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Republic v Tommy Thompson Books L TD and Others
Constitutional law of Ghana and its history (FLAW306)
University of Ghana
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REPUBLIC v TOMMY THOMPSON BOOKS L TD and Others [1997-98] I GLR 515 - 611
SUPREME COURT,
ACCRA
1 st March 1997
EDWARD WIREDU, KPEGAH, AJABENG, AMUAH AND AKUFFO JJSC
Constitutional law-Fundamental rights and freedoms-Freedom and independf!1lce of media-Limitations on-Offence of "false report injuring the reputation of the State" under section 185 of Act 29-Articles 12(2) and 164 subjecting freedom of speech, expression and independence of media under articles 21 (2)(a) and 162(1) and (2) to national interest Constitution ;imposing obligation on citizen to promote prestige and good name of Ghana-Ingredients of offence under section 185 of Act 29-Jj1hether section 185 of Act 29 reasonably required in terms of articles 12(2) and 164-Whether section 185 of Act 29 inconsistent with letter and spirit of Constitution-Criminal Code, 1960 (Act 29), s j 85- Constitution, lC/92, arts 12(2), 21(I)(a), 41(a), 162(1) and (2),164 and 295(1).
Constitutional law-Supreme Court-Original jurisdiction-Challenge to constitutionality of a law-Reference from lower court under article 130(2) -Duty of Supreme Court- Whether facts of case before trial court relevant-Rationale for exclusion of facts- Act, 29, s 185-Constitution, 1992, art 130(2). '
Constitutional law-Constitution-Enforcement-Reference to Supreme Court by lower court- offence from criminal trial-Application for joinder by non-party on ground matter of public interest- Whether application to be granted.
It is provided by the Criminal Code, 1960 (Act 29), s 185 that:
"185. (I) Whoever communicates to any other person, whether by word of mouth or in writing or by any other means, any false statement or report which is likely to injure the credit or reputation of Ghana or the Government and which he knows or has reason to believe is false, shall be guilty of second degree felony.
(2) This section does not apply to any statement which is absolutely privileged under section I 17.
(31 It is no defence to a charge under this section that the person charged did not know ( r did not have reason to believe .Hat the statement or report was false unless he proves that, before h, communicated the statement or report, he took reasonable measures to verify the accuracy of the statement or report. [pg 516]
(4) A citizen of Ghana may be tried and punished for an offence under this section whether committed in or outside Ghana."
It is also provided by the Constitution, 1992, arts 12(2), 21(1)(a), 162(1) and (2) and 164 that:
"12. (2) Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest ...
21. (1) All persons shall have the right to-
(a) freedom of speech and expression, which shall include freedom of the press and other media ...
162.(1) Freedom and independence of the media are hereby guaranteed.
(2) Subject to this Constitution and any other law not inconsistent with this Constitution, there shall be no censorship in Ghana ... 164. The provisions of articles 162 and 163 of this Constitution are subject to laws that are reasonably required in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of other persons."
The first, second and third accused persons were the publishers, the managing director and the editor, respectively of the Free Press newspaper. The fourth accused was the editor-in-chief of the Ghanaian Chronicle newspaper. Following publications in the two newspapers that the Government of Ghana was involved in drug trafficking, the four accused persons were arraigned before the Circuit Court, Accra charged for communicating false reports likely to injure the reputation of the government contrary to section 185 of the Criminal Code, 1960 (Act 29). 20unsel for the accused raised an objection to the jurisdiction of the circuit court on the ground, inter alia, that section 185 of Act 29 was inconsistent with and in contravention of the letter and spirit of the Constitution, 1992, particularly articles 21(1)(a) and 162(1) and (2). Consequently, the trial circuit court referred the issue of constitutionality of section 185 of Act 29 to the Supreme Court under article 130(2) of the Constitution, 1992. At the hearing before the Supreme Court, counsel for the accused also contended, inter alia, that the Supreme Court should not take into account the facts of the case before the circuit court in determining the constitutionality of section of Act 29. The Private Newspapers Publishers Association of Ghana, a non-party to the trial before the circuit court, also made an oral applicaiion to be joined as a party to the action before the Supreme Court under the inherent .jurisdiction of the court and on the ground that the matter was of public interest.
