… As NDC, Ministers mount pressure on Mahama to use Article 72 to freeMontie 3
… But OccupyGhana, Asante Bediatuo say action could be challenged at the Supreme Court if president heeds call
By Emmanuel Akli The conviction of the host and two panellists of Montie FM, an Accra based radio station for contempt of court and their subsequent sentencing to four months imprisonment and the calls on President Mahama to grant pardon to the trio is set to give birth to another long winding legal battle in court.
Messers Salifu Maase, Alistair Nelson and Godwin Ako-Gunn were jailed four months each and also fined GHC10,000 each, after being found guilty of scandalizing the Supreme Court.
But lawyers for the three -George Loh and Nana Ato Dadzie noted in a statement issued in Accra last week that much as they admit comments made by their clients were unacceptable, the sentence, to them was too harsh and excessive.
“We do admit some of the statements uttered by some of our clients are unacceptable. We nevertheless consider custodial sentence of four months imposed by the Supreme Court as being excessive and harsh.
“We also do not believe that citizens of Ghana ought to be committed to prison for infractions on free expression, especially in light of the repeal of the criminal libel law. Our clients have directed us in circumstances to petition His Excellency the President of the Republic to exercise his powers of prerogative of mercy under Article 72 of the Constitution of Ghana.”
Article 72(1) of the 1992 constitution states that the President may in consultation with the Council of State grant a person convicted of an offence a pardon either free or subject to lawful conditions.
The call by the lawyers on the president to free the convicts based on Article 72 of the constitution has since been supported by the ruling National Democratic Congress (NDC) and some ministers of state.
There are others who are also arguing that since the Criminal Libel Law has been repealed, no one should be sent to jail for expressing his or her opinion. Some prominent lawyers are, however, questioning the right of the president to pardon the trio under Article 72 of the constitution.
Nana Asante Bediatuo, a prominent lawyer based in Accra told Joy FM that NDC supporters and ministers might be leading the president to the slaughter if the latter accepts the calls on him to pardon the convicts.
To him the constitution makes clear distinction between criminal offences and criminal contempt. He argued that the president has the power to grant pardon to criminal offences but cannot do same when it comes to criminal contempt, the basis the trio were jailed.
He supported his argument with Articles 19 (11), 19 (21), 14 (1a). Nana Asante Bediatuo further contended that granted the president had the power to free the convicts, Article 296 (2) of the constitution states that that discretion must not be exercised arbitrarily.
Indeed Bediatuo's argument has been supported by OccupyGhana who also quoted the same Article 296 and argued that the action of the president could be challenged at the Supreme Court, should he go ahead to grant pardon to the convicts.
According to OcuppyGhana, the power granted the president in the Article 72 is not absolute, and that it is subject to judicial review under article 296.
The said article 296 reads: Where in this Constitution or in any other law discretionary power is vested in any person or authority –
(a) that discretionary power shall be deemed to imply a duty to be fair and candid; (b) the exercise of the discretionary power shall not be arbitrary, capricious or biased wither by resentment, prejudice or personal dislike and shall be in accordance with due process of law.
“If the President exercises the power unfairly, in a manner that is biased, not candid or not in accordance with due process of law; If the President grants these petitions, such an exercise of his discretion may be challenged as unconstitutional before the Supreme Court, and this could lead to a major and needless constitutional crisis.
“The acts of contempt that the Convicts committed (and confessed to before the court) were extremely grave. What they did also amounted to threats of harm or of death and statutory contempt of court, which are crimes under our Criminal Offences Act.
“These rank among the most serious examples of contempt involving a media organisation that we have seen, according to our research. It does not appear to us that the Ghana Police Service was interested in investigating this at all.
“The Bureau of National Investigations, which claimed to have invited and interviewed the Convicts, rather issued an unsatisfactory press statement claiming that “checks by the BNI have however established that the suspects were incapable of carrying out pronouncements but did so in a show of needless bravado.”
What is worse, the Attorney-General, who has the sole power to initiate the prosecution of crimes, chose not to do so.
“This grave inertia appears to us, to have left the judiciary with no option than to invoke their powers to punish contempt by summoning the Convicts and requiring of them to show cause why they should not be convicted for contempt. The Convicts had every opportunity to defend themselves in court but chose to plead that they were liable.
“We believe that the Supreme Court took all of these into consideration in arriving at a unanimous decision on the sentences to be imposed,” OcuppyGhana noted in their press statement.
Mr Tony Lithur, the president private legal advisor has also cautioned against such action by the president warning that it would undermine the judiciary. Mr Lithur's full press statement he released to that effect has been published on page 4 of our today's edition.
Kwabena Fio, a lawyer who has also commented on the issue disagrees that the president cannot grant the pardon. He argued via Joy FM that the president can still pardon the three contemnors, despite the distinction between criminal contempt and criminal offences.
Meanwhile, some legal luminaries in the country have started calling for a legislation to regulate the contempt of court charges, but a law lecturer at the Ghana Institute of Management and Public Administration (GIMPA), Clara Kasser-Tee is warning that it would be an exercise in futility, because there are provisions in the constitution that the courts could still fall on.
Speaking on Joy FM news file programme over the weekend, the law lecturer equally condemned the pressure on the president to pardon the trio.
“If you look at the effect of the perception and effect of it, is this what we really want? We should be mindful that we don't want the arms of government to be antagonising, competing for each other to trying to show who is more powerful,” she said.