REPUBLIC vs. TOMMY THOMPSON BOOKS LTD AND OTHERS [1997-98] 1 GLR 515

CASES REFERRED TO

(1) In re Akoto [1961] 2 GLR 523, SC.

(2) R v Zundel (1992) 10 CRR 193.

(3) R v Keegstra [1991] LRC (Const) 333.

(4) Public Prosecutor v Pung Chien Choon [1994] 2 LRC (Const) 37.

(5) Nwanko v The State, Nigerian Law of the Press, C 198, CA.

(6) Perera v Attorney-General [1992] 1 Sri LR 199, SC.

(7) Rajagopal v State of Tamil Nuda [1995] AIR 264, SC.

(8) NAACP v Alabama, 378, US 449; 78 SCt 1163 (1958).

(9) Superintendent, Central Prisons Fategarh v Manohar Lohia [1960] 2 CSR 821.

[p.519] of [1997-98] 1 GLR 515 (10) Free Press of Namibia (PTY) Ltd v The Cabinet for the Interim Government of South West Africa [1987] 1 SWA 614, SC.

(11) Hector v Attorney-General of Antigua and Barbuda [1991] LRC (Const) 237.

(12) Handyside v United Kingdom (1976) EHRR 737.

(13) Lingens v Austria (1986) 8 EHRR 425.

(14) Attoh-Quarshie v Okpote [1973] 1 GLR 59.

(15) Bilson v Attorney-General [1993-94] 1 GLR 104, SC.

(16) Konigsberg v State Bar of California, 366 US 36 (1961).

(17) Cohen v California, 403 US 15 (1971).

(18) Republic v Owusu alias Buor, Ex parte Anane, Supreme Court, 25 July 1995, unreported (19) Ghana Bar Association v Attorney-General [1995-96] 1 GLR 598, SC.

(20) Fattal v Minister for Internal Affairs [1981] GLR 104, SC.

(21) Benham’s Case (1610) 8 Co Rep 113(b); 77 ER 646.

(22) R v Harvey 2 B & C 257.

(23) Giltlow v New York, 268 US 652 (1925).

(24) Richards v Attorney-General of St Vincent and the Grenadines [1991] LRC (Const) 311.

(25) Attorney-General of Antigua and Barbuda v Hector, 22 June 1987, Civil Appeal No 5/1986, Court of Appeal of the Eastern Caribean Supreme Court, (Antigua and Barbuda).

(26) New Patriotic Party v Inspector-General of Police [1993-94] 2 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 for the determination of the question whether section 185 of the Criminal Code, 1960 (Act 29) is inconsistent with and in contravention of the spirit and letter of the Constitution, 1992, particularly articles 21(1)(a) and 162(1) and (2) and therefore null and void. The facts giving rise to the reference are sufficiently stated in the judgments of Kpegah and Adjabeng JJSC.

[p.520] of [1997-98] 1 GLR 515

COUNSEL

Martin A B K 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.

When this reference came before this court on 20 March 1996 for consideration Mr Zwennes on behalf of the Private Newspapers Association applied to join the association as a party. We heard submissions for and against the application. On 23 July 1996 I joined my brothers and sister in ruling against the application. My reason for doing so was based solely on the fact that the proceedings from which this reference emanated being a criminal trial of which the applicant was not a party, it was not a proper case to admit the association as a party at this stage. I am also of the considered view that this reference being an exercise within the exclusive preserve of this court, this court has the power to invite assistance from any person, body or institution to enable it arrive at a true, correct and an uninfluenced interpretation of the Constitution, 1992.

I do not share the view that the reference is part of the trial of the case before the circuit court, which latter court has the preserve to go into the merits of the case in accordance with the directives from this court in respect of the reference. We are not here deciding whether what the accused persons are allegedly supposed to have done was right or wrong. Our main concern is to determine the relationship between the impugned laws and the relevant provisions of the Constitution, 1992 and to determine whether they are consistent with the latter in letter and spirit. The events which have provoked the present reference have been set out in the opinions of my brother Amuah and sister Akuffo JJSC respectively, which opinions I have had the privilege of reading beforehand. I have however had to part company with them in their conclusions and will endeavour in this opinion to explain my position.

[p.521] of [1997-98] 1 GLR 515

The issues raised for determination in this reference may be stated as follows:

(a) Whether section 185 of the Criminal Code, 1960 (Act 29) is inconsistent with or in contravention of the letter and spirit of the Constitution, 1992, with particular reference to articles 21(1)(a) and 162(1) and (4).

(b) Whether or not sections 182(a), 183 and 184 of Act 29 are also consistent with and or inconsistent with and or in contravention of the Constitution, 1992 or both.

The above two questions have been referred to this court for our consideration by the circuit court without objection. It is to be noted that the issues raised have no reference to the facts from which the reference emanated.

The impugned laws which are still standing as sections in our Act 29 are among what are described in our Constitution, 1992 as existing laws under chapter 4 of the Constitution, 1992. Article 11(4), (5) and (6) of the Constitution, 1992 which deal with existing laws provide as follows:

“11. (4) The existing law shall, except as otherwise provided in clause (1) of this article, comprise the written and unwritten laws of Ghana as they existed immediately before the coming into force of this Constitution, and any Act, Decree, Law or Statutory Instrument issued or made before the date, which is to come into force on or after that date.

(5) Subject to the provision of this Constitution, the existing law shall not be affected by the coming into force of this Constitution.

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

(The emphasis is mine.) The impugned laws under consideration are in my respectful view not the types that can legitimately be

[p.522] of [1997-98] 1 GLR 515 treated under article 11(6) of the Constitution, 1992. The reasons for this view will be explained later in this opinion.

Under the Constitution, 1992 there are two situations which can justify a reference to this court by a lower court. The situations are: (a) under article 130(2), as in the instant case, and (b) under article 135(2) of the Constitution, 1992 which respectively provide as follows:

“130. (2) Where an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer the question, of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court … 135. (2) Where any issue referred to in clause (1) of this article arises as to the production or otherwise of an official document in any proceedings before any court, other than the Supreme Court, the proceedings in that other court shall be suspended while the Supreme Court examines the document and determines whether the document should be produced or not; and the Supreme Court shall make the appropriate order.”

Where the reference is made under article 130(2) of the Constitution, 1992 the determination of the matter is restricted to an issue of construction or interpretation. In other words, the duty of this court in such a situation is restricted to a consideration of the constitutionality of the impugned law. In other words, whether the impugned law or anything contained or done under the authority of that law is as stated in the language of article 2(1) of the Constitution, 1992 “inconsistent with, or is in contravention of a provision of this Constitution …” Facts involved in the events which form the subject for determination in the lower court are not to be called in aid to the determination of the construction. The issue must be determined solely on the face of the impugned law in relation to the relevant provisions of the Constitution, 1992 without considering the facts giving rise to the constitutional

[p.523] of [1997-98] 1 GLR 515 challenge. That is to say, the contents of the events giving rise as to why the accused were arraigned before the circuit court from which the reference was brought is no concern of this court. This is because facts are not necessary or relevant to aid such an interpretation. It may be otherwise where the reference is brought under 135(2) of the Constitution, 1992. The above will form the basis of my personal approach in determining the present problem.

It must be emphasised strongly here that in embarking on this duty of interpretation, this court is enjoined not to take into consideration the facts or any act allegedly done by the accused persons in respect of which the State feels aggrieved thereby causing the arraignment of the accused persons before the circuit court. This court ought not to express any opinion on the alleged acts whether the conduct of the accused persons are right or wrong, and the probable or likely repercussions of the alleged conduct or act. We are not concerned with this aspect of the case; any such views that may be expressed will be orbiter and may likely prejudice the trial before the circuit court. The sole duty of this court is to determine the constitutionality of the impugned section of Act 29. We should also not have regard to the personalities involved or personalities interested in the outcome of the case, else we may be tempted to look over our shoulders in determining the reference before us. We should put up what we consider to be the true construction of the relationship of the impugned section 185 of Act 29 with the relevant provisions of the Constitution, 1992 to use our conscience and in accordance with our judicial oath to do justice to all manner of people bearing in mind that whatever interpretation we put on the issue before us will be a guiding and binding opinion of this court for all times, and for all governments that will have the opportunity of working or governing this country under the Constitution, 1992. Our sympathies should not cloud our true understanding of the problems posed for determination in this reference. I have said elsewhere that judicial sympathy, however, plausible, should never be elevated into a principle of law. The reason for disregarding the facts leading to a reference of this nature is not far to find. Only one construction can be put on a statute. Such construction must stand at all times. It must not vary with the facts of individual cases that may give rise to constitutional interpretation.

[p.524] of [1997-98] 1 GLR 515

In the present case the issue before us is the relationship between the impugned section 185 of Act 29 and the relevant provision of the Constitution, 1992 to find out whether the two can be married or cannot. The determination of the above issue must not be determined by the facts which provoked the above constitutional challenge otherwise varying facts of each case will determine what the construction must be at any given time: see for example rule 67 of the Supreme Court Rules, 1996 (CI 16).

It is pertinent to mention at this stage that the Constitution, 1992 is the supreme law of the land and should be the final and sole source of legality and constitutional authority. Therefore there cannot and should not be any other legal document which may be claimed to have superior or concurrent authority: see article 1(2) of the Constitution, 1992.

It is necessary at this stage also to advert our minds to the necessity of studying the historical background of the impugned laws to find out the circumstances leading to their enactment, the prevailing conditions, the mischief that was intended to be addressed. The prevailing conditions and circumstances under which the impugned laws were passed may be different from the present and may help to determine their fate. In other words, to ascertain whether circumstances still prevail or have changed since their enactment in order to determine the validity or otherwise of their continued existence in our statute books. To determine the constitutionality of any legislation the history and the object of the law ought to be considered. The social and political circumstances, the underlying object of that law, the mischief or evil that it was aimed at preventing. All these matters ought to be considered to enable the court to arrive at a decision as to whether the continued existence of the impugned legislations can be justified.

The framers of our Constitution, 1992 in their wisdom must have anticipated such a situation; hence they provided under section 30 of the transitional provisions as follows:

“30. The First President under this Constitution may, at any time within twelve months after assuming office as President, by constitutional instrument, make such provision as may appear necessary for repealing, modifying, adding to

[p.525] of [1997-98] 1 GLR 515 or adapting any law for bringing it into accord with the provisions of this Constitution or otherwise for giving effect to this Constitution.”