Contra Kpegah JSC. [1]n reference cases the real contention by the party who asks for the reference, or claims in the course of a trial, be it civil or criminal, that a particular law is unconstitutional is that the law as is being applied to him, on the facts, infringes a guaranteed right of his. So that the real contention of the accused persons in this reference is that the criminal libel law infringes their freedom of speech and press freedom as guaranteed them; and that they are entitled to publish what they did ... ["':"]this court does not deal in metaphysics or apply the law in the abstract but to concrete situations in life. 1 and not sure whether any judicial decision can be made not based on some facts. Any argument that if we take the facts into account in deciding the issue of constitutionality we thereby shall have decided the case for the court below, is not appreciative of what reference under article 130(2) of the Constitution, 1992 really entails.
(3) The application by the Private Newspapers Publishers of Ghana under the inherent jurisdiction of the court to be joined to the action as a party on the ground that the action related to a matter of public interest would be dismissed because under the substantive law and procedural rules, before a trial party could be joined in a suit in which he was neither a party nor had a personal interest, he had to demonstrate that his interest would be or had been affected by the decision of the court. It was not permissible for a third party or a total stranger to apply to join a suit on the sole ground that the case was of a public interest. Moreover, there was no provision under our criminal jurisprudence for an application by a total stranger to join a criminal trial at any stage.
Cases referred to
(1) In re Akoto [1961] 2 GLR 523, SC. (2) R v Zundel (1992) 10 CRR 193
(3) R v Keegstra [1991] LRC (Canst) 333.
(4) Public Prosecutor v Pung Chien Choon [1994] 2 LRC (Canst) 37 .
(5) Nwanko v The State, Nigerian Law of the Press, C 198, CA.
(6) Perera v Attorney-General [1992] 1 Sri LR 199, Sc.
(7) Rajagopal v State of Tamil Nuda [1995] AIR 264, Sc.
(8) NAACP v Alabama, 378, US 449; 78 SCt 1163 (1958).
(9) Superintendent, Central Prisons Fategarh v Manohar Lohia ['960] 2 CSR 821 [pg 519]
(10) Free Press of Namibia (PTY) Ltd v The Cabinet for the Interim Government of South West Africa [1987] 1 SWA 614, Sc.
(11) Hector v Attorney-General of Antigua and Barbuda [1991] LRC (Const) 237.
(12) Handyside v United Kingdom (1976) EHRR 737. (13) Lingens v Austria (1986) 8 EHRR 425.
(14) Attoh-Quarshie v Okpote [1973] 1 GLR 59.
(15) Bilson v Attorney-General [1993-94] 1 GLR 104, SC.
(16) Konigsberg v State Bar of California, 366 US 36 (1961). (17) Cohen v California, 403 US 15 (1971)
(18) Republic v Owusu alias Buor; Ex parte Anane, Supreme Court, 25 July 1995, unreported
(19) Ghana Bar Assoctiaion v Attorney-General [1995-96] 1 GLR 598, Sc.
(20) Fattal v Minister for Internal Affairs [1981] GLR 104, SC
(21) Benham's Case (1610) 8 Co Rep 113(b); 77 ER 646.
(22) R v Harvey 2 B & C 257.
(23) Giltlow v New York, 268 US 652 (1925).
(24) Richards v Attorney-General of St Vincent and the Grenadines [1991] LRC (Const) 311.
(25) Attorney-General of Antigua and Barbuda v Hector, 22 June 1987, Civil Appeal No 5/1986, Court of Appeal of the Eastern Caribean Supreme Court, (Antigua and Barbuda).
(26) New Patriotic Party v Inspector-General of Police [199394] 2 GLR 459, Sc.
REFERENCE from the Circuit Court, Accra, by way of case stated under article 130(2) of the Constitution, 1992 for the determination of the question whether section 185 of the Criminal Code, 1960 (Act 29) is inconsistent with and in contravention of the spirit and letter of the Constitution, 1992, particularly articles 21(1)(a) and 162(1) and (2) and therefore null and void. The facts giving rise to the reference are sufficiently stated in the judgments of Kpegah and Adjabeng JJSC. [pg 520]
Martin A B K Amidu, Deputy Attomey-General (with himThomas Ahlijah, Chief State Attomey and Mike Afriyie, Principal State Attomey) for the Republic.
Nana Akufo-Addo (with him Justina Tette-Donkor (Miss), Philip Addison and Akoto Ampaw) for the first, second and third accused).
Prof Ofosu-Amaah (with him Emmanuel Ohene and Afua Ghartey (Mrs) for the fourth accused.
