REPUBLIC vs. TOMMY THOMPSON BOOKS LTD AND OTHERS (NO 1) [1997-98] 1 GLR 611

CASES REFERRED TO

(1) Tommy Thompson Books Ltd v The Republic [1996-97] GLR 312, SC

(2) Bitson v Attorney-General [1993-94] 1 GLR 104, SC

(3) Republic v Independent Media Corporation of Ghana [1996-97] GLR 258, SC.

(4) Public Prosecutor v Pung Chen Choon (1994) 2 LRC 236

(5) Mensima v Attorney-General [1997-98] 1 GLR 159, SC; [1996-97] GLR 676, SC.

(6) New York Times v Sullivan, 376 US 254 (1964)

(7) Hill v Church of Scientology of Toronto [1994] 18 DLR 385; affirmed [1995] 184 NR 1 (8) State v Ahmad [1961] 1 GLR 96 (9) R v Frimpong [1959] GLR 287 (10) Nigeria Union of Journalists v Attorney-General of Nigeria [1986] LRC (Const) 1 (11) R v Wells Sreet Stipendiary Magistrate; Ex parte Deakin [1980] AC 477; [1979] 2 WLR 665; sub nom Gleaves v Deakin [1979] 2 All ER 497, HL.

(12) Rangarajan v Jagyiva Ram [1990] LRC (Const) 412.

[p.615] of [1997-98] 1 GLR 611 (13) New Patriotic Party v Inspector-General of Police [1993-94] 1 GLR 459, SC.

NATURE OF PROCEEDINGS

REFERENCE from the Circuit Court, Accra, by way of case stated, under article 130(2) of the Constitution, 1992 of the objection raised by the accused persons to their trial for criminal libel that sections 112 and 117(1)(h) of the Criminal Code, 1960 (Act 29) were inconsistent with and in contravention of the Constitution, 1992, particularly, articles, 21(1)(a) and 162(1) and (4). The facts are sufficiently stated in the judgment of Acquah JSC.

COUNSEL

Martin Amidu, Deputy Attorney-General (with him Thomas Ahlijah, Chief state Attorney, and Mike Afriyie Principal State Attorney) for the Republic.

Nana Akufo-Addo (with him Justina Tette-Donkor (Miss), Philip Addison and Akoto Ampaw) for the first, second and third accused.

Prof Ofosu-Amaah (with him Emmanuel Ohene and Afua Ghartey (Mrs) for the fourth accused.

JUDGMENT OF EDWARD WIREDU JSC

On 18 March 1997 we unanimously held the issues raised for determination in reference 1/96 in favour of the contention made on behalf of the Republic that section 112 of the Criminal Code, 1960 (Act 29) is not inconsistent with the Constitution, 1992. We therefore directed the circuit court to proceed with the trial of the accused persons. We adjourned for reasons to be given today which we now proceed to give.

The relevant provisions of the Constitution, 1992 raised for consideration in determining the constitutionality or otherwise of section 112 of Act 29 which deals with the offence of libel, in my view, are articles 19(11), 162(4) and 164. These respectively read as follows:

“19. (11) No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law . . .

162. (4) Editors and publishers of newspapers and other institutions of the mass media shall not be subject to control

[p.616] of [1997-98] 1 GLR 611 or interference by Government, nor shall they be penalized or harassed for their editorial opinions and views, or the content of their publications . . .

164. The provisions of articles 162 and 163 of this Constitution are subject to laws that are reasonably required in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of other persons.”

The offence of “libel” is contained in section 112 of Act 29. The particulars presented to this court from the court below show that under the reference, the accused persons have been charged under section 112(2) of Act 29 which reads as follows: “Whoever is guilty of intentional libel shall be guilty of a misdemeanour.” Section 113 of Act 29 deals with situations under which a person can be held to be guilty of the offence of libel and section 114 of Act 29 defines the offence of libel. Section 114 of Act 29 reads as follows:

114. (1) Matter is defamatory which imputes to a person any crime, or misconduct in any public office, or which is likely to injure him in his occupation, calling, or office, or to expose him to general hatred, contempt, or ridicule.

(2) In this section ‘crime’ means a felony or misdemeanour and also any act, wheresoever committed, which if committed by a person within the jurisdiction of the Court, would be a felony or misdemeanour.”

The other relevant provisions of Act 29 are sections 115, 116 and 117. All the above provisions comply with the constitutional requirements enumerated above.

It is therefore clear from the above analytical exercise and from the particulars alleged to have been published by the accused persons concerning the complainant, that a charge founded under section 112 of Act 29 is within the contemplation of the offence as defined under sections 114 and 115 of Act 29. The particulars satisfy the fourth leg of the exceptions sanctioned for permissible restriction of the guaranteed freedom of speech and expression as provided under article 164 of the Constitution, 1992. Hence my

[p.617] of [1997-98] 1 GLR 611 concurrence to the directive that the court below proceed with the trial of the accused persons.

Before I am done, I must mention two main concerns I have about the law of libel under the English common law which has been uplifted and has become part of our criminal libel under Act 29. My first concern is in connection with the defences provided under section 117 of Act 29. This section requires the defence apart from establishing justification to prove also that the publication was in the public interest. I am of the respective view that this latter requirement is in complete disregard of the modern concept of the presumption of innocence raised in favour of an accused person until his guilt is proved by the prosecution. It looks as if the burden of proof has been misplaced and that the offence of libel under Act 29 is an offence of strict or absolute liability. My second and the more serious concern I can envisage from our past political experience is the provision under article 88(3) of the Constitution, 1992 which vests the Attorney-General with the exclusive preserve of initiating all criminal prosecutions. My concern here is the possible abuse of this power on political grounds. The possibility of the Attorney-General of the day using his political power to cow a number of journalists sympathetic with the view and policies of political parties who belong to the other side of the political divide into submission and other journalists who may express dissenting views on same aspect on governmental policies. This would be a violation of the provisions of article 162 of the Constitution, 1992, since the Attorney-General is invariably a member of the party in power thereby suppressing freedom of the press.

JUDGMENT OF ADJABENG JSC.

I agree.

JUDGMENT OF AMUAH JSC.