This country has historically gone through a number of political experiences from the colonial days through various regimes with not less than six military interventions. It has experienced authoritarian, oppressive and intolerant regimes whose laws cannot all be said to be consistent with the present Constitution, 1992. It will, however, be impossible within just a period of one year for the first President to be able to exhaust the type of legislative powers conferred on him under section 30 of the transitional provisions of the Constitution, 1992.

Ghana through its experience has now chosen to be governed under a multi-party system of democracy. In fact it has approved by a referendum to adopt a liberal form of democracy, under which the rule of law, etc under which fundamental human rights, including freedom of speech, expression etc are entrenched and which are now justiciable. We are now in our Fourth Republic. Each of the previous regimes of the country has had its excesses in the process of its governance. Dissenting views expressed have always been politically coloured as unconstructive, destructive, or biased. Political parties have in several instances taken advantage of power struggle at the expense of the ordinary people in Ghana. We have now sworn that oppressive authoritarian regimes are no longer going to be countenanced in this country.

I will first take issue (b) of the reference which has been referred to us without objection. The point has been raised that issue (b) raises irrelevant matters. I refrain from commenting on this. All that I can say on this submission is that it has been referred to this court by the circuit court without objection. Issue (b) concerns first with section 182(a) of Act 29. It is clear that treason as an offence has been defined under article 19 of the Constitution, 1992 and all definitions given in any other law ought to give way to article 19. On section 183 of Act 29, after a careful consideration of this section of issue (b) supra, I have no hesitation in holding that the section vests in the President a plenary and absolute power of discretion. Such a discretion is relative. It is a discretion to be exercised by any President, a discretion which

[p.526] of [1997-98] 1 GLR 515 cannot be questioned in any court of law. Such an unfettered power is inconsistent with article 296 of the Constitution, 1992 which provides as follows:

“296. Wherein 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 either by resentment, prejudice or personal dislike and shall be in accordance with due process of law; and (c) where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instrument or statutory instrument, regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power.”

Thus from the above, it is clear that the kind of discretion sanctioned by the Constitution, 1992 is not an absolute one.

Finally, with regards to section 185 of Act 29, I will humbly suggest that the section ought to be referred to the Law Reform Commission by the Attorney-General to have a second look at the language, which I think is too wide and ambiguous, to bring it in conformity with article 41(a) of the Constitution, 1992. Section 184 of Act 29 needs to be couched in simple and precise language.

My research has revealed that section 185 of Act 29 is an enactment passed by the first Parliament of the First Republic under the Constitution, 1960. It received presidential assent on 12 January 1961. We are now going to be 40 years old, we are in the Fourth Republic. Section 185 of Act 29 is a law of British origin from the English Statute of Westminster, 1275, in the 13th century, when the doctrine of “The Divine Right of Kings” (The King or the Queen does no wrong) was the order of the day. The object and purpose of this impugned law as can be seen from Act No 37 of 1959 reads: “An Act to punish false reports or state

[p.527] of [1997-98] 1 GLR 515 ments that may injure the credit or reputation of Ghana or of the Government of Ghana.” (The emphasis is mine.) This enactment may be legitimately defended under the Republican Constitution, 1960 which by article 8(4) vested absolute plenary powers in the President. Article 8 of the Constitution, 1960 reads:

“8. (1) There shall be a President of Ghana, who shall be the Head of the State and responsible to the people.

(2) Subject to the provisions of the Constitution, executive power of the State is conferred upon the President.

(3) The President shall be the Commander-in-Chief of the Armed Forces and the Fount of Honour.

(4) Except as may be otherwise provided bylaw, in the exercise of his functions the President shall act in his own discretion and shall not be obliged to follow advice tendered by any other person.

(5) The power to repeal or alter this Article is reserved to the people.”

(The emphasis is mine.)

Article 8(4) of the Constitution, 1960 conferred an absolute discretion on the President the exercise of which could not be questioned in any forum. Under the same Constitution, 1960, art 1(A)(1) and (2) as inserted by the Constitution (Amendment) Act, 1964 (Act 224), s 2 provides:

“1A. (1) In conformity with interests, welfare and aspirations of the People, and in order to develop the organisational initiative and the political activity of the People, there shall be one national party which shall be the vanguard of the People in their struggle to build a socialist society and which shall be the leading core of all organisations of the People.

(2) The national party shall be the ‘Convention People’s Party’.”

(The emphasis is mine.) In other words, Ghana was a one-party State which did not recognise any distinction between the State, the government and the party in power. The Constitution, 1960 did not recognise multi-party democracy where dissenting views

[p.528] of [1997-98] 1 GLR 515 can and ought to be tolerated. Thus under the Republican Constitution, 1960 there is no distinction between the government, the party and the State. However, under the Constitution, 1992 the government and the State are not one and the same institution. They are separate and distinct. Government under the Constitution, 1960 in practical terms cannot be the same as under the subsequent Constitutions, 1969, 1979 and the 1992. Parties and governments may go but the State will always remain. The Constitution, 1992 makes it even unconstitutional for Parliament, the legislative arm of the State, to enact a law establishing a one-party state: see articles 3 and 56 of the Constitution, 1992. Parliament is not supreme under the Constitution, 1992. The Supreme Court is competent to strike out any legislation which is ultra vires its powers or is unconstitutional, 1992.

It has not been seriously challenged in the present proceedings (an exercise which I have repeatedly held to be the exclusive judicial preserve of this court) that in a number of sister common law countries including the United Kingdom, United States of America, Canada etc, the English Statute of Westminster of the thirteenth century from which offences like the impugned section 185 of Act 29 derive its origin no longer exist. It may therefore be safe, in my respectful view, to consider section 185 of Act 29 anachronistic in those countries in the twentieth century. The question that may be posed here is, why should independent Ghana continue to have a law which has long been repealed in its country of origin on its statute books? Can its continued existence be justified in this latter part of the twentieth century or at least under the Constitution, 1992?

It is my respectful view that our historical experience from the First Republic shows that the continued retention of some foreign obnoxious laws on our statute books such as those raised under issue (b) which successive governments have taken advantage of in suppressing persons holding opposing views, have led in no small measure to the stagnant progress of democracy in this country. It has led to vindictiveness and acrimony among our politicians, and this has divided the people. This has made it difficult for us to achieve any peaceful and meaningful reconciliation as a nation. We have experienced some of our governments using such laws to stifle and suppress the rights of members of opposing

[p.529] of [1997-98] 1 GLR 515 views. This had left this country with a legacy of a vicious cycle of vegeance2(2)[sic]. Successive governments have resorted to probes, witch hunting and destroyed each other, resulting in instability, vindictiveness, leading to loss of manpower resources to the detriment of the country. It must be emphasised here that democracy can thrive in a society where the electorate are well informed. The electorate can only be informed by a strong and vibrant press which have the means to inform the public. Do the content, scope, and language of section 185 of Act 29 meet the test of freedom of information? Mens rea and actus reus are prerequisite elements of a crime as demanded by modern criminal jurisprudence. The section must also pass the test which presume an accused person innocent until his guilt is proved beyond reasonable doubt by the prosecution as required by article 19(2)(c) of the Constitution, 1992.

Government within the context of section 185 of Act 29 under a multi-party system of democracy as currently practised in this country, is not the same as the State of Ghana. In my respectful view, it is referable to the party in power only or otherwise known by reference to its leader either as the Limann Government, the Limann Administration, the Busia Government or the Busia Administration, Rawlings Government or the Rawlings Administration or certain times referred to by the party’s name as the People’s National Party Government, the National Democratic Congress Government, or the Progressive Alliance Government. It is in this context that the possibility that a section like 185 of Act 29 in its present wide potential reach in scope may be dangerously used to suppress opposing views and render freedom of speech and expression as enshrined under the Constitution, 1992 meaningless. Government as shown above is referable to the government at any given time which may be different at other times due to voting changes. Such a government cannot be the same as the State of Ghana which always remains Ghana. Governments may go and come but the State will always remain in multi-party democratic society except in name.

In saying this, I must not be taken to be advocating for a disrespect of a government in power at any particular time. What I am saying is that if the want of respect for government is intended to be a crime punishable in the law courts, then our Act 29 must have a section that unambiguously states so in a precise and

[p.530] of [1997-98] 1 GLR 515 certain term and this must be in conformity with the Constitution, 1992. Article 19(11) of the Constitution, 1992 states in no uncertain terms that: “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.” To me a provision like section 185 of Act 29 in its present form without a second look by an appropriate authority, will be very dangerous in a multi-party democracy in the hands of a tyrannical government which is likely to use it to suppress freedom of speech and expression and stifle criticism. In the situation as we find ourselves, judging from our past experience, whenever there is a change of government in the country the possibility of the in-coming government using a law like section 185 against its political rivals on the other side of the political divide and to continue with what I call a vicious cycle of vengeance which has divided the people and led to vindictiveness will not be remote to pursue.

Under the First Republic, members of the opposition were suppressed with laws giving absolute powers to punish by criminal prosecution. Legislation was used to curtail cases pending in the courts where citizens who felt their civic rights had been violated had sought redress. Legislation was also used to stop execution of court judgments by nullifying the proceedings culminating in the judgments. There were various incarcerations of citizens in detention without trial, and, this became rampant. Even though under article 13 of the Constitution, 1960 the President swore to uphold the freedom of speech of the individual and also made a solemn declaration that each citizen was to have direct and easy access to the courts, yet judicial pronouncements on this declaration show that they were no bill of rights justiciable by the courts. The courts also erroneously affirmed the supremacy of Parliament: see In re Akoto [1961] GLR 523, SC. Subsequent Republican Constitutions of Ghana, excluding that of 1960, have entrenched in them provisions relating to fundamental human rights, including freedom of speech, etc. These entrenched provisions are now justiciable in the courts.

