Ghana Legal Information Institute - Express and disseminate opinion https://old.ghalii.org/tags/express-and-disseminate-opinion en Ghana Independent Broadcasters Association v Attorney General and Another (J1/4/2016) [2017] GHASC 45 (03 November 2017); https://old.ghalii.org/gh/judgment/supreme-court/2017/45 <div class="field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><div class="field-label">Flynote:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/tags/cl" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">CL</a></div><div class="field-item odd"><a href="/tags/express-and-disseminate-opinion" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Express and disseminate opinion</a></div><div class="field-item even"><a href="/tags/media" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Media</a></div></div></div><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>The case concerned the extent of the National Media Commission’s (‘the Commission’) legal mandate under the National Media Commission Regulations (‘the Regulations’). It was argued that certain provisions amounted to censorship, and control and direction of mass media communication as it required an operator to seek authorization of content prior to publication on a media platform, and were thus unconstitutional.</p> <p>The issues for determination were: whether the original jurisdiction of the court was properly invoked; whether the cumulative effect of the impugned provisions amounted to censorship; whether the cumulative effect amounted to control and direction over professional functions and operations; and whether the Standard Guidelines issued under the regulations were vague and unconstitutional.</p> <p>The jurisdictional issue concerned whether the plaintiff sought a striking down of provisions without scrutiny to assist the court in its determination. This issue was to be determined on an examination of the relief sought and the pleadings. What was important was that both raised a case cognizable under the Constitution, which the plaintiff’s documents did.</p> <p>On the second issue, the court held that some form of censorship was permissible under the Constitution; however where censorship laws are introduced they must be justifiable by being reasonably required in the national security interest, for public order, public morality, or the protection of the rights of another. What the second defendant wanted was akin to prior restraint. With reference to case law, the court held that prior restraint was not legally justifiable. Law must be precise and guide future conduct, which it was not in this case. The regulations were contrary to the Constitution.</p> <p>On whether the Commission was empowered to impose criminal sanctions, it was held that Parliament could not delegate this function to the Commission.</p> <p>As regards the third issue, the court had to define ‘direction or control’ in the context of the Constitution. Control or direction as used in the provision had the same meaning and effect as telling operators what they should or should not do in their publications. This function belongs to the media, not the Commission.</p> <p>The plaintiff’s claim was upheld.</p> </div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"><p class="rtecenter"> </p> <p class="rtecenter"><strong>IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p class="rtecenter"><strong>IN THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>ACCRA, A.D.2016</strong></p> <p class="rteright"><strong><u>WRIT NO. J1/4/2016</u></strong></p> <p class="rteright">30<sup>TH</sup> NOVEMBER 2016</p> <p><strong>GHANA INDEPENDENT BROADCASTERS        -       PLAINTIFF</strong></p> <p><strong>ASSOCIATION</strong></p> <p><strong>VRS</strong></p> <p><strong>1. THE ATTORNEY GENERAL             -       1<sup>ST</sup> DEFENDANT</strong></p> <p><strong>2. NATIONAL MEDIA COMMISSION    -       2<sup>ND</sup> DEFENDANT</strong></p> <hr /> <p class="rtecenter"><strong>JUDGMENT</strong></p> <hr /> <p><u>BENIN, JSC:</u></p> <p> My Lords, this is a matter that touches the heart of our democratic process, talking about freedom of expression in all its facets. In democratic societies it is regarded as the most prominent fundamental right, a lever upon which all other rights hinge. In an article by Harry H. Wellington titled ‘On Freedom of Expression’ 88 Yale L.J. 1105, the author suggests that free speech is preservative of other freedoms. In MURDOCK v. PENNYSLVANIA, 319 U.S. 105, 115 (1943) free speech is given what was described as ‘preferred’ position. In other words, it is afforded more extensive immunity from external interference than most other human endeavours. This fact was not lost on the Committee of Experts who drafted the proposals that culminated in the adoption of the 1992 Constitution. The Committee opened their proposals with a quotation from the renowned John Stuart Mill, who wrote that “if all mankind minus one were of one opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.” It may be recalled that the Committee was set up against the backdrop of what had become known in the country as the culture of silence. Simply put, as a result of the lack of democratic political atmosphere at the time, citizens did not venture to bare their thoughts. The Committee therefore sought to make provisions that would allow the citizenry to express themselves freely, subject only to such limitations as are reasonably required in the interest and progress of society. The Committee was thus mindful of the fact that the country should not transition from a culture of silence, which tends to inhibit the citizenry from participation in governance to a culture of media impunity that might bring about disorder. Thus a careful balance was required, because a culture of impunity by the media, which has the potential to breed chaos and insult public decency and morality, was certainly not an option. In this regard, the establishment of the National Media Commission, 2<sup>nd</sup> defendant herein, also referred to in this judgment as the Commission, was to insulate the media from governmental interference and to regulate the sector in order to achieve the dual objective of free expression and sanity in media practice. Thus the Constitutional provisions and any other laws that have a bearing on free expression should be interpreted with the history and purpose of the constitutional provisions in mind. At page 85 of the report dated 31<sup>st</sup> July 1991, the Committee captured the essence of this freedom in these words:</p> <p class="rteindent1">“<strong><em>It is through responsible and independent media that objective information is disseminated, different and opposed views are presented and shared, enlightened public opinion is formed and political consensus mobilized and achieved.”</em></strong></p> <p>It was not lost on the framers of the Constitution how important free expression was to the development of society. It ensures democratic self-government, informed voting and checks abuses of power. As a voter education tool, free speech is the foundation of democratic self-government. Needless to say it propels and promotes the development of culture, science, art, technology and commerce. It also ensures individual self-development, association and enjoyment of all other rights. The Constitution is thus a moribund document without the freedom of expression which enables people to talk about infractions thereof and to go to court to seek redress. Thus for democracy to thrive and survive, nothing should be done to stifle this freedom except where the person is said to have gone beyond legitimate boundaries prescribed by the Constitution itself or any other law which is not inconsistent with the Constitution. This piece of introduction sets the tone for our consideration of this case before us which places in focus the extent of the mandate entrusted by law upon the Commission.</p> <p>The plaintiff claims that the2<sup>nd</sup> defendant, which is the regulatory body responsible for the media in Ghana, is going beyond bounds and is acting in a manner inimical to the attainment of this right of free expression. This concern has been raised as a result of certain provisions in the National Media Commission (Content Standards) Regulations, 2015, L.I. 2224 which entered into force on the 9<sup>th</sup> day of December 2015; and in particular they complain about regulations 3 through 12 and 22. The plaintiff’s case, as briefly stated in page 12 of their statement of case is that “<strong><em>the said Regulation 3 together with its consequential Regulations contained in Regulations 4 to 11 are unconstitutional as same amounts to censorship, control and direction of operators of mass media communication in so far as the said regulations require an operator to seek authorization of his/her content before carrying same on any of the platforms of mass media communication……….and therefore contrary to Articles 162(2), 162(4), 167(d) and 173 of the 1992 Constitution.”</em></strong>They therefore seek these reliefs against the defendants:</p> <p class="rteindent1">1. A declaration that upon a true and proper interpretation of Articles 162(1), 162(2), 162(4), 167(d) and 173 of the 1992 Constitution, neither the Government of Ghana nor any other state institution created under the 1992 Constitution including the National Media Commission shall engage in acts or exercise any powers that are likely to amount to censorship, control and direction of institutions of mass media communication in Ghana and no institution of mass media communication shall be criminally penalized for their failure to procure authorization for the content of their publication from the Government or any state institution created under the 1992 Constitution including the National Media Commission.</p> <p class="rteindent1">2. A declaration that Regulations 3, 4, 5, 6, 7, 8, 9, 10, 11 12 and 22 of the National Media Commission (Content Standards) Regulations 2015, L.I. 2224 in so far as their cumulative effect is to give the National Media Commission the power to determine which content can be conveyed by operators on a public electronic communications network, a public electronic communications service or a broadcasting service amounts to censorship of the media and same contravenes Articles 162(1) and (2) of the 1992 Constitution and therefore void.</p> <p class="rteindent1">3. A declaration that Regulations 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 22 of the National Media Commission (Content Standards) Regulations 2015 L.I. 2224 in so far as they give the National Media Commission the power to determine content that can be conveyed by operators on a public electronic communications network, a public electronic communications service or a broadcasting service amounts to control and direction over the professional functions of the operators and same contravenes and is inconsistent with Article 162(4) 167(d) and 173 of the 1992 Constitution and therefore void.</p> <p class="rteindent1">4. A declaration that the provisions under the Standard Guidelines referred to under Regulation 12 and specifically listed under the Third Schedule of the National Media Commission (Content Standards) Regulations 2015, L.I. 2224 which prefers criminal sanctions upon infractions of the Standard Guidelines are legally vague and also inconsistent with the spirit and letter of Article 162(4), Article 167(d) and 173 of the 1992 Constitution and therefore void.</p> <p class="rteindent1">5. An order deleting, expunging or striking out Regulations 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 22 of the National Media Commission (Content Standards) Regulations 2015, L.I. 2224 on the grounds that they are unconstitutional.</p> <p>The plaintiffs bring this action in their capacity as a company limited by guarantee registered under the laws of the Republic of Ghana for the protection of media independence and the interest of private broadcasters in Ghana.</p> <p>The provisions of L.I. 2224 which the plaintiffs seek to impugn are these:</p> <p><strong>‘Content of Authorization</strong></p> <p><strong>Requirement for Content authorization</strong></p> <p>3.(1) An operator shall not convey or permit to be carried, content on a public electronic communications network, a public electronic communications service or a broadcasting service without obtaining a content authorization from the Commission</p> <p>(2) An operator who contravenes subregulation (1) commits an offence and is liable on summary conviction to a fine of not less than five thousand penalty units and not more than fifty thousand penalty units or to a term of imprisonment of not less than two years and not more than five years or to both the fine and term of imprisonment.</p> <p><strong>Qualification for grant of content authorization</strong></p> <p>4. An operator is not qualified to apply for content authorisation unless that operator is a citizen of Ghana, and is</p> <p class="rteindent1">a) a registered body corporate;</p> <p class="rteindent1">b) a registered professional body or association; or</p> <p class="rteindent1">c) a registered partnership</p> <p><strong>Application for content authorisation</strong></p> <p>5. (1) An operator who intends to carry content on a public electronic communications network, a public electronic communications service or a broadcasting service shall apply in writing to the Commission for content authorisation.</p> <p class="rteindent1">(2) The application shall be as set out in Form One of the First Schedule</p> <p class="rteindent1">(3) The application shall be submitted with</p> <p class="rteindent1">a) certified details of the registered capital of the public electronic communications network, public communications service or broadcasting service;</p> <p class="rteindent1">b) the editorial policy of the public electronic communications network, public electronic communications service or broadcasting service;</p> <p class="rteindent1">c) the fee as prescribed by the Commission;</p> <p class="rteindent1">d) a programme guide as set out in Form Two of the First Schedule, in respect of broadcasts;</p> <p class="rteindent1">e) a content profile in respect of other forms of public electronic communication networks or public electronic communication services as set out in Form Three of the First Schedule; and</p> <p class="rteindent1">f)  any other information that the Commission may request.</p> <p class="rteindent1">(4) Where the application is made by a registered body corporate or registered partnership the application shall, in addition to the information required under sub regulation (3), be accompanied by a reference that provides information on the experience of the operator; and</p> <p class="rteindent1">a) in the case of a body corporate,</p> <p class="rteindent1">(i)     the certificate of incorporation, and</p> <p class="rteindent1">(ii)    a statutory declaration of the structure of the shareholding of the body corporate; or</p> <p class="rteindent1">b) in the case of a partnership, a statutory declaration of the partnership agreement.</p> <p class="rteindent1">(5) Application for content authorisation shall be supported with documents establishing the identity of the operator.</p> <p class="rteindent1">(6) On receipt of an application, the Commission shall determine whether the programme guide submitted by the applicant conforms to these Regulations and any other relevant enactment.</p> <p class="rteindent1">(7) Where the Commission considers that the programme guide is unsatisfactory, the Commission shall notify the applicant in writing and shall state in the notice, to what extent, the programme guide must be revised to meet the requirements of the Commission.</p> <p class="rteindent1">(8) The applicant shall revise the programme guide and submit the revised programme guide within the period stated, if any, in the notice referred to in sub regulation (7)</p> <p class="rteindent1">(9) An approved programme guide is valid for twelve months.</p> <p class="rteindent1">(10) A programme guide shall be renewed not less than forty-five days before its expiry and sub regulations (4), (5), (6) and (7) shall apply.</p> <p class="rteindent1">(11) An operator may revise a programme guide subject to the written approval of the Commission.</p> <p><strong>Procedure for grant of content authorisation</strong></p> <p>6. (1) The Commission shall, within fourteen days of receipt of a completed application for content authorisation, acknowledge receipt of the application;</p> <p class="rteindent1">(2) The Commission shall</p> <p class="rteindent1">(a) verify and validate the information received, and determine whether the applicant has met the requirements stipulated in regulation 5 within ninety days of receipt of the application, and</p> <p class="rteindent1">(b) notify the applicant in writing of its decision to grant or refuse the application within five working days of its determination.</p> <p class="rteindent1">(3) Where the Commission refuses to grant an application, the Commission shall state the reasons for the refusal.</p> <p><strong>Grants, validity and duration of content authorisation</strong></p> <p>7. (1) A content authorisation granted by the Commission shall be as set out in the Second Schedule and is subject to the terms and conditions specified in the content authorisation.</p> <p class="rteindent1">(2) A content authorisation is valid from the date it is granted for a period of three years.</p> <p class="rteindent1">(3) The Commission may extend the period for the validity of the content authorisation.</p> <p><strong>Transferability of content authorisation</strong></p> <p>8. (1) An operator who has been granted a content authorisation shall not transfer the content authorisation to another person without the prior written approval of the Commission.</p> <p>(2) An operator who contravenes sub regulation (1) commits an offence and is liable on summary conviction to a fine of not less than five thousand penaltyunits and not more than fifty thousand penalty units and in addition to the fine, the Commission shall revoke the content authorisation granted to the operator.</p> <p><strong>Renewal of content authorisation</strong></p> <p>9. (1) An operator who wishes to renew a content authorisation shall submit an application for renewal as set out in Form One of the First Schedule not less than three months before the expiry date of the content authorisation.</p> <p class="rteindent1">(2) An application for renewal shall be supported by</p> <p class="rteindent1">(a) the documents and information referred to in regulation 5;</p> <p class="rteindent1">(b) the prescribed fee; and</p> <p class="rteindent1">(c) any other information or documents that the Commission may request.</p> <p class="rteindent1">(3) The Commission shall</p> <p class="rteindent1">(a) acknowledge receipt of the application for renewal within five working days of receipt of the application, and</p> <p class="rteindent1">(b) notify the applicant of its decision to grant or refuse the application within sixty days of receipt of the application.</p> <p class="rteindent1">(4) In reaching a decision on an application for renewal, the Commission shall take into account the findings of its monitoring and investigative activities on whether and to what extent the operator</p> <p class="rteindent1">(a) has complied with the terms and conditions of a content authorisation;</p> <p class="rteindent1">(b) has met its obligations under these Regulations and Standard Guidelines issued by the Commission; and</p> <p class="rteindent1">(c) has generally remained in compliance with any enactment relating to electronic communications.</p> <p class="rteindent1">(5) Where the Commission makes a decision to renew a content authorisation, the Commission may issue the authorisation</p> <p class="rteindent1">(a) on such terms and conditions that the Commission considers necessary, or</p> <p class="rteindent1">(b) for a lesser period.</p> <p class="rteindent1">(6) The Commission shall give reasons in writing to an applicant for a refusal to renew a content authorisation.</p> <p><strong>Suspension or revocation of content authorisation</strong></p> <p>10.        (1) The Commission may suspend or revoke a content authorisation where the Commission determines that an operator</p> <p class="rteindent1">(a) has changed its programme guide without obtaining prior written approval from the Commission</p> <p class="rteindent1">(b)    is not complying with or has failed to comply with a provision in these Regulations or any other relevant enactment;</p> <p class="rteindent1">(c) has acted in a manner that is inconsistent with the Standard Guidelines or Directives of the Commission;</p> <p class="rteindent1">(d)    is carrying content or has carried content that is considered by the Commission in consultation with the relevant Agency, to be a threat to national security or public order;</p> <p class="rteindent1">(e) is not complying with or has failed to comply with a term or condition specified in the content authorisation;</p> <p class="rteindent1">(f) has failed to appear before a Settlement Committee of the Commission; or</p> <p class="rteindent1">(g)    has failed to comply with an order  or directive of the Settlement Committee of the Commission.</p> <p class="rteindent1">(2) The Commission shall not suspend or revoke a content authorisation unless the Commission has given not less than seven days notice to the operator of its decision to suspend or revoke the content authorisation and shall specify in that notice</p> <p class="rteindent1">(a) details of the breach, defect or omission that has led to the decision of the Commission to suspend or revoke the content authorisation,</p> <p class="rteindent1">(b) the measures or steps required to remedy the breach, defect or omission; and</p> <p class="rteindent1">(c) the period within which to remedy the breach, defect or omission</p> <p class="rteindent1">(3) Where an operator remedies a breach, defect or omission within the period specified in the notice, the Commission shall not revoke the content authorisation upon payment to the Commission of an administrative penalty of not less than three thousand penalty units and not more than twenty thousand penalty units.</p> <p class="rteindent1">(4) Where the Commission determines that an operator has failed to remedy a breach, defect or omission within the period specified in the notice, the Commission may revoke the content authorisation or place conditions on the continued use of the content authorisation and shall notify the operator in writing of its decision immediately.</p> <p><strong>Review of decision to suspend or revoke content authorisation</strong></p> <p>11.        (1) An operator who is dissatisfied with a decision of the Commission may request for a review of the decision.</p> <p class="rteindent1">(2) The Commission shall determine the procedure for a review and shall give an operator an opportunity to submit written representations or appear before the Commission to be considered and heard on its request for a review.</p> <p class="rteindent1">(3) The Commission shall make a decision on a request for a review within twenty-one days after receipt of the request for a review within twenty-one days after receipt of the request for a review and shall inform the in writing of its decision.</p> <p class="rteindent1">(4) Where the Commission fails to</p> <p class="rteindent1">(a) make a decision in accordance with sub regulation (3), or</p> <p class="rteindent1">(b) the applicant is dissatisfied with a decision of the Commission in relation to the review, the applicant may pursue the matter in Court.</p> <p><strong>Content standards</strong></p> <p>12.        (1) For the purpose of these Regulations, the Commission shall set Standard Guidelines for the content of programmes for public electronic communications networks, public communications services or broadcasting services as set out in the Third Schedule.</p> <p class="rteindent1">(2) In setting Standard Guidelines, the Commission shall seek to achieve the following:</p> <p class="rteindent1">(a) the protection of minors;</p> <p class="rteindent1">(b) the preservation of the right to privacy;</p> <p class="rteindent1">(c) the accurate and impartial reporting and presentation of news,</p> <p class="rteindent1">(d) that electronic programmes are not harmful to audiences</p> <p class="rteindent1">(e) that respect for human dignity is maintained,</p> <p class="rteindent1">(f) that generally acceptable standards with respect to morality and the public are met,</p> <p class="rteindent1">(g)that advertisements do not contain obscene, racial, prejudice or harmful messages,</p> <p class="rteindent1">(h) that advertisement are not misleading or untruthful or designed to mislead the public,</p> <p class="rteindent1">(i) that political programmes are fair and provide an opportunity for responses to be made by representatives of other political groups, and</p> <p class="rteindent1">(j) that programmes and content do not contain information likely to encourage crime, racial or political tension in the country.</p> <p class="rteindent1">(3) Despite sub regulation (1), the Commission may set any other Guidelines, Notice or Order in respect of a matter that is relevant to the operation of the public electronic communication network, public electronic communication service or broadcasting service.</p> <p class="rteindent1">(4) The Commission may amend or revise the Standard Guidelines, any Notice, Order or the other Guideline and shall publish the amendment or revision in the Gazette or in at least three daily newspapers of national circulation and on the website of the Commission.