The Circuit Court, Accra made a reference under the provisions of article 130 (2) of the Constitution, 1992 by way of case stated under rule 54 of the Supreme Court Rules, 1970 (CI 13) as to the validity of sections 112 and 117(1)(h) of the Criminal Code, 1960 (Act 29) bearing in mind the provisions of articles 21(1)(a) and 162(1) and (4) of the Constitution, 1992. The facts are as follows:

[p.618] of [1997-98] 1 GLR 611

“On 28 June 1995 the accused persons were arraigned before this court. After their pleas were taken and the facts recorded, counsel for the accused persons raised a preliminary legal objection to the charge. Counsel contended that the offence of criminal libel is designed to protect public officials and that the complainant in this case not being a public officer, could not seek any protection under section 112(2) of Act 29.”

This submission was overruled and both the Court of Appeal and Supreme Court upheld the decision of the circuit court. The reference continues:

“ . . . when the case came up for hearing before this court on 9 August 1996, counsel for the accused persons raised another preliminary objection as to the constitutionality of sections 112 and 117(h) of the Criminal Code, 1960 (Act 29) and consequently the jurisdiction of this court to try the case. In his argument, counsel contended that the offence created by sections 112 and 117(h) of Act 29 are in contravention of the spirit and letter of the Constitution, 1992, particularly articles 21(1)(a) and 162(1) and (4) of the Constitution.

Whilst the prosecution is not opposed to the application, it contended that the freedom of expression is subject to article 164 of the Constitution, 1992.”

The learned circuit judge being satisfied that the question of law raised by the accused applicants’ touches upon the effect of certain provisions of the Constitution, 1992, namely articles 21 (1)(a), 162(1) and (4), and 164 directed the proceedings before him stayed and a record of them transmitted to the Supreme Court pursuant to the provisions of article 130(2) of the Constitution, 1992 for determination.

Before endeavouring to answer the questions submitted for determination, I will set out the. facts of the case, the relevant provisions of Act 29 and the Constitution, 1992. I will also consider whether a writer has an absolute right to publish whatever

[p.619] of [1997-98] 1 GLR 611 information he obtains. The facts of the case contained in the reference proceedings are: “ . . . a publication in the Free Press for 30 December 1994 to 24 January 1995 alleged that Nana Konadu Agyeman Rawlings, the first lady had smuggled gold to Europe during some unannounced trips. The publication further alleged that Nana Konadu Agyeman Rawlings was also involved in cocaine deals. It was contended that the publication was false and malignant and was therefore meant to ridicule the first lady in the eyes of the public.”

The impugned law, section 112 of Act 29 provides:

“112: (1) Whoever is guilty of negligent libel shall be liable to a fine not exceeding one hundred pounds.

(2) Whoever is guilty of intentional libel shall be guilty of a misdemeanor.”

Section 117(1)(h) provides:

“117. (1) The publication of defamatory matter is absolutely privileged, and no person shall under any circumstances be liable to punishment under this Code in respect thereof in any of the following cases, namely— (a) If the matter is published by the President, a Minister or the National Assembly, in any official document or proceeding . . .

(h) If the matter is true, and if it is found that it was for the public benefit that the matter should be published.”

Article 21(1) of the Constitution, 1992 provides:

“21. (1) All persons shall have the right to— (a) freedom of speech and expression which shall include freedom of the press and other media…

162. (1) Freedom and independence of the media are hereby guaranteed . . .

[p.620] of [1997-98] 1 GLR 611

(4) 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.”

And article 164 of the Constitution, 1994 also provides that:

“164. The provisions of articles 162 and 163 of this Constitution are subject to laws that are reasonably required in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of other persons.”

We all know the role of the media and the influence they exert on the minds of the citizen; nevertheless a citizen has the right to protect his reputation. The Constitution, 1992 therefore imposes restrictions on the rights so conferred: see article 164. The government keeps its side of the bargain by not harassing editors and publishers: see article 162 (3); but then when an offence is committed, it steps in to consider whether the act should be regarded as a civil or a criminal offence.

The impugned laws, sections 112 and 117 of Act 29, were existing before the Constitution, 1992 came into force and form part of the laws of Ghana: see article 11(1)(d) of the Constitution, 1992. Under article 11(6) of the Constitution, 1992:

“(6) The existing law shall be construed with any modifications and adaptations, qualifications and exceptions necessary to bring it into conformity with the provisions of the Constitution, or otherwise. to give effect to or enable effect to be given to, any changes effected by the Constitution.”

The retention of the existing law which came into force on I February 1961 was not due to an oversight. I also do not think that Parliament in 1993 was insensitive to matters relating to human rights and the interpretation of foreign judges on similar articles. There is a strong presumption of the validity of sections 112 and

[p.621] of [1997-98] 1 GLR 611

117(1)(h) of Act 29 and the burden of proof lies on the person seeking to establish the negative.

I intend to deal with the two offences separately. Article 164 of the Constitution, 1992 permits laws to be passed which are reasonably required “for the purpose of protecting the reputations, rights and freedoms of other persons.” Those who may benefit under the article include public servants and non-public servants. What the legal draughtsman has done in this case is to narrow the scope of the word “persons” to benefit only one person or individual. Section 112 of Act 29 is intended to deal with those who unlawfully publish defamatory matter concerning other persons with intent to defame them. It is not intended for those who publish defamatory matter merely.

It is necessary at this stage to consider whether section 112 of Act 29 fell within article 164 of the Constitution, 1992. The objects of the section is to protect the reputation of others. I find that the restriction referred to in article 164 of the Constitution, 1992 also has the same objective. I have come to the conclusion that the section fell within the perimeter of restrictions envisaged by article 164. The publication of the defamatory document as alleged could incite hatred against the first lady and this hatred may be extended to the husband, and this may cause disagreement among the members of the government. It may bring about dissension within the party and threaten internal security. It may damage our relations with other countries and especially the respect which they accord our political heads and us. It suffices if some of the unlawfully published defamatory matter fell within the restrictions. The word “intentionally” carries the same meaning which it is known to have in criminal offences. I have not said anything about negligent libel because the accused persons were not charged with that offence. It was held in Buson v Attorney-General [1993-94] 1 GLR 104, SC and Republic v Independent Media Corporation Ghana [1996-97] SCGLR 258 that the Supreme Court is not here to give advisory opinion. In answering the question therefore I will hold that section 112 of Act 29 is not inconsistent with the Constitution, 1992.