With the advent of the 1979 military uprising and the 31 December Revolution when probity, accountability, transparency, and integrity became household words and also the hallmarks of the two periods when these attributes were used as the yardsticks

[p.531] of [1997-98] 1 GLR 515 for judging the lifestyles of persons in authority, or in positions of trust, the populace happily3(3)[sic] embraced these attributes. These prerequisite demands from those holding power or in authority helped to awaken the political awareness of many an ordinary man in the street. More women also became politically awake and engaged themselves in politics. These are among some of the positive achievements of the two periods. Unfortunately and regrettably, Ghanaians have done little to insist on and demanding these qualities from our leaders, partly because of fear and also the inclusion of the various indemnity clauses in our subsequent Constitutions. The question may be asked: what lessons have we learnt from our historical past?

Ghana has come a long way from the turmoil and upheaval of different political experiences. We have given lip-service to the national anthem. We have by a referendum chosen to be governed under a multi-party democracy with the rule of law as the pivot around which fundamental human rights revolve. We look forward for true freedom and justice. We look for the kind of rule of law under which the law is not to be regarded as an ass but one which is just, fair and not discriminatory. A law which is sound and treats all citizens equally. A law which endorses probity, accountability, transparency, integrity. A law which seeks the welfare of all citizens. One which is progressive in a land where each one of us would be his or her brother’s keeper. A law which abhors concentration of power in one person. One which abhors oppression and authoritarian tendency. One which ensures the independence of the judiciary and the press as the watchdogs to protect and defend the supreme law of the land.

All the above attributes have culminated in our having by a referendum given our blessing to the Fourth Republican Constitution, 1992 as the supreme law of the land within which framework all public officers of state have sworn solemnly to defend and to direct our future course of government. A document which spells out the scope and extent of all organs of state, the right and responsibilities of all citizens.

Notwithstanding my observation about the incompatibility of the impugned laws with our prevailing circumstances now, I will first bring home my other grievances against the continued existence of section 185 of Act 29 on our statute books and later

[p.532] of [1997-98] 1 GLR 515 deal with its relationship under chapter 12 of our Constitution, 1992. Chapter 12 of our Constitution, 1992 deals with the independence of the press and the media. Section 185 of Act 29 is on its face too wide and sweeping in language to pass the test of constitutionality. Learned counsel for the accused has attacked the scope and extent of the wide and sweeping language of this law in the following language:

“The effect of this section is to criminalise any communications, oral or otherwise even between spouses, even in a classroom, made even beyond the borders of Ghana, which contains allegedly a false statement or report likely to injure the reputation of the government. The potential reach of this section in criminalising and thus suppressing a wide range of expression is undeniable.”

The gravamen of the offence under section 185 of Act 29 is “to communicate a false statement or report by any means that is likely to injure the reputation” of Ghana or the government. The charge against the accused is concerned with the latter alternative, ie likely to injure the reputation of the government. The opinion about to be read by my sister Akuffo JSC has dealt ably with the ordinary meanings of the two words, ie to communicate and to publish. The latter being the language used to refer to what the press does under chapter 12 of the Constitution, 1992, is relevant to help the court deal with false information by newspaper publications. However where the word communication is used, it has a wider meaning, namely making known to the world at large. The distinction in meaning between the two words, are entirely different from the sweeping language of section 185 of Act 29. Since the latter law embraces a wider scope of making known an information, whilst publication is directly and specifically making known to the general public, the difference becomes apparently clear that the impugned section 185 of Act 29 cannot, as it stands now, be married to the provisions of chapter 12 of the Constitution, 1992 and therefore the question as to the application of article 164 of the Constitution, 1992 does not even arise.

It is also a common ground in this proceedings that the impugned law imposes a restriction on freedom of speech as

[p.533] of [1997-98] 1 GLR 515 enshrined in the Constitution, 1992. In other words, section 185 of Act 29 cannot co-exist with or be married to the provisions of chapter 12 of the Constitution, 1992. The effect of endorsing the impugned law in its present form will be very dangerous. It will curtail all forms of guaranteed people’s freedom of speech as are entrenched in the Constitution, 1992. It invades the right to privacy as enshrined in article 18(2) of the Constitution, 1992. The word to “communicate” as used under section 185 of Act 29 is too wide. Its language negates its constitutionality. To communicate under section 185 of Act 29 may be even referable to private letters written between parents and their children, husbands and wives, teachers and pupils etc, the communication may even be oral and private. This state of the law ought not to be constitutionally accepted. It cuts across all areas of communication, oral or otherwise, private or public and may deny a citizen’s right to privacy: see article 18(2) of the Constitution, 1992. The dangers inherent here have been so eruditely dealt with in the able opinion of my sister Akuffo JSC. To create a criminal offence, the language of the statute must be clear and precise as to its intention. It must not be vague or ambiguous. The name of the offence must be known, ie like murder, fraud, stealing, assault etc.

The provision of chapter 12 of the Constitution, 1992 which deals specifically with the press and the media, lay emphasis on the word publication: see articles 162 (4) and (6) of the Constitution, 1992. It is my respectful view, from the above, that whatever prosecution is contemplated or sought to be brought under a known crime in our Act 29 against a press publication or one carried by the media, ought to be restricted, directed and limited in form and in language to the press by using the word publication and communications by the media and ought to be in conformity with the letter and spirit of chapter 12 of the Constitution, 1992. I have not found it easy to reconcile any of the provisions of chapter 12 of the Constitution, 1992 with section 185 of Act 26.

I have read with admiration the opinion of my sister Akuffo JSC on this aspect of the case and I agree with her opinion, save her assertion that section 185 of Act 29 can legitimately be defended under article 164 of the Constitution, 1992 by modifying and adapting same under article 11(6).

[p.534] of [1997-98] 1 GLR 515

In criminal jurisprudence every crime must have two elements, ie the mens rea and the actus reus (the mental element and the actual act). This makes a crime allegedly committed by one person uninheritable. A master under the common law cannot be made vicariously liable for the crime committed by his employee or servant save in certain circumstances, as when he uses an innocent agent or an infant to do an act which constitutes a crime or where the statute creating the offence specifically makes the employer or master jointly liable with his servant or employee. Another common feature of criminal law jurisprudence is that unless the statute creating the offence provides a defence, the burden of proving the guilt of the accused does not shift. The only burden on the accused is to provide evidence of his defence.

The weakness of 185 of Act 29 here does not lie so much on the issue of the burden it has put on the accused persons by leading evidence to establish their case. It rather lies first, in the absence of direct mens rea. It does not talk of any “deliberate”, malicious, etc act of false report or print as is being suggested. Nowhere in the language of 185 of Act 29 can the word “deliberate” be found. Secondly, the extent of its potential reach is so wide as to make the section dangerous in the face of the express provisions of freedom of speech and expression as are enshrined in the Constitution, 1992 and enjoyed by individuals, the press and the media. In a society where public officers hide under the oath of secrecy to deny the electorate a free flow of information as guaranteed under the Constitution, 1992, a law like section 185 of Act 29 becomes dangerous as violating the freedom of speech and expression.

It is clear from an analytical examination of the cases and the laws referred to in this proceedings that the language used is clear and precise and is referable to press publications, which means publications to the general public as distinct from our own wide, ambiguous and sweeping language which admits that even private communications among relations can constitute a crime even when it occurs between spouses. Such a wide and sweeping language ought not be constitutionally sanctioned under the Constitution, 1992.

It is pertinent at this stage to refer to some of the cases relied on in this proceedings to illustrate the need for precision, clear and

[p.535] of [1997-98] 1 GLR 515 unambiguous use of language in creating criminal offence: (a) In R v Zundel, The (1992) 10 CCR 193 the section under which prosecution was conducted reads as follows: “181. Everyone who publishes a statement, tale or views that he knows is false and that causes or likely to cause injury . . .” The emphasis is on the words publishes and falsity and knowledge. The above as opposed to the use of the words to communicate in R v Keegstra [1991] LRC (Const) 333. Section 319 (2) of the Canadian Criminal Code reads: “Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against an identifiable group . . .” The point here is that private conversation is excluded as being an offence. It is pertinent to note here that private communications are excluded, unlike our section 185 of Act 29 which makes all communication a criminal offence including private conversation. Section 64 of the Criminal Code of St Vincent and the Grenadines also cited by the learned Attorney-General reads:

“(1) Any person who publishes any false statement, rumour or report which is likely to cause fear or alarm or to disturb the public peace, is guilty of an offence and liable to imprisonment for one year.

(2) It shall be a defence to a charge under subsection (1) if the accused person proves that, prior to the publication, he took such measures to verify the accuracy of such statement, rumour or report as to lead him reasonably to believe that it was true.”

(The emphasis is mine.) And finally, section 8(a) of the Printing Press and Publication Act, 1984 reads:

“8A. (1) Where in any publication there is maliciously published any false news, the printer, publisher, editor and writer thereof shall be guilty of an offence and shall, on conviction, be liable to imprisonment for a term not exceeding three years or to a fine not exceeding twenty thousand ringgits or to both.”

It is clear from the above analytical examination of the cases and the laws referred to in this proceedings that the language used

[p.536] of [1997-98] 1 GLR 515 in each case is clear and precise and is referable to press publications as distinct from our own wide, ambiguous and sweeping language which admits that even private communications among relations can constitute a crime. Such a wide and sweeping language ought not be constitutionally sanctioned under the Constitution, 1992 as stated supra in this opinion.

The provisions of article 11(6) of the Constitution, 1992.

It has not been seriously disputed in this proceedings that section 185 of Act 29, the impugned provision of Act 29, unreasonably and unjustifiably restricts the individual’s freedom of speech and expression. I have had no difficulty in holding in my ruling that it is inconsistent with article 21(1) of the Constitution, 1992 and the spirit of the Constitution and therefore to that extent void. It has been suggested, however, that the impugned section can be saved by invoking article 11(6) of the Constitution, 1992 supra by modifying it to justify its continued existence on our statute books.

I have found myself in some difficulty in trying to find out how the modification suggested can safely be achieved in this regard without destroying the substance and the intent of the language of the section. In other words, how the suggested modification can be safely achieved without doing violence to the language of the section and also thereby not assuming the power to legislate by this court. In the first place, section 185 of Act 29 is a section or provision of the general Act 29 and it must stand or fall as a section. Secondly, I fail to see how the section can be modified to bring its language into conformity with that of the provisions of chapter 12 of the Constitution, 1992 without completely overhauling or dismantling the language of the section. Thirdly, such a course will inevitably mean the fragmentation of the language of the section by eliminating and substituting new words which are likely to change the whole nature, character and intent of the section which may also lead fourthly, to the creation of an entirely new offence. The latter act is bound to offend the spirit and letter of the Constitution, 1992 which bars retrospective operation of any law passed under it: see article 19(5) of the Constitution, 1992.

