. I do not intend to invoke partisan sentiments to please or displease any particular faction.
The Supreme Court, led by Judge William Atuguba, issued three unambiguous warnings to the public on three separate occasions against making contemptuous remarks. According to the court, contemptuous statements, by their deceitful nature, tend to mislead and inflame passions of unsuspecting members of society, and could ultimately lead to chaos and conflict. Needless to say, these warnings came from the highest court of the Republic of Ghana adjudicating over a uniquely sensitive case with no precedent of its nature and importance. Ordinarily, you would expect political leaders to hold their followers in check against making unguarded comments while the case is still being decided in court. However, the situation on ground has proven to be the polar opposite, leaving respectable members of society baffled. The troubling situation is that it is not only the “young and inexperienced” NPP Deputy Communication’s Director, Samuel Awuku, who is guilty of breaching the court orders; the President himself, John Dramani Mahama, may as well be guilty.
At the 20th anniversary ceremony of a gathering in the Eastern Region, the President made a controversially contemptuous public statement to the effect that his presidency is God-ordained. This is coming at the time that his legitimacy as the president of Ghana is being decidedly challenged in court. His message may sound harmless on the surface, but it carries grave implications for a) national peace and security and b) the integrity of the Supreme Court. His message provides a moral justification for his over-zealous supporters to cause a “Jihad” sort of mayhem in the event that the court ruling does not go in favor of his administration. This is a classic indirect ex facie curie, but the Supreme Court did not consider it contemptuous enough or chose to ignore it, despite issuing a number of warnings just weeks ago.
Constitutionally, we know the president cannot be cited for contempt by any court. Ace Ankomah, the legal pundit, commenting on this post on my Facebook timeline, stated, “Citing the President for contempt will unleash a major constitutional crisis. He cannot be the subject of any civil, criminal or quasi-criminal proceedings whilst in office.” But he was quick to add, “…his continued breach of the law could be a ground for impeachment.”
Finally, the Supreme Court found a perfect scapegoat—a young and ambitious Samuel Awuku—who allegedly described one of the court's punitive measures as “hypocritical and selective.” The Atuguba-led judges appear to have had enough; the rod of justice must strike. However, what unfolded next may surprise the rest of the world, but not Ghanaians. It will effectively launch us into the primary import of this article.
The judges took more than one hour out of court proceedings to deliberate and decide on what to do with this individual. Yes, one hour of Supreme Court’s time! Psychologists have long noted that certain kinds of punishment actually reinforce undesirable behaviors, instead of curbing them. In this case, giving the culprit an unprecedented attention on national television is a powerful negative reinforcer, especially if the punishment is not deterrent enough. Eventually, the court decided to temper justice with mercy, as the respondents and petitioners both pleaded on his behalf, in line with the Ghanaian culture of forgiveness and tolerance. He later issued an apology. In Justice Atuguba’s ruling on the case, he stated,
“We have considered the candid admission of Mr. Sammy Awuku’s utterances…in reaction to the final warning of the Court with regard to improper reportage and the previous warnings of this court concerning contemptuous comments, utterance and attitudes towards this apex court of Ghana, issued just on the 24th day of June 2013. He has apologised and withdrawn the same before this Court and has further undertaken to repeat the retraction by 6pm today.”
Mr. Awuku’s only punishment for willingly flouting the rules of the court was exclusion from court proceedings for the duration of the case. The judges exercised a prime Ghanaian cultural virtue of forgiveness and tolerance. Is this not a good and humane gesture? I do not necessarily think so.
The tendency to forgive, even after three warnings by the highest court of the land, is partly what makes Ghana a uniquely peaceful country in Africa—but also notoriously lawless. Principles do not run deep enough, and laws are not applied consistently across board. This same reason explains why corruption is deeply entrenched in society—one can break the law with impunity, but find ways and means to evade punishment, especially if they are a “somebody”…but what happens to the “nobodies”?
If the Supreme Court needed only an apology, after three forewarnings on-camera, in order to allow the sword of justice to strike on a willful contemnor, I do not see how that sends a good signal to ordinary Ghanaians to uphold the law off-camera. In my view, if the President himself had been reprimanded publicly by the Court for his problematic declaration in the first place, Mr. Awuku would have been reasonably deterred. By applying what seems to be selective justice, the court was somehow obliged to pardon Mr. Awuku in order to avoid a possible public backlash from the opposition faction.
Our culture of forgiveness is great and has caused our peace as a nation to be abundant, but the opportunity cost is that our principles are shallow, our application of justice is selective, and this creates the right conditions for corruption to thrive. What enhances our progress in one sphere stifles our progress in other spheres, but how do we deal with this apparent paradox? Perhaps it is time our well-placed intellectuals paid scholarly attention to some of our subtle little devils.