It is stated in Halsbury ‘s Laws of England (3rd ed), Vol 24, p 3 that: “On the ground of public policy it has been considered desirable that no action shall lie in respect of statement however

[p.622] of [1997-98] 1 GLR 611 defamatory and damaging made under certain particular conditions.” See section 117(1)(a)(h) of Act 29 which states the conditions under which defamatory matter is absolutely privileged. As regards section 117(1)(h) of Act 29 the maker of the statement must satisfy two conditions if he is to seek refuge under section 117 of Act 29. They are: (1) the statement must be true; and (2) it was for the public benefit that the matter was published. However, it is stated in Halsbury’s Laws of England (3rd ed), Vol 24, p 4 on criminal libel:

“An indictment (or criminal information) for libel is for a public offence, as tending to provoke the person defamed to commit a breach of the peace. The prosecution is not bound however, to prove that the libel is unusually likely to provoke a breach of the peace. Thus the defendant in a prosecution for libel was never allowed at common law to allege the truth by way of justification . . .”

For a person seeking refuge, proof of this first condition must be the starting point if he is not to take the person defamed for a ride: see the last restriction permitted under article 164 of the Constitution, 1992. However, if he can show in addition to the above that he made the statement in the performance of his duties and obligations as required under article 41 of the Constitution, 1992 he succeeds.

Article 41 of the Constitution, 1992 provides that:

“41. 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— (a) to promote the prestige and good name of Ghana and respect the symbols of the nation;

(b) to uphold and defend this Constitution and the law;

(c) to foster national unity and live in harmony with others;

(d) to respect the rights, freedoms and legitimate interests of others, and generally to refrain from

[p.623] of [1997-98] 1 GLR 611 doing acts detrimental to the welfare of other persons;

(e) to work conscientiously in his lawfully chosen occupation;

(f) to protect and preserve public property and expose and combat misuse and waste of public funds and property;

(g) to contribute to the well-being of the community where that citizen lives;

(h) to defend Ghana and render national service when necessary

(i) to co-operate with lawful agencies in the maintenance of law and order;

(j) to declare his income honestly to the appropriate and lawful agencies and to satisfy all tax obligations and;

(k) to protect and safeguard the environment.”

It will be observed that the legal draughtsman was careful not to violate the provisions of the Constitution, 1992. I hold that section 117(1)(h) of Act 29 is not inconsistent with the provisions of the Constitution, 1992.

In coming to this conclusion, I realised that the Constitution, 1992 was to be interpreted in its own meaning and did not follow analogies drawn from other jurisdictions, especially with different Constitutions. I remit the case to the circuit court and direct that the hearing of the case should proceed: see Public Prosecutor v Pung Chen Choon [1994] 2 LRC (Const) 236.

JUDGMENT OF ACQUAH JSC.

This is the second time the accused persons are challenging the propriety of their trial at the circuit court for criminal libel contrary to section 112(2) of the Criminal Code, 1960 (Act 29) in respect of a publication they made against the first lady, Nana Konadu Agyeman Rawlings. In their first objection, they contended that criminal libel is intended to protect public officials and not any individual, and that since the first lady holds no such public office, they cannot be charged and tried for that offence. The trial judge ruled against them and all subsequent appeals up to the Supreme Court against the ruling were

[p.624] of [1997-98] 1 GLR 611 dismissed. Back at the circuit court, they then fashioned the issue in this reference. Briefly, they now contend that after all, the offence of criminal libel as defined in Act 29 is inconsistent with the letter and spirit of the Constitution, 1992, particularly article 21(1)(a) and 162(1) and (4)

Quite obviously if, indeed, the accused believe that criminal libel is inconsistent with the Constitution, 1992 why did they at first submit that the law only protects public and not private individuals. Their early objection implies an admission on their part of, at least, the validity of the law of criminal libel in its protection of public officials.

Be that as it may, this Supreme Court, differently constituted from that of the appeal, unanimously held in Republic v Tommy Thompson Books Ltd [1995-96] 2 GLR 515, SC (ante) that the law is not inconsistent, and that the trial of the accused at the circuit court should proceed. I now set out my reasons for supporting my colleagues in this unanimous decision.

The issue referred to this court by the trial judge is:

“whether sections 112 and 117(1)(h) of the Criminal Code 1960, (Act 29) are inconsistent with or in contravention of the spirit and letter of the Constitution, 1992, particularly articles 21(1)(a) and 162(1) and (4).”

Section 112 of Act 29 creates the offences of negligent and intentional libel, while section 117 of Act 29 sets out the occasions in which a defamatory matter is absolutely privileged. In section 117(1)(h) of Act 29 it is provided that a publication is absolutely priviledged1(1)sic “if the matter is true, and if it is found that it was for the public benefit that the matter be published.” Section 118 of Act 29 deals with qualified privilege.

Now, article 21(1)(a) of the Constitution, 1992 guarantees to all persons the right to “freedom of speech and expression which shall include freedom of the press and other media.” Article 162(1) of the Constitution, 1992 guarantees the freedom and independence of the media, while 162(4) of the Constitution, 1992 provides that:

[p.625] of [1997-98] 1 GLR 611

“(4) 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.”

On the basis of the above provisions the accused contended that the law of criminal libel as defined together with the defences available in Act 29 constitute an unreasonable limitation on the freedom and independence of the media, and are not reasonably required within the provisions of article 164 of the Constitution, 1992. They point out that the law seeks to penalise journalists in direct contravention of the injunction in article 162(4) of the Constitution, 1992. I will deal with the latter submission first because the contention of the accused, appears on the face of article 162(4) of the Constitution, 1992 to hold some water. What then is the scope of article 162(4) of the Constitution, 1992?

Now, the root of the entire chapter 12 of the Constitution, 1992 dealing with the freedom and independence of the media, is the Report of the Committee of Experts appointed by the Provisional National Defence Council under the Committee of Experts (Constitution) Law, 1991 (PNDCL) 252. Both the accused and the State rely on portions of this report in their written submissions. Indeed, no previous Constitution of this nation had had such far-reaching provisions as those proposed and adopted by the Consultative Assembly in the drafting of this Constitution, 1992.

Now, the rationale for enacting article 162(4) of the Constitution, 1992, in the light of the then state of the press and media is stated in para 188, p 86 of the said Report as follows:

“As things stand now, there is direct governmental (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 function consistent with the highest professional standards possible. This ministerial power of appointment and dismissal of reporters and government interference in media activities has

[p.626] of [1997-98] 1 GLR 611 greatly contributed to the erosion of the freedom and independence of the press and media in Ghana.”

And examples of editors who were harassed and penalised by governments for the contents of their publication and editorial opinions contrary to that of the then government, are too well-known to need enumeration.