Edward Wiredu JSC. When this reference came before this court on 20 March for consideration Mr Zwennes on behalf of the Private Newspapers Association applied to join the association as a party. We heard submissions for and against the application. On 23 July 1996 I joined my brothers and sister in ruling against the application. My reason for doing so was based solely on the fact that the
(The emphasis is mine.) The impugned laws under consideration are in my respectful view not the types that can legitimately be [pg 522] treated under article 11(6) of the Constitution, 1992. The reasons for this view will be explained later in this opinion.
Under the Constitution, 1992 there are two situations which can justify a reference to this court by a lower court. The situations are: (a) under article 130(2), as in the instant case, and (b) under article 135(2) of the Constitution, 1992 which respectively provide as follows:
"130. (2) Where an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer the question, of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court
- (2) Where any issue referred to in clause (1) of this article arises as to the production or otherwise of an official document in any proceedings before any court, other than the Supreme Court, the proceedings in that other court shall be suspended while the Supreme Court examines the document and determines whether the document should be produced or not; and the Supreme Court shall make the appropriate order."
Where the reference is made under article 130(2) of the Constitution, 1992 the determination of the matter is restricted to an issue of construction or interpretation. In other words, the duty of this court in such a situation is restricted to a consideration of the constitutionality of the impugned law. In other words, whether the impugned law or anything contained or done under the authority of that law is as stated in 1he language of article 2(1) of the Constitution, 1992 "inconsistent with, or is in contravention of a provision of this Constitution .. ,." Facts involved in the events which form. the subject for determination in the lower court are not to be called in aid to the determination of the construction. The issue must be determined solely on the face of the impugned law. in relation to the relevant provisions of the Constitution, 1992 without considering the facts giving rise to the constitutional [pg 523] challenge. That is to say, the contents of the events giving rise as to why the accused were arraigned before the circuit court from which the reference was brought is no concern of this court. This is because facts are not necessary or relevant to aid such an interpretation. It may be otherwise where the reference is brought under 135 (2) of the Constitution, 1992. The above will form the basis of my personal approach in determining the present problem.
It must be emphasised strongly here that in embarking on this duty of interpretation, this court is enjoined not to take into consideration the facts or any act allegedly done by the accused persons in respect of which the State feels aggrieved thereby causing the arraignment of the accused persons before the circuit court. This court ought not to express any opinion on the alleged acts whether the conduct of the accused persons are right or wrong, and the probable or likely repercussions of the alleged conduct or act. We are not concerned with this aspect of the case; any such views that may be expressed will be orbiter and may likely prejudice the trial before the circuit court. The sole duty of this court is to determine the constitutionality of the
impugned section of Act 29. We should also not have regard to the personalities involved or personalities interested in the outcome of the case, else we may be tempted to look over our shoulders in determining the reference before us. We should put up what we consider to be the true construction of the relationship of the impugned section 185 of Act 29 with the relevant provisions of the Constitution, to use our conscience and in accordance with our judicial oath to do justice to all manner of people bearing in mind that whatever interpretation we put on the issue before us will be a guiding and binding opinion of this court for all times, and for all governments that will have the opportunity of working or governing this country under the Constitution, 1992. Our sympathies should not cloud our true understanding of the problems posed for determination in this reference. I have said elsewhere that judicial sympathy, however, plausible, should never be elevated into a principle of law. The reason for disregarding the facts leading to a reference of this nature is not far to find. Only one construction can be put on a statute. Such con- struction must stand at all times. It must not vary with the facts of individual cases that may give rise to constitutional interpretation. [pg 524]
In the present case the issue before us IS the relationship between the impugned section 185 of Act 29 and the relevant provision of the Constitution, 1992 to find out whether the two can be married or cannot. The determination of the above issue must not be determined by the facts which provoked the above constitutional challenge otherwise varying facts of each case will determine what the construction must be at any given time: see for example rule 67 of the Supreme Court Rules, 1996 (C 1 16).