</p> <p class="rteindent1">(5) An operator who carries on or engages in an act that is determined by the Commission to be in breach of the Standard Guidelines, a Notice, Order or any other Guidelines, commits an offence and is liable on summary conviction to a fine of not less than five thousand penalty units and not more than fifty thousand penalty units or to a term of imprisonment of not less than two years and not more than five years or to both the fine and the term of imprisonment.</p> <p><strong>Offences and penalties</strong></p> <p>22. (1) A person who contravenes a provision under these Regulations for which a penalty is not provided is liable on summary conviction to</p> <p class="rteindent1">(a) a fine of not less than three thousand penalty units and not more than twenty thousand penalty units or to a term of imprisonment of not less than one year and not more than five years or to both the fine and term of imprisonment; and</p> <p class="rteindent1">(b) a fine of not less than six thousand penalty units and not more than forty thousand penalty units or to a term of imprisonment of not less than two years and not more than ten years or to both the fine and term of imprisonment in the case of a subsequent offence.</p> <p class="rteindent1">(2) An applicant who knowingly makes a false statement in connection with an application for content authorisation commits an offence and is liable on summary conviction to a fine of not less than ten thousand penalty units and not more than sixty thousand penalty units or to a term of imprisonment of not less than one year and not more than five years, and in addition to the fine or term of imprisonment, the Commission shall suspend or revoke the content authorisation granted to the operator under regulation 7</p> <p class="rteindent1">(3) An operator who fails to comply with a request to submit information or a document to the Commission within a period specified in the request commits an offence and is liable to pay an administrative penalty of five thousand penalty units and to a further administrative penalty equivalent to ten percent of that penalty for each day that the document or information remains undelivered.</p> <p class="rteindent1">(4) Where an offence is committed by a body corporate or partnership, each director, officer or secretary and each member of that partnership is liable on summary conviction to the penalty provided in respect of that offence.</p> <p class="rteindent1">(5) Despite sub regulation (4), a person shall not be convicted of an offence if that person proves that the offence was committed without the consent or connivance of that person and that due diligence was exercised to prevent the commission of the offence having regard to the circumstances.</p> <p class="rteindent1">(6) Where an operator is convicted of an offence, the Commission may</p> <p class="rteindent1">(a) suspend or revoke the content authorisation held by that this</p> <p class="rteindent1">(b) withhold a grant of a content authorisation or related approval until the contravention is remedied.</p> <p>It is also the plaintiffs’ case that the constitutional provisions are clear and their intent, according to them, at page 13 of their statement of case was “<strong><em>to avoid a situation where prior approval for the content of any publication of newspapers…..as required to be sanctioned by the government. Furthermore it has been provided that there shall be no harassment or punishment for the content of any such publication. With this in mind, it would be almost impossible to assume that the Constitution would take such a power from the Government and grant same to the 2<sup>nd</sup> Defendant. This is because if the Constitution intended the 2<sup>nd</sup> Defendant to have that power it would expressly state so in unmistakable terms.”</em></strong></p> <p>The plaintiffs also state at page 14 of the statement of case that however limited or whatever description is given to the content authorization, as long as the 2<sup>nd</sup> Defendant has the right to determine what should be contained in the authorization, the effect is the same, in the sense that there would be no publication without prior authorization. In their view, one cannot conceive of any higher form of media gagging than the one anticipated by the impugned Regulations in LI 2224.</p> <p>The 1<sup>st</sup> Defendant’s case is briefly summed up in paragraph 7 of their statement of case  <strong>“…..that save that the penal provisions contained in LI 2224 which are quite harsh, the said Regulations are in consonance with the Constitution and are reasonable and also justified in a free and democratic society.”</strong>The 1<sup>st</sup> Defendant stated that there is nothing like absolute freedom under any provision of the Constitution, there are restrictions and limitations placed on the enjoyment of the rights guaranteed by the Constitution, and according to the 1<sup>st</sup> Defendant, these restrictions are necessary for effective governance.</p> <p>For their part, the 2<sup>nd</sup> Defendant challenged the basis of this action by raising jurisdictional questions. On the merits of the case,it was their view that some amount of regulation was required in the media sector. They made reference to this court’s decision in the case of REPUBLIC vs. INDEPENDENT MEDIA CORPORATION OF GHANA and Others (1996-97) SCGLR 258 which upheld the need for restraints on the broadcast media for various reasons, especially public interest. In their view the measures taken by them were aimed at ensuring transparency which enables them to take remedial action even before broadcast institutions do any damage.</p> <p>The issues agreed upon for determination are as follows:</p> <p class="rteindent1">1. Whether or not the original jurisdiction of the Supreme Court has been properly invoked having regard to Plaintiff’s reliefs.</p> <p class="rteindent1">2. Whether or not the cumulative effect of Regulations 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 22 of National Media Commission (Content Standards) Regulations 2015, LI 2224 amounts to censorship of the media and inconsistent with Article 162(2) of the 1992 Constitution and to the extent of the inconsistency, unconstitutional, null and void.</p> <p class="rteindent1">3. Whether or not the cumulative effect of Regulations 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 22 of National Media Commission (Content Standards) Regulations 2015, LI 2224 amounts to control and direction over the professional functions of operations and inconsistent with the spirit and letter of Article 162(4) and Article 167(d) of the 1992 Constitution and to the extent of the inconsistency, unconstitutional, null and void.</p> <p class="rteindent1">4. Whether or not the Standard Guidelines under Regulation 12 of the National Media Commission (Content Standards) Regulations 2015, LI 2224 are legally vague and also inconsistent with the spirit and letter of Article 162(4) and Article 173 of the 1992 Constitution and to the extent of the inconsistency, unconstitutional, null and void.</p> <p>The first issue will be addressed to start with. Then the second and fourth issues will be addressed together, followed by the third issue. The first issue relates to the court’s jurisdiction in respect of this matter.</p> <p>Before the issues are discussed let us clear a procedural hurdle raised by the 2<sup>nd</sup> defendant. The 2<sup>nd</sup> defendant took issue with the plaintiff’s description of the statement of case as having been filed “pursuant to Article 2(1)(a) and (b) and Article 3(4)(a) of the 1992 Constitution of Ghana.” In their view “….the statement of case filed by the plaintiff (after issuing the writ which invokes the original jurisdiction of this court) is required by rule 46(1) of the rules of this court but not the constitutional provisions relied upon by the plaintiff.” Counsel then said he would not make capital of this point and yet he proceeded to state that “if this statement of case is indeed filed pursuant to article 2(1)(a)and (b) as well as article 3(4)(a) of the 1992 Constitution then the statement of case is void.”</p> <p>The point raised by the 2<sup>nd</sup> defendant is really a matter of procedural error or slip. It is a case of wrongful reference to the relevant legislation, but the body of the statement and its contents leave no one in any doubt that the plaintiff was submitting a statement of case in support of the writ which they had earlier issued. This obvious error causes no injustice, as the other parties and the court are not left in any suspense as to what to make of the document filed. But for the vigilance of counsel for the 2<sup>nd</sup> defendant it would have passed unnoticed as the title clearly suggested it was the plaintiff’s statement of case, which was filed within the time permitted by the rules. We would waive this slip, exercising our discretion under rule 79 of The Supreme Court Rules, 1996, C.I. 16, and admit the statement as duly filed as no injustice, not even an inconvenience, results therefrom.</p> <p>On the question of jurisdiction, the central point of complaint against the plaintiff’s case is that “it is not appropriate, as what plaintiff has done in this case is to assemble as many statutory provisions in the enactment complained about in relation to his/her case, and then throw it at the Court, for the court to now determine the extent of their inconsistency with or contravention of the Constitution.” They made reference to this court’s decision in the case of ASARE BAAH III and Others vs. ATTORNEY-GENERAL and Another (2010-2012) 1 GLR 427 where the court stated, per Wood CJ at 435“………that all alleged acts of statutory and constitutional invalidity, breaches or violations, inconsistencies or non-compliance be identified with sufficient particularity…..” The 2<sup>nd</sup> defendant referred to the reliefs being sought by the plaintiff and said that “a reading of plaintiff’s reliefs will confirm that plaintiff actually seeks the striking down of almost the entirety of L.I. 2224 without a scrutiny of each of its provisions for purposes of assisting this court determine just to what extent the pervasive provisions of regulations 3-12 and 22 of L.I. 2224 are inconsistent with or in contravention of the Constitution.”</p> <p>The 1<sup>st</sup> defendant lent support to the 2<sup>nd</sup> defendant on this issue. After citing article 2(1) of the Constitution under which this action was mounted, the 1<sup>st</sup> defendant argued that this was not a proper case in which the original jurisdiction of this court could be invoked in the sense that it does not raise a genuine case of interpretation. They cited these cases to buttress their arguments: BORTIER &amp; QUAYE vs. ELECTORAL COMMISSION &amp; ATTORNEY-GENERAL (2012) SCGLR 433, per Sophia Akuffo, JSC, at page 438; ADUMOA II vs. TWUM (2000) SCGLR 165. Their submission was that “the effect of the legal authorities cited above is that for the plaintiff to successfully invoke the original jurisdiction of this Honourable Court it must indicate any specific provisions of the 1992 Constitution in respect of which it seeks an interpretation or demonstrate by pleadings that any legislation is in contravention of any provisions of the 1992 Constitution.” They also made reference to this court’s decision in the case of ASARE BAAH III and 4 Others vs. ATTORNEY-GENERAL and the ELECTORAL COMMISSION, supra. In that case the plaintiff’s action founded on a subsidiary legislation, namely E.I. 11 of 2007 was dismissed because it did not raise any specific provision that was inconsistent with any specified provision of the Constitution and the action was thus not cognizable under the Constitution. The 1<sup>st</sup> defendant then said that this is a subsidiary legislation which raises no constitutional interpretation so the plaintiff is seeking remedies in the wrong forum and on the strength of the ASARE BAAH case, supra, it ought to be dismissed. Accordingly it is the contention of the 1<sup>st</sup> defendant that the original jurisdiction of this honourable Court has not been properly invoked.</p> <p>On the question of wrong forum and whether the case raises a question for constitutional interpretation, we have to examine the reliefs sought and the pleadings in order to make a determination of this issue. The plaintiff has listed as many as eleven of the regulations under L.I. 2224 and labeled them as being inconsistent with specific provisions of the Constitution. Prima facie, the objection is not sustainable on the facts and law. The reliefs make reference to specific provisions of L.I. 2224 which they say are inconsistent with specific provisions of the Constitution on stated ground or reason in each case. They have explained why and how these regulations affect the constitutional guarantee of media freedom. This satisfies the requirement of article 2(1) of the Constitution. The fact that these impugned provisions virtually affect the entire L.I. 2224 and expunging them might render the other provisions redundant is no reason why the action cannot be maintained. From a clear reading of the language of article 2(1), even an entire legislation could be struck down as unconstitutional. The cases cited by defense counsels do not really advance their argument, for the reliefs sought herein are clearly cognizable under the Constitution. It is noted that there is no magical or standard formula in setting out a constitutional case before this court; what is important is that the contents of the reliefs sought and the affidavit in support must raise a case cognizable under the Constitution. However inelegant the words used in expressing the reliefs, what is important is that they are couched in language that the court will appreciate without difficulty; the court will then look at the substance of the claim in order to do substantial justice. The jurisdictional objection is accordingly rejected as unsustainable.</p> <p>On the merits of the case, the first question raised is whether the impugned regulations, namely 3 through 12 and 22 constitute censorship within the meaning of articles162(1) and (2) of the 1992 Constitution which read:</p> <p><strong>162(1): Freedom and independence of the media are hereby guaranteed.</strong></p> <p>162(2): <strong>Subject to this Constitution and any other law not inconsistent with this Constitution, there shall be no censorship in Ghana.</strong></p> <p>The main thrust of the plaintiff’s case has been set out already. The 1<sup>st</sup> defendant’s case, besides what has already been set out above, made reference to a number of authorities, both local and foreign, to buttress their argument. They referred to the regulations as well as the forms in the Schedules and stated that nothing contained therein supports what the plaintiff is saying. They referred to the proportionality test which measures the objectives of the regulations against the restrictions on press freedom. Applying this test one cannot say that these regulations have any adverse or negative effect on press freedom. The 2<sup>nd</sup> defendant’s arguments are not substantially different from those of the 1<sup>st</sup> defendant. But the 2<sup>nd</sup> defendant took the view that the plaintiff’s reliefs are “too broad and are couched oblivious of this Court’s power to strike out statutory provisions, taking into account the extent to which the provisions sought to be struck out comply with the Constitution, or otherwise” They cited some decisions by this court which had upheld the view that a certain amount of restraint was required on press freedom. Their conclusion was that “regulating broadcasting standards does not infringe the 1992 Constitution provided they can be justified on the ground of public interest.”</p> <p>The use of the expression ‘subject to’ in clause 2 of Article 162 is suggestive that some form of censorship is permissible under the Constitution and other law duly passed that is not inconsistent with the Constitution. Therefore, in the event of a collision the free expression will yield to the restriction imposed by article 164, for instance, aimed at curtailing media freedom. Indeed it is only an affirmation of the view expressed by this court that there is nothing like an absolute freedom. Thus for instance the Constitution itself under Article 12(2) recognizes and imposes restriction and limitation on the rights guaranteed under Chapter 5 to individuals. On the specific right to free expression to persons including corporate bodies, the restriction to, or limitation on, its enjoyment is imposed by Article 164 of the Constitution, which provides:</p> <p><strong>The provisions of articles 162 and 163 of the 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.</strong></p> <p>The Constitution, therefore, envisages that any authority which is entrusted with the responsibility to pass laws to manage the media landscape would pass such laws as are devoid of censorship, in the first place. And where it is necessary to introduce a form of censorship, it must be justified in terms of the clear provisions of Article 164 of the Constitution or any other material provision in the Constitution or law that is not inconsistent with the Constitution. Where any restriction or limitation fails the test of justification in terms of the Constitution, it would not have passed the no-censorship requirement in Article 162(2).</p> <p>It is almost a universal concept that freedom of expression should be unhampered except in the very limited situations specifically provided for by law. That has been the position in Ghana and other jurisdictions whose decisions are of persuasive influence. It must be observed that in the area of freedom of expression in a multi-party democracy, the standards of practice and norms are similar; thus it is an area where the practice and jurisprudence of other jurisdictions could safely be applied here, except in clear cases of incompatibility with our laws and social values. In the case of HANDYSIDE v. UNITED KINGDOM, judgment of 7 December 1976, Series A No. 24 at 49, the European Court of Human Rights, described freedom of expression as “one of the basic conditions for the progress of democratic societies and for the development of each individual.” It presupposes that every person, human or corporate, must have the liberty to air their views freely, bearing in mind the restrictions imposed by the Constitution and other laws, not inconsistent with the Constitution, and also bearing in mind the possible consequences of the views expressed, including criminal sanctions. The viability of civil and political institutions largely depends on free discussion and debate, or exchange of ideas which in the words of Chief Justice Hughes in the case of DE JONGE v. OREGON, 299 U.S. 353, (1937) at 365 ensures “that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely……publish or act freely and to promote diversity of ideas and programmes is therefore one of the chief distinctions that sets apart democracies and totalitarian regimes.”</p> <p>Whilst taking a very extreme view of free speech, Justice Douglas who wrote for the majority in the case of TERMINIELLO v. CITY OF CHICAGO, 337 U.S. 1 (1949) said at pages 4 and 5 that:</p> <p class="rteindent1">“<strong><em>A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech not absolute……is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantial evil that rises far above publicinconvenience, annoyance, or unrest. <u>The alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.” </u></em></strong>Emphasis supplied.Despite the extreme view of freedom of expression by Justice Douglas, the refreshing thing is the recognition that it is not an absolute right, but is subject to some form of censorship for the public good.</p> <p>The standardization of ideas is a likely product of content authorisation regime. It is what the 2<sup>nd</sup> defendant wants that will be the one to publish and broadcast. It is another way of saying that they want to see the contents of a publication before it comes out, a derivative of the concept of prior restraint, which this court and most democratic countries frown upon as amounting to censorship, unless there is justification by clearly defined law.</p> <p>Reference will be made at this stage to some decided cases to illustrate the extent of the prior restraint concept or doctrine and how the courts have decisively rejected any such move that is not justified and clearly backed by law. First is the case of NEAR v. MINNESOTA, 283 U.S. 697 (1931). The State of Minnesota passed a law which provided that any ‘‘malicious, scandalous and defamatory newspaper’’ was ‘‘a nuisance, and all persons guilty of such nuisance may be enjoined’’ from publication. On the strength of this law, the state attorney obtained an injunction against the newspaper or periodical called the Saturday Press, which had published series of articles charging law enforcement officers with graft and neglect of duty in dealing with gangsters. The injunction which prevented publication of any ‘malicious, scandalous or defamatory newspaper’ or of a ‘nuisance under the name and title of said Saturday Press or any other name or title,’ was affirmed by the state supreme court. However, it was reversed by the US Supreme Court. In the words of Chief Justice Hughes:</p> <p class="rteindent1"><strong><em>“The object of the statute is not punishment, in the ordinary sense, but suppression of the offending newspaper……. The statute not only operates to suppress the offending newspaper or periodical, but to put the publisher under effective censorship…………in determining the extent of the constitutional protection, it has been generally, if not universally, considered that it is the chief purpose of the guarantee to prevent previous restraints upon publication. The liberty deemed to be established was thus described by Blackstone: ‘</em></strong>The liberty of the press…..consists in laying no previous restraints upon publications. Every free man has an undoubted right to lay what sentiments he pleases before the public……But if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.”</p> <p>The above passage from Blackstone was quoted with approval by this court in the case of REPUBLIC v. TOMMY THOMPSON BOOKS LTD, QUARCOO &amp; COOMSON(1996-97) SCGLR 804 hereafter referred to as the Tommy Thompson case.  At 871, Adjabeng, JSC made reference to the case of RICHARDS v. ATTORNEY-GENERALOF ST. VINCENT AND THE GRENADINES (1991) LRC (Const) 311. In that case the court made this pronouncement at page 327 of the report, which Adjabeng JSC quoted at length in the TOMMY THOMPSON case, supra. The relevant part of that quotation is this:</p> <p class="rteindent1"><strong><em>“Blackstone, the great English lawyer and oracle of the common law, wrote in 1765: ‘The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure from criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences</em></strong><strong> of his own temerity<em>…..Accordingly, as Blackstone saw it, freedom of speech and freedom of the press, which are both comprehended in freedom of expression, protected an individual from any prior restraint upon what he said. There was no need to obtain government approval or consent before a man expressed himself, and government has no right to interfere with or to prevent anyone from writing, publishing and circulating a book or other pamphlet.Government could not keep ideas from being communicated, but it could…..punish a man for what he said after he had said it.”</em></strong></p> <p>This dictum highlights the balance that the framers of the Constitution sought to maintain between the enjoyment of rights and respect for the rights of others, which are echoed in Articles 12(2), 162, and 164 of the Constitution. In the Tommy Thompson case, supra, at page 873, Amuah JSC, cited the case of ATTORNEY-GENERALOF ANTIGUA AND BARBUDA v. HECTOR, dated 22 June 1987, unreported judgment of the Court of Appeal of the Eastern Caribbean Supreme Court at St. Vincent. The learned judge quoted this relevant passage from the dictum of Robotham CJ:</p> <p class="rteindent1"><strong><em>“Absolute and unrestricted individual rights wholly freed from any form of restraint cannot exist in a modern democratic society. As was said in the case of Ackins v. Children’s Hospital 261 U.S. 525 (1923), the liberty of an individual to do as he pleases even in innocent matters is not absolute. It must frequently yield to common good. Thus it is that a publisher has no more right to print what he pleases about a person than that person has to the protection of his reputation from scurrilous attacks. Thus it is that the enjoyment of all rights guaranteed by the Constitution must be subject to such reasonable conditions as may be seen by the authorities in control to be essential for the general order, safety, health, and peace of the State.”</em></strong></p> <p class="rteindent1">Sophia Akuffo JSC also shared similar opinion in the Tommy Thompson case, supra. At page 883, this is what the learned judge said on prior restraints: <strong><em>“As was acknowledged by this court in the case of New Patriotic Party v. Inspector-General of Police, Supreme Court, 30 November 1993, unreported, the principle of prior restraint of a constitutional freedom, even an entrenched freedom, is not unknown to our Constitution and is founded on the universally accepted principle that every right of freedom is subject to the rights and freedoms of others and the protection of the reasonable interests for the common good.”