CONTEMPT OF COURT AND CRITICISM OF A COURT’S DECISION: WHERE MUST THE LINE BE DRAWN? PART 1 by Frederick Agaaya Adongo


Article 19(12) of the 1992 Constitution provides to the effect that the rule that no person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law “shall not prevent a Superior Court from punishing a person for contempt of itself notwithstanding that the act or omission constituting the contempt is not defined in a written law and the penalty is not so prescribed”. Article 126(2) also provides that “The Superior Courts shall be superior courts of record and shall have the power to commit for contempt to themselves and all such powers as were vested in a court of record immediately before the coming into force of this constitution”. These provisions therefore recognize the offence of contempt of court. This leads us to a very perplexing, and of course essential, question as regards what contempt of court is. Nevertheless, any invitation to provide a definition for a legal concept, such as this, must be resisted because of the obvious problems associated with definitions. As such, to be able to understand what the offence of contempt of court entails, recourse can be had to a number of cases that have attempted to clarify the rationale and categorizations of the offence.

In the case of Agbleze and Ors. V. Attorney General and Anor (J1/28/2018) [2018] GHASC 68, Sophia Adinyira JSC noted the rationale for the offence of contempt of court and the categories of the offence in the following words: “One of the main objectives of the offence of contempt of court is to protect the dignity of the court and the justice delivery machinery. The concept of contempt of court is to prevent unjustified interference in the authority of the court. There are two types of contempt; (a) where a party willfully disobeys an order or judgment of a court, and (b) where a party knowing that a case is sub judice, engages in an act or omission which tends to prejudice or interfere with the fair trial of the case despite the absence of an order of the court”. 

I view the statement made by the learned Justice above in respect of the categories of contempt with much skepticism for two reasons. First, the second category of contempt presupposes the possibility of the commitment of people for contempt of court for proffering their opinions in respect of matters pending before the court. In fact, a number of people have been punished for contempt on that ground. The purpose of this, it is argued, is to ensure that the courts are not tagged as giving their rulings in line with the opinions of the public as same has the tendency of reducing the authority of the court. However, in the case of Vine Products Ltd v. MacKenzie & Co. Ltd. [1965] 3 All ER 58 Buckley J noted that: “It has generally been accepted that professional judges are sufficiently well equipped by their professional training to be on their guard against allowing [a prejudging of the issues] to influence them in deciding the case”. Therefore, I find it unmeritorious for a court to commit a person to contempt of court even if a person proffers his opinion publicly in respect of a case pending before the court, unless there is a personality attack on the empanelled judges or some other extraneous thing that has the tendency of invariably perverting the smooth administration of justice. However, merely proffering an opinion in respect of the merits of a case that is pending before court should not be enough ground to constitute contempt of court.

Secondly, a closely related ground to the second but materially different from it is a situation whereby statements are made in respect of decisions of courts after they are made. People have been committed for contempt in respect of that ground on numerous occasions. The learned Justice’s probably inadvertent failure to include this ground is also a cause of worry as her formulation does not fully address the offence of contempt of court.

Moving on, inspiration with regard to the offence of contempt of court can be drawn also from decisions of other common law jurisdictions on the subject. That said, let us avert our minds to the opinion of Lord Diplock in the case of Attorney General v. Leveller Magazine Ltd. [1979] AC 440 wherein he attempted to describe the offence in the following words: “Although criminal contempts of court may take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice, either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it”. 

Accordingly, in the case of R v Gray [1900] 2 QB 36, a journalist was adjudged guilty of contempt for describing a judge as an “impudent little man in horsehair, a microcosm of conceit and empty-headedness”. The court noted that those words used amounted to contempt because they were “personal scurrilous abuse of a judge as a judge” Lord Russel in delivering the judgment of the court noted that “any act done or writing published calculated to bring a court or a judge of the court into contempt, or to lower his authority, is a contempt of court”. 

Again, in the case of McLeod v. St. Aubyn ([1899] AC 549, the court held that “the enforcement in proper cases of committal for contempt of court for attacks on the court may be absolutely necessary to preserve in such a community the dignity of and respect for the court”. 

The offence of contempt of court is therefore necessary for the preservation of the authority and independence of the courts. It is in this light that the court would treat matters that are scandalous of the court as contemptuous and therefore punishable. And as the court noted in the case of Chokolingo v. AF of Trinidad and Tobago [1981] 1 All ER 244 contempt does not necessarily connote any attack on the personality of a judge. In the exact words of the court,“‘scandalizing the court’ is a convenient way of describing a publication which, although it does not relate to any specific judge, is a scurrilous attack on the judiciary as whole, which is calculated to undermine the authority of the courts and public confidence in the administration of justice”. 

The offence of contempt of court should not be misconstrued to mean that judges are immune from criticism in respect of what they do and say. In Attorney General v. Times Newspaper Ltd. [1974] AC 273, Lord Diplock had this to say: “The due administration of justice requires first that all citizens have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly, that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court”. 