It is pertinent to mention at this stage that the Constitution, 1992 is the supreme law of the land and should be the final and sole source of legality and constitutional authority. Therefore there cannot and should not be any other legal document which may be claimed to have superior or concurrent authority: see article 1 (2) of the Constitution, 1992. -
It is necessary at this stage also to advert our minds to the necessity of studying the historical background of the impugned ·laws to find out the circumstances leading to their enactment, the prevailing conditions, the mischief that was intended to be addressed. The prevailing conditions and circumstances under which the impugned laws were passed may be different from the present and may help to determine their fate. In other words, to ascertain whether circumstances still prevail or have changed since their enactment in order to determine the validity or otherwise of their continued existence in our statute books. To determine the constitutionality of any legislation the history and the object of the law ought to be considered. The social and political circumstances, the underlying object of that law, the mischief or evil that it was aimed at preventing. All these matters ought to be considered to enable the court to arrive at a decision as to whether the continued existence of the impugned legislations can be justified.
The framers of our Constitution, 1992 in their wisdom must have anticipated such a situation; hence they provided under section 30 of the transitional provisions as follows:
not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power."
Thus from the above, it is clear that the kind of discretion sanctioned by the Constitution, 1992 is not an absolute one.
Finally, with regards to section 185 of Act 29, I will humbly suggest that the section ought to be referred to the Law Reform Commission by the Attorney-General to have a second look at the language, which I think is too wide and ambiguous, to bring it in conformity with article 41(a) of the Constitution, 1992. Section 184 of Act 29 needs to be couched in simple and precise language.
My research has revealed that section 185 of Act 29 is an enactment passed by the first Parliament of the First Republic under the Constitution, 1960. It received presidential assent on 12 January 1961. We are now going to be 40 years old, we are in the Fourth Republic. Section 185 of Act 29 is a law of British origin from the English Statute of Westminster, 1275, in the 13th century, when the doctrine of "The Divine Right of Kings" (The King or the Queen does no wrong) was the order of the day. The object and purpose of this impugned law as can be seen from Act No 37 of 1959 reads: "An Act to punish false reports or state ments [pg 527] that may injure the credit or reputation of Ghana or of the Government of Ghana." (The emphasis is mine.) This enactment may be legitimately defended under the Republican Constitution, 1960 which by article 8(4) vested absolute plenary powers in the President. Article 8 of the Constitution, 1960 reads:
"8. (1) There shall be a President of Ghana, who shall be the Head of the State and responsible to the people.
(2) Subject to the provisions of the Constitution, executive power of the State is conferred upon the President. (3) The President shall be the Commander-in-Chief of the Armed Forces and the Fount of Honour.
(4) Except as may be otherwise provided by law, in the exercise of his functions the President shall act in his own discretion and shall not be obliged to follow advice tendered by any other person.
(5) The power to repeal or alter this Article is reserved to the people."
(The emphasis is mine.)
Article 8(4) of the Constitution, 1960 conferred an absolute discretion on the President the exercise of which could not be questioned in any forum. Under the same Constitution, 1960, art I(A)(1) and (2) as inserted by the Constitution (Amendment) Act, 1964 (Act 224), s 2 provides:
"1A. (1) In conformity with interests, welfare and aspirations of the People, and in order to develop the organisational initiative and the political activity of the People, there shall be one national party which shall be the vanguard of the People in their struggle to build a socialist society and which shall be the leading core of all organisations of the People.
(2) The national party shall be the 'Convention People's Party'."
(The emphasis is mine.) In other words, Ghana was a one-party State which did not recognise any distinction between the .State, the government and the party in power. The Constitution, 1960 did not recognise multi-party democracy where dissenting views [pg 528] can and ought to be tolerated. Thus under the Republican Constitution, 1960 there is no distinction between the government, the party and the State. However, under the Constitution, 1992 the government and the State are not one and the same institution. They are separate and distinct. Government under the Constitution, 1960 in practical terms cannot be the same as under the subsequent Constitutions, 1969, 1979 and the 1992. Parties and governments may go but the State will always remain. The Constitution, 1992 makes it even unconstitutional for Parliament, the legislative arm of the State, to enact a law establishing a one party state: see articles 3 and 56 of the Constitution, 1992. Parliament is not supreme under the Constitution, 1992. The Supreme Court is competent to strike out any legislation which is ultra vires its powers or is unconstitutional.
It has not been seriously challenged in the present proceedings (an exercise which I have repeatedly held to be the exclusive judicial preserve of this court) that in a number of sister common law countries including the United Kingdom, United States of America, Canada etc, the English Statute of Westminster of the thirteenth century from which offences like the impugned section 185 of Act 29 derive its origin no longer exist. It may therefore be safe, in my respectful view, to consider section of Act 29 anachronistic in those countries in the twentieth century. The question that may be posed here is, why should independent Ghana continue to have a law which has long been repealed in its country of origin on its statute books? Can its continued existence be justified in this latter part of the twentieth century or at least under the Constitution, 1992?