</em></strong></p> <p>The universality of reasonable restraint on the enjoyment of freedom of expression was clearly accepted by this court in the case of Tommy Thompson, supra. See also GORMAN and Others vs. THE REPUBLIC (2003-2004) SCGLR 784 at 806, per Modibo Ocran JSC; AHUMAH-OCANSEY vs. ELECTORAL COMMISSION; CENTRE FOR HUMAN RIGHTS &amp; CIVIL LIBERTIES(CHURCIL) v. ATTORNEY-GENERAL &amp; ELECTORAL COMMISSION (CONSOLIDATED) (2010) SCGLR 575, per Dotse JSC at 655. I would just affirm this by reference to other jurisdictions, infurther support of the position this court has already taken.In principle prior restraint raises constitutional question of illegality, albeit prima facie, but it is permissible if justified by law. As stated in the case of NEW YORK TIMES CO. v. UNITED STATES (THE ‘PENTAGON PAPERS’ CASE) 403 U.S 670 (1971): “Any system of prior restraints of expression comes to this court with a heavy presumption against its constitutional validity…..the Government thus carries a heavy burden of showing justification for the imposition of such a restraint.”</p> <p>It is noted that any prior restraint has an immediate irreversible sanction, hence the requirement for justification.Thus in the English case of A v. B plc and Another (2002)TLR 113 the court stated, per Lord Woolf, Lord Chief Justice, that regardless of the quality of the material which was intended to publish, prima facie, the court should not interfere with its publication. Any interference with publication must be justified.</p> <p>Besides finding justification for a prior restraint, the courts have also taken the position that if there are alternative ways of imposing restriction on publication, the court should not order prior restraint because prima facie prior restraint raises question of constitutional validity. The case of NEBRASKA PRESS ASSOCIATION v. STUART, 427 U.S. 539 (1976) involved a pretrial judge issuing what the Supreme Court described as a ‘press gag’ against publication of accounts of confessions made by the accused or facts strongly implicating the accused. The Supreme Court struck down the order. What is relevant to the ongoing discussion is the concurring opinion of Justice Brennan, which was supported by Justices Stewart and Marshall wherein he said: ”<strong><em>I would hold……that resort to prior restraints on the freedom of the press is a constitutionally impermissible method for enforcing the right to a fair trial; judges have at their disposal a broad spectrum of devices for insuring thatfundamental fairness is accorded the accused without necessitating so drastic an incursion on the equally fundamental…..constitutional mandate that discussion of public affairs in a free society cannot depend on the preliminary grace of judicial censors.”</em></strong></p> <p>In the case of LOVELL v. GRIFFIN, 303 U.S. 444 (1938), the court struck down a state ordinance which forbade the distribution by hand or otherwise of literature of any kind without prior permission from the city manager. The court’s opinion was that the ordinance was not limited to obscene and immoral literature or that which advocated unlawful conduct, placed no limit on the priviledge of distribution in the interest of public order, was not aimed to prevent molestation of inhabitants or misuse or littering of streets, and was without limitation as to time and place of distribution. The court said whatever the motive, the ordinance was bad because it imposed penalties for the distribution of pamphlets, which had become historical weapons in the defence of liberty, by subjecting such distribution to license and censorship. The ordinance was therefore void because on its face it abridged the freedom expression.</p> <p>It is desirable to sum up all that has been said so far in respect of legitimate restrictions to the freedom of expression by reference to what Justice Roberts, who delivered the opinion of the court in the case of SCHNEIDER v. STATE, 308 U.S. 147(1939) said: <strong><em>“This court has characterized the freedom of speech and that of the press as fundamental personal rights and liberties. The phrase is not an empty one, and was not lightly used. It reflects the belief of the framers of the Constitution that exercise of the rights lies at the foundation of free government by free men. It stresses, as do many opinions of this court, the importance of preventing the restriction of enjoyment of these liberties.</em></strong></p> <p><strong><em>In every case, therefore, where legislative abridgment of the rights is asserted, the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions. And so, as cases arise, the delicate and difficult task falls upon the courts to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights.”</em></strong></p> <p>In the SCHNEIDER case itself, supra, the court struck down an ordinance which forbade the distribution of pamphlets for littering, for reasons, inter alia, that there were other ways of dealing with the situation on hand like imposing penalties for littering without curtailing the fundamental right to disseminate information to people who care to receive same.</p> <p>Regulation 3 of LI 2224 obliges broadcasters to disclose the contents of their programmes for authorisation before broadcast. Prima facie it raises an issue of press censorship by the 2<sup>nd</sup> defendant. This is because by asking for these contents to be disclosed before authorisation will be given, it amounts to saying that the 2<sup>nd</sup> defendant predetermines what should be broadcast by the operators. It is akin to a licensing regime which the Constitution has effectively eliminated from our body politic. The framers of the Constitution were very clear in their mind that they were giving the media freedom to operate subject only to such restrictions or limitations as the Constitution itself has prescribed under Article 164 or any other relevant provision thereof or other law not inconsistent with the Constitution. Therefore any law that seeks to impose restrictions on the enjoyment of the right of freedom of expression must find legal justification.</p> <p>Thus where a legislation seeks to impose restrictions, it must be able to justify it by saying that it is reasonably required in the national security interest (like disclosing military strategies in public), or of public order (like prohibiting broadcast of ethnocentric materials), public morality (like for instance prohibition of pornographic materials on TV) and for protecting the rights, freedoms and reputations of other persons. These must be clearly stated in the legislation, without leaving room for inferences and conjectures. In other words the law or any regulation which introduces a restriction must be precise and give clear guidance as to future conduct. That is the extent that any regulation may go. Any attempt to approve in advance what has to be published goes beyond the power that a regulator has unless it is permitted by legislation. The 2<sup>nd</sup> defendant’s functions are spelt out in Article 167 of the Constitution and in Act 449 and they do not in way permit them to regulate the media in this manner. Its mandate entitlesit to publish guidelines to regulate the future conduct of the industry players and to possibly sanction infractions of the regulations. Once the 2<sup>nd</sup> defendant comes out with the guidelines as to future conduct on what may or what may not be published, the operators may impose a self-censorship on themselves, knowing full well the consequences of violating the regulations. But the Constitution frowns upon censorship imposed from outside unless justified by law as earlier explained.</p> <p>It is clear from even a cursory reading of regulation 3 of LI 2224 that there is clearly a case of censorship contrary to article 162 of the Constitution. It is a blanket provision which enables the 2<sup>nd</sup> defendant to determine what may be broadcast or not, thereby undermining the very reason which encouraged the framers of the Constitution to remove control of the media from the government and placed it in the hands of an independent body. That regulation will have the effect of stifling diversity of ideas and lead to standardization of ideas like what happens in dictatorships and communist societies. And to cap it all, no legal justification in terms of article 164 of the Constitution or Act 449 or any other law has been given why it is necessary to impose this requirement of prior authorisation. It is recalled that in the case of REPUBLIC vs. INDEPENDENT MEDIA CORP. supra, the court upheld the restriction on media freedom because the measures were reasonably required for the protection of national security, public order and public morality, which restrictions are within the ambit of article 164. Regulation 3, as it stands, violates article 162(2) of the Constitution and is thus void. The 2<sup>nd</sup> defendant‘s position that there is no censorship is not acceptable in the face of the clear expressions they themselves have used in enacting this piece of legislation for no legal justification has been proffered.</p> <p>The Commission could have achieved the result without a restraint on press freedom if Parliament had published detailed legislation on content and impose sanctions for infringement which they could do under article 164. It is desirable to explore every available alternative ways of carrying out its mandate without curtailing media freedom. It is advisable to go back to the drawing board, and reconsider their core functions and the limitations placed on media practitioners by article 164 of the Constitution. Their feathers might have been ruffled by the overtones that the expression ‘censorship’ connotes in their functions, but they should recognize unblinkingly that censorship was exactly what regulation 3 was all about.</p> <p> Regulations 4 through 11 are largely the steps or procedures put in place to perfect the requirement for content authorisation imposed by regulation 3. Their survival is dependent on regulation 3. They are the vehicles put in place to give effect to regulation 3. Let us take a critical view at some of these provisions and the effect they have on press censorship. Regulations 6, 9, 10 and 11 make detailed provisions for application by an operator, acknowledgement of receipt of the application by the Commission, consideration of the application, approval or refusal to grant;also the renewal of authorisation and right to refuse application for renewal. There are certain time lines provided. What the regulations entail is that during the period of consideration of an application, an operator’s existing authorisation may run out and he will have to cease operation or suffer some penalties.What is even disturbing is that if the Commission decides not to approve the content of the programme upon an application to renew or decides to delay it, an operator cannot operate. It is acknowledged that some news item cannot be delayed else it loses its viability and relevance. Any regulation should have clear guidelines as will leave no room for officials of the Commission to block an operator under the guise of the law. As observed by the European Court of Human Rights in the case of THE OBSERVER and GUARDIAN v. the UNITED KINGDOM, 26 November 1991, Appn. No. 13585/88, para. 60:</p> <p class="rteindent1">“The dangers inherent in prior restraints are such that they call for most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest.”</p> <p>A system whereby media content must be officially cleared before it can be broadcast or published is unacceptable in law, it is a clear violation of the constitutional provisions on media freedom; the harm it does to freedom of expression plainly outweighs whatever benefit it aims to achieve. For these reasons, it follows that these regulations 4 through 11 will have to suffer the same fate as regulation 3 and are accordingly declared void.</p> <p>But the same cannot be said of regulation 12, with the exception ofsub-regulation (5) which imposes criminal sanctions or penalties.What this regulation seeks to do is precisely what the 2<sup>nd</sup> defendant is required by law to do. It has to set the guidelines to bring into practical effect the limits of media freedom in the context of article 164 of the Constitution and any other law not inconsistent with the Constitution. It is a legitimate function entrusted to the 2<sup>nd</sup> defendant to perform; the plaintiff is not saying that the Standard Guidelines contained in the Third Schedule contain material which cannot come within the provisions of article 164 of the Constitution. But as conceded by the 1<sup>st</sup> defendant the penalties appear too harsh, yet the court cannot strike down a penal legislation because the various forms of punishment prescribed therein are too harsh. It is for Parliament to act on that, failing which the law remains valid. The court is thus unable to accept the case to declare regulation 12 of LI 2224 as unconstitutional. However, for the reasons embodied in the ensuing discussions, sub-regulation (5) of regulation 12 of L.I. 2224 is struck down as unconstitutional.</p> <p>The second issue also attacks regulation 22 as amounting to censorship and therefore unconstitutional. In relation to this issue of censorship, an answer may be found if we consider first of all whether any power has been given to the 2<sup>nd</sup> defendant to impose criminal sanctions for infractions of the guidelines it publishes to regulate media activities. Next we will have to consider whether in the context of this case, the penalties prescribed under regulation 22 derive their existence or justification from regulation 3 which has been declared void, and if so whether they can survive in the absence of regulation 3.</p> <p>To begin with, It is noted for emphasis that article 162(4) states in no uncertain terms that media operators shall not be penalized for their editorial opinions, views and content of their publications. Despite the fact that the provision refers to the government, does the Commission have the power to prescribe criminal sanctions by subsidiary legislation under this provision? This court has upheld the view that the provisions of article 162(4) apply to the Government. That was in the case of REPUBLIC v. TOMMY THOMPSON BOOKS LTD (No. 2) and Others (1996-97) SCGLR 484. Acquah JSC (as he then was) at pages 497-498 stated as follows:</p> <p class="rteindent1">“<strong><em>Now the rationale for enacting article 162(4), in the light of the then state of the press and media, is stated in paragraph 188, page 86 of the said Report as follows: </em></strong></p> <p class="rteindent1"><strong><em>‘</em></strong><strong>As things stand now, there is direct governemental (ministerial) interference in or control of the operations of the press. Editors and reporters are appointed by the Ministry of Information, and they see themselves as civil servants and feel constrained in carrying out their professional standards possible. This ministerial power ofappointment and dismissal of reporters and governmental interference in media activities have greatly contributed to the erosion of the freedom and independence of the press and media in Ghana.’</strong></p> <p class="rteindent1"><strong>……………<em>It is to save editors and publishers from such ministerial manipulation and treatment that article 162(4) in particular and the National Media Commission were put forward………..The article did not exempt editors and publishers from both civil and criminal proceedings at the courts in respect of contents of their publication. And this is quite clear from the Committee of Experts’ own draft of article 162(4) as appearing at page 88, paragraph 190(iii) in their Report as follows:</em></strong></p> <p class="rteindent1"><strong>‘Editors and newspaper publishers, the press and mass-media should not be subject to governmental control, interference and harassment nor should they be penalized for their editorial opinions or views expressed in the mass-media beyond the requirement of public order, morality etc and relevant laws.’</strong></p> <p class="rteindent1"><strong><em>Accordingly the words ‘control’, ‘interference’, ‘penalised’ and ‘harassed’ used in article 162(4) are all referable to the government….” </em></strong></p> <p>The court therefore upheld the provisions under the Criminal Offences Act, 1960 (Act 29) criminalizing libel, before those provisions were subsequently repealed by Parliament. Government is defined by article 295(1) of the Constitution to mean “any authority by which the executive authority of Ghana is duly exercised.” There can be no dispute that neither Parliament nor the Commission exercises executive authority in Ghana. If follows that the prohibition on criminalization of media freedom is restricted to only the Government, meaning the executive.</p> <p>It is noted that article 162 is even subject to the provisions of article 164 which for purposes of emphasis is reproduced here:</p> <p class="rteindent1"><strong>“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.”</strong></p> <p>This provision gives room for laws to be passed that will restrict media freedom and free speech in general. The issue that arises for our consideration is who has the responsibility to enact laws that restrict the right to enjoy free expression guaranteed by the Constitution. The Commission purported to pass this instrument pursuant to the power conferred on it by Parliament under Act 449. By virtue of article 11(1)(b) of the Constitution, enactment made under the authority of Parliament constitute part of the laws of Ghana. However, the person who claims to have been empowered by Parliament must be one who could legitimately be the recipient of such power, often done by way of delegated legislation.</p> <p>We would thus examine the relevant provisions of the Constitution as well as the legislative antecedents curtailing free expression in this country and the provisions of Act 449 itself, to determine whether the Commission has the power to impose criminal sanctions, besides the limited legislative power conferred on it by article 167(d) of the Constitution.</p> <p>The question of free expression as stated in this decision and others cited herein leave no room to doubt that any curtailment should be done by the legislature. All the external decisions cited were founded on substantive statutes, and not left to administrative bodies to enact laws curtailing free expression. Such administrative bodies could be empowered to implement the laws as passed by the legislature. Let us take article 167(e) of the Constitution which enables the Commission to be given additional functions. It could never be argued that Parliament could authorize the Commission to add to its functions by subsidiary legislation. The clear implication from article 167(e) is that the Commission cannot perform any other function except it has been enacted into law by Parliament. Parliament cannot confer that responsibility upon the Commission to perform. The provisions of article 164 could be legislated by Parliament itself and then the Commission could be empowered by Parliament to implement. The framers of the Constitution could not have contemplated that it is the Commission which would determine what matters constitute national security interest especially given the fact that such matters often involve state secrets.  Thus in the legislative antecedents of this country, all matters which have the effect of restricting free expression have been made laws by Acts of Parliament. Examples are the Cinematograph Act, 1961 (Act 76) which permits some form of film censorship and creates offences with criminal sanctions for infractions thereof; Public Order Act,1994 (Act 491); the Criminal Offences Act, 1960 (Act 29), which criminalizes minor offences like use of insulting words (section 207), publication of false news (section 208) all of which impose some restrictions on free expression. But they can be justified in terms of article 164 of the Constitution in protection of the rights and reputations of other persons. These are all substantive legislations which Parliament cannot delegate to an administrative body.</p> <p>A close reading of the provisions of Act 449 would show that the Commission was not empowered to add to its functions. The provisions of article 164 affect the substantive rights of all persons as they restrict free expression and are thus neither incidental to, nor do they arise from the functions specifically entrusted to the Commission by Article 167 of the Constitution and reproduced in section 2 of Act 449. It is for Parliament, if it is so minded, to pass law/s spelling out what matters are reasonably required in the interest of national security, public order (like they did in Act 491), public morality (like Act 76) and for purpose of protecting the reputations, rights and freedoms of others (like sections 207 and 208 of Act 29). Parliament did not and could not have empowered the Commission to criminalize free expression by Act 449. For these reasons the penal provisions in L.I. 2224 were ultra vires the functions of the Commission and thus void. This decision equally applies to regulation 13(5) of L.I. 2224. There are  other reasons why regulation 22 cannot stand.</p> <p>The regulations were made by the 2<sup>nd</sup> defendant pursuant to section 24 of the National Media Commission Act, 1993 (Act 449). Act 449 is an Act of Parliament and must therefore derive its source from the Constitution. Every existing legislation that has some relationship with the present Act may be resorted to in order to give effect to its provisions. Section 21(7)(a) of the Interpretation Act, 2009 (Act 792) provides that:</p> <p><strong>Where an enactment confers a power to make statutory instrument that power includes a power to provide (a) a punishment by way of a fine or a term of imprisonment or both or to community service for a contravention of that statutory instrument.</strong></p> <p>It is clear from this provision that the authority to prescribe criminal sanctions by a body other than Parliament, which is entrusted with power of making laws for the country under article 93 of the Constitution, can only do so by way of a constitutional instrument, which must derive its source from the Constitution or a statutory instrument which derives its strength from an Act of Parliament. Article 167 which sets out the functions of the Commission, states in clause (d) that it may perform the particular function prescribed therein, that is registration of newspapers and other publications, by way of a constitutional instrument. It could thus include criminal sanctions as stated in section 21(7)(a) of Act 792 when it publishes regulations by a constitutional instrument for the registration of newspapers and other publications. It follows that the Commission cannot create criminal offences in respect of its other functions specified under article 167 of the Constitution. The <strong><em>‘expressio unius est exclusio alterius’</em></strong> principle applies since the intent of Article 167, considered in the light of article 162 and the purpose and intent of the provisions on media freedom, was to give the Commission this limited legislative power in respect of its function spelt out in article 167(d) of the Constitution. If it was intended that it should have wide legislative power in respect of all its functions, language similar to the ones in articles 51 (concerning the Electoral Commission) and 157(2) (concerning the Rules of Court Committee) would have been employed. The ‘exclusio’ could not have been accidental or inadvertent, but deliberate and on purpose in order not to criminalize almost every aspect of the Commission’s functions and thereby put the right to free expression in jeopardy. No injustice results from the application of the ‘exclusio unius’ principle in the instant.</p> <p>Moreover, the principle applies where, as in the instant situation, a specific remedy or procedure has been fixed by the legislation; the intention being that only that remedy or procedure should apply. Thus in the case of BLACKBURN vs. FLAVELLE (1881) 6 App Cas 628 where an Act provided that in certain circumstances Crown land could be forfeited and was then liable to be sold at auction, it was held that the latter words precluded any other mode of dealing with forfeited land by the Crown. In the case of GRIFFITHS vs. SECRETARY OF STATE FOR THE ENVIRONMENT (1983) 2 AC 51, an Act contained numerous provisions imposing an express obligation on the Secretary of State for the Environment to give notice of planning determinations. It was held, per Lord Bridge at pp 68-69 that “it is impossible to imply a statutory obligation (as opposed to a duty in the course of good administration) to give notice, where no express obligation is imposed.”</p> <p>Parliament therefore could not be said to have side-stepped this clear provision and empower the Commission to perform all its functions by legislative instrument. It is noted that section 24(1)(b) of Act 449 is inconsistent with section 2(1)(f) thereof. Whilst section 2(1)(f) empowers the Commission to act by constitutional instrument, section 24(1)(b) empowers them to act by legislative instrument. A constitutional instrument derives its direct authority from the Constitution itself, whereas the power conferred on the Commission to act by legislative instrument derives its authority from Act 449. See article 295(1) of the Constitution and section 1 of the Act 792. Section 24(1) of Act 449 should be interpreted as not affecting or undermining the provisions of article 167 of the Constitution. Thus section 24(1) of Act 449 should be restricted to other functions of the Commission that are not covered by article 167 clauses (a), (b), (c), and (d), applying the principle of harmonious interpretation. This principle was explained by this court in Case No. J1/29/2015 titled JUSTICE PAUL UTTER DERY vs. TIGER EYE PI and 2 Others, dated 4<sup>th</sup> February, 2016, unreported, to mean where two constitutional rights come into conflict, such conflict should be resolved in a manner which least restricts both rights. In this case we are looking at Parliament’s power to enhance the Commission’s functions under article 167(e) and thereby empower it to perform some task by way of a legislative instrument. We are also considering the limited power of legislation given to the Commission under article 167(d) which does not entitle them to criminalize the functions ascribed to them by article 167(a) (b) and (c) which is a right media operators should enjoy. The principle is equally applicable to situations where two legislations come into conflict and the court finds that the rights created by both legislations can co-exist, without striking down either of them.