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Unlike section 30 of the transitional provisions of the Constitution, 1992 the judiciary is not a law making institution and it plays no part in law making. It is essentially a state organ concerned solely with interpreting, construing and the enforcement of the provisions of the Constitution, 1992. The executive, however, is part of the law making process. Bills which are discussed to become laws in Parliament emanate from the executive’s outfit and end with the assent of the President. The purpose and aim of section 30 of the transitional provisions of the Constitution, 1992 is to ensure smooth and expeditious transition, instead of the checkered and strict procedure in Parliament when laws are being amended, which procedure is time consuming. Finally, there is the danger of such a course (ie resort to invoking article 11(6) of the Constitution, 1992 in this regard) turning the judiciary into a legislative organ. This kind of duty was not within the contemplation of the Consultative Assembly, the body that drafted the Constitution, 1992, when it recommended the provision of article 11(6) of the Constitution, 1992 in appropriate circumstances.

It must be stated here further that when on 12 January 1960 Act 29 including the impugned section 185 was promulgated as law, the Constitution, 1960 had no entrenched bill of rights guaranteeing fundamental rights of freedom of speech and expression as are now provided in the Constitution, 1992, chaps 5 and 12 which are now justiciable in the court. Ghana was a one-party state, not multi-party, as it is now, and there was no distinction between the State and the government. The advocates of this course of modifying the language of section 185 of Act 29 under article 11(6) of the Constitution, 1992 have not given any justifiable grounds as to how this can be done without being confronted with any of the problems enumerated above.

My brother Amuah JSC has proposed a formula which I have quoted below as a possible modification of the impugned section. His formula reads as follows: “A person who publishes a false statement which is likely to injure the reputation of the Ghana Government and which he knows to be false commits an offence.” (The emphasis is mine.) The above at a glance would appear attractive in so far as it satisfies the mens rea and the actus reus. The further question here is, how could the circuit court or this court direct such an amendment of section 185 of Act 29 by

[p.538] of [1997-98] 1 GLR 515 limiting its scope without turning itself into a legislative body? The other snag about this formula is the suggestion that the above formulation must be acceptable to both parties. Is it being suggested that the parties are required to be participants in the invocation of the provision of article 11(6) of the Constitution, 1992 which is the exclusive jurisdiction of this court, or that they are to participate in the legislative exercise? Section 185 of Act 29 being a penal statute, I do not think article 11(6) of the Constitution, 1992 can be called legitimately in aid to this construction exercise. Thirdly, the above formula has completely dealt away with section 185(3) of Act 29 which neutralises the mens rea contained in section 185(1) of Act 29 thereby making the offence one of strict and absolute liability. This will violate the provisions of article 19(2)(c) of the Constitution, 1992.

I have further not found it easy to go along with the forceful submission by the learned Deputy Attorney-General on the Malaysian case of Public v Prosecutor v Pong Shen Choon [1994] 2 LRC 237, which my brother Amuah JSC has endorsed. The section under which the above case was prosecuted is precise in form and in its potential reach. Unlike section 185 Act 29, it is not faulted. The section in the Malaysian case uses the word publish qualified by the epithet malicious, ie the actus reus and the mens rea respectively required to create a criminal offence. It is to be noted here the observation of the court as stated in the headnote holding (3). It reads as follows: “Section 8A(1) was intended to deal only with maliciously published false news. Publication of merely false news is not an offence under section 8A(1).” In other words, the falsity must be known to the publisher. This aspect of the section was noted rightly by my brother Amuah JSC in his opinion which will be read soon, in which he stated as follows: “The section is not meant for those who communicate false news but rather those who do so with knowledge that it is false” (The emphasis is mine.)

Section 185 of act 29 reads:

“185. (1) Whoever communicates to any other person, whether by word or4(4)[sic] mouth or in writing or by any other means, any false statement or report which is likely to injure the credit or reputation of Ghana or the Government and

[p.539] of [1997-98] 1 GLR 515 which he knows or has reason to believe is false, shall be guilty of second degree felony… (3) It is no defence to a charge under this section that the person charged did not know or did not have reason to believe that the statement or report was false unless he proves that, before he communicated the statement or report, he took reasonable measures to verify the accuracy of the statement or report.

(4) A citizen of Ghana may be tried and punished for an offence under this section whether committed in or outside Ghana.”

It is my respectful view that had the impugned law been so simply worded in its original form as advocated by Amuah JSC, one would have been tempted to look on it with some favour under the Constitution, 1960 but not under the Constitution, 1992.

My sister Akuffo JSC in her able opinion agrees with the modification formula suggested by my brother Amuah JSC and has stated clearly that with the adoption of such a modification the impugned section can find constitutional legitimacy under article 164 of the Constitution, 1992. The two therefore admit here that section 185 of Act 29 cannot stand the test of the present Constitution, 1992 in its present form. My brother Adjabeng JSC in his opinion rejects any modification. And so does my brother Kpegah JSC. They find nothing wrong with section 185 of Act 29 in its original form and they justify its constitutional legitimacy under article 164 of the Constitution, 1992. The situation creates a big and difficult problem for the Court.

I have not found it easy to go along with the stand taken by my respectful colleagues supra. Further problems I find with the suggested modification under article 1(6) are: (a) When does the modification take effect? (b) Does it not amount to creating an entirely new offence? (c) Is this court competent to create a new law? (d) Is it legitimate in this reference to direct the circuit court to continue with the trial of the accused under the modified law when that law cannot be made to have retrospective effect? and (e) What should be the order of the court in view of the stand against same by my brothers Adjabeng and Kpegah JJSC?

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Government as used in section 185 of Act 29 cannot be equated to a person who is a citizen of a country or an individual in a society to justify its claim under the fourth legislature of article 164 of the Constitution, 1992. Government is an institution with a legal capacity. A legal entity which in a liberal democracy must accept criticism as an inherent part of democratice5(5)[sic] practice. In this connection, I am impelled to draw an inspiration from the observation of the Nigerian Court of Appeal in the case of Nwanko v The State reported in the Nigerian Law of the Press under the Constitution, 1998 at 226 and 227 where the offence of seditious libel was considered and authoritatively declared unconstitutional: “Those who occupy sensitive posts must be prepared to face public criticisms in respect of their office so as to ensure that they are accountable to the electorate. They should not be made to feel they live in an Ivory Tower and therefore belong to a different class. They must develop thick skin and where possible plug their ears with cotton wool if they feel too sensitive or irascible. They are within their constitutional rights to sue for defamation but they should not use the machinery of government to invoke criminal proceedings to gag their opponent’s freedom of expression. As long as the Constitution is not suspended, and this is not done in democratic society, freedom of expression should be protected . . .

It is my view that the law of sedition which has derogated from the freedom of speech guaranteed under this Constitution is inconsistent with the 1979 Constitution so when this cannot lead to public disorder as envisaged under section 41(a) of the Constitution. We are no longer the illiterates or the mob society our colonial masters had in mind when the law was promulgated . . . Let us not diminish from the freedom gained from our colonial masters by resorting to laws enacted by them to suit their purpose.”

I accept the view that section 185 of Act 29 creates an offence of strict and absolute liability in its broad language. The section seeks to criminalise mere expression not connected with an intention to threaten national security or to disrupt public order or public morality or the likelihood of disrupting same. Section

[p.541] of [1997-98] 1 GLR 515 of Act 29 is thus clearly an unwarranted invasion of the right to freedom of speech and expression and to information guaranteed under the Constitution, 1992 and ought to be declared unconstitutional. Its potential reach is too wide. It cannot therefore be said that it is a law covered by any of the heads of article 164 of the Constitution, 1992. In the Sri Lankan case of Joseph Perera v Attorney-General [1992] 1 SRLR 199 the Sri Lankan Supreme Court held:

“Laws that trench on the area of speech and expression must be narrowly and precisely drawn to deal with precise ends. Over-breadth in the area has a peculiar evil, the evil of creating chilling effects which deter the exercise of that freedom. The threat of sanctions may deter its exercise almost as patently as the application of sanctions. The State may regulate in that area only with narrow specificity. There can be no doubt of the legitimacy of the Government’s interest in protecting the State from subversion. But even though the Government’s purpose be legitimate and substantial that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.”

Again in the Indian case of Rajagopal v State of Tamil Nadu [1995] AIR 264 at 272, the Indian Supreme Court, citing with approval the US Supreme Court in NAACP v Alabama, 378 US 449 (1958 ) said: “A governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means that sweep unnecessarily broadly and thereby invade the area of protected freedoms.”

Section 185 of Act 29 therefore is unconstitutional for sweeping unnecessarily broadly a protected fundamental freedom. I therefore vehemently reject this course of modification under article 11(6) of the Constitution, 1992.

On the assumption that the views I have expressed supra are rejected, which I very much doubt, and that the impugned section 185 of Act 29 can be saved as an existing law under article 11(6)

[p.542] of [1997-98] 1 GLR 515 of the Constitution, 1992 to gain the merit of constitutionality which I have discussed above earlier as impossible, section 185 of Act 29 must be able to justify its existence under one of the four situations required in the interest of (a) national security; (b) public order; (c) public morality; and (d) for the purpose of protecting the reputations, rights and freedoms of other persons. I will now deal with each of the above.

National security

The Indian Supreme Court in the case of the Superintendent Central Prisons Fatehgarh v Ram Manchar Lohia (1960) 2 CSR 821 at 839 (referred to by learned leading counsel for the accused persons) said: “‘Public Order’ is synonymous with public safety and tranquillity;6(6)[sic] it is the absence of disorder involving breaches of local significance in contradiction to national upheavals, such as revolution, civil strife, war, affecting the security of the state.”

Also in the case of the Free Press of Namibia (PTY) Ltd v The Cabinet for the Interim Government of South West Africa [1987] SWA 614 at 625 (also referred to by the leading counsel for the accused persons) Levy J of the Supreme Court of South West Africa, had this to say:

“Because people (or a section thereof) may hold their government in contempt does not mean that a situation exists which constitutes a danger to the security of the state or to the maintenance of public order. In fact to stifle just criticism could as likely lead to those undesirable situations.”