It is to save editors and publishers from such ministerial manipulation and treatment that article 162(4) of the Constitution, 1992 in particular and the Media Commission were put forward. Article 162(4)of the Constitution, 1992 was not intended and could not have been intended to confer on editors and publishers, immunity from the judicial process. The article did not exempt editors and publishers from both civil and criminal proceedings at the courts in respect of the contents of their publications. And this is quite clear from the committee of experts’ own draft of article 162(4) as appearing at page 88, para 190(iii) in their Report, which is as follows:

“Editors and newspapers publishers, the press and mass media should not be subject to governmental control, interference and harassment nor should they be penalised for their editorial opinions or views expressed in the mass media beyond the requirement of public order, morality etc and relevant laws.”

(The emphasis is mine). Accordingly the words “control”, “inteference”, “penalized” and “harassed” used in article 162(4) of the Constitution, 1992 are all referrable to the government and not the courts. It is therefore clear that the law of criminal libel as defined in Act 29 which seeks to punish any person for the unlawful publication of any defamatory matter does not violate the prohibition in article 162(4) of the Constitution, 1992.

But if the sentence on conviction for criminal libel does not violate the injunction in article 162(4) of the Constitution, 1992, is the law of criminal libel itself consistent with the freedom and independence of the media as guaranteed in articles 21 (1)(a) and 162(1) of the Constitution, 1992 as contended by the applicants

[p.627] of [1997-98] 1 GLR 611 and denied by the State? In Mensima v Attorney-General [1997-98] 1 GLR 159 at 204, SC (ante) I said: “. . . our Constitution, 1992 like the 1969 and 1979 ones, provides limitations on the exercise of the fundamental human rights and freedoms. Therefore the duty of the court in a suit alleging inconsistency of a law with a provision of the Constitution is two-fold. First, to determine whether on the face of the alleged constitutional provision the law is, indeed, inconsistent with that provision. If it is not, the applicant fails in his challenge. But if it is, the court must proceed to the next step. And this is, to determine whether notwithstanding the inconsistency on the face of it, the law can be justified on any of the limitations or provisions of the Constitution, 1992. If the law can be justified, then the law is constitutional and the applicant’s action is dismissed. But if the law cannot be justified on any of the provisions of the Constitution, 1992 then that law is inconsistent with the letter and spirit of the Constitution, 1992 and consequently null and void.”

In the instant case, I have no doubt that criminal libel constitutes a restriction on the freedom and independence of the media as guaranteed in articles 21(1)(a) and 162(1) of the Constitution, 1992. The burden of justifying this restriction lies, of course, on the party. seeking to uphold the constitutionality of the law. And the standard of proof is on the balance of probabilities, which standard can be met by recourse to the provisions of the law and the Constitution, 1992, the memoranda and other explanatory literature on the law and the Constitution, 1992, evidence of social and statistical facts, and other relevant materials.

Now, from the reports of the Committee of experts and that of the Committee for People’s Rights at the Consultative Assembly, it is evidently clear that the framers of the Constitution, 1992 firmly intended and thought it reasonably necessary that in order to ensure that press freedom does not degenerate into a regime of the tyranny of the press, criminal libel and such laws are to be maintained. Thus at page 89, para 191 of their report, the committee of experts emphatically asserted:

[p.628] of [1997-98] 1 GLR 611

“191. Finally the Committee appreciates that press and media freedom and independence has to be matched by the highest journalistic standards. A venal and irresponsible press is a danger to democracy.

Newspapers which publish lies, knowing them to be lies must run the risk of being suppressed by the courts. Those who operate the media are not immune from the exacting and all pervasive standards of probity and ‘accountability. “

Earlier in paragraph 184 at pp 85-86 of the Report, the committee had unambiguously announced the retention of criminal libel, sedition and other laws as a check on the exercise of the freedom of the press and expression, in the following words:

“Freedom of the press and expression also means that any citizen who has anything to say about national affairs should have access to the public sector media, limited only by practical considerations of space and time, and by the existing laws of sedition, criminal libel and those protecting privacy, etc.”

(The emphasis is mine.)

The Consultative Assembly which drew up the Constitution, 1992 endorsed these views of the Committee of Experts, and in the address of the chairman of the assembly’s Committee on the Rights of the People delivered on 26 November 1991 and published in the Report on Debates and Proceedings of the Consultative Assembly at pp 980-985, he stated:

“Mr. Speaker, we want to give all kinds of freedom to the press but at the same time we want them to be controlled and also to be responsible. We have a good number of laws in the country so that when you are going to write something against, say, Osafo-Marfo which is not in good taste you must know that he can seek redress in the court. So it is the courts which have the power to control the media and not the Government or the politician.”

(The emphasis is mine.)

[p.629] of [1997-98] 1 GLR 611

Now, notwithstanding the manifest intention of the framers of the Constitution, 1992 to retain the law of criminal libel as a check on the misuse of press freedom, does this law fall within the ambit of article 164 of the Constitution, 1992? For in the final analysis it is the language and wording of this article which have to bear out whatever intention the framers had. Article 164 of the Constitution, 1992 subjects the freedom and independence of the media 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.” Article 164 is not the only provision in the Constitution, 1992 which subjects the enjoyment of rights and freedoms to laws reasonably required in the public interest. There are a number of such provisions. Article 21 (4)( c) of the Constitution, 1992 also subjects the enjoyment of the general fundamental freedoms to such a limitation. By what criteria then do we determine that any such law is reasonably necessary or required in the public interest?

Now, from the language of article 164 of the Constitution, 1992 and similar provisions like 21(4)(c) the law in question must be “reasonably necessary or required” in the public interest, security etc. This really implies that for any law to qualify as being reasonably necessary or required, the objective of that law must be of such sufficient importance as to override a constitutionally protected right or freedom. In other words, the objective of that law must not be trivial or frivolous, otherwise that law will not be reasonably necessary or required. The objective must be sufficiently important in the sense that it must relate to concerns which are pressing and substantial. After this, it must further be shown that the law itself is a fairly proper means of achieving this important objective. This will involve an examination of the provisions of the law to determine, inter alia, whether the provisions infringe any fundamental principle of law like natural justice, and whether they unduly impair the constitutional right The nature of the examination in this second stage will depend on the nature of the law and the issues at stake. On this two-fold test, I will now proceed to examine whether the law of criminal libel falls within the limitation in article 164 of the Constitution, 1992.

