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The Supreme Court of Ghana ruled that article 146(8) of the Constitution mandating that the processes for the impeachment of judges be held in camera prohibited publication of information related to those processes. The Chief Justice and a private company had publicized the names and details of a petition for the removal of a Judge of the Supreme Court accused of bribery and corruption. The Judge approached the Court, arguing that the publication infringed the Constitution and that this rendered the impeachment process null and void. The Court held that the disclosure of names prior to the Chief Justice’s decision whether a prima facie case for impeachment was made out, violated article 146(8) but that this did not invalidate the entire impeachment process. The Court emphasized the need to balance the right to privacy and confidentiality of the judge with the right of the State to investigate allegations made against judges. It also stressed that the restriction on publication of impeachment processes was limited to the period of the impeachment, and that any permanent injunction against publication would stifle the right to freedom of expression.
On September 9, 2015, Justice Paul Uuter Dery, a judge of the High Court of the Republic of Ghana received a letter from the Chief Justice, informing him that the Chief Justice had received a petition calling for his removal as a judge. The petition had been sent by Tiger Eye PI, an Accra-based private investigative company. The Chief Justice gave Justice Dery a period of time to respond but before he had done so – and before the Chief Justice had made a decision whether a prima facie case for the judge’s removal had been made out – the Chief Justice “caused a publication to be made” in the media in which Justice Dery was accused of bribery and corruption [p. 5]. Tiger Eye had exposed the bribery and corruption and also publicized the allegations through “public viewing of the video, and through social network as well as newspaper publications” [p. 5].
Justice Dery brought an application to the Supreme Court in Accra, seeking a declaration that the publication of the information infringed Article 146(8) and an order declaring the impeachment proceedings null and void as a result. He believed that the publication of the allegations contained in the petition violated article 146(8), which he interpreted as restricting any publication of details relating to a petition to remove a judge issued under Article 146 to only the President. Article 146(8) states: “All proceedings under this article shall be held in camera, and the Justice or Chairman against whom the petition is made is entitled to be heard in his defence by himself or by a lawyer or other expert of his choice”.
Justice J. Ansah delivered the judgment of the five-judge bench of the Supreme Court. The central issues for consideration were whether the publication by a media house regarding the impeachment proceedings of a former judge violated his constitutional right to confidentiality, and if so, whether that rendered the impeachment proceedings null and void.
Justice Dery argued that the publication of the petition details violated article 146(8) and this rendered the petition null and void.
Tiger Eye argued that “their actions were justified as the public have a right to know of such matters of bribery and corruption” and that the media’s right to freedom of expression includes the right to publish information in the public interest [p. 6]. It also submitted that there was a distinction between the publication of a petition in its entirety and reporting on the content of a petition. Tiger Eye maintained that Justice Dery should have brought a defamation action – rather than seeking a declaration that the petition was null and void – if the allegations were untrue. Tiger Eye also argued that any violation of article 146(8) should not affect the constitutionality and validity of the petition for the removal of Justice Dery.
It was common cause that Tiger Eye had publicised the contents of the petition, and that the Chief Justice had issued a press release through his office naming the judges accused of corruption.
The Court stated that the key phrase for interpretation in article 146(8) was “in camera”. The Court accepted that the purpose of the provision was to protect the integrity of the judiciary, and referred to two cases, Ghana Bar Association v. Attorney-General (1995-96) 1GLR 598 and Agyei-Twum v. Attorney-General and Akwetey (2005-2006) SCGLR 732, which had featured article 146(8) but which had not resolved the question of public access to petition to remove judges. In the Ghana Bar Association case, the Court had held that impeachment proceedings against judges could not be held in a public hearing or open court as the purpose of the article was to “preserve, protect and safeguard the authority, dignity and independence of the judiciary” [p. 9]. In the Agyei-Twum case, the Court had held that “[t]he constitutional requirement that the impeachment proceedings be held in camera would be defeated if the petitioner were allowed to publish his or her petition to anyone other than the President” and stressed that the judiciary could be harmed if the petition was published [p. 9].
In examining the definition of in camera – Latin for “in chambers” the Court noted that “there is no doubt that it involves privacy” and referred to the definition in Black’s Law Dictionary which implied that the phrase referred to legal proceedings held in a judge’s chamber or in an empty courtroom [p. 10]. The Court acknowledged that this literal reading supported the interpretation in the Ghana Bar Association case, but it favored a more expansive interpretation, noting that there “are good reasons that motivate us to go beyond the literal, narrow technical legal meaning of ‘in camera proceedings’ in order to discover the true intent and purpose of the framers of the Constitution” [p. 10]. The Court held that this was because the early process was quasi-judicial as the Chief Justice had to evaluate evidence when determining whether there was a prima facie case for removal, and because article 146(8) refers to “all proceedings under this article” which must include the “originating process, the petition” which is regulated by article 146 [p. 12]. The Court stated that “what the framers of the Constitution really intended was that confidentiality and privacy should apply to impeachment proceedings under this article” [p. 12].