It is my respectful view that our historical experience from the First Republic shows that the continued retention of some foreign obnoxious laws on our statute books such as those raised under issue (b) which successive governments have taken advantage of in suppressing persons holding opposing views, have led in no small measure to the stagnant progress of democracy in this country. It has led to vindictiveness and acrimony among our politicians, and this has divided the people. This has made it difficult for us to achieve any peaceful and meaningful reconciliation is a nation. We have experienced some of our governments using such laws to stifle and suppress the rights of members of opposing [ pg 529] views. This had left this country with a legacy of a vicious cycle of vengeance. Successive governments have. resorted to probes witch hunting and destroyed each other, resulting in instability, vindictiveness, leading to loss of manpower resources to the detriment. of the country. It must be emphasised here that democracy can thrive in a society where the electorate are well informed. The electorate can only be informed by a strong and vibrant press which have the means to inform the public. Do the content, scope, and language of section 185 of Act 29 meet the test of freedom of information?
Mens reo. and octus reus are prerequisite demanded by modem criminal jurisprudence. The section must also pass the test which presume an accused
see re Akoto [1961] GLR 523, Sc. Subsequent Republican Constitutions of Ghana, excluding that of 1960, have entrenched in them provisions relating to fundamental human rights, including freedom of speech, etc. These entrenched provisions are now justiciable in the courts.
With the advent of the 1979 military uprising and the 31 December Revolution when probity, accountability, transparency, and integrity became household words and also the hallmarks of the two periods when these attributes were used as the yardsticks [pg 531] for judging the lifestyles of persons in authority, or in positions of trust, the populace happily embraced these attributes. These pre-:requisite demands from those holding power or in authority helped to awaken the political awareness of many an ordinary man in the street. More women also became politically awake and engaged themselves in politics. These are among some of the positive achievements of the two periods. Unfortunately and regrettably, Ghanaians have done little to insist on and demanding these qualities from our leaders, partly beca1Jse of fear and also the inclusion of the various indemnity clauses in our subsequent Constitutions. The question may be asked: what lessons have we learnt from our historical past? Ghana has come a long way from the turmoil and upheaval of different political experiences. We have given lip-service to the national anthem. We have by a referendum chosen to be governed under a multi-party democracy with the rule of law as the pivot around which fundamental human rights revolve. We look forward for true freedom and justice. We look for the kind of rule of law under which the law is not to be regarded as an ass but one which is just, fair and not discriminatory. A law which is sound and treats all citizens equally. A law which endorses probity, accountability, transparency, integrity. A law which seeks the welfare of all citizens. One which is progressive in a land where each one of us would be his or her brother's keeper. A law which abhors concentration of power in one person. One which abhors oppression and authoritarian tendency. One which ensures the independence of the judiciary and the press as the watchdogs to protect and defend the supreme law of the land.
All the above attributes have culminated hour having by a referendum given our blessing to the Fourth Republican Constitution, 1992 as the supreme law of the land within which framework all public officers of state have sworn solemnly to defend and to direct our future course of government. A document which spells out the scope and extent of all organs of state, the right and responsibilities of all citizens.
Notwithstanding my observation about the incompatibility of the impugned laws with our prevailing circumstances now, I will first bring home my other grievances against the continued existence of section 185 of Act 29 on our statute books and later [pg 532 ] deal with its relationship under chapter 12 of our Constitution, 1992. Chapter 12 of our Constitution, 1992 deals with the independence of the press and the media. Section 185 of Act 29 is on its face too wide and sweeping in language to pass the test of constitutionality. Learned counsel for the accused has attacked the scope and extent of the wide and sweeping language of this law in the following language:
"The effect of this section is to criminalise any communications, oral or otherwise even between spouses, even in a classroom, made even beyond the borders of Ghana, which contains allegedly a false statement or report likely to injure the
reputation of the government. The potential reach of this section in criminalising and thus suppressing a wide range of expression is undeniable."