</p> <p>The residual power of Parliament under article 298 of the Constitution is exercisable only where no provision is expressly or impliedly made in the Constitution. Thus since article 167(e) permits Parliament to pass legislation to give additional functions to the Commission, it could do so and empower it to act by legislative instrument, as long as they do not stray into its functions specifically conferred by article 167 of the Constitution. Admittedly, the constitutionality of section 24 of Act 449 is not raised directly but it is ancillary to the issues for determination. Even LI 2224 makes specific reference to Act 449. But having invoked the principle of harmonious interpretation, Act 449 can stand, subject to the opinion expressed herein that section 24(1) thereof does not apply to clauses (a), (b), (c) and(d) of article 167 which are reproduced verbatim in Act 449, section 2(1) (a) (b) (c) and (f) respectively.</p> <p>By virtue of article 164 Parliament may pass appropriate legislation to give effect to the limitations which the Constitution has provided for in respect of the right to free expression; it may also grant the Commission additional functions under article 167(e) and then empower the Commission to enforce the law. The Commission cannot entrust upon itself the power to do anything except it has been given power by the Constitution or an Act of Parliament. Following the use of the expression ‘such other functions as may be prescribed by law’ in article 167(e), the law envisages an Act of Parliament. It is not the function of the court to question the constitutional provision giving limited legislative function to the Commission. It is up to the Commission to liaise with Parliament to act and pass the appropriate legislation bearing in mind articles 164, 167(d) and (e) of the Constitution, especially the fact that the Commission has been given very limited legislative power by the Constitution itself which cannot be extended except through an amendment of Article 167(d) to include its other functions.</p> <p>It is also observed that some of the provisions of regulation 22 have the effect of stifling media freedom, directly or indirectly, without justification. We will draw attention to only regulation 22(3).  It reads in relevant part thus:</p> <p><strong><u>An operator who fails to comply with a request to submit information or a document to the Commission within a period specified in the request commits an offence ……(</u></strong>emphasis supplied)</p> <p>Article 19(11) requires that every criminal offence be defined with clarity. The sub-regulation does not define or describe the type of information that the 2<sup>nd</sup>defendant may require from an operator so as to make failure to disclose it an offence. If one considers the ordinary or legal meaning of the expression ‘information’ it is very expansive, permitting of every conceivable type of information that the regulator may seek. This is too vague, imprecise or absurd and therefore not permitted by law. It also means the 2<sup>nd</sup> defendant can even request an operator to disclose his source of information. In principle, a request to a journalist to disclose his source of information was a violation of the right to press freedom. The court may only intervene when there was an overriding requirement in the public interest. The court will have to consider whether on the facts a disclosure of the source was necessary to achieve the legitimate aim, and also whether the achievement of the legitimate aim on the facts was so important that it overrode the public interest in protecting journalistic sources in order to ensure free communication of information to and through the media. See these cases: GOODWIN v. UNITED KINGDOM, judgment of the ECHR dated 27 March 1996, 1996 reports; ASHWORTH SECURITY HOSPITAL v. MGN LTD. (2001) TLR 28 CA. Thus regulation 22(3) is imprecise as it does not prescribe the type of information which may legitimately be required, and embraces the possibility of asking for disclosure of journalistic source which is illegal unless justified by law. For all the foregoing reasons this regulation should be struck down as unconstitutional.</p> <p>Now to the third agreed issue. This is brought under articles 162(4) and 167(d) of the Constitution. They provide thus:</p> <p>162(4)-<strong>Editors and publishers of newspapers and other institutions of the mass media shall not be subject to control or interference by Government, nor shall they be penalized or harassed for their editorial opinions and views, or the content of their publications.</strong></p> <p><strong>167(d)-The functions of the National Media Commission are-</strong></p> <p><strong>To make regulations by constitutional instrument for the registration of newspapers and other publications, except that the regulations shall not provide for the exercise of any direction or control over the professional functions of a person engaged in the production of newspapers or other means of mass communication.</strong></p> <p>It is necessary to include article 173 in the present discussion, in order to appreciate the full import of these provisions, read together. The said article 173 provides that</p> <p><strong>Subject to article 167 of this Constitution, the National Media Commission shall not exercise any control or direction over the professional functions of a person engaged in the production of newspapers or other means of communication.</strong></p> <p>The plaintiffs contend that “any law that requires the operators contemplated under LI 2224 to submit their program guide or content profile for authorization is a law that seeks to exercise control and direction over operators over their professional functions or that of their agents and so flies in the face of article 173 of the Constitution. This is because the power in the 2<sup>nd</sup> defendant to vet and approve the program guide and content profile of the operators amounts to nothing but a situation where the operators cannot carry out any other program except the one approved by the 2<sup>nd</sup> defendant. That amounts to control and direction of the said operator in the discharge of his functions and same must find validity under Article 167 otherwise same must be declared as being inconsistent with the Constitution.”</p> <p>Article 167 of the Constitution sets out the functions of the 2<sup>nd</sup> defendant as follows:</p> <p class="rteindent1">(a) to promote and ensure the freedom and independence of the media for mass communication or information;</p> <p class="rteindent1">(b)        to take all appropriate measures to ensure the establishment and maintenance of the highest journalistic standards in the mass media, including the investigation, mediation and settlement of complaints made against or by the press or other mass media;</p> <p class="rteindent1">(c) to insulate the state-owned media from governmental control;</p> <p class="rteindent1">(d)        to make regulations by constitutional instrument for the registration of newspapers and other publications, except that the regulations shall not provide for the exercise of any direction or control over the professional functions of a person engaged in the production of newspapers or other means of mass communication; and</p> <p class="rteindent1">(e) to perform such other functions as may be prescribed by law not inconsistent with this Constitution.</p> <p>Pursuant to article 166(1) of the Constitution, Parliament passed Act 449. Section 2 of the said Act repeated verbatim the functions of the Commission as set out in article 167 of the Constitution, and to that extent the Act 449 is consistent with the Constitution. Does regulation 3 of LI 2224 seek to or have the effect of seeking to control and direct the affairs of media operators in question? We need to find the legal meaning of the expression ‘direction or control’ in the context of articles 167(d) and 173 of the Constitution. Each one of the words ‘control’ and ‘direction’ has several meanings and has wide ramifications, such that no one meaning could be attributed to them. Thus their meaning/s could only be expressed in the context in which they are used in order to achieve the purpose and intent of the provision in question. The framers of the Constitution, as earlier mentioned, intended to allow as much media freedom as possible in the country, subject to only such restrictions as were reasonably allowed by the Constitution or by law, not inconsistent with the Constitution. Consequently any form of restriction raises a veritable presumption of illegality in the eyes of the Constitution and therefore where a restriction appears on the face of the law, the proponent will have to give justification for it to stand in the law books.</p> <p>Control or direction as used in the provision under consideration has the same meaning and effect; and that is to tell the operators what they should or not include in their broadcast or publication. If there is something in the form of a guideline as to content, it is acceptable within the law. But the decision, as to what the content to broadcast or publish shall be, properly belongs to the editors and/or proprietors of a newspaper or other means of mass communication. The proprietors are the ones to control or direct the editorial policy and determine what shall or what shall not be published or broadcast. They do so mindful of article 164 of the Constitution and any guidelines published by the 2<sup>nd</sup> defendant to give effect to the provisions of the Constitution as well as Act 449. By calling for prior approval of the contents, the 2<sup>nd</sup> defendant would, in effect, be deciding on what an operator shall or shall not put out into the public domain.</p> <p>The functions of the 2<sup>nd</sup> defendant as stated in article 167 of the Constitution do not allow it to direct the affairs of a media operator, indeed it is specifically excluded by article 173 and by article 162(4) if it is coming from the Government. By asking for advanced approval of programme content, the 2<sup>nd</sup> defendant will be predetermining the direction that a broadcaster should take. The direction that a media house takes certainly influences its editorial policies. The programmes that a TV station for instance decides to air should be determined by its owners or proprietors. These are not within the functions of the 2<sup>nd</sup> defendant. Thus any decision by the 2<sup>nd</sup> defendant that has the effect of taking part in fixing the programme content for any media operator will amount to directing or controlling the affairs of the operator. For these reasons there is a violation of article 173 of the Constitution.</p> <p>In view of the relative importance of the issues raised herein, a snapshot summary of what has been said will be necessary. It is an undisputed fact that there is no absolute freedom under the Constitution; articles 12(2) and 164 are instances of the limitations that may legitimately be placed on enjoyment of individual and corporate freedom of expression guaranteed under the Constitution. Other restrictions also apply, for instance in matters of contempt of Parliament and the Court. These instances are by no means exhaustive. In respect of restraint of the media, this should be spelt out clearly by law to regulate future conduct, devoid of directing or controlling the programmes, policies and publications of the media. It should be noted that even educational institutions have regulations that curtail free speech, but such rules are clearly spelt out in advance in writing and made known to every student. A classic example of educational rules curtailing free speech may be found in the case of BETHEL SCHOOL DISTRICT v. FRASER, 478 U.S. 675 (1986) where the US Supreme Court upheld a school rule prohibiting “conduct which materially and substantially interferes with the educational process…..including the use of obscene, profane language or gestures.” The restraint was specific, precise, in writing and known to the students to guide their future conduct. The fact that restraint on speech even in a school could travel as far as the Supreme Court should tell you how important the right to free expression is. The case of FCC v. PACIFICA FOUNDATION, 438 U.S 726 (1978) was about the use of “obscene, indecent or profane language” on radio contrary to paragraph 1464 of the Communication Act, 18 U.S.C. The court upheld this law, because it was precise and known to radio broadcasters in advance and most importantly it was justified in terms of the law , so if they allowed their station to be used to utter such language they should suffer the sanction prescribed by law.</p> <p>Another case of interest is RED LION BROADCASTING CO. v. FCC, 395 U.S. 367 (1969). The Federal Communications Commission (FCC) has responsibility to license radio and television broadcasters. The FCC promulgated what was called the “fairness doctrine”, which required broadcasters to provide coverage of each side whenever they covered a controversial issue. Two regulations which were put in place to implement the doctrine were the issues in this case. These regulations provided that:</p> <p>(1) The ‘personal attack rule’ which required the broadcaster to furnish a tape or transcript and free response time whenever an attack upon the “honesty, character, integrity or like personal qualities of an identified person or group” was aired; and</p> <p>(2) The “political editorial rule” which required a broadcaster that endorsed or opposed a candidate for office to furnish a tape or transcript and a reasonable opportunity for response.</p> <p>The Supreme Court upheld both rules. What should be noted once again is that the regulations, though amounting to restraint on media freedom, were deemed necessary and were clearly set out in writing with clear particulars. These prior restrictions are required to be precise and clearly set out in writing and must be necessary in the eyes of the law. In the event that a dispute arises, if the court is told that the restriction was for instance necessary to preserve public peace and safety, it has to be satisfied that the time and circumstances created conditions which were essential to validity under the Constitution.</p> <p>In no case that we are of, was the regulator allowed to approve in advance the programme content, policies and direction that a media person desired to take. The terms of award of a license by the National Communication Authority, for instance, could spell out some restrictions upon being allocated a radio frequency; and so too registration of newspapers and other publications by the Commission under article 167(d) of the Constitution. The 2<sup>nd</sup> defendant as the overall media regulator could come out with clearly defined guidelines as to content. We have said there is no need for these regulations which have been struck down, since the Commission could have set out clear guidelines with own panel sanctions, if need be, for violation of clearly defined areas of restriction. There is also no legally acceptable justification for these regulations. It is for these reasons that we uphold the plaintiff’s claim in large measure.</p> <p>The court is not entitled to direct the 2<sup>nd</sup> defendant as to how to regulate the media, but it is advisable to learn some lessons from this decision; after all the real essence of a court’s decision, apart from resolving the immediate dispute on hand, is also to guide future conduct of all persons.</p> <p>In conclusion, the court’s decision is that issues 1, 2 and 3 are resolved in favour of the plaintiffs, whilst issue 4 is resolved in favour of the defendants. Consequently, we grant reliefs 1, 2 and 3; subject to striking down sub-regulation (5) of regulation 12, we reject relief 4. Regulations 3, 4, 5, 6, 7, 8, 9, 10, 11,12(5) and 22 of the National Media Commission (Content Standards) Regulations, 2015 (L.I. 2224) are hereby struck down as unconstitutional. </p> <p> </p> <p class="rtecenter"><strong>(SGD)     A.  A.   BENIN</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p><strong><u>AKUFFO (MS)JSC</u></strong></p> <p>I agree</p> <p class="rtecenter"><strong>(SGD)       S.  A. B.   AKUFFO (MS)</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p><strong><u>BAFFOE - BONNIE JSC</u></strong></p> <p>I agree</p> <p class="rtecenter"><strong>(SGD)        P.  BAFFOE - BONNIE</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p><strong><u>AKOTO- BAMFO (MRS)  JSC</u></strong></p> <p>I agree</p> <p class="rtecenter"><strong>(SGD)        V.  AKOTO – BAMFO (MRS)</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p><strong><u>AKAMBA  JSC</u></strong></p> <p>I agree</p> <p class="rtecenter"><strong>(SGD)      J.  B.  AKAMBA</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p><strong><u>PWAMANG JSC</u></strong></p> <p>I agree</p> <p class="rtecenter"><strong>(SGD)      G.  PWAMANG</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <hr /> <p class="rtecenter"><strong>CONCURRING OPINION</strong></p> <hr /> <p><strong>DOTSE JSC</strong></p> <p>I have had the benefit of reading the lucid and detailed opinion of my learned and respected brother Benin JSC, and I agree entirely with the delivery and the conclusions reached in the judgment just read. However, as was stated by him in the lead opinion, this matter touches the heart of our democratic process, I find it expedient and indeed very compelling that since the issues raised herein affect as well the soul and destiny of this country in its democratic sojourn, it is important to add my own views in these few words. This is because I consider the issues germane to this judgment as having the potential of determining the path which this country should tread, whether it should be the dreadful path of censorship and media control as is associated with authoritarian and tyrannical regimes or a liberal media landscape without the vestiges of control saddled with criminal sanctions as unfortunately has been introduced in the impugned legislations by the 2<sup>nd</sup> Defendants.</p> <p>Even though my brother Benin JSC has skillfully dismissed the jurisdictional issue to my admiration, I think a note of caution should be sounded to practitioners and parties before the Supreme Court to be circumspect in the undue reliance on this jurisdictional objections. This is because, as was explained in detail in the lead judgment, there were several genuine reasons why this court’s jurisdiction had been raised, but as has become the norm these days the first objection to a Plaintiff’s writ is that of jurisdiction.</p> <p>In this regard, I wish to refer to the unreported decision of the Supreme Court in the case of <strong>Noble Kor v Attorney General and Justice Duose</strong>, Writ No. J1/16/2016 dated 10<sup>th</sup> March 2016 digested in the 3<sup>rd</sup> Edition of Manual on Election Adjudication pages 375 to 387 where the court faced with a similar jurisdictional challenge to the writ of the Plaintiff therein stated through Atuguba JSC as follows:-</p> <p class="rteindent1"><em>“The Plaintiff had properly invoked the enforcement jurisdiction of the Supreme Court because it could not be said that the Supreme Court could not compel the observance of a constitutional provision unless that provision was ambiguous. Article 2 of the Constitution headed “Enforcement of the Constitution” was an express authority in the Constitution itself for the view that the enforcement jurisdiction of the Supreme Court was a conspicuously independent item of jurisdiction of the court.”</em></p> <p>Explaining further, the court per Atuguba JSC stated,</p> <p class="rteindent1"><em>“The ratio constitutionis for an action to invoke the enforcement  jurisdiction of this court under article 130 is stated in article 2 to be that the event specified in its clauses  (1) (a) and (b) “is inconsistent with, or is in contravention of a provision of this Constitution.” Therefore a cause of action thereupon accrues for access to the court for enforcement of the Constitution. Indeed, it is difficult to see how the requirement of ambiguity can necessarily arise particularly in respect of the provisions of article 2 (1) (b) relating to “any act or omission of any person”. Emphasis supplied</em></p> <p>In the instant case, if the Plaintiff’s writ and the Statement of case in support thereof are duly analysed vis-à-vis the various constitutional provisions, i.e. articles 162 (1), (2), (4), 167 (d) and 173 of the Constitution 1992 and the impugned provisions in the National Media Commission (Content standards) Regulations, 2015 L.I. 2224, Regulations 3 -12 and 22 thereof and the National Media Commission Act, 1993 (Act 449) are duly considered, it will be clearly observed that this court’s jurisdiction is in tune with the settled practice and decisions of this court and the  <strong>Nobel Kor v A. G. and Anor</strong> case. The Plaintiff’s have thus properly invoked this court’s jurisdiction.</p> <p>On the remaining three issues set down by this court and dealt with in extenso by my respected brother Benin JSC, I wish to refer to the often quoted passage of Thomas Jefferson, in his letter to Marquis de Lafayette, 1823, published on page 125 of <em>The Quotable Founding Fathers</em>, edited by Buckner F. Melton Jr as follows:-</p> <p class="rteindent1"><strong><em>“The only security of all is in a free press”</em></strong></p> <p>That realization was definitely not lost on the drafters of the Constitution 1992 and that explains why the Committee of Experts took pains to guarantee and protect the enjoyment of freedom of speech. There is also no doubt that the history of this country during the first Republic was also not lost on our forebears in the provisions to ensure and guarantee free speech. I believe that, it is that sordid history that guided the Consultative Assembly to include provisions in article 162, clauses 1 to 5 on Freedom and Independence of the media as one of the few provisions of the Constitution 1992 that are considered and labeled as entrenched provisions. These are provisions that can only be amended by the holding of a referendum among other procedures that have been specified in articles 290 (1) through to 290 (6) of the Constitution.</p> <p>It must be noted that, all the rights, freedoms, and responsibilities that the Constitution 1992 has bestowed on us as citizens of Ghana, for example the Chapter Five rights on Fundamental Human Rights and Freedoms and Freedom and Independence of the media particularly articles 162 (1) through to (5) in Chapter Twelve of the Constitution can only be guaranteed and protected by the courts who are constitutionally mandated to do so, see article 125 (3) and (5) of the Constitution.</p> <p>It is indeed a great credit to this court that, in the early years of the 4<sup>th</sup> Republic, and even before then, several landmark judgments had been delivered which granted citizens, including corporate entities the right and locus standi to question the unconstitutional conduct or legislation without any interest or benefit being accrued to them in the Supreme Court.</p> <p>This has no doubt expanded the scope and frontiers of the court’s jurisdiction. This was a marked departure from the stance of the Supreme Court in the infamous Re Akoto decision in 1961 in which the Supreme Court refused to enforce fundamental human rights provisions in the 1960 1<sup>st</sup> Republican Constitution.</p> <p>In this respect, I find the views and opinions of Amua-Sekyi JSC in the celebrated case of <strong><em>NPP v IGP</em></strong> [1993-94] 2 GLR 459, at 469 to 470 very relevant and edifying from which those who govern as well as the governed and especially the Judiciary must take serious lessons.</p> <p>Commenting on why he granted the Plaintiff’s request in the <strong><em>NPP v IGP</em></strong> case supra in declaring sections 7,8, 12 (a) and 13 (a) of the Public Order Decree, 1972 NRCD 68 as inconsistent with article 21 (1) (d) of the Constitution 1992 wherein he traced the sordid history of our constitutional past and referred to notable but infamous decisions in the following cases:-</p> <p class="rteindent1"><strong><em>1.  Lardan v A.G [1957] 3 WALR 114</em></strong></p> <p class="rteindent1"><strong><em>2.  Balogun v Edusei [1957] 3 WALR 547</em></strong></p> <p class="rteindent1"><strong><em>3.  In Re Okine [1959] GLR 1</em></strong></p> <p class="rteindent1"><strong><em>4.  Amponsah v Minsister of Defence [1960] GLR 140 CA</em></strong></p> <p class="rteindent1"><strong><em>5.  In Re Dumoga [1961] GLR 44 and </em></strong></p> <p class="rteindent1"><strong><em>6.  