The above cases have set to rest any doubt which may be entertained that in a democratic state, the national security can be threatened by a false statement made per se against the reputation of the government of the day. This leg therefore cannot be called in aid to justify section 185 of Act 29 under article 164 of the Constitution, 1992.

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Public order The observations made above under National Security supra go also for this head: see the Free Press case supra.

Public morality The issue raised in this reference has nothing to do with public morality.

Reputations, rights and freedoms of other persons Government is a legal entity in this context and ought to be treated as such. Any publication about a government which tends to lower its reputation in a country under a liberal democracy like ours must of necessity be in the form of criticism. Such criticism must not only be tolerable as constructive. It may be provocative or even styled or coloured destructive in situations where there is the absence of free flow of information. In this context a government is considered as a public institution or entity which is open to criticism in the day to day running of state affairs. In Hector v Attorney-General of Antigua and Barbuda [1991] LRC (Const) 237 at 240 the Privy Council held that:

“In a free and democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind. At the same time it is no less obvious that the very purpose of criticism levelled at those who have the conduct of public affairs by their political opponents is to undermine public confidence in their stewardship and to persuade the electorate that the opponents would make a better job of it than those presently holding office.”

See also the cases of Handysid v United Kingdom (1976) EHRR 732 and Lingangs v Austria (1988) EHRR 425. It should also be noted here that the purpose and aim of section 185 of Act 29 is to punish the communication of any information which is likely to injure the reputation of the government, which offence from [p.544] of [1997-98] 1 GLR 515 my respective view may be legitimately be justified under the Constitution, 1960 which did not admit a multi-party democracy. I am impelled and persuaded to agree with the observation made in the submission of leading counsel for the accused persons that:

“For in a constitutional democracy, the reputation of government is a commodity whose price rises and falls with the changing fortunes of the political process and of the balance of forces. In such democracy where opposition parties and other political forces have the right to do their utmost to discredit government and tarnish its reputation as a legitimate part of the process of winning public support for their party with an eye to election, to uphold such a law as consistent with our Constitution is to strike at the very foundation of our democracy and provide government with an instrument of tyranny.” (The emphasis is mine.) I therefore reject the submission that section 185 of Act 29 can find protection under article 164 of the Constitution, 1992.

I am of the respectful view that in view of the differences in the positions taken by members of the court as shown in the various opinions by members of the court, the safest position to take is to recommend to the Attorney-General’s office that the section be referred to the Law Reform Commission to have a look at the impugned law and, where possible, to review same, bearing in mind the lapses expressed in the various opinions, to bring same into conformity with the Constitution, 1992.

In view of the wide and sweeping language expressed in the opinions of some of the members of the panel as to how they see section 185 of Act 29 in its present form as an existing law which they think needs to be amended or modified under article 11(6) of the Constitution, 1992, I personally feel that such defect ought to enure to the benefit of the accused persons who I direct the circuit court to discharge. For I do not see how his court would be justified (under such an absurd situation) to hold that the said section as it stands in Act 29 is constitutional.

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JUDGMENT OF KPEGAH JSC.

I think it will be appropriate to preface this opinion with a quotation from the New Jerusalem Bible which advises against an unruly tongue, Ecclesiasticus7(7)[sic], chap 19, v 6-12:

“[By] hating gossip one avoids evil, Never repeat what you are told [A]nd you will come to no harm;

[W]hether to friend or foe, do not talk about it, [U]nless it would be sinful not to, do not reveal it;

[Y]ou would be heard out, then mistrusted, [A]nd in due course you would be hated.

Have you heard something? Let it die with you Courage! It will not burst you!

A fool will suffer birthpangs over a piece of news, like a woman labouring with child Like an arrow stuck in the flesh of the thigh, [S]o is a piece of news inside a fool.”

On 23 February 1996, the Circuit Court, Accra presided over by his Honour Judge Nuhu Billa stated a case by way of reference in a criminal case entitled Republic v Tommy Thompson Books Ltd. The accused persons were charged with the offence of “publishing false report which is likely to injure the reputation of government” contrary to section 185(1) of the Criminal Code, 1960, (Act 29). All the accused persons pleaded not guilty. Learned counsel for the accused then filed a motion raising a preliminary objection as to the constitutionality of the section under which they were charged.

In the circuit court, Nana Akufo-Addo, counsel for the first, second, and third accused persons contended that section 185 of Act 29 was inconsistent with the spirit and letter of the Fourth Republican Constitution, 1992 of Ghana. Specifically, that the said section 185 of Act 29 was inconsistent with articles 21(1)(a) and 162(4) of the Constitution, 1992. It was further contended on behalf of the accused persons that the whole of chapter 1 of Part IV of Act 29 which deals with offences against the State, is unconstitutional. Learned counsel referred particularly to sections 182A, 183 and 184 as being contrary to the spirit and letter of the Constitution, 1992. Prof Ofosu-Amaah, counsel for the fourth

[p.546] of [1997-98] 1 GLR 515 accused person, associated himself with the observations and submissions of Nana Akufo-Addo. The prosecution did not object to the issue being referred to this court. Therefore in compliance with article 130(2) of the Constitution, 1992 and rule 54 of the Supreme Court Rules, 1970 (CI 13), the following questions were referred to us for answers:

“(1) Whether or not section 185 of Act 29 is inconsistent with and in contravention of the spirit and letter of the Constitution, 1992 particularly articles 21(1)(a) and 162(1) and (4) and therefore null and void.

(2) Whether or not sections 182A, 83 and 184 of Act 29 are equally inconsistent with the spirit and letter of the and letter of the Constitution, 1992.

(3) Whether or not the circuit court has jurisdiction to try the accused persons.”

When the case came up for hearing, Mr Zwennes who announced himself as appearing for the Private Newspaper Publishers Association of Ghana (PRINPAG) applied for his clients to be joined as parties and be heard because the matter was of public interest. The application was made viva voce. In the course of his application, learned counsel submitted that he was relying on rule 45(4) of CI 13 for his application. When it was pointed out to Mr Zwennes that this court was not exercising its original jurisdiction to which rule 45 of CI 13 applied but rather its reference jurisdiction under rule 54 of CI 13, he contended that if the court held the view that the application could not be made under the said rule 45(4) of CI 13, we should have recourse to our inherent jurisdiction in the circumstances of this case since the case was of public interest.

On 23 July 1996, we dismissed the application and reserved our reasons to be embodied in our final judgment. Before proceeding to offer my opinion on the questions posed to us, therefore, I would like to first give my reasons why my vote was cast for the dismissal of the application of PRINPAG to be joined or to present what is more akin to the American jurisprudence and better described in that jurisdiction as amicus curiae briefs or interventions.

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In our legal system whether a third party can intervene in a suit to which he is admittedly not a party and in which he has no personal interest, is, in my humble view, a question of law, both substantive and procedural. Before he can do so the said third party must demonstrate that his interest will be or has been affected by the decision of the court. In other words, he must satisfy the concept of “standing” which involves a consideration of the issue of the nature and sufficiency of the applicant’s concern or interest with the subject matter of the dispute. For example, in applications for the prerogative writs—certiorari, prohibition, mandamus etc—it is provided in Order 59, r 6 of the High Court (Civil Procedure) Rules: 1954 (LN 140A) as follows:

“6. On the hearing of any such motion or summons as aforesaid, any person who desires to be heard in opposition to the motion or summons and appears to the Court or Judge to be a proper person to be heard shall be heard, notwithstanding that he has not been served with the notice or summons, and shall be liable to costs in the discretion of the Court or Judge if the order should be made.”

(The emphasis is mine.) The expression “proper person” means one whose interest is most likely to be affected by the decision. Such a person is often referred to in our courts as “an interested party.” It is very much alien to our legal reasoning for a third party or total stranger to apply to join a suit on the sole ground that the case is of public interest. An application to join a criminal case on such a ground should be even more baffling! But considering the passion with which the instant application was made and the great enthusiasm with which it was supported by counsel for all the accused persons, I would go into some details on the point as we were urged by Nana Akufo-Addo to allow the application as a way of improving our jurisprudence.

Although the practice of allowing third parties or organisations to intervene in the United States Supreme Court on grounds that the matter involved issues or questions which are of public interest is now prevalent in that jurisdiction, this was not achieved without some strong expressions of skepticism and doubts. Of course, the first perceived obstacle to such an application is the concept of

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“standing” which the American courts have evolved. There were other reasons why the practice of a third party or a stranger intervening as amicus curiae was initially frowned upon. Mr Justice Frankfurter in a memorandum stated that although he had started out with an “easy-going hospitality towards all briefs . . . [S]uch a latitudinarian view now seems . . . undesirable.” His reason was that “those responsible for arguing cases ought not to be embarrassed by amici briefs that may give a different shape or twist to the argument from what the original parties molded it” see Earl Warren Papers, Library of Congress, 28 October 1949, quoted by Gregory Coldeira & John Wright in an article entitled “Amici Curiae Before the Supreme Court: Who Partipates8(8)sic, When and How Much” published in the University of Texas Journal of Politics, Vol 52 No 3 of August 1990. One other reason given by Justice Frankfurter for this skepticism was that he did not want to have “the court exploited as a soap box or advertising medium or as the target, not of arguments, but of mere assertion that this or that group has this or that interest in a question to be decided.”

This rather unsympathetic view of amicus curiae briefs was possibly the result of the case of the “Hollywood Ten” where forty organisations filed amici curiae briefs. This was naturally regarded as an excessive exploitation of the procedure. The position now, however, is a more indulgent attitude towards such briefs; although there is still an underlying skepticism. This ambivalence is demonstrated in the provisions of rule 37(1) of the Revised Rules of the Supreme Court of the United States. This is what the rule states:

“37. (1) An amicus curiae brief which brings relevant matter to the attention of the Court that has not already been brought to its attention by the parties is of considerable help to the Court. An amicus brief which does not serve this purpose simply burdens the staff and facilities of the Court and its filing is not favoured.”