The gravamen of the offence under section 185 of Act 29 is " communicate a false statement or report by any means that is likely to injure the reputation" of Ghana or the government. The charge against the accused is concerned with the latter alternative, ie likely to injure the reputation of the government. The opinion about to be read by my sister Akuffo JSC has dealt ably with the ordinary meanings of the two words, ie to communicate and to publish. The latter being the language used to refer to what the press does under chapter 12 of the Constitution, 1992, is relevant to help the court deal with false information by newspaper publications. However where the word communication is used, it has a wider meaning, namely making known to the world at large. The distinction in meaning between the two words, are entirely different from the sweeping language of section 185 of Act 29. Since the latter law embraces a wider scope of making known an information, whilst publication is directly and specifically making known to the general public, the difference becomes apparently clear that the impugned section 185 of Act 29 cannot, as it stands now, be married to the provisions of chapter 12 of the Constitution, 1992 and therefore the question as to the application of article 164 of the Constitution, 1992 does not even arise.
It is also a common ground in this proceedings that the impugned law imposes a restriction on freedom of speech as [pg 533] enshrined in the Constitution, 1992. In other words, section 185 of Act 29 cannot co-exist with or be married to the provisions of chapter 12 of the Constitution, 1992. The effect of endorsing the impugned law in its present form will be very dangerous. It will curtail all forms of guaranteed people's freedom of speech as are entrenched in the Constitution, 1992. It invades the right to privacy as enshrined in article 18(2) of the Constitution, 1992. The word to "communicate" as used under section 185 of Act 29 is too wide. Its language negates its constitutionality. To communicate under section 185 of Act may be even referable to private letters written between parents and their children, husbands and wives, teachers and pupils etc, the communication may even be oral and private. This state of the law ought not to be constitutionally accepted. It cuts across all areas of communication, oral or otherwise, private or public and may deny a citizen's right to privacy: see article 18(2) of the Constitution, 1992. The dangers inherent here have been so eruditely dealt with in the able opinion of my sister Akuffo JSC. To create a criminal offence, the language of the statute must be clear and precise as to its intention. It must not be vague or ambiguous. The name of the offence must be known, ie like murder, fraud, stealing, assault etc.
The provision of chapter 12 of the Constitution, 1992 which deals specifically with the press and the media, lay emphasis on the word publication: see articles 162 (4) and (6) of the Constitution, 1992. It is my respectful view, from the above, that whatever prosecution is contemplated or sought to be brought under a known crime in our Act 29 against a press publication or one carried by the media, ought to be restricted, directed and limited in form and in language to the press by using the word publication and communications by the media and ought to be in conformity with the letter and spirit of chapter 12 of the Constitution, 1992. I have not found it easy to reconcile any of the provisions of chapter 12 of the Constitution, 1992 with section 185 of Act 26.
note here that private communications are excluded, unlike our section 185 of Act which makes all communication a criminal offence including private conversation. Section 64 of the Criminal Code of St Vincent and the Grenadines also cited by the learned Attorney - General reads:
"( 1) Any person who publishes any false statement,' rumour or report which is likely to cause fear or alarm or to disturb the public peace, is guilty of an offence and liable to imprisonment for one year.
(2) It shall, be a defence to a charge under subsection (l) if the accused person proves that, prior to the publication, he took such measures to verify the accuracy of such statement, rumour or report as to lead him reasonably to believe that it was true."
(The emphasis is mine.) And finally, section 8(a) of the Printing Press and Publication Act, 1984 reads:
"8A. (1) Where in any publication there is maliciously published any false news, the printer, publisher, editor and writer thereof shall be guilty of an.' offence and shall, on conviction, be liable to imprisonment for a term not exceeding three years or to a fine not exceeding twenty thousand ringgits or to both."
It is clear from the above analytical examination of the cases and the laws referred to in this proceedings that the language used [pg 536] in each case is clear and precise and is referable to press publications as distinct from our own wide, ambiguous and sweeping language which admits that even private communications among relations can constitute a crime. Such a wide and sweeping language ought not be constitutionally sanctioned under the Constitution, 1992 as stated supra in this opinion. ;
The provisions of article 11(6) of the Comdtutiofl, 1992.
It has not been seriously disputed in this proceedings that section 185 of Act 29, the impugned provision! ,of Act 29, unreasonably and unjustifiably restricts the individual's freedom of speech and expression. I have had no difficulty in holding in my ruling that it is inconsistent with article 21(1) of the Constitution, 1992 and the spirit of the Constitution and therefore ;to that extent void. It has been suggested, however, that the impugned section can be saved by invoking article 11(6) of the Constitution, 1992 supra by modifying it to justify its continued existence on our statute books. !