Re Akoto, [1961] GLR 523, SC</em></strong></p> <p>In this respect, the learned Judge urged that the guaranteed rights and freedoms in the Constitution 1992 should be held as sacred and duly enforced. He urged that there should be no return to the bad old days in the following words:-</p> <p class="rteindent1"><em>“And when in In re Akoto (supra) the matter finally reached the Supreme Court, Korsah CJ, writing on behalf of himself, van Lare and Akiwumi JJSC said at 535:</em></p> <p class="rteindent1"><em>“We do not accept the view that Parliament is competent to pass a Preventive Detention Act in war time only and not in time of peace. The authority of Parliament to pass laws is derived from the same source, the Constitution, and if by it, Parliament can pass laws to detain persons in war time there is no reason why the same Parliament cannot exercise the same powers to enact laws to prevent any person from acting in a manner prejudicial to the security of the State in peace time. It is not only in Ghana that Detention Acts have been passed in peace time.</em></p> <p class="rteindent1"><strong><em>With this pronouncement all resistance to oppression came to an end. We had rammed down our throats, a constitutional tyranny which those who professed to believe in it called a “one party” state. Dr. Danquah was arrested, detained and died in prison: the Minister for the Interior and the Chief of police who had taken refuge behind an Act of Indemnity to flout the authority of the Courts were arrested and detained; the Minister for Foreign Affairs and two protagonists of the new order were arrested and charged with treason.</em></strong><em> Acquitted in proceedings intituled State v Otchere [1963] 2 GLR 463, SC the verdicts were set aside by executive order: see Special Criminal Division Instrument, 1963 (El 161). Put back on trial before a more pliant bench, the executive had the satisfaction of seeing them convicted and sentenced to death. <strong>Mercifully, the sentences were not carried out; but a grave precedent had been set.</strong> The Judges were not spared: Korsah CJ was removed from office. And a constitutional amendment cleared the way for the dismissal of Adumua-Bossman J (as he then was) and other Judges whose loyalty to the absolutist State was now called in question.</em></p> <p class="rteindent1"><strong><em>It was to rescue us from such an abyss of despair that on three successive occasions, in 1969, 1979 and 1992, elaborate provisions on fundamental human rights have been set out in our Constitutions and the courts given clear and unequivocal power to enforce them. The Constitution, 1992 is now the supreme law of the land, and any enactment or executive order inconsistent with it is null and void. Thus, except for the periods of dictatorship when these fundamental human rights were suspended, our courts have since 1969 had power to protect the people from the abuse of legislative and executive power. Unfortunately, we have had too little experience of true democracy since independence. Like a bird kept in a cage for years, we have come to think of the cage as home rather than a prison. The door has been flung wide open, yet we huddle in a corner and refuse to leave.” Emphasis</em></strong></p> <p>In my opinion, the citizens have now realized that the doors to the cage have really been widely kept open and have no intention of returning to the cage. The courts have also given tacit recognition to the fact that the freedoms guaranteed in the Constitution 1992 including those on press freedoms in article 162 are meant to be enjoyed and there should be no turning back.</p> <p>Our only security as a country lies in a free press, and any attempt to muzzle the press and return to the days of old by unconstitutional restraint on this invaluable right must not be allowed to see the light of day.</p> <p>It is in my resolve to ensure that the freedoms and responsibilities of the media, granted and protected by the article 162 provisions of the Constitution 1992 are not whittled away by the over zealous acts of any constitutional body set up under the Constitution, like the 2<sup>nd</sup> Defendant. It is for this and the other reasons espoused in the detailed judgment of my learned and respected brother Benin JSC that I agree that the Plaintiff’s should succeed in part as has been articulated in the lead judgment.</p> <p> </p> <p class="rtecenter"><strong>(SGD)        V.  J.  M.   DOTSE</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT       </strong></p> <p><strong>                           </strong></p> <p><strong><u>COUNSEL</u></strong></p> <p>KWAME BOATENG WITH  HIM KWAKU OWUSU -AGYEMANG FOR THE PLAINTIFF.</p> <p> GRACE M. EWOAL (PRINCIPAL STATE ATTORNEY) WITH HER VIVIAN OPOKU – AGYAKWA (SENIOR STATE ATTORNEY) FOR THE 1<sup>ST</sup> DEFENDANT.</p> <p>THADDEUS  SORY WITH HIM NICOLE MARIE- POKU FOR THE 2<sup>ND</sup> DEFENDANT.</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="https://old.ghalii.org/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ghalii.org%2Fgh%2Fjudgment%2FSupreme%2520Court%2F2017%2F10%2FINDEPENDENT%2520BROADCASTERS%2520ASSOCIATION%2520OF%2520GHANA%2520VRS.%2520ATTORNEY%2520GENERAL%2520%2526%2520ANOR.pdf" data-src="https://old.ghalii.org/gh/judgment/Supreme%20Court/2017/10/INDEPENDENT%20BROADCASTERS%20ASSOCIATION%20OF%20GHANA%20VRS.%20ATTORNEY%20GENERAL%20%26%20ANOR.pdf">https://old.ghalii.org/gh/judgment/Supreme%20Court/2017/10/INDEPENDENT%20BROADCASTERS%20ASSOCIATION%20OF%20GHANA%20VRS.%20ATTORNEY%20GENERAL%20%26%20ANOR.pdf</iframe> </div></div></div> Fri, 03 Nov 2017 10:40:30 +0000 admghana 185 at https://old.ghalii.org https://old.ghalii.org/gh/judgment/supreme-court/2017/45#comments Ramadan and Another v Electoral Commission and Another (The Ruling of the Court) (J8/108/2016) [2016] GHASC 48 (27 July 2016); https://old.ghalii.org/gh/judgment/supreme-court/2016/48 <div class="field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><div class="field-label">Flynote:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/tags/hr" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">HR</a></div><div class="field-item odd"><a href="/tags/independent-judiciary" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Independent judiciary</a></div><div class="field-item even"><a href="/tags/receive-information" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Receive information</a></div><div class="field-item odd"><a href="/tags/cl" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">CL</a></div><div class="field-item even"><a href="/tags/contempt-court" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Contempt of Court</a></div><div class="field-item odd"><a href="/tags/express-and-disseminate-opinion" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Express and disseminate opinion</a></div><div class="field-item even"><a href="/tags/dignity-courts" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Dignity of The Courts</a></div><div class="field-item odd"><a href="/tags/judicial-conduct" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Judicial Conduct</a></div></div></div><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>The matter involve a ruling of contempt of court against the third and fourth respondents for their conduct in attacking the Chief Justice with an accusation of bias.</p> <p>The court emphasised the importance of judicial independence as enshrined in the Constitution as a necessary element in maintaining judicial dignity and effectiveness, attributes that are crucial in upholding the democratic enterprise. Any attempt to disrespect the courts therefore amounts to an attack on the role of the courts and the community at large.</p> <p>The court also emphasised the right to criticise the judiciary and its circumspection in exercising its power to charge citizens with contempt. However, should the conduct be of such gross a nature as to indicate a calculated attack, as in the present matter, the court would not refrain from the charge.</p> <p>The court, however, acknowledged the harsh nature of the summary powers to charge for contempt, powers it accepted required circumspection. Nevertheless, the court considered the need to send a message to remind people to refrain from crossing the line between utilizing their freedom of expression and attacking the dignity of the court. It also invoked the principles of state policy which place duties to the citizenry to ensure the exercise of their freedoms upheld fundamental democratic principles. In the view of the court, the contemnors in question had dismally failed the above and therefore they were sentenced for contempt.</p> </div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"><p> </p> <p class="rtecenter"><strong>IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p class="rtecenter"><strong>IN THE SUPREME COURT OF JUSTICE</strong></p> <div> <p class="rtecenter"><strong>ACCRA, AD. 2016</strong></p> </div> <p> </p> <p class="rteright"><strong><u>CIVIL MOTION NO: J8/108/2016</u></strong></p> <p class="rteright"><strong>27<sup>TH</sup> JULY 2016 </strong></p> <p><strong>ABU RAMADAN</strong></p> <p><strong>EVANS NIMAKO</strong></p> <p><strong>VRS</strong></p> <p><strong>1. ELECTORAL COMMISSION</strong></p> <p><strong>2. THE ATTORNEY GENERAL</strong></p> <p><strong>IN RE: 1. THE OWNER OF THE STATION – MONTIE FM</strong></p> <p><strong>2. SALIFU MAASE @ MUGABE</strong></p> <p><strong>3. ALISTAIR NELSON</strong></p> <p><strong>4. GODWIN AKO GUNN</strong></p> <hr /> <p class="rtecenter"><strong> <u>THE RULING OF THE COURT</u></strong></p> <hr /> <p>On 18<sup>th</sup> July, 2016, the court convicted the contemnors herein for contempt of court on their own pleas and adjourned to today for sentencing. As we have decided to invoke our undoubted powers to punish the contemnors for their contempt, we deem it necessary to explain the reasons for our decision. That will clarify for the contemnors, and in fact the general public and media owners and practitioners in particular, why they are being punished, in the hope and expectation that valuable lessons will be learnt by all, and this nation will be spared the recurrence of such reprehensible behavior, which bodes no one well.</p> <p>We are very mindful of the valuable role that the media, as the fourth estate of good governance, has to play in affording the citizenry and the state valuable information and fostering national discourse. However, to whom much has been given much is also expected and the constitutional freedoms and protections guaranteed to the media in Ghana are intended to be exercised and enjoyed with professionalism, good faith and self-control. Certainly they are not to be abused wantonly and contumaciously.</p> <p>The contemnors were brought before this Court, by its own summons, for them to show cause why they should not be committed to prison for contempt of court on three grounds namely;</p> <p class="rteindent1">(a)    Scandalizing the court</p> <p class="rteindent1">(b)    Defying and lowering the authority of this court and</p> <p class="rteindent1">(c)    Bringing the authority of this court into disrepute.</p> <p>Scandalizing the court consists of scurrilous abuse of a judge or impugning the integrity or impartiality of a court or a judge. In this case the 3<sup>rd</sup> and 4<sup>th</sup> contemnors, willfully, attacked the Chief Justice, whom they mentioned by name, and accused her and the rest of the court of favoring the plaintiffs in Suit No. J1/14/2016 intituled Abu Ramadan &amp; Anor v Electoral Commission &amp; Anor while exhibiting bias against the Electoral Commission. They alleged that the Court was motivated by a desire to assist the opposition New Patriotic Party (NPP) in the forthcoming elections. They defied, insulted and lowered the authority of the Court when they stated that they will not accept the decision of the court on the voters’ register and they incited listeners in the general public to reject it. Statements that attempt to dictate the orders or other dispositions that a Court should make or should not make are calculated to interfere with and obstruct the course of justice and thereby bring the authority of the court and the administration of justice into disrepute. That is exactly what the 3rd and 4th contemnors did when they threatened to deal with the judges if, in a motion filed by the applicants in CM/J/108/2016 intituled Abu Ramadan &amp; Anor v Electoral Commission &amp; Anor, the Court delivered a verdict that displeased them. They cruelly and callously reminded the justices of the murder of three High Court Judges on 30<sup>th</sup>June, 1982 (a day that will forever remain in the annals of this country as a day of infamy). This was, doubtlessly, intended to browbeat and prevent the court from performing its duty to administer justice as it deemed fit.</p> <p>The attack, which was directed at the Chief Justice of the Republic of Ghana and the Apex Court of the land, amounts to criminal contempt of the Judiciary. We are here confronted with contemptuous conduct which has the effect of undermining and eroding the very foundation of the Judiciary by shaking the confidence of the people in the ability of the court to deliver independent and fair justice. In this light, though there is something that could be said of the substantively criminal nature of the threats made by the 2<sup>nd </sup>- 4<sup>th</sup> contemnors to do harm to High Court and Supreme Court judges, that is a matter for a different branch of government, which, without need for any prompting, ought to be alive to its duties vis-à-vis enforcement of the criminal law of the land. Our sole focus in this matter is on protecting the paramount public interest in maintaining the independence, dignity and effectiveness of the administration of justice.</p> <p>Article 125(1) of the Constitution states that:</p> <p class="rteindent1">“Justice emanates from the people and shall be administered in the name of the Republic by the Judiciary <strong>which shall be independent and subject only to this Constitution</strong>.”(emphasis supplied)</p> <p>To this end and for the achievement of the all-important principle underpinning this article, the 1992 Constitution, in Article 127 (2) provides as follows;</p> <p class="rteindent1">“Neither the President nor Parliament nor any person acting under the authority of the President or Parliament nor any other person whatsoever shall interfere with Judges or judicial officers or other persons exercising judicial power, in the exercise of their judicial functions; and all organs and agencies of the State shall accord to the courts such assistance as the courts may reasonably require to protect the independence, dignity and effectiveness of the courts, subject to this Constitution.”</p> <p>Among the three arms of government in this country, it is only in respect of the Judiciary that the Constitution has in plain words commanded every State authority and persons in Ghana to accord assistance in protecting its independence, dignity and effectiveness. The reason is simple. In order to sustain the democratic system of government established by our Constitution the Judiciary is the arm of government that has been given authority to police the other arms, i.e. the Executive and Legislature as well as all governance institutions. The Court is, therefore, deserving of the utmost respect and reverence if our democratic enterprise, as a nation, is to succeed.</p> <p>In the case of <strong>Republic v Liberty Press Ltd and Ors [1968] GLR 123,</strong> at page 135, the Court in explaining the rationale for the power of the courts to commit for contempt of court said as follows;</p> <p class="rteindent1">“……the important position of the Judiciary in any democratic set-up must be fully appreciated.  Performing, as they are called upon to do, the sacred duty of holding the scales between the executive power of the state and the subject and protecting the fundamental liberties of the individual, the courts must not only enjoy the respect and confidence of the people among whom they operate, but also must have the means to protect that respect and confidence in order to maintain their authority.  For this reason <strong>any conduct that tends to bring the authority and administration of the law into disrespect or disregard or to interfere in any way with the course of justice becomes an offence not only against the courts but against the entire community which the courts serve.”</strong> (emphasis supplied).</p> <p>Indeed, it is because the judicial function is for the cohesion of society at large that, even during all the various periods of military rule which this country endured in times past, the courts were always preserved with their powers intact. There cannot be an efficiently run State wherein all persons could thrive in peace and security, without an independent and dignified Judiciary, operating fearlessly and competently, beholden to no one. By the Judicial Oath prescribed by the Constitution each judge has sworn to</p> <p class="rteindent1"><strong>“…truly and faithfully perform the functions of my office without fear or favor, affection or ill-will; and that I will at all times uphold, preserve, protect and defend the constitution and laws of the Republic of Ghana.  So help me God.”</strong></p> <p>This (i.e. our responsibility to the Almighty God and the Republic of Ghana) is our guiding light and it is not the current Chief Justice and the other judges that are our primary concern in this matter. It is the institution of Justice.</p> <p>We are very conscious of the constitutional right of citizens to criticize the Judiciary and hold it accountable to the people of Ghana from whom justice emanates.  As was said by Lord Atkin in the case of <strong>Ambard v Attorney-General of Trinidad and Tobago [1936] AC 322 at 335;</strong></p> <p class="rteindent1">“Justice is not a cloistered virtue, she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”</p> <p>In an effort not to be seen as stifling public debate on the work of the Judiciary, this Court has, by and large, been very circumspect and reticent in the exercise of its power to punish for contempt and, has in recent times, restrained itself from reacting to certain commentaries on proceedings pending in this court, some of them patently prejudicial and bordering on contempt of court. We have been compelled to act in the instant matter because of its gross nature in that it bore all the marks of a calculated attack on the Judiciary, which is detrimental to the administration of justice, and we would have been reneging on our Constitutional duty if we failed to act.</p> <p>We summoned the directors and secretary of Network Broadcasting Co. Ltd because, as owner of <em>Montie</em> FM, the company provided the physical facilities for the contemptuous statement to be aired to the public.  It is trite law that where a corporation is held in contempt of court, it is the directors and officers who answer for it, since they constitute the human face of the legal entity. Where the contempt is committed by an unincorporated body, then it is the members of the body that answer for it.  Hence in the case of <strong>Republic v. Liberty Press Ltd </strong>(supra), it was the Managing Director of the Liberty Press Ltd, the printer and 28 professors and lecturers who were members of “Legon Society on National Affairs”, publishers of <em>Legon Observer, </em>who answered for a publication in that magazine that scandalized the Judiciary.</p> <p>It appears that this aspect of the law on corporate liability for contempt of court has been lost on media operators of this age.  The directors and officers bear ultimate responsibility for things done in the name of a media house and, therefore, must take more than a casual interest in what is aired from their station.  We are not at all impressed by the statements by the officers of the 1<sup>st</sup> contemnor who parroted each other to the effect that prior to our summons they had not been paying close attention to what happens on their radio station since there is a management body in charge of its operations. Indeed, their said statements were a demonstration of total irresponsibility since the Board members of a corporate body are in charge of policy setting and direction – that is why they are called ‘Directors’. We were indeed not only shocked, but also saddened to hear each of them, as well as their Company Secretary, say that, until a recording of the offending programme was played in Court they had not listened to nor heard the reprehensible utterances of the 3<sup>rd</sup> and 4th contemnors, despite the fact that, for a couple of weeks both the print media and radio stations of this country had been full of discussions of the diatribe that was aired by their station, <em>Montie </em>FM. Were they just dissimulating or were they truly that careless of their duties; one wonders.</p> <p>Regarding the owner of the frequency over which <em>Montie</em> FM transmits, Zeezee Media Ghana Ltd, represented by Mr. Harry Zakour, that is the person who provided what we may term the soft facility for the offending statements to be aired, consequently, he aided the commission of the contempt.  Frequencies are allocated to a country and constitute a very valuable national resource, intended to contribute to uplifting the consciousness of the citizenry and national ethos. Those fortunate members of the public, to whom frequencies are granted, therefore, owe a responsibility to the People of Ghana to assure that such valuable national resource is not wantonly dissipated; they must not allow the frequencies to be used to hurt or otherwise jeopardize the public interest.</p> <p>The 2<sup>nd</sup> contemnor who, as host of the programme, was expected to <em>moderate</em> it and keep any obstreperous or vituperative  panelist in line, rather joined the 3<sup>rd</sup> and 4<sup>th</sup> contemnors with supporting comments to denigrate the Chief Justice and the Court.  Moreover, he spurred them on to ‘open the fire’, adding his own vicious words to theirs, in the most disrespectful and deadly terms. He was heard, in the recording, ranting and raging in the most unmeasured terms against the Judiciary. That is not the proper role of the host of a radio station programme and we expect that other hosts in other broadcast networks will learn from this and stay within bounds, acting at all times with the utmost professionalism which Ghanaian journalist were once upon a time known for. </p> <p>As for the panelists, 3<sup>rd</sup> and 4<sup>th</sup> contemnors, it is clear that when they entered the studio on the days in question, they held nothing back and could not be bothered by any codes of ethics, decency and decorum. They completely forgot that they were on planet Earth in a country called Ghana with laws, regulations and customary rules of etiquette and decorum. They were totally reckless and insensitive in their comments having regard to the fact that they were speaking on the eve of the anniversary of the murder of the three judges, a very painful and sorrowful period for most patriots of Ghana.</p> <p>Nevertheless, we are mindful that the summary power of the court to punish for contempt of court that has been preserved by Article 126 (2) of the Constitution is almost arbitrary and such awesome power calls for circumspection in its exercise. In <strong>lzuora v R (1953) 13 WACA 313 at 316,</strong> PC Lord Tucker delivering the judgment of the Board of the Privy Council said:</p> <p class="rteindent1">"… it is desirable to bear in mind what was said in the judgment of the Board delivered by Lord Goddard in the case of Parashuram Detaram Shamdasani v The King-Emperor [1945] A.C. 214 at 270] where these words are to be found: 'Their Lordships would once again emphasize, what has often been said before, that this summary power of punishing for contempt should be used sparingly and only in serious cases. It is a power which a Court must of necessity possess; its usefulness depends on the wisdom and restraint with which it is exercised…”</p> <p>We have taken due note of the ready admission of guilt by all the contemnors and the apologies they have rendered in this Court.  We have also taken into consideration statements made on the same <em>Montie</em> FM by 2<sup>nd</sup> Respondent aimed at purging himself of the contempt before appearing in this court.  The main culprits appear to be somewhat remorseful as they stand in the dock.  The officers of 1<sup>st</sup> contemnors have expressed their revulsion at what the 2<sup>nd</sup>, 3<sup>rd</sup> and 4<sup>th</sup> contemnors said about the Judiciary and have suspended them from the radio station. They promised to put in place policies and measures to prevent a similar occurrence on their network. Four lawyers have also put in pleas of mitigation for the contemnors and pleaded with the court to temper justice with mercy and that the Respondents are first offenders who lost their heads out of excitement over the liberal nature of the airwaves we have under the 1992 Constitution.