The position now is that the United States Supreme Court, as a result of rule 37(2) of its Revised Rules, allows amicus interventions in some cases. This rule allows both individuals and organisations who wish to file briefs and intervene as amici

[p.549] of [1997-98] 1 GLR 515 curiae, to first obtain the consent of the original parties to the action, and if either of them refuses, to apply to the court by way of a motion for leave to file such a brief. The Solicitor-General and individual states are exempted from obtaining the consent of the original parties. In the event of either party withholding his consent, and a motion has therefore to be filed seeking leave of the court to file an amicus brief, rule 37(4) imposes very stringent conditions. In such a case the motion “shall concisely state the nature of the applicant’s interest and set forth facts or questions of law that have not been, or reasons for believing that they will not be, presented by the parties and their relevancy to the disposition of the case.”

It is very clear therefore that precedent from the American jurisdiction cannot be galvanised in support of the type of application made to us by PRINGPAG to be joined, as amicus curiae. Those cases are the result of specific regulations granting the right and also specifying the procedure for its exercise.

We were also urged that if we found the absence of a specific rule in CI 13, as a constraint on our powers to grant the application, we must resort to our inherent jurisdiction. I do not think a recourse to this court’s inherent jurisdiction will be appropriate in circumstances where, admittedly, a total stranger is seeking to be joined not even in a civil matter but a criminal matter! A court’s inherent jurisdiction is to be invoked in situations where there is a threat to, or likelihood of failure of justice. The circumstances in which inherent jurisdiction of a court can be exercised have been stated by Hayfron-Benjamin J (as he then was) in the case of Attoh-Quarshie v Okpote [1973] 1 GLR 59. In his view at 67: “Tradition has sanctioned three areas where the court generally invokes its inherent powers.” He indicated the first of these to be where the exercise of the powers is necessary to secure the court’s dignity and independence; which powers include the power to punish for contempt and enforce obedience to its mandate, judgments and orders. The second is where the power is necessary to ensure the control of its officers (including lawyers), the power to hold its officers to a proper accountability for any default or misfeasance in the execution of its processes. And

[p.550] of [1997-98] 1 GLR 515 lastly, the court’s power to prevent wrong or injury being inflicted by its own acts or orders or judgments, including the power of vacating judgments entered by mistake and of relieving judgments procured by fraud, and a power to undo what it had no authority to do originally. Moreover, I think that before a court can be invited to exercise its inherent jurisdiction in a cause or matter, it must first and foremost be properly seised with the said cause or matter. It is very doubtful whether a court can lawfully exercise its inherent jurisdiction when, as a matter of substantive law, it has no jurisdiction in that cause or matter. I do not think so. Therefore for a court to be able to exercise an inherent jurisdiction in an action, it must have been properly seised with the action to start with.

One other factor, which I have earlier alluded to, is that an application to join a criminal trial at any stage and for whatever reason, is to me unprecedented and very much alien to our criminal jurisprudence. I have had over 24 years on the bench and I think I can claim a moderate experience; both as a trial judge at the magisterial, circuit and High Court levels, and as an appellate judge on the High Court, Court of Appeal and Supreme Court benches, but I have never contemplated the remotest chance of meeting such an application to be made a party to a criminal trial.

In an address he delivered to a joint Conference of the Ghana Bar Association and the National Bar of America, the former Chief Justice of Ghana, Mr Justice Fred Kwasi Apaloo, reviewed a Kenyan case in which a similar application was made by the Law Society of Kenya. The case is popularly referred to in that jurisdiction as the Don’s case. This is what Justice Apaloo said:

“Perhaps I should tell you at this stage one aspect of the contempt case which, as lawyers, you would find interesting. As I said already, legal argument lasted five weeks. When the hearing was four weeks old, the Law Society of Kenya, the Kenya counterpart of your association, by motion, sought to join the proceedings as co-defendants. Their reason for doing this, was that they were desirous of putting their legal expertise at the disposal of the defendants whose exercise of speech was, in their opinion, unjustly put in jeopardy by the proceedings. The Attorney-General made no allegation against the society for which they could be punished. When

[p.551] of [1997-98] 1 GLR 515 the court enquired whether the society or some of their officers would be prepared to go to prison in the event of the defendants being convicted or whether the society’s funds would be made available to meet the payment of any fines the court may impose on a finding of guilty, they said they did not contemplate that eventuality.

Though well-intentioned, the truth appeared to be that the matter was not thought through. The court dismissed the application on the purely procedural ground that the novel application was not provided for by the rather elaborate rules of court. It was obvious what the society was minded to do, was to put its legal expertise at the disposal of the court as amicus curiae. Joinder of the society would have put them in needless jeopardy. The court saved them from that.”

These were some of the reasons why I voted in favour of the dismissal of the application for joinder of the applicants as “interested parties”, or as amicus curiae.

I will now reverse to the questions posed to us in this reference for determination. The facts leading to the charging of the accused persons, as can be gleaned from the facts stated in the case stated to this court in compliance with rule 54(2) of CI 13 and the written submissions of counsel for the accused, are as follows: The first accused are the publishers of a bi-weekly newspaper called the Free Press. The second accused is a director of the publishing company while the third accused is the editor of the said paper. The fourth accused is the editor in-chief of another bi-weekly newspaper christened the Ghanaian Chronicle. The prosecution was initiated as a result of publications in both papers to the effect that the Government of Ghana was involved in drug deals with one Frank Benneh, a foreign service officer, and some confidants of the President of Ghana. The proceeds of the drug deals, claimed the two newspapers, were being used to finance the purchase of illegal arms for a section of the army. In what could be described as a follow-up, the Free Press asserted that the government was the most disgraceful and disgraced in the history of Ghana, being made up of drug barons.

It is the contention of counsel for the accused persons that section 185 of the Criminal Code, 1960 (Act 29), under which

[p.552] of [1997-98] 1 GLR 515 they were charged for publishing a false report likely to injure the reputation of the Government of Ghana is unconstitutional, being inconsistent with the spirit and letter of the Constitution, 1992. Nana Akufo-Addo, counsel for the first, second and third accused persons submitted that the said section 185 is inconsistent specifically with article 21(1)(a) of the Constitution, 1992 which guarantees to the individual freedom of speech and expression, and article 162(1) of the Constitution, 1992 which guarantees the freedom and independence of the media; and also inconsistent with article 162(4) of the Constitution, 1992 which forbids, in the words, of counsel “the criminalisation of mere expressions.”

The burden of counsel’s submission against the constitutionality of section 185 of Act 29 is best put in his own words:

“In sum, the defence contends in answer to the fundamental question that:

(1) Section 185 of Act 29 is on its plain face a violation of the freedom of expression provisions of the Constitution, 1992.

(2) Section 185 of Act 29 does not represent a constitutionally permissible limit to the freedom of expression and media guaranteed by the Constitution, 1992.”

Nana Akufo-Addo amended his argument to embrace sections 182A, 183 and 184 of Act 29, which come under chapter 1 of Part IV of the Code and deals with offences against the safety of the State. Leading counsel for the fourth accused, Prof Ofosu-Amaah in the main associated himself with the submissions of Nana Akufo-Addo.

The answer to counsel’s submission in respect of sections 182A, 183 and 184 of Act 29 is very simple. Our jurisdiction is being invoked under article 130(2) of the Constitution, 1992 which permits us to determine only issues relating to matters or questions arising in any proceedings in any court, other than this court, involving the interpretation or enforcement of the Constitution, 1992 or a consideration whether an enactment is inconsistent with the Constitution or not. Admittedly, sections 182A, 183 and 184 of Act 29 are not featuring in the proceedings before the circuit court. They are wholly irrelevant to the

[p.553] of [1997-98] 1 GLR 515 prosecution of the accused before the said court in view of the nature of the charges preferred against them.

Therefore, to offer an opinion in respect of these sections will, in my view, be a sheer dissipation of valuable time since we are not permitted to offer advisory opinion. If it were not so, we could as well proceed, within the context of the reference, to scan the whole of Act 29 and determine which sections we consider to be unconstitutional. Our own decision in Bilson v Attorney-General [1993-94] 1 GLR 104, SC forbids us from such a venture. In the Bilson case (supra), Adade JSC said at 108: “On the pleadings as they now stand, any declaration one makes will be an empty declaration, a declaration in a vacuum.

Ours is to interpret the Constitution, 1992 in the context of disputes . . . Ours is not to tender advice to prospective litigants; that is the role of solicitors in private practice.”

In that case I pointed out on the same issue at 110 that:

“Although it may be right to say that there is no law which inhibits the jurisdiction of this court in matters involving the interpretation of the Constitution, 1992, I think it will be worthwhile applying the concept of judicial self-governance or self-restraint in such matters.

The judicial authority of which this court is the beneficiary or endowed with is essentially a jurisdiction to deal with real or substantial disputes which affect the legal rights or obligations of parties who appear before us, and whose interests are adverse to each other. These competing interests will necessarily call for specific reliefs through conclusive and certain judicial decree or decrees. In these circumstances the matter could be said to be justiciable and not otherwise. The principle of justiciability precludes us from giving advisory opinions based on hypothetical facts which are not part of an existing controversy.”

I will therefore restrict the present exercise to a consideration of section 185 of Act 29 only. This is what the section states:

[p.554] of [1997-98] 1 GLR 515

“185. (1) Whoever communicates to any other person, whether by word of mouth or in writing or by any other means, any false statement or report which is likely to injure the credit or reputation of Ghana or the Government and which he knows or has reason to believe is false, shall be guilty of a second degree felony.

(2) This section does not apply to any statement which is absolutely privileged under section 117.

(3) It is no defence to a charge under this section that the person charged did not know or did not have reason to believe that the statement or report was false unless he proves that, before he communicated the statement or report, he took reasonable measures to verify the accrancy9(9)[sic] of the statement or report (4) A citizen of Ghana may be tried and punished for an offence under this section whether committed in or outside Ghana.”

Subsection 1 of section 185 of Act 29 is the offence creating section but it appears it is the whole of section 185 that is being attacked as unconstitutional. This is only proper since subsection 1 is the stratum on which the other subsections can be said to rest. Therefore they either all stand together or fall together. Section 185 of Act 29 is said to be in direct conflict with articles 21(1)(a) and 162(1) and (4)) of the Constitution, 1992. Article 21(1)(a) of the Constitution, 1992 guarantees freedom of speech and expression to all individuals in these words: “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.” This freedom is however not absolute and its enjoyment is subject to respect for the rights and freedoms of others and for the public interest. So in article 12(2) of the Constitution, 1992 it is provided that “every person in Ghana . . . shall be entitled to the fundamental human rights and freedoms of the individual . . . subject to respect for the rights and freedoms of others and for the public interest.” This is a general caveat placed on the enjoyment by the individual of his fundamental rights and freedoms. And I think it is only this limitation which should guide us to determine

[p.555] of [1997-98] 1 GLR 515 whether section 185 of Act 29 is consistent with article 21(1)(a) of the Constitution, 1992 or not.