To begin with, it cannot be doubted that the objective of the law of criminal libel is the protection of the reputation of

[p.630] of [1997-98] 1 GLR 611 individuals from unfounded and malicious publications. This is quite evident from the definition of criminal libel as provided in section 113 of Act 29, and also the passages quoted from the Report of the Committee of Experts. That no nation will permit the reputation of its citizens to be trampled on with impunity and unjustifiably, is too true a proposition to admit of any argument. Thus article 164 of the Constitution, 1992 permits the enactment of laws reasonably required for the “purpose of protecting reputations, rights and freedoms of others.” In the face of such a provision together with the sentiments expressed in the reports of the committee of experts and that of the rights of the people, the objective of protecting the reputation of individuals through a law is in my view of sufficient importance to override a constitutionally protected right.

But is the law of criminal libel as defined in Act 29, a fairly proper means of achieving this desired objective? In other words, are the provisions of the law fair and do they maintain some balance between the interest of the society and that of the individual in respect of the right or freedom under consideration? It is indeed at this stage of the inquiry that the objections of the accused to the law of criminal libel become relevant. Relying heavily on a host of foreign decisions inclusive of New York Times v Sullivan, 376 US 254 (1964), the accused contend that the scope of criminal libel in Ghana as opposed to countries like United States of America, England, India, South Africa and so on, is so broad as to render a publisher of a defamatory matter an easy prey for prosecution under the law. They contend that the formulation of the law in sections 112 and 117(1)(h) of Act 29 is so vague and imprecise as to make it difficult for the individual to ascertain beforehand the precise scope of the offence. In their view, such shortcomings in the law demonstrate that undue emphasis is placed on criminal libel to the prejudice of the freedom and independence of the media as guaranteed in the Constitution, 1992.

Now, the Constitutions and laws on which the foreign decisions were made, differ in their express provisions from that of the Constitution, 1992 of Ghana. For whereas for example, the Bill of Rights provisions in the United States Constitution is couched in absolute terms, the rights and freedoms in our Constitution,

[p.631] of [1997-98] 1 GLR 611

1992 are subject to express constitutional limitations. Accordingly, in seeking to apply to the interpretation of our Constitution, 1992 what has been said in particular cases about other Constitutions, care must be taken to distinguish between judicial reasoning which depended on the express words used in the particular Constitution under consideration, and reasoning which depended on what, though not expressed, is nonetheless a necessary implication from the subject matter and structure of the Constitution and the circumstances in which it had been made. For a national Constitution is a reflection of that nation’s history and the embodiment of the noble aspirations of its framers. Accordingly, notwithstanding the invaluable scholarship in foreign decisions, what is required of us is originality in the interpretation of our Constitution, paying particular attention to its language, and construing the words in such a way as to advance the intent of the framers; intent, nurtured on our peculiar history and social circumstances.

Thus, for example, a Canadian appellate court, in the light of the language and wording of the Canadian Charter of Rights and Freedoms, and on historical and sound policy considerations refused to adopt the rule in New York Times v Sullivan (supra), heavily relied on by the accused herein as an ideal rule for us to adopt, in the case of Hill v Church of Scientology of Toronto [994] 18 DLR 385; affirmed [1995] 184 NR1. In Hill’s case (supra), the appellants originally challenged the constitutionality of the Canadian Libel and Slander Act RSO 1990 CL 12. But on appeal, they focused on the constitutionality of the common law of defamation, having regard to section 2(b) of the Canadian Charter of Rights and Freedoms. The said section 2(b) guarantees “freedom of thought, belief, opinion and expression, including freedom of the press and other media.” In their submissions at the appellate court, the appellants seriously urged the court to adopt the rule in New York Times v Sullivan (supra). The court on analysing the language and wording of the relevant provisions of the Charter, and the history of the common law of defamation, pointed out that it would not be appropriate to make a substantial and major alterations of Canadian common law by adopting the rule in New York Times v Sullivan (supra) and accordingly rejected the rule, basing itself historically on sound policy reasons, which

[p.632] of [1997-98] 1 GLR 611 recognised as a paramount importance the protection of the reputation of individuals who assume the responsibilities of public officials.

In the instant case, the law of criminal libel as created in section 112 and defined in section 113 of Act 29 infringes no known legal principle. As shown in the opinion of my noble and respected brother Wiredu JSC, and that of Akuffo JSC about to be read, Act 29 defines clearly what constitutes intentional and negligent libel, and I fail to see the vagueness complained of.

What the accused complain bitterly of is section 117(1)(h) of Act 29 which requires an accused in his defence to establish not only the truth of the publication but also that it was for the benefit of the public that the matter should be published. They contend that it is enough to establish only the truth of the publication, and that the requirement of public interest is unnecessary and burdensome. This submission obviously fails to realise that the

Constitution, 1992 guarantees each individual the right to the privacy of his property, correspondence and communications, and no one, including a journalist, has a right to violate this privacy except as authorised by law or as it becomes necessary in the interest of the public. Article 18(2) of the Constitution, 1992 which affords this protection reads:

“18. (2) No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others.”

It is interesting to observe that the protection of one’s privacy was in the Constitutions, 1969 and 1979 confined to searches of one’s person; property or premises: see articles 19(1) and 25(1) of the Constitutions, 1969 and 1979 of Ghana, respectively. The Constitution, 1992 goes further than the previous Constitutions and protects against “interference” with one’s privacy—a word covering not only searches but any form of intrusion into one’s personal life. And the recent injunction by an English court to [p.633] of [1997-98] 1 GLR 611 protect Princess Diana from press harassment is a solid example of the benefit of such a right. The right to privacy provided in article 18(2) of the Constitution, 1992 comes closer to that of article 8(1) of the 1950 Rome Convention for the Protection of Human Rights and Fundamental Freedoms, which reads: “8(1) Everyone has the right to respect for his private and family life, his home and his correspondence.” And again to article 12 of the 1948 Universal Declaration of Human Rights of the United Nations which also reads:

“12. No one shall be subjected to arbitrary interference with his privacy, family, home, correspondence, nor attacks upon his honour and reputation. Every one has the right to the protection of the law against such interference or attacks.”

The right to one’s privacy is therefore a right with an international recognition, and cannot therefore be trampled on without justification. Thus section 117(1)(h) of Act 29 which requires the need to establish public benefit in addition to the truth of the matter, is aimed at giving meaning to the protection of one’s right to privacy.

The Constitution, 1992 does not entitle anyone to unlawfully publish, either negligently or intentionally, a defamatory matter about any individual. And this is what the law of criminal libel as defined in Act 29 seeks to prohibit. I am therefore satisfied that the law passes the second test too and is therefore constitutional.