The Court emphasized that this broad interpretation of article 146(8) aligns with the UN Basic Principles on the Independence of the Judiciary, 1985 which required that that investigations of complaints against judges “shall be kept confidential unless otherwise requested by the judge” [p. 13].
The Court dismissed the relevance of the Ghana Bar Association case to the present case on the grounds that it did not address the Chief Justice’s role in the article 148 process, and that Agyei-Twum was decided after it and so those judges would have considered the reasoning in that case before issuing their own judgment.
Accordingly, the Court held that there had been an unconstitutional disclosure of information related to the petition against Justice Dery.
The Court examined the impact of this finding on the right to freedom of expression, and concluded that “the right of the public to know did not detract from this provision which was specifically designed to achieve a certain effect [to protect the judiciary’s integrity]” [p. 14]. It noted that the denial of information was not permanent, and that once the proceedings were completed article 146 would no longer apply: “the rights of the people were merely postponed for a time lest the purpose of Article 146(8) should be defeated” [p. 14].
Having found that there was a violation of article 146(8), the Court examined the consequences of that violation. It noted that the Constitution did not include a penalty for an unconstitutional disclosure and that there was also no legislation providing for that, and so relied on comparative jurisprudence on how to treat breaches of in camera proceedings. From the comparative jurisprudence, the Court identified five different approaches: “i. Treat the breach as contempt of the High Court. ii. Impose criminal sanctions if there is such legislation. iii. Award damages as for a constitutional infraction, where appropriate. iv. Treat it as breach of an injunction. v. The person who is injuriously affected may sue in tort for defamation” [p. 15]. The Court focused on whether publication in impeachment proceedings has led to the annulment of the proceedings, and noted that in the South African case of Hlophe v. Constitutional Court of South Africa, the Court held that publication had violated the judge’s rights but that “the finding that the applicant was treated unfairly and his rights violated in the manner in which the lodging of the complaint and the decision to publish the complaint was handled is totally separate from the question whether the applicant is guilty of the complaint lodged against him” [p. 20]. The Court observed that the same approached was taken in the US case of Landmark Communications, Inc. v. Virginia which had held that “in spite of the violation of the confidentiality disclosure law, the court believed it should not have precedence over free speech guaranteed by the Constitution; both rights were entitled to respect” [p. 23]. The Court noted that the Landmark case followed the reasoning in Bridges v. California which had noted that “[t]he assumption that respect for the Judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion … an enforced silence, however, limited, solely in the name of preserving the dignity of the bench, would probably engender resentment and contempt much more than it would enhance respect” [p. 23]. The Court referred to the Kenyan case of Baraza v. Judicial Service Commission which had emphasized that “publicity alone does not vitiate proceedings unless it is shown that the coverage was such that the Commission is likely to have been influenced or affected by the media reports provoked by the incident” [p. 25].
The Court accepted the reasoning in the comparative jurisprudence that publication of information related to impeachment does not render the impeachment process invalid, and noted that it accorded with an interpretation of Ghana’s own Constitution. Article 146 stipulates that an impeachment process could only be terminated if the Chief Justice decided there was no prima facie case or if the committee appointed to investigate submitted its report which recommended the termination of the process. The Court also noted that allowing a process in which conduct of a judge was to be investigated would threaten the integrity of the judiciary. The Court acknowledged that this was a case involving two competing rights, and with reference to the Irish case of Attorney General v. X, emphasized that while a judge is entitled to confidentiality the State has the right to investigate allegations made against a judge – particularly as a judge can utilise other remedies to vindicate their rights. The Court concluded that it would be “unconscionable to void the petition because its contents have been divulged to others” [p. 28] and described the request to void the impeachment proceedings as “absurd and subversive of the constitutional order” [p. 29].
The Court rejected Justice Dery’s request for a permanent injunction against publication of impeachment information, describing it as a “permanent gagging order” [p. 30]. With reference to the Indian case of Naresh v. State of Maharashtra and the UK case of Scott v. Scott, the Court held that such an injunction would “stifle the free speech guaranteed by Article 21(1)(a) of the Constitution” and “would amount to judicial censorship of press freedom” [p. 30]. The Court also mentioned the UN Principles on the Independence of the Judiciary which “acknowledges that a freeze on free speech during investigations against a judge can only be applied as a temporary measure” [p. 32].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In balancing the right to privacy and confidentiality and the public’s right to know and freedom of speech, the Court ruled that maintaining the confidentiality of the process to impeach judges served to protect both privacy and the integrity of the judiciary. However, by refusing to order a permanent injunction against publication the Court ensured that the right to freedom of expression and of the public to information would not be permanently stifled.
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