</p> <p>However, we realize that reckless attacks on judges of this court in particular and the Judiciary in general have become rampant in recent times and appear to be escalating in outrageousness and temerity. We need to make it universally unattractive for any person to indulge in such conduct. Despite the fact that four persons were punished for contempt of this Court during the Presidential Election Petition hearings in 2013, we have noticed a resurgence of contumacious statements about the court that have the tendency to bring the administration of justice into disrepute. We need to remind people who decide to criticize the Judiciary that within the right to publish and transmit, within the freedom of expression, there is a line that ought not to be crossed. This is encapsulated in the Directive Principles of State Policy, Article 41 which states, inter alia, that:</p> <p class="rteindent1">“The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations, and accordingly, it shall be the duty of every citizen -</p> <p class="rteindent2">a) to promote the prestige and good name of Ghana and respect the symbols of the nation;</p> <p class="rteindent2">b) to uphold and defend this Constitution and the law;</p> <p class="rteindent2">c) to foster national unity and live in harmony with others;</p> <p class="rteindent2">d) to respect the rights, freedoms and legitimate interests of others, and generally to refrain from doing acts detrimental to the welfare of other persons;</p> <p class="rteindent2">e) to work conscientiously in his lawfully chosen occupation;</p> <p class="rteindent3">i.  to co-operate with lawful agencies in the maintenance of law and order</p> <p>In these regards the contemnors have failed dismally.</p> <p>It is on account of the preceding observations that we sentence the contemnors herein.</p> <p> </p> <p class="rtecenter"><strong>(SGD)     S. A. B. AKUFFO (MS)</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)       J. ANSAH</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)      ANIN YEBOAH</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)       A. A. BENIN</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)       G. PWAMANG</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p> </p> <p><strong>COUNSEL</strong></p> <p><strong>NANA ATO DADZIE FOR IST CONTEMNOR APPEAR WITH KWABENA ADDO-ATTUAH</strong></p> <p><strong>NANA ADJEI AMPOFO FOR 2<sup>ND</sup> CONTEMNOR </strong></p> <p><strong>GEORGE LOH WITH GODWIN TAMEKLO FOR 3<sup>RD</sup> AND 4<sup>TH</sup> CONTEMNORS</strong></p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="https://old.ghalii.org/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ghalii.org%2Fgh%2Fjudgment%2FSupreme%2520Court%2F2016%2F10%2FMONTIE%2520CONTEMPT.pdf" data-src="https://old.ghalii.org/gh/judgment/Supreme%20Court/2016/10/MONTIE%20CONTEMPT.pdf">https://old.ghalii.org/gh/judgment/Supreme%20Court/2016/10/MONTIE%20CONTEMPT.pdf</iframe> </div></div></div> Tue, 19 Sep 2017 06:32:56 +0000 admghana 141 at https://old.ghalii.org https://old.ghalii.org/gh/judgment/supreme-court/2016/48#comments Ghana Independent Broadcasters Association v Attorney General and Another (Ruling) (J1/4/2016) [2016] GHASC 91 (21 April 2016); https://old.ghalii.org/gh/judgment/supreme-court/2016/91 <div class="field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><div class="field-label">Flynote:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/tags/hr" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">HR</a></div><div class="field-item odd"><a href="/tags/express-and-disseminate-opinion" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Express and disseminate opinion</a></div><div class="field-item even"><a href="/tags/receive-information" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Receive information</a></div><div class="field-item odd"><a href="/tags/cl" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">CL</a></div><div class="field-item even"><a href="/tags/injunction" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Injunction</a></div><div class="field-item odd"><a href="/tags/interlocutory-injunction" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Interlocutory Injunction</a></div></div></div><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>The court considered an application by way of notice on motion for an interlocutory injunction restraining the respondents from enforcing the National Media Regulations pending the court’s determination of the substantive suit. The substantive suit related to declarations that the requirement for prior authorization of consent as well as the criminal sanctions were contrary to the Constitution.</p> <p>The court confirmed that whereas in public law, a court ought to be slow in granting interlocutory injunction, it still has the power to grant one. This is especially so in exceptional cases where there is a need to restrain enforcement of legislation that is being challenged on substantial grounds. The courts will grant an injunction to avoid irreparable injury being caused by the enforcement of a potentially unconstitutional piece of legislation that is being challenged. On this basis, the application was granted.</p> </div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"><p> </p> <p class="rtecenter"><strong>IN THE SUPERIOR COURT OF JUDICATURE</strong></p> <p class="rtecenter"><strong>IN THE SUPREME COURT OF GHANA</strong></p> <p class="rtecenter"><strong>ACCRA A.D.2016</strong></p> <p> </p> <p> </p> <p class="rteright"><strong><u>WRIT No. J1/4/2016</u></strong></p> <p> </p> <p class="rteright"><strong>21<sup>ST</sup> APRIL 2016</strong></p> <p> </p> <p><strong>GHANA INDEPENDENT BROADCASTERS  :           PLAINTIFF  </strong></p> <p><strong> ASSOCIATION                                                     /APPLICANT                                                                       </strong></p> <p><strong>VRS</strong></p> <p><strong>1. THE ATTORNEY-GENERAL       :  DEFENDANTS /RESPONDENTS</strong></p> <p><strong>2. NATIONAL MEDIA COMMISSION</strong></p> <p> </p> <hr /> <p class="rtecenter"><strong><u>RULING</u></strong></p> <hr /> <p><strong><u>PWAMANG, JSC.</u></strong></p> <p>In this ruling the plaintiff/applicant will be referred to as ‘applicant’ and defendants/respondents as ‘respondents’. This is a motion on notice for an order of interlocutory injunction filed by the applicant seeking to restrain the respondents from enforcing specified provisions of the <strong>National Media Commission (Content Standards) Regulations, 2015 (LI 2224)</strong> pending this court’s determination of the substantive Suit No. J1/4/2016.</p> <p>The relevant facts upon which the application has been brought are as follows; LI 2224, which came into force on 9<sup>th</sup> December, 2015, requires electronic communication networks and broadcast media institutions to obtain prior authorisation from the 2<sup>nd</sup> respondent before they can carry any content on their networks.  Under the LI it is an offence to carry any content on a network without authorisation and upon summary conviction one may be fined or imprisoned for not less than two years or more than five years or both fine and imprisonment.</p> <p>In its substantive suit filed on 8<sup>th</sup> January, 2016, applicant prayed for, among other reliefs, declarations to the effect that the requirement for prior authorisation of content amounts to censorship, control and direction of media institutions by the 2<sup>nd</sup> respondent which plaintiff claims is inconsistent with Articles 162(1) and (2), 162 (4), 167 (d) and 173 of the 1992 Constitution which guarantee freedom of the media. Applicant also contends that the provisions on criminal sanctions in LI 2224 are inconsistent with Article 162 (4) of the constitution as they impair free expression guaranteed under the Constitution.</p> <p>LI 2224 provided a grace period of three months within which existing operators were to obtain content authorisation failing which they cannot carry any content on their networks or they do so on the pain of being arrested and prosecuted. Applicant, whose members have apparently not obtained content authorisation while their challenge against LI 2224 is pending, filed this motion for interim relief on 3<sup>rd</sup> March, 2016, before the lapse of the grace period. Respondents have opposed the motion and filed affidavits in opposition and statements of case. We have read closely all the processes filed and taken note of the <em>viva voce</em> submissions by applicant’s lawyer and lawyers for respondents.</p> <p>It is useful at this juncture to quote the succinct statement of the law on interlocutory injunctions by Dr. Date-Bah JSC in the case of <strong>Welford Quarcoo v Attorney-General [2012] 1SCGLR 259. </strong>At page 260 of the Report the respected jurist delivered himself as follows;</p> <p class="rteindent1">“It has always been my understanding that the requirements for the grant of interlocutory injunctions are: first, the applicant must establish that there is a serious question to be tried; secondly, that he or she would suffer irreparable damage which cannot be remedied by the award of damages, unless the interlocutory injunction is granted; and finally that the balance of convenience is in favour of granting him or her the interlocutory injunction. The balance of convenience of course means weighing up the disadvantages of granting the relief against the disadvantages of not granting the relief.  Where the relief sought relates, as here, to <em>a public law matter</em>, particular care must be taken not to halt the action presumptively for the public good, unless there are very cogent reasons to do so, and provided also that any subsequent nullification of the impugned act or omission cannot restore the status quo”.</p> <p>The position of the law that, where a case falls under public law, a court ought to be slow in granting interlocutory injunction was also underscored by this court in the case of  <strong>Republic v High Court (Fast Track Division) Accra; Ex parte Ghana Lotto Operators Association (National Lottery Authority; Interested Party) [2009]SCGLR 372</strong>. While the authorities urge caution, the jurisdiction of the court to grant interlocutory injunction in a public law matter is beyond debate. Thus in the case of <strong>Ex parte Ghana Lotto Operators Association, supra,</strong> Atuguba JSC said as follows at page 400;</p> <p class="rteindent1">“It is not surprising therefore that it has been held by this court that when a body is entrusted with statutory discretion, the courts should be careful not to clog its exercise with injunctions: see <strong>Attorney-General v Commission on Human Rights and Administrative Justice [1999-2000]1GLR 358, SC</strong>. This, however, does not mean that an interim injunction cannot lie against the improper use of statutory discretion: see <strong>Awuni v West African Examination Council [1971]1 GLR 63.”</strong></p> <p>In its equity jurisdiction, the authority of the court extends to the grant of interim injunctions in exceptional circumstances to halt the enforcement of a statute the constitutionality of which is being challenged on prima facie good and substantial grounds. In the case of <strong>Cruickshank v Bidwell, 176 US 73</strong>, <strong>80 – 81 (1900) </strong>for example, Chief Justice Fuller, delivering the decision of the U S Supreme Court, stated as follows;</p> <p class="rteindent1">“It is settled that the mere fact that a law is unconstitutional does not entitle a party to relief by injunction against the proceeding in compliance therewith, but it must appear that he has no adequate remedy by the ordinary process of the law, or that the case falls under some recognised head of equity jurisdiction … Inadequacy of remedy at law exists where the case made demands preventive relief, as for instance, the prevention of multiplicity of suits or the prevention of irreparable injury.”</p> <p>In a similar vein, in the case of <strong>R v Secretary of State for Transport; Ex parte Factortome (No. 2) [1991] AC 603</strong>, the House of Lords, in order to prevent irreparable injury, granted an interim injunction restraining the British Minister for Transport from implementing an Act of the British Parliament on registration of European fishing vessels pending a determination by the European Court on whether the British Act of Parliament contravened European Union Law.</p> <p>Where the application for interlocutory injunction is made in a public law case, the court is required to balance the public interest against the interest of the applicant.  </p> <p>It is against the background of the above principles that we consider the application before us. It has not been contended by respondents that applicant’s action does not present serious questions for determination by this court. In fact, the matters raised in the writ of summons relate to constitutional issues of great importance to the practice of democracy in Ghana. Applicant’s main ground for this motion is that its members stand to suffer irreparable injury if the respondents are not restrained from enforcing LI 2224 in that they are likely to be prosecuted and may suffer imprisonment in the meantime that the substantive suit has not been determined.</p> <p>Prosecution, as we know, goes with all the pre-trial criminal justice processes of arrest, detention, preferring of charges and presentation of the accused persons before the criminal court. According to the applicant, these indignities by themselves without actual imprisonment constitute serious injury which, if not prevented by injunction, cannot be afterwards adequately remedied by any decree which the court can pronounce in the result that the court declares LI 2224 unconstitutional.</p> <p>The respondents referred to Article 130 (2) of the 1992 Constitution which deals with stay of pending proceedings, including criminal proceedings, where the constitutionality of a statute has been challenged before a court other than the Supreme Court and a referral has been made to this court. They contend the Article provides sufficient protection to applicant. It is however worth noting that that provision would come into play only after a person has suffered the indignities of the pre-trial criminal justice processes as outlined above and is conditional on the accused person’s capacity to raise objection as to the constitutionality of LI 2224.</p> <p>The relevant question in our view is whether there is a real probability of the prosecution of applicant’s members. The respondents in their affidavits in opposition and statements of case have evinced a clear intention to enforce the law by the arrest, and at least, presentation of members of applicant association before court for criminal proceedings while the substantive suit is pending. In our judgment, restraining the threatened prosecution will better prevent the irreparable injury in this case than relying on Article 130 (2) of the Constitution.</p> <p>On the balance of convenience in this case, we have compared the injury members of applicant are likely to suffer by the curtailment of their constitutionally guaranteed rights to freedom of expression and of the media if we refuse the injunction, to the general public’s interest in a more regularised broadcast content in the interim. In our considered view, since the general public has put up with the status quo for all this period that the airwaves have been liberalised and determination of the substantive suit is not likely to delay, the balance tilts in favour of applicant’s members.</p> <p>The facts of this case are distinguishable from the recent cases decided by this court on interlocutory injunctions in public law causes that have been relied upon by respondents in opposing the application. In both <strong>Welford Quarcoo v Attorney-General (supra)</strong> and <strong>Ransford</strong> <strong>France (No.1) v Electoral Commission and Attorney-General [2012] 1 SCGLR 689, </strong>the plaintiffs did not stand to suffer any personal irreparable injury. Their actions were directed at ensuring compliance with the provisions of the constitution but without being personally affected in a direct manner. However in this case the members of applicant stand to be directly affected by the enforcement of the impugned legislation. In fact, members of applicant appear to be the main target of the impugned statute so their special circumstances are an important consideration. Furthermore, in the earlier cases, the programmes of activities leading to general elections would have been disrupted if the interlocutory injunctions prayed for were granted, but that is not the case here.</p> <p>After pondering over the exceptional circumstances of this case as explained above, we have arrived at the decision to grant the prayer of the applicant. We find it just and convenient to grant an order of interlocutory injunction restraining respondents from enforcing the impugned provisions of LI 2224 pending the determination of the substantive suit.</p> <p class="rtecenter"><strong>(SGD)</strong></p> <p class="rtecenter"><strong>      G.   PWAMANG</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)</strong></p> <p class="rtecenter"><strong>         S.   A.   B.   AKUFFO (MS)   </strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD</strong><strong>)</strong></p> <p class="rtecenter"><strong>V.  J.  M.  DOTSE</strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)</strong></p> <p class="rtecenter"><strong>P.   BAFFOE - BONNIE</strong>                         </p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)</strong></p> <p class="rtecenter"><strong>V.   AKOTO – BAMFO (MRS)                                                                                                        </strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)</strong></p> <p class="rtecenter"><strong>A.   A.  BENIN                                                                                     </strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p class="rtecenter"><strong>(SGD)</strong></p> <p class="rtecenter"><strong>J.   B.   AKAMBA                                                                                                         </strong></p> <p class="rtecenter"><strong>JUSTICE OF THE SUPREME COURT</strong></p> <p><strong><u>COUNSEL</u></strong></p> <p>KWAME BOATENG  ESQ. WITH HIM RAPHAEL AGYEMANG  FOR THE PLAINTIFF /APPLICANT.</p> <p> GRACE  EWOAL  (PSA)   FOR  THE 1<sup>ST</sup>  DEFENDANT./RESPONDENT</p> <p> THADEUS  SORY  ESQ. FOR THE 2<sup>ND</sup>  DEFENDANT/RESPONDENT</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="https://old.ghalii.org/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ghalii.org%2Fgh%2Fjudgment%2FSupreme%2520Court%2F2016%2F10%2FGHANA%2520INDEPENDENT%2520BROADCASTERS%2520ASSOCIATION%2520VRS.%2520ATTORNEY%2520GENERAL%2520%2526%2520ANOR..pdf" data-src="https://old.ghalii.org/gh/judgment/Supreme%20Court/2016/10/GHANA%20INDEPENDENT%20BROADCASTERS%20ASSOCIATION%20VRS.%20ATTORNEY%20GENERAL%20%26%20ANOR..pdf">https://old.ghalii.org/gh/judgment/Supreme%20Court/2016/10/GHANA%20INDEPENDENT%20BROADCASTERS%20ASSOCIATION%20VRS.%20ATTORNEY%20GENERAL%20%26%20ANOR..pdf</iframe> </div></div></div> Thu, 14 Sep 2017 10:49:14 +0000 admghana 115 at https://old.ghalii.org https://old.ghalii.org/gh/judgment/supreme-court/2016/91#comments Civil and local Government Staff Association of Ghana v Attorney General and Others (J1/16/2016) [2017] GHASC 18 (14 June 2017); https://old.ghalii.org/gh/judgment/supreme-court/2017/18 <div class="field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><div class="field-label">Flynote:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/tags/hr" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">HR</a></div><div class="field-item odd"><a href="/tags/express-and-disseminate-opinion" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Express and disseminate opinion</a></div><div class="field-item even"><a href="/tags/participate-government" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Participate in government</a></div><div class="field-item odd"><a href="/tags/association" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Association</a></div><div class="field-item even"><a href="/tags/assembly" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Assembly</a></div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"><p class="rtecenter"> </p> <p class="rtecenter"><strong><u>IN THE SUPERIOR COURT OF JUDICATURE</u></strong></p> <p class="rtecenter"><strong><u>IN THE SUPREME COURT</u></strong></p> <p class="rtecenter"><strong><u>ACCRA – A.D. 2017</u></strong></p> <p class="rtecenter"> </p> <p class="rteright"><u>WRIT NO. J1/16/2016</u></p> <p class="rteright"><u>14<sup>TH</sup> JUNE, 2017</u></p> <p class="rteright"> </p> <p><strong>CIVIL AND LOCAL GOVERNMENT STAFF</strong></p> <p><strong>ASSOCIATION OF GHANA (CLOSSAG)        ……..          PLAINTIFF</strong></p> <p><strong>VRS</strong></p> <p><strong>1. THE ATTORNEY-GENERAL</strong></p> <p><strong>2. THE OFFICE OF THE HEAD OF CIVIL SERVICE, MINISTRIES, ACCRA</strong></p> <p><strong>3. THE OFFICE OF THE HEAD OF LOCAL GOVERNMENT SERVICE, MINISTRIES, ACCRA .....................................DEFENDANTS</strong></p> <hr /> <p class="rtecenter"><strong><u>JUDGMENT</u></strong></p> <hr /> <p><strong><u>AKUFFO (MS), JSC:- </u></strong></p> <p><strong>Brief Facts</strong></p> <p>The Plaintiff is the Civil and Local Government Staff Association of Ghana (CLOGSAG) which is a registered Trade Union and mouthpiece of workers in the Civil and Local Government Services. The Attorney General is the Principal legal advisor to the Government and the pro-forma Defendant for all civil proceedings instituted against the State. The second and third Defendants are the bodies regulating the activities of Civil Servants and Local Government Servants respectively and are not necessary parties in this matter since their interest in this matter is not in conflict with that of the Attorney General.</p> <p>By a letter dated 19<sup>th</sup> October, 2015, from the Head of Civil Service and addressed to “All Chief Directors” and “All Heads of Departments”, the addressees were requested to remind ‘all staff members’ that persons holding civil service positions are barred from participating in political activities including the following:</p> <p class="rteindent1">a)   Attending political rallies</p> <p class="rteindent1">b)   Wearing party paraphernalia</p> <p class="rteindent1">c)   Subjecting one’s self for party vetting</p> <p class="rteindent1">d)   Holding party membership card and</p> <p class="rteindent1">e)   Standing for party primaries etc.</p> <p>The said letter made reference to the provisions of the Civil Service Code of Conduct (issued on 1<sup>st</sup> November, 1999), section 12(1) (b), (c) and (e) of which read as follows:</p> <p class="rteindent1"><em>“12. (1) The Constitution of Ghana confers rights on all citizens of Ghana, including Civil Servants to join any political party or association of their choice. However, by virtue of the traditional role of the Civil Service to serve the Government of the day loyally, and to maintain the confidence of any future Administration, a Civil Servant may not:</em></p> <p class="rteindent2"><em>a)  Accept any office paid or unpaid, permanent or temporary, in any political party or organisation;</em></p> <p class="rteindent2"><em>b)  Declare himself openly as a registered member of a political party or association;</em></p> <p class="rteindent2"><em>c)  Indicate publicly his support for any party, candidate or policy</em></p> <p class="rteindent2"><em>d)  Make speeches or join in demonstrations in favour of any political person, party, or propaganda</em></p> <p class="rteindent2"><em>e)  Engage in activities which are likely to involve him in political controversy.</em></p> <p class="rteindent1"><em>(2)</em> N<em>otwithstanding, a Civil Servant is entitled to his views in political matters, and if so qualified, may vote at elections.”</em></p> <p>The letter also advised that any Civil Servant who wished to participate in any political activity should resign from the service and warned to deal with anyone who flouted the directive.</p> <p>Furthermore, the Code of Conduct for Staff of Local Government Service contains statements of principles on Anonymity and Permanence in the following terms:-</p> <p class="rteindent1">Anonymity</p> <p class="rteindent1"><em>“officers and staff of the Local Government Service shall serve the State with neutrality and anonymity in the national and local government processes”</em></p> <p class="rteindent1">Permanence</p> <p class="rteindent1"><em>“The Local Government Service is a constitutionally mandated Public Service institution and owes allegiance only to the State and community. The permanence of the Local Government Service is integral to the achievement of the objectives of the Local Government Authorities....”</em></p> <p>On the foundation of these two principles the said Code of Conduct sets out, in Canon 1, a set of Minimum Standards of Conduct, which are to be adhered to by officers and staff of the Local Government Service ‘in the discharge of their roles or functions in any project or task’, the most pertinent for our purposes being those set out in sub-canons 1.1, 1.5, 1.6 and 1.7 as follows:</p> <p class="rteindent1"><em>1.1  not put themselves in a position where personal interest conflicts or is likely to conflict with the performance of the functions of their office.</em></p> <p class="rteindent1"><em>1.5  never to act as an agent of or for the interest of a political, social, ethnic, gender or interest group.</em></p> <p class="rteindent1"><em>1.6  not to seek election to office as member of an Assembly.</em></p> <p class="rteindent1"><em>1.7  not to attend or support the functions, programs and activities of political, social, ethnic or gender interest group in a private capacity and name or in circumstances unrelated to the discharge of the projects and tasks of the Local Government Service.”</em></p> <p>According to the Plaintiff, the Heads of the Civil Service and Local Government Service, respectively, have in the past subjected members of the Plaintiff association to disciplinary proceedings for their engagement in political party activities.