It is however important to point out that the law of criminal libel as defined in Act 29 applies to any individual who unlawfully publishes a defamatory matter and not to journalists in particular. Thus in the State v Ahmed [1961] GLR 96 the accused, a complainant in a criminal assault case, made a charge of bribery against a magistrate after the case was dismissed. His basis for making the allegation was the mere fact that his assailants were discharged by the magistrate. The High Court held that he was guilty of negligent libel since he did not take steps to ascertain whether there was any truth in his allegations. See also R v Frimpong [1959] GLR 287. Seen in this light, it is clear that the law per se, is meant to give an effective meaning as opposed to the civil remedies, to the protection of one’s reputation. The law

[p.634] of [1997-98] 1 GLR 611 per se is therefore essential to ensure a safe protection of the constitutional right to one’s reputation.

But I concede that the law of criminal libel as provided, especially in section 117(1)(h) of Act 29 may be susceptible to being abused to the detriment of press freedom. Especially since under article 88(3) of the Constitution, 1992 the Attorney-General is responsible for the initiation and conduct of all criminal prosecutions, this law may be invoked by any reigning government to cow a number of journalists into submission. More so, as in some cases it may not be easy in respect of public officials to draw the line between their private and public affairs.

Indeed, during the 1996 Presidential and Parliamentary Election campaigns, a leading opposition candidate, quite confident of his success, was reported in one of the newspapers to have supported the retention of such laws in our statute books. Now what is the precise boundary between one’s private and public life? It is in ascertaining this boundary, which ought to be ascertained having regard to the constitutional protection of one’s privacy, that most journalists may genuinely be caught by the law. This is a genuine concern. For freedom of thought and expression including press freedom; the rule of law and an independent judiciary; and fair and free elections, are undoubtedly the three indispensable pillars of a viable democracy. And every effort must therefore be made to keep the press free and independent within reasonable limits, which balance societal interests with that of the individual. This is the duty of the legislature and not the courts. As Nnaemeka-Agu JCA (as he then was), said in Nigeria Union of Journalists v Attorney-General of Nigeria [1986] LRC (Const) 1 at 9: “The duty of courts is to interpret and give effect to legislation as given by the law-giver. We are concerned with the law as it is, not as it ought to be” This court can therefore not amend or redraft the law to prevent its possible abuse. The only way out then is for our legislature to undertake a comprehensive review, in the light of the provisions of the Constitution, 1992 of our criminal legislation affecting the media with a view to sustaining the freedom and independence of the media. For in a free democratic society, as we believe ourselves to be, it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must

[p.635] of [1997-98] 1 GLR 611 always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most objectionable kind.

But this notwithstanding, some publications in some newspapers go beyond genuine criticism to a deliberate and orchestrated design to scandalise, ridicule and malign innocent citizens. Such a situation obviously provides a strong case for the maintenance of appropriate penal laws to deal with such irresponsible and venal journalism, for as William Blackstone stated in his Commentaries, Vol 4, pp 151-152:

“The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public . . . but if he published what is improper, mischievous or illegal, he must take the consequences of his own temerity.”

JUDGMENT OF AKUFFO JSC.

On 8 March 1997, this court unanimously ruled that sections 112(2) and 117(1)(h) of the Criminal Code, 1960 (Act 29) are constitutional and consequently the circuit court has the jurisdiction to try the accused persons. The issue referred to us was:

“Whether sections 112 and 117(h) of the Criminal Code, 1960 (Act 29) are inconsistent with and are therefore in contravention of the spirit and letter of the Constitution, 1992, particularly articles 21(1)(a) and 162(1) and (4) of the Constitution, 1992.”

In spite of the terms in which the issue was framed, it is my view that it is necessary to look not only at the sections to which mention have been specifically made, but at the whole of chapter 7 of Act 29 dealing with the offence of libel. This is because the chapter is so drafted that the import of sections 112 and 117(h) of Act 29 are fully appreciated only by a reading of all the provisions of the chapter. To isolate the specific provisions that have been challenged and test their constitutionality as they stand would be

[p.636] of [1997-98] 1 GLR 611 quite misleading. The intention of section 112 of Act 29 is merely to create the offences of negligent and intentional libel. The succeeding provisions then proceed, step by step, to give clearer definition to the elements and scope of these offences as well as the available defences. Hence, section 113 of Act 29, sets out the actus reus of the offence; sections 114 to 116 of Act 29 define what is defamatory publication and unlawful publication; and section 117 of Act 29 sets out the circumstances under which defamatory matter may be absolutely privileged; in section 118 Act 29 deals with the circumstances under which a defamatory matter will be considered conditionally privileged and in section 119 of Act 29, good faith for the purposes of section 118 of Act 29 is explained. Sections 117 and 118 of Act 29, therefore constitute the possible defences open to a person against whom a charge of libel is made.

Section 112 of Act 29 in its entirety reads:

“112. (1) Whoever is guilty of negligent libel shall be liable to a fine not exceeding one hundred pounds.

(2) Whoever is guilty of intentional libel shall be guilty of a misdemeanour.”

And section 117(1)(h) of Act 29 states that:

“117. (1) The publication of defamatory matter is absolutely privileged and no person shall under any circumstances be liable to punishment under this Code in respect thereof, in any of the following cases, namely, . . .

(h) If the matter is true, and if it is found that it was for the public benefit that the matter should be published.”

In his written submissions on behalf of the accused persons, counsel made a number of submissions which may be summarised as follows:

(1) Chapter 6 of the Report of the Committee of Experts endorses the proposition that a free and independent media are a fundamental premise of a democratic society. Therefore, in pursuit of this fundamental principle article 162(2) of the Constitution, 1992 proscribes

[p.637] of [1997-98] 1 GLR 611 censorship and article 162(4) of the “unambiguously prescribes the editors and publishers of newspapers and other institutions of mass media shall not be ‘penalized or harassed for their editorial opinion or views or the content of their publications.’”

(2) Sections 112 and 117(1)(h) of Act 29 constitute limitations on the freedom of the media and to be constitutional, they must fall within the ambit of the permissible restrictions prescribed by article 164 of the Constitution, 1992. However, these sections are not reasonably required for any of the purposes set out in the said article.

(3) The scope of the law of criminal libel in Ghana is too broad as compared to the current trends in America, Europe and other parts of the world, in that it places a person at risk of criminal prosecution as soon as such person publishes a libellous matter, and the law therefore lacks reasonable proportionality. In any event, the civil law of defamation is sufficient to protect the reputations of other persons and consequently, the scope and extent of the criminal law of libel are unjustified since they serve no pressing social need· or public interest and only result in the imposition of a chilling effect on the freedom and independence of the media.