It is also contended that section 185 of Act 29 is inconsistent with or in contravention of article 162(1) and (4) of the Constitution, 1992 which guarantees the freedom and of the media in these words:

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

(4) Editors and publishers of newspapers and other institution 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.”

The cumulative effect of articles 21(1)(a) and 162(1) and (4) of the Constitution, 1992, submits learned counsel, is that the citizen is given the fullest latitude to enjoy the freedom of speech and expression in the country, and that the only constitutionally permissible limits to the enjoyment of the right to free speech are those laws which are reasonably required to ensure respect for the reputations and rights of others and the public interest. Counsel further submitted that the effect of section 185 of Act 29 is to criminalise “any comment, oral or otherwise, even between spouses, even in classrooms, made even beyond the boarders10(10)[sic] of Ghana, which contains allegedly a false statement or report likely to injure the reputation of the Government.” Such a law, submits counsel, has the potential of suppressing a wide range of free speech and cannot be described as a law which is reasonbly11(11)[sic] required within the intendment of the Constitution, 1992 or the limitations stipulated in the Constitution, 1992 itself. To meet such a test, the law must not only be within the specific limitations indicated by the Constitution but “must also meet the test of being reasonably justifiable in terms of the spirit of the Constitution, 1992 and the needs of a democratic society”, concludes learned counsel for the accused person.

The learned Deputy Attorney-General on the other hand, while conceding that section 185 of Act 29 is indeed a curtailment of the freedom of speech and expression guaranteed under article

[p.556] of [1997-98] 1 GLR 515

21(1)(1) of the Constitution, 1992, however urged upon us that the law under consideration falls within the limitations imposed under article 12(2) of the Constitution, 1992 which states that every person in Ghana shall be entitled to the fundamental human rights and freedoms of the individual but subject to respect for the rights and freedoms of others and for the public interest. And in respect of the freedom and independence of the media guaranteed under article 162(1) of the Constitution, 1992 and secured in article 162(2) and (4), he contended that these are subject to article 164 which provides thus:

“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.”

It may hereby be useful to undertake a comparative study of American jurisprudence. The First Amendment to the American Constitution which guarantees freedom of expression and the media is couched in absolute or peremptory terms thus: “Congress shall make no law . . . abridging the freedom of speech or the press.” Because of the language employed in the First Amendment, it has posed problems to the United States courts as to the scope of the concerns protected by it. Unlike our Constitution, 1992 the United States Constitution itself imposes no limitations and this has led to two diametrically opposed judicial positions in respect of the scope and concerns of the First Amendment. While one school of thought holds the position that the rights guaranteed can, in view of the peremptory language used, claim “absoluteness”, another school holds the opposite view—that is, the “balancing” of First Amendment concerns against competing concerns or interests of society as a whole. So that in most First Amendment adjudications the consideration is whether the First Amendment rights are “absolute” or whether its interpretation requires the “balancing” with competing societal interests. The leading protagonist of the former viewpoint has been Justice Black, while Justices Harlan, Powell and Frankfurter are sympathetic to the [p.557] of [1997-98] 1 GLR 515

“balancing” concept. There was a clash of the titans in the case of Konigsberg v State Bar of California, 366 US 36 (1961).

Under California law, an intended legal practitioner has to be certified to the State Supreme Court by the California Committee of Bar Examiners for admission to practice. In hearings before the said committee the petitioner, Mr Konigsberg, refused to answer questions relating to his membership of the Communist Party, not on the ground of possible self-incrimination, but on the ground that such inquiries were beyond the purview of the committee’s work and infringed his rights of free thought, association and expression guaranteed him under both State and Federal Constitutions. The committee declined to certify Mr Konigsberg as qualified for admission to the bar on grounds that his refusal impeded the committee’s investigations into his qualification. The California Supreme Court denied him admission. On an application to the United States Supreme Court for an order of certiorari, it was held that the applicant was not privileged to refuse to answer questions concerning his membership of the Communist Party on the ground that they impinged upon his rights of free speech and association. Mr Justice Harlan in his majority opinion said at at12(12)[sic] 49-51:

“At the outset we reject the view that freedom of speech and Association . . . as protected by the First and Fourteenth Amendments, are ‘absolutes,’ . . . Throughout its history this Court has consistently recognized at least two ways in which constitutionally protected freedom of speech is narrower than an unlimited license to talk. On the one hand, certain forms of speech, or speech in certain contexts, has been considered outside the scope of constitutional protection . . . On the other hand, general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendments forbade Congress or the States to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interests involved.”

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Justice Black in his dissenting opinion has this to say about the “balancing” test espoused by the majority at 61:

“ . . . I do not subscribed to that doctrine for believe I that the First Amendment’s unequivocal command that there shall be no abridgment of the rights of free speech and assembly shows that the men who drafted our Bill of Rights did all the ‘balancing’ that was to be done . . .”

Justice Black, with whom the Chief Justice and Justice Douglas concurred, gave as his reason the fact that “the creation of ‘tests’ by which speech is left unprotected under certain circumstances is a standing invitation to abridge it.”

There are certain basic assumptions in the reasoning of Justice Black which are highly questionable. The first is the assertion that the drafters of the Bill of Right “did all the ‘balancing’ that was to be done.” It implies that the drafters were clairvoyant enough to have anticipated every conceivable situation before indulging in the so-called “balancing” of individual rights against the legitimate interests of society. Especially when one realises that the American Constitution is not detailed and creates no exceptions, and is in broad outline only. The original Constitution consisted of eight articles only; and up to 1971 there had been only 26 amendments. Most of the amendments are also noted for their crispness and economy with detail.

My next observation, is about the assertion that the balancing concept “is a standing invitation” for the abridgment of the freedoms which are the concern of the First Amendment. The underlying assumption in this argument is that, society as a whole cannot have any legitimate interests which an unrestrained assertion of the right of free speech can undermine or subvert. The denial of the balancing doctrine will place the individual outside society and make an island of him. But, no man is an island; and alone a man cannot stand and for that matter has no chance. There is the need for a meeting point between individual and societal rights for harmony. For while an unbridled insistence on, and enforcement of personal rights have the grave potential of leading to anarchy, so also has a similar insistence and enforcement of

[p.559] of [1997-98] 1 GLR 515 societal rights the potential of undermining the democratic values of a society.

The fear of Justice Black that the creation of tests by which “speech is left unprotected under certain circumstances” will be a constant invitation for its abridgment, is not real and has so far proved unfounded. And also his assertion that America’s “Security and tranquility can best be served by giving the First Amendment the same broad construction that all Bill of Right guarantees deserve” is not justified by events in that society either. Justice Black, obviously the leading protagonist of absolute free speech, betrayed his dilemma when he was stating what he considered to be the issue in the Konigsberg case at 66-67:

“[T]he only issue presently before us is whether speech that must be well within the protection of the Amendment should be given complete protection or whether it is entitled only to such as is consistent in the minds of a majority of this Court with whatsoever interest the Government is asserting to justify its abridgment.”

In my opinion, there is a veiled ambivalence towards the balancing concept because of the implied admission that there may very well be some types of speech that must be well outside the protection of the First Amendment. This is the type of speech that can be described as intrinsically evil and injurious to the rights of others and the interests of society as a whole. This category of interests should be the legitimate concern of, and be asserted by a government in any democratic society. It is submitted that the main justification for the “balancing concept” is that it is not intended to directly control free speech, but rather to protect from evil and injurious consequences those interests which are lawfully within the sphere of governmental concern in any democratic society. So “balancing” per se is not bad since it is the very essence of any judicial proceeding or process. It is the nexus between abstract law and real life. And judges do not deal in abstract situations or metaphysics in the courts but apply the law to factual situations. More importantly, in this jurisdiction we cannot do away with this concept since our Constitution, 1992 in articles 12(2) and 164 imposes on the courts the duty to “balance”

[p.560] of [1997-98] 1 GLR 515 individual rights and the freedom of the press against the legitimate interests of society; that is, interests which should be the concern of a government in a free society. I can therefore say, without any fear of contradiction, that free speech and freedom of the press are not absolutes in this country and any claim to the contrary by any school of thought will, in my humble view, be pure legal heresy in view of our constitutional provisions, or a populist approach to an important constitutional issue.

The Report of the Committee of Experts (Constitution) On Proposals for a Draft Constitution of Ghana, a document which motivated and animated the Constitution, 1992 has a whole chapter on the “Freedom and Independence of the Media.” In discussing the content and benefits of a free and independent press the Report made this very important observation at para 186:

“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.) My lords, by section 19(1) of our Interpretation Act, 1960 (CA 4), we are entitled to use the above to aid us in interpreting the Constitution, 1992. It is important to note that the whole of chapter 12 of the Constitution, 1992 on the “Freedom and Independence of the Media”, is a complete replica of the committee’s proposals in chapter 6 of the Report. And the existing laws of sedition and criminal libel were within the committee’s contemplation when it made the proposals which were wholly adopted by the framers of the Constitution, 1992.

I have tried to point out that the controversy in the American Supreme Court about the right to free speech being “absolute” or there being the need to “balance” that right against the needs of society can only be described as needless and unfortunate. Especially, when Justice Black himself does not appear to support every freedom of speech assertion: see, for example, his views in Cohen v California, 402 US 15 (1971). In any case, within this jurisdiction since the Constitution, 1992 itself imposes certain

[p.561] of [1997-98] 1 GLR 515 limitations, in broad terms, on those rights, the only sensible thing the courts can, and must, do in such disputes is to “balance” the rights against laws which, in the words of the Constitution, “are reasonably required” to protect the rights of others and societal needs.