</p> <p>Now, by a letter dated 23<sup>rd</sup> September, 2015, one Alexander Hedidor, an Assistant Director at the Prestea-Huni Valley District Assembly, was interdicted for involving himself in active party politics when he filed his nomination to contest the Suaman Constituency Parliamentary primaries, on the ticket of the National Democratic Congress (NDC), which was considered a contravention of the provisions of the Code of Conduct of the Local Government Service. Consequently, by a writ filed on 29<sup>th</sup> of April, 2016 the Plaintiff, pursuant to Article 2(1) and 130(1) of the Constitution, invoked the jurisdiction of this Court for the reliefs set out below:</p> <p><strong>The Plaintiff’s Action Herein</strong></p> <p class="rteindent1">1.  A declaration that upon a true and proper interpretation of article 12(2), article 21(3), article 21(1) (a) and (d), article 35(6) (d), article 55(1), (2) and (10) and article 284 of the Constitution, 1992, a member of the Civil Service has a right to join any political party of his choice whilst still a member of the Civil Service.</p> <p class="rteindent1">2.  A declaration that upon a true and proper interpretation of article 12(2), article 21(3), article 21(1) (a) and (d), article 35(6) (d), article 55(1), (2) and (10) and article 284 of the Constitution, 1992, a member of the Civil Service has a right to manifest his or her political affiliation whilst still a member of the Civil Service.</p> <p class="rteindent1">3.  A declaration that upon a true and proper interpretation of article 12(2), article 21(3), article 21(1) (a) and (d), article 35(6)(d), article 55(1), (2) and (10) and article 284 of the Constitution, 1992, a member of the Civil Service has a right to contest for elections for political party office and to hold political party office whilst still a member of the Civil Service.</p> <p class="rteindent1">4.  A declaration that upon a true and proper interpretation of article 12(2), article 21(3), article 21(1) (a) and (d), article 35(6)(d), article 55(1), (2) and (10) and article 284 of the Constitution, 1992, a member of the Civil Service has a right to remain a member of the Civil Service until he/she resigns prior to his/her nomination by a political party or otherwise to contest as a member of Parliament.</p> <p class="rteindent1">5.  A declaration that the provisions of the code of conduct for members of the Civil Service enacted by the Council of the Civil Service and/or any other authority barring a member of the Civil Service from engaging in political party activities is unconstitutional.</p> <p class="rteindent1">6.  A declaration that upon a true and proper interpretation of article 12(2), article 21(3), article 21(1) (a) and (d), article 35(6) (d), article 55(1), (2) and (10) and article 284 of the Constitution, 1992, a member of the Civil Service has a right to contest local government elections whilst still a member of the Civil Service.</p> <p class="rteindent1">7.  A declaration that upon a true and proper interpretation of article 12(2), article 21(3), article 21(1) (a) and (d), article 35(6) (d), article 55(1), (2) and (10) and article 284 of the Constitution, 1992, a member of the Civil Service has a right to remain a member of the Civil Service after being sworn in as a member of a district assembly.</p> <p class="rteindent1">8.  A declaration that the provisions of the code of conduct for members of the Civil Service enacted by the Council of the Civil Service and/or any other authority barring a member of the Civil Service from contesting and/or being a member of the Civil Service is unconstitutional.</p> <p class="rteindent1">9.  A declaration that upon a true and proper interpretation of article 12(2), article 21(3), article 21(1) (a) and (d), article 35(6)(d), article 55(1), (2) and (10) and article 284 of the Constitution, 1992, a member of the Local Government Service has a right to join any political party of his or her choice whilst still a member of the Local Government Service.</p> <p class="rteindent1">10. A declaration that upon a true and proper interpretation of article 12(2), article 21(3), article 21(1) (a) and (d), article 35(6)(d), article 55(1), (2) and (10) and article 284 of the Constitution, 1992, a member of the Local Government Service has a right to contest for elections for political party office and to hold political party office whilst still a member of the Local Government Service.</p> <p class="rteindent1">11. A declaration that upon a true and proper interpretation of article 12(2), article 21(3), article 21(1) (a) and (d), article 35(6)(d), article 55(1), (2) and (10) and article 284 of the Constitution, 1992, a member of the Local Government Service has a right to remain a member of the Local Government Service until he/ she resigns prior to his/ her nomination by a political party or otherwise to contest as a member of Parliament.</p> <p class="rteindent1">12. A declaration that the provisions of the code of conduct for members of the Local Government Service enacted by the Council of Local Government Service and/ or any other authority barring a member of the Local Government Service from engaging in political party activities is unconstitutional.</p> <p class="rteindent1">13. A declaration that upon a true and proper interpretation of article 12(2), article 21(3), article 21(1) (a) and (d), article 35(6)(d), article 55(1), (2) and (10) and article 284 of the Constitution, 1992, a member of the Local Government Service has a right to contest in local government elections whilst still a member of the Local Government Service.</p> <p class="rteindent1">14. A declaration that upon a true and proper interpretation of article 12(2), article 21(3), article 21(1) (a) and (d), article 35(6)(d), article 55(1), (2) and (10) and article 284 of the Constitution, 1992, a member of the Local Government Service has a right to remain a member of the Local Government Service after being sworn in as a member of a District Assembly.</p> <p class="rteindent1">15. A declaration that the provisions of the code of conduct for members of the Local Government Service enacted by the Council of Local Government Service and/ or any other authority barring a member of the Local Government Service from contesting and/ or being a member of a district assembly whilst still a member of the Local Government Service is unconstitutional.</p> <p><strong>Plaintiff's Case</strong></p> <p>Although the Plaintiff, in its statement of case adverted to the question of the Jurisdiction of this court in this matter, as well as the plaintiff’s capacity to bring this action, these are not contested issues and the Court has no doubt that it has jurisdiction herein and the Plaintiff, as an incorporated association of Civil and Local Government Staff of Ghana, has the capacity to bring this action on its own behalf and on behalf of its members.</p> <p>The Plaintiff, in its Statement of Case hung its arguments on two issues, to wit:</p> <p class="rteindent1">a.       Whether or not on a true and proper interpretation of the Constitution, members of the Civil Service and Local Government Service have a right to join political parties and hold executive positions in political parties; and</p> <p class="rteindent1">b.       Whether or not on a true and proper interpretation of the Constitution members of the Civil Service and Local Government Service have a right to contest Local Government elections while still being members of their respective Services.</p> <p>On the first issue, the Plaintiff made reference to articles 12(2) and 55(1), (2) and (10) of the Constitution which, respectively, provide as follows:</p> <p class="rteindent1"><em>“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.”</em></p> <p class="rteindent1"><em>“55(1) The right to form political parties is hereby guaranteed</em></p> <p class="rteindent1"><em>“(2)   Every citizen of Ghana of voting age has the right to join a political party.</em></p> <p class="rteindent1"><em>"(10) Subject to the provisions of this Constitution, every citizen of voting age has the right to participate in political activity intended to influence the composition and policies of the Government.”</em></p> <p>The Plaintiff asserted that the effect of the provisions of Article 12(2) is that the rights guaranteed by the provisions of Chapter 5 of the Constitution are enjoyable as of right by all persons’ subject only to the rights and freedoms of others and public interest. The Plaintiff then referred to section 12(1) of the Civil Service Code of Conduct (already quoted supra)and noted that although the provisions of this Code acknowledges the right of Civil Servants to join political parties, “there is an attempt to limit the scope of the right to join political parties and even hold political views”. The Plaintiff therefore questioned the efficacy of joining a group “if one cannot openly display membership, ideals, philosophies and views of that group”. The Plaintiff moreover, referred to Article 21(3) which provides that:</p> <p class="rteindent1">“All citizens shall have the right and freedom to form or join political parties and to participate in political activities <strong>subject to such qualifications and laws as are necessary in a free and democratic society and are consistent with this Constitution</strong>.”</p> <p>The Plaintiff argued, although this might appear to permit limitations on the scope of article 12(2), because of the expression “<strong>are consistent with this Constitution” </strong>any limitation ‘must not only be necessary for a free and democratic society, but must also be in sync with the letter and spirit of the Constitution” and that in any case article 55 does not contain any ‘such apparent limitation’ as in Article 21(3). The Plaintiff cited the decision of this court in the case of <strong>Kwadjoga Adra v. National Democratic Congress</strong>, Writ No. J1/13/2014 (unreported Supreme Court Judgment dated 15th July, 2015) and quoted the dictum of Baffoe-Bonnie, JSC that:</p> <p class="rteindent1"><em>“The right to participate in political activities is a right specifically guaranteed by the Constitution, and any law or constitutional provision that seeks to limit this right must be clear and unequivocal.”</em></p> <p>According to the Plaintiff, the freedom of association, which is among the fundamental freedoms  enshrined in article 21 of the Constitution, necessarily entails the freedom to manifest and express membership of an association to which a person belongs and that therefore the right to join a political party necessarily carries with it the right to manifest such affiliation, just as in the case of freedom of assembly expression and conscience, whereas section 12 of the Civil Service Code of Conduct attempts to limit the scope of the right to join political parties and ‘even hold political views.</p> <p>In support of its case in this regard, counsel for the Plaintiff sought to persuade this court by referring to the Nigerian case of <strong>Independent National Electoral Commission and the Attorney General v. Musa, [2003] 3 NWLR (part 806)</strong> wherein (on the scope of section 40 of the Nigerian Constitution) the Supreme Court of Nigeria upheld the view that since the provision contained no exception or proviso, “every person”, including public office holders and civil servants have the freedom to assemble freely and associate with other persons to form or belong to any political party or trade union etc. In that case, Ayoola JSC in his concurring opinion stated that:-</p> <p class="rteindent1">“There is nothing reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health in prohibiting a member of the public service or civil service ... from eligibility to be registered as a member of a political party.”</p> <p>Therefore, according to the Plaintiff, where any constitutional right or freedom is expressed to be subject to limitations as are necessary in a free and democratic society, such limitations must be discernible from the constitution itself or provisions that do not derogate from democratic society.</p> <p>The Plaintiff also relied on the case of <strong>Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69</strong>to persuade us of the argument that any limitation on a civil servant’s right to join a political party is in violation of their freedom of expression and freedom of association. In the said case, several public servants challenged a statutory prohibition on political activity on the grounds that it violated their freedom of expression and freedom of association under the Charter (Constitution of Canada). The majority of the Supreme Court of Canada held that the prohibition on political party activity was not a reasonable limit (as permitted under section 1 of the Canadian Constitution) on the freedom of expression. Whilst the Canadian court recognized the constitutional convention of public service neutrality, it but struck down the legislated restrictions on political activities of civil servants for the reason that the legislation was over-inclusive, as it did not account for the distinctions between the types of work at different levels of responsibility within the Civil Service.</p> <p>Plaintiff herein, therefore, argued that the question of neutrality, which is the reason for the bar against Civil and Local Government employees is untenable as only a minute fraction of the Civil and Local Government Services perform tasks that may require their political impartiality and, thus, a general ban on active political activity is a fetter on the constitutional right of association of political activism.</p> <p>The Plaintiff did acknowledge that there is, indeed, a need for political neutrality in the Civil service as an institution, however, they averred that this need is adequately addressed in the Constitution, in article 284, as well as other instruments, such as the obligation, stated in clause 37 of the Code of Conduct, to maintain confidentiality even after a civil servant has left office; section 87 of the Civil Service Act, 1993 [PNDCL 327] which prohibits a civil servant from placing herself in a position of conflict of interest or potentially conflicts with the performance of her office; section 91 of PNDCL 327 which requires Civil Servants to, upon recruitment to take the prescribed oath of allegiance, oath of secrecy and the official oath.</p> <p>On the second issue argued by the Plaintiff, i.e., whether or not on a true and proper interpretation of the Constitution members of the Civil Service and Local Government Service have a right to contest Local Government elections while still being members of their respective Services, the Plaintiff made arguments similar to those advanced in respect of the first issue and in effect argued further that since the right to join political parties and participate in its activities, the indulgence in active participation necessarily includes the right to hold executive position in such party. The Plaintiff submitted that article 55(8) of the Constitution, which proscribes political parties from having a founding member, leader or executive member who is not qualified to be elected a member of parliament, must not be interpreted or applied so as to disqualify a member of the Civil Service or Local Government from holding an executive position in a political party. The reason for the Plaintiff's position is that article 94, which stipulates the requirements for qualification and eligibility for election to Parliament, makes a distinction between eligibility and qualification. The plaintiff notes that article 94(1) and (2), which list the criteria for qualification to be elected to Parliament, do not exclude members of the Civil or Local Government services. Rather it is in 94(3), which lists those excluded from eligibility, that members of the Civil Service are mentioned. The plaintiff therefore concludes that under the constitution of a civil servant is qualified to be a Member of Parliament but not eligible, consequently, such a civil servant is permitted under the Constitution to be an executive member of a political party. Thus the Plaintiff submitted that Section 26 of the Political Parties Act, 2000 (act 574) which fuses qualification with eligibility to bar Civil and Local Government employees is unconstitutional.</p> <p>They further submitted that in light of their foregoing submissions, a member of the Civil or Local Government is also entitled to remain as such member and undergo political party primaries for participation as member of the Local government.</p> <p>The Plaintiff furthermore relied on article 35 (6) (d) of the 1992 Constitution (part of the Directive Principles of State Policy), which states that:</p> <p class="rteindent1"><em>“Towards the achievement of the objectives stated in clause (5) of this article, the State shall take appropriate measures to -</em></p> <p class="rteindent2"><em>“(d) make democracy a reality by decentralizing the administrative and financial machinery of government to the regions and districts and by affording all possible opportunities to the people to participate in decision-making at every level in national life and in government; …</em></p> <p>and submitted that in view of this principal objective of the Constitution, which is a call on the citizenry to participate in decision making processes at local level (as well as national level), it would be absurd to enjoin any class of persons just because they are officially working in the local government administration.</p> <p><strong>Defendant's Case</strong></p> <p>The Defendant was ad idem with the Plaintiff with respect to the core issues for determination namely:</p> <p class="rteindent1"><strong>i.   Whether or not on a true and proper interpretation of the Constitution, members of the Civil Service and Local Government Service have a right to join political parties and hold executive positions in political parties; and</strong></p> <p class="rteindent1"><strong>ii.  Whether or not on a true and proper interpretation of the Constitution members of the Civil Service and Local Government Service have a right to contest Local Government elections while still being members of their respective Services.</strong></p> <p>The Defendant referred to the hereinbefore quoted provisions of Article 12 of the Constitution and submitted that the rights guaranteed under the Constitution are not absolute but, rather, are subject to a limitation test as far as the rights of other persons and the larger public interest is concerned as prescribed by Article in 12(2). In that vein the Defendant cited Articles 21(3), 94(3) and 284 of the 1992 Constitution which state:</p> <p class="rteindent1"><em>“21(3) All citizens shall have the right and freedom to form or join political parties and to participate in political activities <strong>subject to such qualifications and laws as are necessary in a free and democratic society and are consistent with this Constitution.</strong></em></p> <p class="rteindent1"><em>“94(3) A person shall not be eligible to be a member of Parliament if he -</em></p> <p class="rteindent1"><em>(a) is prohibited from standing election by a law in force in Ghana by reason of his holding or acting in an office the functions of which involve a responsibility for or are connected with the conduct of, an election or responsibility for, the compilation or revision of an electoral register; or</em></p> <p class="rteindent1"><em>(b) is a member of the Police Service, the Prisons Service, the Armed Forces, the Judicial Service, the Legal Service, <strong><u>the Civil Service</u></strong>, the Audit Service, the Parliamentary Service, the Statistical Service, the Fire Service, the Customs, Excise and Preventive Service, the Immigration Service, or the Internal Revenue Service; or</em></p> <p class="rteindent1"><em>(c) is a Chief.</em></p> <p class="rteindent1"><em>“284.A public officer shall not put himself in a position where his personal interest conflicts or is likely to conflict with the performance of the functions of his office.”</em></p> <p>The Defendant urged that the combined effect of Articles 21(3), 94(3) and 284 of the 1992 Constitution is to oust the members of the Civil Service and Local Government Service from participating in political activities. This is because the nature of a Civil Servant’s role is such that he or she must, at all times, maintain neutrality in political matters in order to ensure political impartiality and gain public confidence in the Service. She submitted that the Code of Conduct for the Ghana Civil Service recognizes the rights of all citizens to participate in political activities as contained in Section 12(1) of the Civil Service Code. According to the Defendant, the restrictions placed on Civil Servants in relation to politics and political activity are designed to ensure that the actions of a Civil Servant do not give rise to a perception of bias or influence from political party motives.</p> <p>On 7<sup>th</sup> March 2017, the parties herein filed a Memorandum of Agreed Issues setting out the following for determination:-</p> <p><strong>ISSUES</strong></p> <p class="rteindent1">1.  Whether or not on a true and proper interpretation of the Constitution of Ghana 1992, a member of the Civil Service or Local Government Service has  right to join any political party of his or her choice and to participate in political party activities whilst still a member of the Civil Service or Local Government Service.</p> <p class="rteindent1">2.  Whether or not on a true and proper interpretation of the Constitution of Ghana, 1992 a member  of the Civil Service or Local Government Service has a right to contest for elections for political party office and to hold political party office whilst still a member of the Civil Service or Local Government Service.</p> <p class="rteindent1">3.  Whether or not on a true and proper interpretation of the Constitution, 1992 a member of the Civil Service or Local Government Service has a right to remain a member of the Civil Service or Local Government  Service until he/she prior to his/her nomination by a political party or otherwise to contest as a member of parliament.</p> <p class="rteindent1">4.  Whether or not the provisions of the code of conduct for members of the Civil Service or Local Government enacted by the Councils of the Civil Service and the Local Government Service and/or any other authority barring a member of the Civil Service or the Local Government Service from engaging in political party activities is unconstitutional.</p> <p class="rteindent1">5.  Whether or not on a true and proper interpretation of articles 12(2), 21(3), 21(1) (a) and (d), 35(6) (d), 55(1), (2) and (10); and 284 of the Constitution, 1992 a member of the Civil Service or Local Government Service has the right to contest in local government elections whilst still a member of the Civil Service or Local Government Service.</p> <p class="rteindent1">6.  Whether or not on a true and proper interpretation of articles 12(2), 21(3), 21(1) (a) and (d), 35(6) (d), 55(1), (2) and (10); and 284 of the Constitution, 1992 a member of the Civil Service or Local Government Service has the right to remain  a member of the Civil Service or Local Government Service after being sworn in as a member of a district assembly.</p> <p class="rteindent1">7.  Whether or not the provisions of the code of conduct for members of the Civil Service or the Local Government Service enacted by the Councils of the Civil Service and Local Government Service and/or any other authority baring a member of the Civil Service or Local Government Service from contesting and/or being a member of a district assembly whilst still a member of the Civil Service or Local Government is unconstitutional.</p> <p>Although the list of issues is longer than the two issues both parties focused on in their respective statements of case, a close analysis of the same shows that the memorandum merely particularizes the sub-issues that arise from the matters argued in the statements.</p> <p><strong>Analysis</strong></p> <p>The parties herein are in general agreement that the rights and freedoms guaranteed under the Constitution are not absolute but subject to limitations and/or restrictions consistent with provisions of the Constitution. It is, therefore, not in contention whether or not the Constitution permits restrictions or places limitations on the exercise of the Plaintiff’s freedom of association, particularly political association. The core question at issue is whether or not the limitations sought to be imposed on the political activities of the Plaintiff by the Civil Service Code of Conduct and the Local Government Service Code of Conduct (as well as section 26 of Act 574) are consistent with the Constitution.</p> <p>Prima facie, constitutional rights and freedoms are to be enjoyed fully but subject to the limits which Constitution itself places thereon, in the terms of Article 12(2). However, in recognition of the fact that the enjoyment of political rights must be also governed by certain regulations and standards Article 21(3) makes room for ‘laws and qualifications’ so as to assure that, in the enjoyment of the fundamental freedom to form or join political parties, there will be order as well as proper service to the public good. This is an important aspect of good governance. Hence, in determining the validity of any statutory or other limitation placed on a constitutional right, the questions that need to be determined are:</p> <p class="rteindent1">a.       Is the limitation necessary? In other words is the limitation necessary for the enhancement of democracy and freedoms of all, is it for the public good?</p> <p class="rteindent1">b.       Is the limitation proportional? Is the limitation over-broad such as to effectively nullify a particular right or freedom guaranteed by the constitution?