(4) The exceptions afforded by article 164 of the Constitution, 1992 must be narrowly interpreted so as to optimise the scope of the freedom to which the exception applies. Such an approach would be in full conformity with the intentions of the Committee of Experts when proposing guarantees for the freedom of expression, which includes the independence and freedom of the media.

(5) The law of criminal libel, particularly, sections 112 and 117(h) of Act 29, as formulated by the Code is so ambiguous and confused as to create uncertainty and inaccessibility to the ordinary man, contrary to article 19(11) of the Constitution, 1992.

(6) In a constitutional democracy no more than the truth can be reasonably expected of any person and therefore the additional requirement in section 117(h) of Act 29 for

[p.638] of [1997-98] 1 GLR 611 proof of public benefit is anathema to the concept of freedom of speech as guaranteed by the Constitution, 1992 and the onus placed on the defendant to prove both the veracity and the public benefit of the libelous publication is unconstitutional.

(7) The failure of the law to make a distinction between public and private persons and to prescribe different tests to sustain a conviction for criminal libel is not in consonance with the Constitution, 1992 particularly article 162(4).

Article 21(1)(a) of the Constitution, 1992 guarantees persons the right to: “freedom of speech and expression, which shall include freedom of the press and other media.” As was, correctly, noted by counsel for the accused persons, although in article 21(1)(a) of the Constitution, 1992 the fundamental freedom of speech and expression is expressed to include the freedom of the press and other media, the importance of press and media freedom was considered by the framers of the Constitution, 1992 to be of such immense dimension that, in addition to the general freedom stipulated in article 21 (1)(a) of the Constitution, 1992, they went on to devote the entirety of chapter 12 of the Constitution, 1992 to the freedom and independence of the media. Under chapter 12, article 162(1) of the Constitution, 1992 guarantees the freedom and independence of the media and in article 162(4) of the Constitution, 1992. It is provided that:

“(4) 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.”

These clauses and the provisions of article 162 of the Constitution, 1992, in general, are, in my view intended to give immunity to the communications media from government control or censorship so that, thus freed, the media would be better able to serve as a conduit for the exercise of the citizen’s right to know and right to dissent, thereby fostering and encouraging peaceful and orderly social and political change. Without this kind of

[p.639] of [1997-98] 1 GLR 611 freedom and independence of the media, a free society and democratic self-government would not be possible.

Arguably, to the extent that section 112(2) of Act 29 makes it a criminal offence for any person to publish libellous material and penalises the content of publications, the effect of the section is to place a limit on the enjoyment of the freedom enshrined in article 21(1)(a) of the Constitution, 1992, and by the media of the freedom guaranteed by article 162 of the Constitution, 1992. Likewise section 117(1)(h) of Act 29 in requiring an accused person to show that a published defamatory matter is not only true but also that its publication is for the public benefit, might also be seen as effectively restrictive of these freedoms. It may even be argued that the very existence of the offence of criminal libel in our Act 29, has the effect of a sword of Damocles constantly suspended, in particular, over the heads of all media practitioners in Ghana. This would, in view of articles 21(1)(a) and 162(1) and (4) of the Constitution, 1992, amount to unconstitutionality, had it been the intention of the Constitution, 1992 to create absolute freedoms. However, like other forms of liberty, completely unrestricted freedom of expression leads to infringement on the rights of others, and it has long been recognised that restraints on the liberty of utterance are necessary and inevitable. As this court has held on numerous occasions, the nature and extent of the restraints to be imposed and the means by which they are enforced have been spelt out by the Constitution, 1992 itself. See for example Republic v Independent Media Corporation of Ghana [1996-97] SCGLR 258 and Republic v Tommy Thompson Books Ltd [1997-98] 1 GLR 515, SC (ante). Thus, in article 164, it is provided that:

“164. The provisions of articles 162 and 163 of this Constitution are subject to laws that are reasonably required in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of other persons.”

The effect of article 164 of the Constitution, 1992 is to place a limit on the constitutional rights and freedoms enumerated in articles 162 and 163 of the Constitution, 1992, and this limit patently permits laws reasonably required for the protection of the

[p.640] of [1997-98] 1 GLR 611 reputations of other persons. Although the right of an individual to his reputation is not one of the fundamental freedoms specifically guaranteed by the Constitution, it is clear from this article that the Constitution, 1992 recognises that a person’s reputation is an interest which is worthy of legal protection and thus, it excepts laws that are reasonably required for such protection from the ambit of article 162 of the Constitution, 1992. This limitation on the freedom of the press is in no way peculiar to this country and, however, liberal a society might be, one important limitation on the free press is often the law of libel, involving the defamation of a person, false accusations, or exposure of someone to hatred or ridicule. The need to afford such protection is premised on the proposition that a person, whatever be his station in life, is entitled to his good name and such name ought not be interfered with or tarnished gratuitously and on an irresponsible whim. To paraphrase Shakespeare, “He who steals my gold steals nothing. It was once mine and it is now his. But he who steals my reputation takes something which in no way enriches him but impoverishes me quite.” That the framers of the Constitution, 1992 recognised the need to protect reputations, is evident from article 164.

The only question which is, in my view, relevant to this reference is whether or not the existence of an offence of intentional libel is reasonable. My answer is yes. The purpose of section 112(2) of Act 29 is to protect the reputations of other persons from. the publication of intentionally defamatory matters unless such defamatory matter falls within the exceptions and defences afforded by the Act; and the purpose of section 117(1)(h) of Act 29 is to afford a defence (in addition to other possible defences provided by the chapter) to an accused person who is able to establish that the defamatory matter published by him is true and its publication is for the public benefit.

However, we were urged by counsel for the accused to give a restrictive meaning to article 164 of the Constitution, 1992 so as to preserve the guaranteed freedom of the media. According to counsel for the accused persons, the civil law of libel adequately suffices to protect the interest sought to be safeguarded by the section and, therefore, bearing in mind the crucial importance placed on the freedom of the media by the Constitution, 1992 the section is not a law that is reasonably required. In other words,

[p.641] of [1997-98] 1 GLR 611 the protection of the reputation of persons is not a matter of such public benefit as to justify public defence through placing the publisher of any libellous matter at risk of criminal prosecution. I cannot agree with this. Although, prima facie, a person’s reputation is of importance only to himself and he can adequately safeguard it through civil libel proceedings, the fundamental rationale for making libel also criminally punishable is the tendency or likelihood of a libellous publication to excite a breach of the peace by provoking the wrath of the defamed person. And it is in the public interest that breach of the peace be forestalled.