I have found myself in some difficulty in trying to find out how the modification suggested can safely be achieved in this regard without destroying the substance and the :intent of the language of the section. In other words, how the suggested modification can be safely achieve without doing violence to the language of the section and also thereby not assuming the power to legislate by this court. In the first place, section 185 of Act 29 is a section or provision of the general Act 29 and [it must stand or fall as a section. Secondly, I fail to see how the section can be modified to bring its language into conformity with' that of the provisions of chapter 12 of the Constitution, 1992 Without completely overhauling or dismantling the
language of the section. Thirdly, such a course will inevitably mean the fragme'1tation of the language of the section by eliminating and substituting new words which are likely to change the whole nature, character and intent of the section which may also lead fourthly, to the creation of an entirely new offence. The latter act is bound to offend the spirit and letter of the Constitution, 1992 which bars. Retrospective operation of any law passed under it: see article 19(5) of the Constitution, 1992. [pg 537]
Unlike section 30 of the transitional provisions of the Constitution, 1992 the judiciary is not a law making institution and it plays no part in law making. It is essentially a state organ concerned solely with interpreting, construing and the enforcement of the provisions of the Constitution, 1992. The executive, however, is part of the law making process. Bills which are discussed to become laws in Parliament emanate from the executive's outfit and end with the assent of the President. The purpose and aim of section 30 of the transitional provisions of the Constitution, 1992 is to ensure smooth and expeditious transition, instead of the checkered and strict procedure in Parliament when laws are being amended, which procedure is time consuming. Finally, there is the danger of such a course (ie resort to invoking article 11(6) of the Constitution, 1992 in this regard) turning the judiciary into a legislative organ. This kind of duty was not within the contemplation of the Consultative Assembly, the body that drafted the Constitution, 1992, when ~it recommended the provision of article 11 (6) of the Constitution, 1992 in appropriate circumstances.
It must be stated here further that when on 12 January 1960 Act 29 including the impugned section 185 was promulgated as law, the Constitution, 1960 had no entrenched bill of rights guaranteeing fundamental rights of freedom of speech and expression as are now. provided in the Constitution, 1992, chaps 5 and 12 which are now justiciable in the court. Ghana was a one- party state, not multi-party, as it is now, and there was no distinction between the State and the government. The advocates of this course of modifying the language of section 185 of Act 29 under article 11(6) of the Constitution, 1992 have not given any justifiable grounds as to how this can be done without being confronted with any of the problems enumerated above.
My brother Amuah JSC has proposed a formula which I have quoted below as a possible modification of the impugned section. His formula reads as follows: "A person who publishes a false statement which is likely to injure the reputation of the Ghana Government and which he knows to be false commits an offence." (The emphasis is mine.) The above at a glance would appear attractive in so far as it satisfies the mens rea and the actus reus. The further question here is, how could the circuit court or this court direct such an amendment of section 185 of Act by [pg 538] limiting its scope without turning itself into a legislative body? The other snag about this formula is the suggestion that the above formulation must be acceptable to both parties. Is it being suggested that the parties are required to be participants in the invocation of the provision of article II (6) of the Constitution. which is the exclusive jurisdiction of this court, or that they are to participate in the legislative exercise? Section 185 of Act 29 being a penal statute. I do not think article! 1(6) of the Constitution. 1992 can be called legitimately in aid to this construction exercise. Thirdly. the above formula has completely dealt away with section 185(3) of Act 29 which neutralises the mem res contained in section 185( I )
I have not found it easy to go along with the stand taken by my respectful colleagues supra. Further problems I find with the suggested modification under article 1(6) are: (a) When does the modification take effect? (b) Does it not amount to creating an entirely new offence? (c) Is this court competent to create a new law? (d) Is it legitimate in this reference to direct the circuit court to continue with the trial of the accused under the modified law when that law cannot be made to have retrospective effect? and (e) What should be the order of the court in view of the stand against same by my brothers Adjabeng and Kpegah JJSC ? [pg 540] Government as used in section 185 of Act 29 cannot be equated to a person who is a citizen of a country or an individual in a society to justify its claim under the fourth legislature of article 164 of the Constitution, 1992. Government is an institution with a legal capacity. A legal entity which in a liberal democracy must accept criticism as an inherent part of democratic practice. In this connection, I am impelled to draw an inspiration from the observation of the Nigerian Court of Appeal in the case of Nwanko v The. State reported in the Nigerian Law of the Press under the Constitution, 1998 at and 227 where the offence of seditious libel was considered and authoritatively declared unconstitutional:
"Those who occupy sensitive posts must be prepared to face public criticisms in respect of their office so as to ensure that they are accountable to the electorate. They should not be made to feel they live in an Ivory Tower and therefore belong to a different class. They must develop thick skin and where possible plug their ears with cotton wool if they feel too sensitive or irascible. They are within their constitutional rights to sue for defamation but they should not use the machinery of government to invoke criminal proceedings to gag their opponent's freedom of expression. As long as the Constitution is not suspended, and this is not done in democratic socciety, freedom of expression should be protected ...