In the matter of The Sunday Times v. United Kingdom, 26 April 1979, Series A No. 30, 14 EHRR 229 the importance or the rationale of the offence of contempt of court was summarized thus: “If the issues arising in litigation are ventilated in such a way to lead the public to form its own conclusion thereon in advance, it may lose its respect for and confidence in the courts. Again, it cannot be excluded that the public’s becoming accustomed to the regular spectacle of pseudo-trials in the news media might in the long run have nefarious consequences for the acceptance of the courts as the proper forum for the settlement of legal disputes”. 

Proceeding from the above, it is trite learning that to constitute a crime two principal elements must be made out: the mens rea and the actus reus. However, a number of English cases appear to take the view that the mens rea requirement is wholly immaterial in making out the offence of contempt of court. Accordingly, the court noted in the case of Odhams Press Ltd.; Ex Parte Attorney-General [1957] 3 All ER 494 that: “The test is whether the matter complained of is calculated to interfere with the course of justice, not whether the authors and printers intended that result”. The High Court of Australia toed the same line by reasoning in the case of John Fairfax & Sons Proprietary Ltd. v. McRae (1955) 93 CLR 351 that “The actual intention or purpose lying behind a publication in cases of this kind is never a decisive consideration. The ultimate question is as to the inherent tendency of the matter published”. 

What the foregoing analysis means is simply that the mere fact of having published or uttered anything that has the tendency of being regarded as contemptuous, according to the description above, may be sufficient to ground the conviction of a person for contempt of court. It does not matter that the author of it never intended such a consequence.

Having established the nature of the offence of contempt of court, one is entitled to ask whether contempt of court seeks to say that judicial decisions should not be criticized. The very terms of the offence of contempt of court is far from meaning that! Judges themselves criticize each other. For instance, the decision in popular Re Akoto case has been criticized by subsequent courts on numerous occasions. Notably, Hayfron Benjamin JSC in the case of New Patriotic Party (NPP) v. Inspector-General of Police (IGP) [1993-94] 2 GLR 459 noted to the effect that the judgment in Re Akoto “undermined the very fabric of that Constitution (1960 Constitution) and literally pushed aside certain principles and fundamental human and civil rights which have become the bulwark of the Constitution, 1992…” The same was criticized by Kpegah JSC in the case of Amidu v. President Kuffour [2001-2002] SCGLR 86, Kpegah JSC, in the following terms: “Every student of the Constitutional Law of Ghana might have felt, after reading the celebrated case of In Re Akoto [1961] 2 GLR 523, SC that if the decision had gone the other way, the political and constitutional development of Ghana would have been different. ‘Different’ in in the sense that respect for individual rights and the rule of law might well have been entrenched in our land, and we who now occupy this court would have had a well-beaten path before us to tread on in the discharge of our onerous responsibilities imposed upon us by the 1992 Constitution”. 

More recently, in the case of Samuel Osei Boateng v. National Media Commission and Appenteng, Date-Bah JSC subjected to stiff criticism a decision that was given per incuriam by Dotse JSC in an earlier case, namely Republic v National House of Chiefs; Ex parte Odeneho Akrofa Krukoko II (Osagyefo Kwamena Enimil VI, Interested Party [2010] SCGLR 134. In Ex Parte Krukoko, Dotse JSC in reading the majority opinion held that the decisions of the pre-Fourth Republic courts were binding on courts of the Fourth Republic, depending on the hierarchy of those courts in the structure of the judiciary. Date-Bah JSC who was part of the panel in that case dissented.

Later, in the Osei Boateng case, Date-Bah rendered a telling timely deathblow to the postulation of Dotse JSC in the earlier case by postulating that if Dotse’s own formulation is correct, then he was bound by an earlier decision of the Court of Appeal in In Re Agyepong; Donkor v Agyepong [1973] 1 GLR 326 where Apaloo JA held that decisions of pre-1960 Court of Appeal had no binding force on the Court of Appeal established under the 1960 Constitution. Date-Bah therefore concluded that “if Justice Apaloo’s binding view had been adverted to by Justice Dotse and the majority of the Court, they may well have reached a different decision. The authority of the majority view is thus diminished and should not necessarily be followed by this Court”. 

There are numerous other instances where judges themselves have criticized judgments of their own colleagues who are on the same rank with them in later cases. In fact, it is not uncommon for judges to express dissenting opinions in cases. Again, on appeal and in exercise of their judicial review powers, higher courts usually render nugatory certain decisions of lower courts. In view of these necessary infractions, can we hold judges in contempt of other courts? Of course not! Any such proposition would be the most monstrous and absurd of legal principles to find itself into the judicial firmament. All these prove the point that everyone’s disposition of the law is different. One’s appreciation of the law in respect of a set of facts may vary in many material respects from another’s appreciation of same. This accounts, therefore, for the expression of divergent opinions on points of law. John Stuart Mills was therefore not mistaking when he described the world metaphorically as a marketplace of ideas. It is therefore not a harmful thing, and is of course desirable, that if judges err in respect of their application of a particular law in a certain case, same should be criticized sternly. It is only in so doing that judges will detect their own errors and make amends to same subsequently in order not to drive the justice system to its doom.