</p> <p><strong>Necessity and Proportionality</strong></p> <p>For ease of reference I set out again provisions of Articles 12, 21(3), 94(3), 284as well as 295, for these are, in my view the provisions that properly govern limitations and restrictions.</p> <p class="rteindent1"><em>“12 (1) The fundamental human rights and freedoms enshrined in this chapter shall be respected and upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies and, where applicable to them, by all natural and legal persons in Ghana, and shall be enforceable by the Courts as provided for in this Constitution.</em></p> <p class="rteindent1"><em>"(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 <strong>but subject to respect for the rights and freedoms of others and for the public interest".</strong></em></p> <p>and Articles 21(3), 94(3) and 284, respectively, state as follows:</p> <p class="rteindent1"><em>"21(3) All citizens shall have the right and freedom to form or join political parties and to participate in political activities <strong>subject to such qualifications and laws as are necessary in a free and democratic society and are consistent with this Constitution.</strong></em></p> <p class="rteindent1"><em>"94(3) A person shall not be eligible to be a Member of Parliament if he -</em></p> <p class="rteindent1"><em>(c) is prohibited from standing election by a law in force in Ghana by reason of his holding or acting in an office the functions of which involve a responsibility for or are connected with the conduct of, an election or responsibility for, the compilation or revision of an electoral register; or</em></p> <p class="rteindent1"><em>(d) is a member of the Police Service, the Prisons Service, the Armed Forces, the Judicial Service, the Legal Service, <strong><u>the Civil Service</u></strong>, the Audit Service, the Parliamentary Service, the Statistical Service, the Fire Service, the Customs, Excise and Preventive Service, the Immigration Service, or the Internal Revenue Service; or</em></p> <p class="rteindent1"><em>(c) is a Chief.</em></p> <p class="rteindent1"><em>284. A public officer shall not put himself in a position where his personal interest conflicts or is likely to conflict with the performance of the functions of his office.</em></p> <p>Additionally, Article 295 states:</p> <p><strong><em>"public interest"</em></strong><em> includes any right or advantage which enures or is intended to enure to the benefit generally of the whole of the people of Ghana;</em></p> <p><strong><em>"public office"</em></strong><em> includes an office the emoluments attached to which are paid directly from the consolidated Fund or directly out of moneys provided by Parliament and an office in a public corporation established entirely out of public funds or moneys provided by Parliament;</em></p> <p><strong><em>"public service"</em></strong><em> includes service in any civil office of Government, the emoluments attached to which are paid directly from the Consolidated Fund or directly out of moneys provided by Parliament and service with a public corporation;</em></p> <p>Distilled into their barest essence, these provisions show that:</p> <p class="rteindent1">i.   Fundamental human rights and freedoms are subject to respect for the rights and freedoms of others and for the public interest</p> <p class="rteindent1">ii.  The public interest is not defined in any particular way and is founded on the overall benefit of the people of Ghana. Thus its interpretation and application is necessarily situational and environmental.</p> <p class="rteindent1">iii. Political rights and freedoms are subject to such qualifications and laws as are necessary in a free and democratic society and are consistent with this Constitution</p> <p class="rteindent1">iv. Civil Servants are part of the exclusion list with respect to eligibility for members of Parliament and although the exclusion list in article 94 makes a distinction between qualification and eligibility, yet, at the same time, being qualified to become a member of Parliament does not make a member of the Civil or local government Service Eligible.</p> <p class="rteindent1">v.  Public Officers, which includes Civil Servants, are enjoined to avoid conflict of interest situations in the performance of their official duties.</p> <p>As Sowah, JSC. (as he then was) famously noted, every constitution has its letter, as well as its spirit, which is gleaned from the intention of the framers of the constitution. Clearly, if the framers of the Constitution had intended the enjoyment of the fundamental human rights and freedoms to be absolute, they would have expressly stated same. Granting limitations on the exercise of these rights is a clear indication that the framers of the Constitution must have contemplated certain overriding interests i.e. the public interest in respect of the exercise of these rights as well as the public interest in the assurance that public officers will as much as possible serve the public rather than political interests.</p> <p>Whilst facts in the Canadian case of <strong>Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69</strong>appear similar to the ones herein, it is crucial not to lose sight of its socio-political context which formed the basis of the majority opinion regarding proportionality. On the issue of necessity, the Canadian court did acknowledge, nevertheless, that the legislative objective of maintaining neutrality in the Public Service is of sufficient importance to justify some limitation on freedom of expression and association.  That is the position we also take in this matter, and ad we have already noted above, such limitations are known and inherent in the enjoyment of rights, provided they are proportional enough as not to be overbroad.</p> <p>In this matter, the determination of whether the limitations on the enjoyment of political rights by members of the Civil and Local Government Services are proportional, it is essential to take into account the Statutory role of the Civil Service (pursuant to article 190) and the constitutionally determined function of the Local Government Service in the overall governance structure in Ghana. Sections 2 and 3 of the Civil Service Act, 1993 (PNDCL 327) provide as follows:</p> <p class="rteindent1"><em>"2. Object of the Service </em></p> <p class="rteindent1"><em>The object of the Service is to assist the Government in the formulation and implementation of government policies for the development of the country. </em></p> <p class="rteindent1"><em> "3. Functions of the Service </em></p> <p class="rteindent2"><em>(1) For the purposes of achieving its object, the Service shall </em></p> <p class="rteindent3"><em>(a) initiate and formulate policy options for the consideration of the Government, </em></p> <p class="rteindent3"><em>(b) initiate and advise on government plans, </em></p> <p class="rteindent3"><em>(c) undertake the necessary research for the effective implementation of government policies, </em></p> <p class="rteindent3"><em>(d) implement government policies, </em></p> <p class="rteindent3"><em>(e) review government policies and plans, </em></p> <p class="rteindent3"><em>(f) monitor, co-ordinate and evaluate government policies and plans, </em></p> <p>It is clear from the foregoing functions that a large measure of apparent political anonymity or neutrality is required in order for the Civil Service to function satisfactorily and effectively as part of the national government machinery. To be effective, the work of a Civil Servant in Ghana, no matter the level of operation, requires some expectation of efficiency, discretion, loyalty and public trust. At this stage or our socio-political development, when political discourse is all pervasive and rivalry can easily trigger a whole range of reactions, including even violence, it would be most unhealthy to countenance Civil and Local Government servants who publicly proclaim their partisan leanings in the public space. Whilst their membership of a party is their right, the open manifestation of such leanings in cannot augur well for a neutral workplace, and demonstrable assurance of transparency and anonymity/neutrality in decision-making or execution of functions. Otherwise a public perception of political corruption in all its forms, including bias, nepotism, abuse of position, opacity and lack of accountability will be engendered, thereby weakening the effectiveness of these government services, to the detriment of the nation as a whole. In this regard, the following reasoning in the dissenting opinion of Stevenson J., in the Osborne case (supra) is quite persuasive:</p> <p class="rteindent1"><em>".... An effective civil service is essential to modern day democratic society and a measure of neutrality is necessary in order to preserve that effectiveness. No civil servant must owe, or be seen to owe, appointment or promotion to partisan activities since visible partisanship by civil servants would severely impair, if not destroy, the public perception of neutrality. In that context, section 33(1) () of the Act is an acceptably proportional response to Parliament's objective. The section does not suffer from over-breadth and meets the "minimal impairment" test. The proposed less restrictive means, which distinguish between various levels of public servants (and thus abandon any restraint on the so</em><em>-</em><em>called lower level civil service), would not satisfy the objective of preserving the civil service's political neutrality. Finally, there is an appropriate proportionality between the effects of the measure and the objective. The provision does not deny freedom of expression. <strong>It imposes a limitation on that freedom in the context of partisan political activities upon persons who must know, or at least be deemed to know, that employment in the public service involves acceptance of certain restraints</strong>.</em></p> <p>In relation to the instant case, it is evident that political neutrality is very important and still relevant within the Public Service. Best practices and Ghana's socio-political evolution require that no civil servant or local government servant should owe, or be perceived to owe, appointment or promotion to partisan activities. Partisan activities tend to be obvious and explicit and they are more often than not visible and known to those in and out of the public service. Once these commitments are known, the principles of neutrality, impartiality and integrity are weakened and endangered.</p> <p>At this stage of development of our democratic development, it is always crucial and necessary to establish and safeguard a high standard of neutrality and objectivity in governance and the delivery of public service, so as foster and strengthen public confidence in the democratic process. The elements necessary for knitting a nation together, including in particular the avoidance of the abuse of discretionary power and observance of mutual respect in the public space, are still evolving. Moreover, (and related to the foregoing) the maturity level of most stakeholders within the Ghanaian governance system are as yet at a growth stage, and it is not surprising that, nearly 30 years into our Forth Republic, there are still obvious sensitivities concerning the stability of our democracy. We need not burden the delicate developmental process by the removal of all forms of legitimate restrictions and limitations on the enjoyment and exercise of fundamental human rights and freedoms particularly, the open manifestation of such membership and the mixing of public service with overtly political office. Our Constitution will continue to serve us well only if the application of its provisions is supportive of the upward evolution of the national ethos, our hopes and aspirations.</p> <p>With every guaranteed human right under the Constitution, comes an overriding responsibility, which is toward the public interest or greater good. It is for this reason that the framers of the 1992 Constitution placed limitations on the exercise of some human rights by certain classes of persons, including members of the Civil Service and Local Government Service. These Services have been long hallowed institutions whose utility lie entirely in their presumed anonymity/neutrality and permanence. From one political administration to the next, the Civil Service and Local Government Service are expected to remain in place, functioning in a professional manner, to assure continuity and process integrity in the administration of day to day governance. Visible partisanship and overt displays of lack of professional neutrality and objectivity would be a betrayal of the just expectations of the People of the Republic of Ghana and impair (even further) the efficiency and effectiveness of these key governance services.</p> <p>It is therefore our view that the Codes of Conduct of the Civil Service and the Local Government Service, in general do not deny Civil and Local Government Servants the freedom of association, particularly the right to join political parties of their choice. They merely seek to place a limitation on the manifestation of that right while in-service, in order to maintain the neutrality of the Civil and Local Government Service and foster the principles of anonymity and permanence. What they say, in sum is, if you wish to broadcast or otherwise manifest your political party allegiance and/or run political office, step away from the said Services.</p> <p>In the particular case of the Local Government Service, in addition to the foregoing considerations, it is important to bear in mind, which we do, the following factors:</p> <p class="rteindent1">a.       Article 240(2)(d) provides that <em>"as far as practicable, persons in the service of local government shall be subject to the effective control of local authorities"</em></p> <p class="rteindent1">b.       By virtue of article 241(3) the District Assembly is the highest political authority in a district and has deliberative, legislative and executive powers.</p> <p class="rteindent1">c.       Under Article 245, the functions of the District Assembly includes:</p> <p class="rteindent2"><em>"(a)    the formulation and execution of plans, programmes and strategies for the effective mobilization of resources necessary for the overall development of the district</em></p> <p class="rteindent2"><em>(b)     the levying and collection of taxes, rates duties and fees."</em></p> <p>In addition, the Local Government Act, 2016 (Act 936) enumerates in greater detail the scope and magnitude of the functions of the District Assembly, which leaves no doubt in our minds that membership of an Assembly is not a casual position to be undertaken for fancy or on a whim. Section 12 is as follows:</p> <p class="rteindent1"><em>"Functions of District Assemblies </em></p> <p class="rteindent1"><em>(1)     A District Assembly shall </em></p> <p class="rteindent2"><em>(a) exercise political and administrative authority in the district</em></p> <p class="rteindent2"><em>(b) promote local economic development; and</em></p> <p class="rteindent2"><em>(c) provide guidance, give direction to and supervise the other administrative authorities in the district as may be prescribed by law.</em></p> <p class="rteindent1"><em>(2)     A District Assembly shall exercise deliberative, legislative and executive functions. </em></p> <p class="rteindent1"><em>(3)     Without limiting subsections (1) and (2), a District Assembly shall</em></p> <p class="rteindent2"><em>(a)      be responsible for the overall development of the district;</em></p> <p class="rteindent2"><em>(b)     formulate and execute plans, programmes and strategies for the effective </em><em>mobilisation</em><em> of the resources necessary for the overall development of the district; </em></p> <p class="rteindent2"><em>(c)      promote and support productive activity and social development in the district and remove any obstacles to initiative and development; </em></p> <p class="rteindent2"><em>(d)     sponsor the education of students from the district to fill particular manpower needs of the district especially in the social sectors of education and health, making sure that the sponsorship is fairly and equitably balanced between male and female students; </em></p> <p class="rteindent2"><em>(e)      initiate programmes for the development of basic infrastructure and provide municipal works and services in the district; </em></p> <p class="rteindent2"><em>(f)      be responsible for the development, improvement and management of human settlements and the environment in the district; </em></p> <p class="rteindent2"><em>(g)     in co-operation with the appropriate national and local security agencies, be responsible for the maintenance of security and public safety in the district; </em></p> <p class="rteindent2"><em>(h)     ensure ready access to Courts in the district for the promotion of justice; </em></p> <p class="rteindent2"><em>(i)      act to preserve and promote the cultural heritage within the district;</em></p> <p class="rteindent2"><em>(j)      initiate, sponsor or carry out studies that may be necessary for the discharge of any of the duties conferred by this Act or any other enactment; and </em></p> <p class="rteindent2"><em>(k)      perform any other functions that may be provided under another enactment. </em></p> <p class="rteindent1"><em>(4)     A District Assembly shall take the steps and measures that are necessary and expedient to </em></p> <p class="rteindent2"><em>(a)      execute approved development plans for the district; </em></p> <p class="rteindent2"><em>(b)     guide, encourage and support sub-district local structures, public agencies and local communities to perform their functions in the execution of approved development plans; </em></p> <p class="rteindent2"><em>(c)      initiate and encourage joint participation with any other persons or bodies to execute approved development plans; </em></p> <p class="rteindent2"><em>(d)     promote or encourage other persons or bodies to undertake projects under approved development plans; and </em></p> <p class="rteindent2"><em>(e)      monitor the execution of projects under approved development plans and assess and evaluate their impact on the development of district and national economy in accordance with government policy. </em></p> <p class="rteindent1"><em>(5)     A District Assembly shall co-ordinate, integrate and harmonise the execution of programmes and projects under approved development plans for the district and other development programmes promoted or carried out by Ministries, Departments, public corporations and other statutory bodies and non-governmental organisations in the district. </em></p> <p class="rteindent1"><em>(6)     A District Assembly in the discharge of its duties shall</em></p> <p class="rteindent2"><em>(a)      be subject to the general guidance and direction of the President on matters of national policy, and </em></p> <p class="rteindent2"><em>(b)     act in co-operation with the appropriate public corporation, statutory body or non-governmental organisation….” </em></p> <p class="rteindent2">and</p> <p class="rteindent2"> d.      By virtue of article 248 candidacy for election to a District Assembly is purely on an individual basis and political parties are proscribed from endorsing, sponsoring offering a platform to or in any way campaigning for or against any such candidate.</p> <p>Thus, where a person who is a member of the Local Government Service also becomes a member of the District Assembly, issues of anomaly and conflict of interest are likely to arise by virtue of Articles 240(2)(d), 241(3) and 245(a) and (b). For example, how can the person responsible for the collection of fees in the District be part of the membership that fixed the fees in the first place, and when issues of accountability arise, who will 'police the police' as it were? Furthermore, since the Assembly is the highest authority in the District, in the light of section 12 of Act 936, it is in the best interest of the public that its members be able to dedicate the optimal amount of time to the execution of its functions. Conversely and at the same time, a member of the Local Government Service is also expected, and indeed ethically and duty-bound, to earn his or her salary through dedicated and full time performance of his or her functional responsibilities.</p> <p><strong>Conclusion</strong></p> <p>Consequently, we determine the issues set out in the Memorandum of Agreed Issues as follows:-</p> <p class="rteindent1">1.       On a true and proper interpretation of the Constitution, a member of the Civil Service or  Local Government Service has a right to join any political party of his or her choice, however, such a person does not have the right to participate overtly in political party           activities whilst still a member of the Civil Service or Local Government Service.</p> <p class="rteindent1">2.       On a true and proper interpretation of the Constitution, a member of the Civil Service or Local Government Service does not have a right to contest for elections for political party office or hold political party office whilst still a member of the Civil Service or Local Government Service.</p> <p class="rteindent1">3.       On a true and proper interpretation of the Constitution, a member of the Civil Service or Local Government Service does not have the right to remain a member of the Civil Service or Local Government Service after his or her nomination by a political party or otherwise to contest for election as a member of parliament. Moreover, such a person shall resign from his or her office immediately his or her political activities become overt.</p> <p class="rteindent1">4.       The provisions of the Code of Conduct for members of the Civil Service or Local Government Service, enacted by the Councils of Civil Service or Local Government Service and any other authority barring a member of the Civil Service or Local Government Service from engaging in political party activities are not in contravention of the Constitution and are therefore not unconstitutional.</p> <p class="rteindent1">5.       On a true and proper interpretation of articles 12(2), 21(1)(a) and (d), 21(3), 35(6) 55(1),(2) and (10) and 284 of the Constitution, a member of the Civil Service or Local Government Service has the right to contest in local government elections whilst still a member of the Civil Service or Local Government Service.</p> <p class="rteindent1">6.       However, on a true and proper interpretation of articles 12(2), 21(1)(a) and (d), 21(3), 35(6) 55(1),(2) and (10) and 284 of the Constitution, a member of the Civil Service or Local Government Service does not have the right to remain a member of the Civil Service or Local Government Service after being sworn in as a member of a District Assembly.</p> <p class="rteindent1">7.       The provisions of the Code of Conduct for members of the Civil Service or Local Government Service enacted by the Councils of the Civil Service or Local Government Service and or any other authority, barring a member of the Civil Service or Local Government Service from contesting election to become a member of a District Assembly, while still a member of either service, are not in consonance with the provisions of the Constitution and are therefore unconstitutional;</p> <p>HOWEVER, the provisions of the Code of Conduct for members of the Civil Service or Local Government Service enacted by the Councils of the Civil Service or Local Government Service and or any other authority, barring a member of the Civil Service or Local Government Service from being a member of a District Assembly while still a member of the Civil Service or Local Government Service do not contravene any provision of the Constitution and the same are not unconstitutional.</p> <p>We so declare accordingly.</p> <p class="rtecenter"><strong>S. A. B. AKUFFO (MS)</strong></p> <p class="rtecenter"><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p class="rtecenter"><strong>S. O. A. ADINYIRA (MRS)</strong></p> <p class="rtecenter"><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p class="rtecenter"><strong>ANIN YEBOAH</strong></p> <p class="rtecenter"><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p class="rtecenter"><strong>P. BAFFOE-BONNIE</strong></p> <p class="rtecenter"><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p class="rtecenter"><strong>AKOTO-BAMFO (MRS)</strong></p> <p class="rtecenter"><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p class="rtecenter"><strong>A. A. BENIN</strong></p> <p class="rtecenter"><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p class="rtecenter"><strong>Y. APPAU</strong></p> <p class="rtecenter"><strong>(JUSTICE OF THE SUPREME COURT)</strong></p> <p><strong><u>COUNSEL</u></strong></p> <p>ALI GOMDAH ABDUL-SAMAD FOR THE PLAINTIFF</p> <p>GRACE EWOAL, PRINCIPAL STATE ATTORNEY FOR THE DEFENDANT</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="https://old.ghalii.org/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ghalii.org%2Fgh%2Fjudgment%2FSupreme%2520Court%2F2017%2F10%2FCIVIL%2520AND%2520LOCAL%2520GOVERNMENT%2520STAFF%2520ASS.%2528CLOSSAG%2529%2520VRS%2520THE%2520ATTORNEY%2520GENERAL%2520%2526%25202%2520ORS..pdf" data-src="https://old.ghalii.org/gh/judgment/Supreme%20Court/2017/10/CIVIL%20AND%20LOCAL%20GOVERNMENT%20STAFF%20ASS.%28CLOSSAG%29%20VRS%20THE%20ATTORNEY%20GENERAL%20%26%202%20ORS..pdf">https://old.ghalii.org/gh/judgment/Supreme%20Court/2017/10/CIVIL%20AND%20LOCAL%20GOVERNMENT%20STAFF%20ASS.%28CLOSSAG%29%20VRS%20THE%20ATTORNEY%20GENERAL%20%26%202%20ORS..pdf</iframe> </div></div></div> Wed, 06 Sep 2017 07:29:39 +0000 admghana 81 at https://old.ghalii.org https://old.ghalii.org/gh/judgment/supreme-court/2017/18#comments