It is my view that the law of sedition which has derogated from the freedom of speech guaranteed under this Constitution is inconsistent with the 1979 Constitution so when this cannot lead to public disorder as envisaged under section 41(a) of the Constitution. We are no longer the illiterates or the mob society our colonial masters had in mind when the law was promulgated ... Let us not diminish from the freedom gained from our colonial masters by resorting to laws enacted by them to suit their purpose."
I accept the view that section 185 of Act 29 creates an offence of strict and absolute liability in its broad language. The section seeks to criminalise mere expression not connected with an intention to threaten national security or to disrupt public order or public morality or the likelihood of disrupting same. Section 185 [pg 541] of Act 29 is thus clearly an unwarranted invasion of the right to freedom of speech and expression and to information guaranteed under the Cotistitution, 1992 and ought to be declared unconstitutional. Its potential reach is too wide. It cannot therefore be said that it is a law covered by any of the heads of article 164 of the Constitution,' 1992. In the Sri Lankan case of Joseph Perera v Attorney-General [1992] 1 SRLR 199 the Sri Lankan Supreme Court held:
"Laws that trench on the area of speech and expression must be narrowly and precisely drawn to deal with precise ends. Over-breadth in the area has a peculiar evil, the evil of creating chilling effects which deter the exercise of that freedom. The
threat of sanctions may deter its exercise almost as patently as the application of sanctions. The State may regulate in that area only with narrow specificity. There can be' no doubt of the legitimacy of the Government's interest in protecting the State from subversion. But even though the Government's purpose be legitimate and substantial that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved."
Again in the Indian case of Rajagopal v State of Tamil Nod" [1995] AIR 264 at 272, the Indian Supreme-'Court, citing with approval the US Supreme Court in NAACP v Alabama, 378 US 449 (1958 ) said:
"A governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means that sweep unnecessarily broadly and thereby invade the area of protected freedoms."
Section 185: of Act 29 therefore is unconstitutional for sweeping unnecessarily broadly a protected fundamental freedom. I therefore vehemently reject this course of modification under article 11 (6) of the ,Constitution, 1992.
On the assumption that the views 1 have expressed supra are rejected, which I very much doubt, and that the impugned section 185 of Act ~9 can be saved as an existing law under article 11 (6) [pg 542] of the Constitution, 1992 to gain the merit of constitutionality which I have discussed above earlier as impossible, section 185 of Act 29 must be able to justify its existence under one of the four situations required in the interest of (a) national security; (b) public order; (c) public morality; and (d) for the purpose of protecting 'the reputations, rights and freedoms of other persons. Will now deal with each of the above.
National security
The Indian Supreme Court in the case of the Superintendent Central Prisons Fatehgarh v Ram Manchar Lohia (1960) 2 CSR 821 at 839 (referred to by learned leading counsel for the accused persons) said:
"'Public Order' is synonymous with public safety and tranquility; it is the absence of disorder involving breaches of local significance in contradiction to national upheavals, such as revolution, civil strife, war, affecting the security of the state."
Also in the case of the Free Press of Namibia (PTY) Ltd v The Cabinet for the Interim Government of South West Africa [1987] SW A 614 at 625 (also referred to by the leading counsel for the accused persons) Levy J of the Supreme Court of South West Africa, had this to say:
"Because people (or a section thereof) may hold their government in contempt does not mean that a situation exists which constitutes a danger to the security of the state or to the maintenance of public order. In fact to stifle just criticism could as likely lead to those undesirable situations."
The above cases have set to rest any doubt which may be entertained that in a democratic state, the national security can be threatened by a false statement made
Republic v Tommy Thompson Books L TD and Others
Course: Constitutional law of Ghana and its history (FLAW306)
University: University of Ghana
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