Thus, even in the jurisdictions whose laws counsel for the accused persons finds to be so exemplary, the fact remains that, aside from the civil law of libel, there still exists in their systems, laws of criminal libel. Indeed, under English law the truth of the libellous matter is no defence. The other difference between our law and that of England is the requirement, under section 8 of the English Law of Libel Amendment Act, 1888, that the prior leave of the court be obtained by the Crown before the commencement of criminal libel prosecution against the media. In the case of R v Wells Street Stipendiary Magistrate; Ex parte Deakin [1980] AC 477, HL Viscount Dilhome explained that when considering an application for leave under this section the judge must ascertain whether the public interest requires a prosecution of the libel.

Counsel sought to rely on this to support his contention that the ambit of section 112(2) of Act 29 is so wide as to be unconstitutional. According to counsel, since our law makes no provision for a judicial inquiry prior to the prosecution of criminal libel, there is nothing to check “the ‘chilling effect’ that the threat of criminal libel prosecutions could have on the media and the wanton harassment and persecution that media practitioners could so easily be subjected to in its absence.”

In the said case, Lord Scarman had stated at 494—495 that:

“To warrant prosecution the libel must be sufficiently serious to require the intervention of the Crown or the public interest . . . The essential feature of a criminal libel

[p.642] of [1997-98] 1 GLR 611 remains as in the past—the publication of a grave, not trivial libel.”

I think that under section 117(1)(h) of Act 29 the gravity of the libel is also a matter of import, except that it has been expressed in the form of public benefit, and I do not believe that simply because, under our law, this needs to be proven as part of the criminal proceedings rather than as part of a preliminary judicial inquiry, is sufficient to render the section unreasonable and, therefore, unconstitutional.

Counsel also made reference to the Indian case of Rangarajan v Jagjiva Ram [1990] LRC (Const) 412, involving the construction and application of a clause in the Indian Constitution which placed restrictions on the constitutional clause guaranteeing the freedom of expression. At 427 of the report, the Indian Supreme Court expressed itself thus:

“There does indeed have to be a compromise between the interest of the freedom of expression and the social interest. But one cannot simply balance the two interests as if they were of equal weight. Our commitment to freedom of expression demands that it cannot be suppressed unless the restrictions created by allowing the freedom are pressing and the community interest is in danger.”

I am in full agreement that, in the construction of the restrictions created by article 164 of the Constitution, 1992, care must be taken so as not to do such injury to the substantive articles of the Constitution, 1992 which have been subjected to restriction, as to nullify their effect. It is for this reason that the Constitution requires that laws effecting such restrictions must be reasonably required. What this means is that the net effect of the restrictions imposed by such permitted laws must not be such as will amount to a denial of the freedom. (cf New Patriotic Party v Inspector General of Police [1993-94] 2 GLR 459, SC.

Seen in this perspective, I fail to see any justification in holding that sections 112(2) and 117(1)(h) of Act 29 are unconstitutional. They may restrict the freedom with which the media may intentionally publish defamatory matter, but they do not

[p.643] of [1997-98] 1 GLR 611 take away from the media their right to publish. In Ghana, media practitioners may publish whatsoever they please, however, they may not be irresponsible in their publications and must have due regard for reputations and legitimate interests of others. As was stated by the Committee of Experts at para 186 of their Report:

“ . . . Freedom of the press and expression also means that any citizen who has anything to say about national affairs should have access to the public sector mass-media, limited only by practical considerations of space and time, and by existing laws of sedition, criminal libel and those protecting privacy, etc.

(The emphasis is mine.)

I do not believe that the constitutional guarantee of a free and independent media was intended as an end in itself, created just for its own sake. The only end envisaged by the Constitution, 1992 is the creation and promotion of a democratic society and the freedom and independence of the media is one of the tools with which the Constitution, 1992 seeks to achieve this end. Thus, the Committee of Experts at para 191 of the Report, also, took cognisance of the danger to democracy posed by “a venal and irresponsible press.” In my opinion, the purpose of the requirement by Act 29 that the publisher of defamatory material must show that it is not only true but also that its publication is for the public benefit, before an accused person can avail himself of the defence afforded by section 117(1)(h) of Act 29, is to ensure that, in the dissemination of information about persons, the media, in addition to taking care to verify its facts, also takes care to avoid intentional defamation of persons purely for the purpose of causing wanton mischief. This, in my view, is reasonable and in tune with the word and spirit of the Constitution, 1992.

Although it is a well established practice to have due regard to legal and constitutional practices and trends in other jurisdictions for guidance, particularly when an issue arises for the first time in this court, it is essential that, in seeking such guidance, we keep in sight the fundamental fact that foreign practices are dictated by factors which are premised on the peculiarities of the environment and moreso of the particular jurisdiction. Our decision on any

[p.644] of [1997-98] 1 GLR 611 issue takes effect within our particular national and social environment. Recent events in certain parts of this country prove that our society is presently one in which expressions and allegations against persons, whether oral or written can have far-reaching consequences (both as a result of the public acting upon the allegations or the accused person seeking to defend himself), including breach of the peace, mob action, mass hysteria and even loss of lives. Allegations made against persons, whatever be their station in life, still have the potential power to cause immediate effect. In such an environment, it is important that utterances, particularly written ones published by the media, be made truthfully and responsibly.

Finally, in consonance with article 19(11) of the Constitution, 1992, chapter 7 of Act 29 gives a clear definition of the offence created by section 112(2) of Act 29, as well as the penalty therefor. Moreover, the fact that, in section 117(1)(h}of Act 29 the accused person bears the onus of proving that the defamatory matter is not only true but also its publication is for the public .benefit is also in consonance with article 19 (16)(a) of the Constitution, 1992 which provides that:

“19. (16) Nothing in, or done under the authority of, any law shall be held to be inconsistent with, or in contravention of, the following provisions— (a) paragraph (c) of clause (2) of this article, to the extent that the law in question imposes upon a person charged with a criminal offence, the burden of proving particular facts . .

. “

(The clause to which reference is made relates to the fundamental right of an accused person to be presumed innocent until he is proven or has pleaded guilty.)

It is for these reasons that I joined my learned brothers in ruling that sections 112 and 117(h) of Act 29 are not inconsistent with the spirit and letter of the Constitution, 1992 and that accordingly, the trial of the accused persons in the circuit tribunal should proceed.

DECISION

Appeal dismissed

LSNA

Endnotes

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