There is need for me, at this stage, to consider the philosophy or jurisprudential considerations which should direct this court in this matter. And I would like to recall a dictum of mine in the case of Republic v Independent Media Corporation of Ghana [1996-97] SCGLR 258 at 269 where I said: “. . . we must remember that our legal system is not a mono legal system but a dual one; and that we have our customary laws and traditions to take into account in fashioning our jurisprudence . . . we are also to be a13(13)[sic] guided in our decisions by the Directive Principles of State Policy enshrined in the Constitution. These principles, among others, touch on economic, social and cultural objectives of our people. The development of our jurisprudence must therefore spring, primarily, from the consciousness of our people.”

This may sound like adopting the theory of Von Savigny who said that the nature of any particular system of law was a reflection of the spirit of the people who evolved it. This was later to be characterised as the volksgeist. To Savigny, a nation is only a community of people linked together by historical, geographical and cultural affinities. The spirit of these people become manifest in customary rules or laws. In his view, law grows with the growth, and strengthens with the strength of the people, and finally dies away as the nation loses its nationality or cultural identity. This includes the submission that a people who ignore their customs, traditions and values, or subjugate them to those of others, stand the risk of losing their identity as a people.

This theory assumes greater significance and relevance in our situation when one realises that article 39(1) of the Constitution, 1992 enjoins the State “to encourage the integration of appropriate customary values into the fabric of national life” and article 39(2) of the Constitution, 1992 which requires that “The State shall ensure that appropriate customary and cultural values are adopted

[p.562] of [1997-98] 1 GLR 515 and developed as an integral part of the growing needs of the society as a whole …” More significantly, article 11 of the Constitution, 1992 makes customary law part of the laws of Ghana, and it is defined to mean rules of law which by custom are applicable to particular communities in Ghana. The emphasis is on “appropriate customary values” and “appropriate cultural values.” In addition to these provisions is article 34(1) of the Constitution, 1992 which enjoins every citizen and institution, including the judiciary, to be guided by the Directive Principles of State Policy in the interpretation and application of the Constitution and laws of Ghana. This is what the article says in relation to the judiciary: “34(1) The Directive Principles of State Policy contained in this Chapter shall guide . . . the Judiciary . . . in applying or interpreting this Constitution or any other law.”

The cumulative effect of these provisions and others I have already referred to, in respect of the customs, traditions and values of our people, in my humble opinion, is that the framers of the Constitution, 1992 have given us a unique opportunity to fashion our own jurisprudence which will serve our peculiar needs and aspirations as Ghanaians. We shall be doing a lot of disservice to our people if in developing our jurisprudence which should underpin the administration of justice in our country, we tend to ignore or relegate to the background our customs, traditions and values but rather opt for a slavish adherence to the unexamined jurisprudence and concepts from other countries. This view is underscored by the provisions of article 129(2) and (3) of the Constitution, 1992 which states:

“(2) The Supreme Court shall not be bound to follow the decisions of any other court.

(3) The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law.”

I am firmly of the view that we have to endeavour to develop our own jurisprudence, not neglecting our cultural values as a people. I am not an iconoclast who sees nothing good in the jurispru-

[p.563] of [1997-98] 1 GLR 515 dence of other countries. We have a peculiar Constitution which we are to interpret and apply; and this very Constitution, 1992 not only acknowledges the dual nature of our legal system by giving recognition to customary laws but also does give specific directions as to the factors we have to take into account in interpreting our laws and the Constitution. Some of these factors are appropriate customary and cultural values of our people.

The case of Republic v Owusu; Ex parte Anane, Supreme Court, Accra, 25 July 1995, unreported, is a classic example of the co-existence that can be fostered between our customs, values, and concepts from other jurisdictions, for example, the common law jurisdictions. The case involved proceedings in contempt. This court had earlier affirmed the judgment of the National House of Chiefs to the effect that the first applicant, Kwaku Anane, was from the Tafo royal Agona family and that his nomination, election and installation as Tafohene was valid. Despite this decision, the respondents proceeded to enstool a second Tafohene. The applicants cited them for contempt. It was urged on behalf of the respondents that since the court did not make any specific order prohibiting them from enstooling another Tafohene, they could do so without being in contempt; and that the judgment was a mere declaration of fact unsecured by an order of injunction. The argument was rejected on the ground that customary law does not permit two chiefs to be on the same stool and held them in contempt and committed them. The next case is the case of Ghana Bar Association v Attorney-General [1995-96] 1 GLR 598, SC where the court was faced with whether the concept of “political question”, a concept developed in America, was applicable in this jurisdiction. We overwhelmingly answered the question in the affirmative. The reason was that the “political question” doctrine was inherent in the concept of separation of powers which underpins our Constitution, 1992 just like the American Constitution.

Our Constitution, 1992 makes a distinction between the fundamental human rights guaranteed the individual in article 21 of chapter 5 and the freedom and independence guaranteed the media in article 162 of chapter 12. The limitations imposed on the media shall not inhibit the enjoyment of the rights guaranteed the individual in chapter 5. Article 165 of the Constitution, 1992 is the provision which achieves this. It states:

[p.564] of [1997-98] 1 GLR 515

“165. For the avoidance of doubt, the provisions of this Chapter shall not be taken to limit the enjoyment of any of the fundamental human rights and freedoms guaranteed under Chapter 5 of this Constitution.”

The significance of the above provision cannot be lost on anyone who is considering the limitations on the fundamental rights guaranteed the citizen in article 21(1)( a) and those on the freedom and independence of the media guaranteed under article 162 of the Constitution, 1992.

The only justification I can, therefore, find for article 165 is that in dealing with individual rights under chapter 5, the framers of the Constitution, 1992 have made detailed exceptions which are not considered a violation of the guaranteed rights. And to impose further limitations, in broad terms like article 164, will certainly erode or completely whittle down the guaranteed rights of the individual.

I will next consider the argument raised by Nana Akufo-Addo to the effect that in determining whether section 185 of Act 29 is unconstitutional or not, the court must not take into account the facts of the case, but only relate the law to the Constitution, 1992 and determine its validity. On the face of it, this argument is alluring and enchanting. How do facts assist in the interpretation and determination whether a law is constitutional or not, one may ask?

The first point to note is that there is a presumption in favour of validity when one is considering a legislation; even a law which imposes limitations on free speech is presumed valid till the proponent of invalidity or the assailant of the law shows otherwise. That is to say, that the interest which has been restricted by the law far outweighs that being asserted by the government. In this wise, there may be a statute which could be held to be invalid on its face because the law, in all its possible applications or ramifications, is unconstitutional. There is the other situation where the Supreme Court will hold that the law as applied to a particular fact situation is unconstitutional. The proponent of unconstitutionality or assailant of the law, in such a case, will be contending that the law as applied to him infringes his guaranteed

[p.565] of [1997-98] 1 GLR 515 rights. Such may be the contention when the statute involved is an existing law and the issue comes to the Supreme Court under article 130(2) of the Constitution, 1992: that is by way of a case stated or reference as in the instant case. In such a situation, the court cannot ignore the facts as the real issue will be whether the party’s rights will be impinged when the law is applied to the facts. I am buttressed in my view by the requirements of rule 54(2) of CI 13 when a case is stated for consideration of Supreme Court under article 130(2) of the Constitution, 1992.

Rule 54(2) of CI 13 provides:

“(2) A case stated pursuant to the provisions of the preceding subrule shall contain:

(a) a summary of facts of the action before the Court below or the person or the authority from which the reference is made;

(b) the issues involved in the matter before the Court below or that person or authority;

(c) the matter or question referred for determination by the Court;

(d) any findings of fact relevant to the matter or question referred to the Court;

(e) the arguments of counsel, if any;

(f) the ruling of the Court below or that person or authority; and (g) a statement by the court below that the determination of the constitutional matter or question is necessary to a decision of the action, where the reference is made pursuant to the provisions of clause (2) of article 106 of the Constitution.”

Article 106 of the Constitution, 1979 is in pari materia with article 130 of the Constitution, 1992. There must be a good reason for subrule (2)(a) and (d) of CI 13 requiring that the summary of facts or findings of fact be stated in the reference.

As I have already stated, in reference cases the real contention by the party who asks for the reference, or claims in the course of a trial, be it civil or criminal, that a particular law is unconstitutional is that the law as is being applied to him, on the facts,

[p.566] of [1997-98] 1 GLR 515 infringes a guaranteed right of his. So that the real contention of the accused persons in this reference is that the criminal libel law infringes their freedom of speech and press freedom as guaranteed them; and that they are entitled to publish what they did. As pointed out earlier, this court does not deal in metaphysics or apply the law in the abstract but to concrete situations in life. I am not sure whether any judicial decision can be made not based on some facts. Any argument that if we take the facts into account in deciding the issue of constitutionality we thereby shall have decided the case for the court below, is not appreciative of what reference under article 130(2) of the Constitution, 1992 really entails.

It is necessary at this stage to consider the type of law we are dealing with in this matter. The accused persons are contending that section 185 of Act 29 which exists before the coming into force of the Constitution, 1992 abridges their right of free speech in view of article 21(1)(a) and article 162 of the Constitution, 1992. What is the existing law then? Article 11(4) of the Constitution, 1992 provides as follow:

“11. (4) The existing law shall, except as otherwise provided in clause (1) of this article, comprise the written and unwritten laws of Ghana as they existed immediately before the coming into force of this Constitution, and any Act, Decree, Law or statutory instrument issued or made before that date, which is to come into force on or after that date.”

Thus section 185 of Act 29 is an existing law which forms part of the laws of Ghana as stated in article 11(1) of the Constitution, 1992. And article 11(5) of the Constitution, 1992 makes it clear that “the existing law shall not be affected by the coming into force of this Constitution.” The implication is that section 185 shall not be affected by the Constitution, 1992. What then must be done with this section? Article 11(6) of the Constitution, 1992 provides the answer. Under this clause, section 185 of Act 29, “shall be construed with any modifications, adaptations, qualifications and exceptions necessary to bring it into

[p.567] of [1997-98] 1 GLR 515 conformity with the provisions of this Constitution, or otherwise to give effect to, or enable effect to be given to, any changes effected by this Constitution.”

In his comments on a similar provision in the Constitution, 1992 Justice Amua-Sekyi in his book, The Second Republican Constitution of Ghana at p 129, para 214 said: “The existing law comprises the written and unwritten laws of Ghana . . . The coming into force of the Constitution does not make any part of the existing law unconstitutional . . .” He then proceeded to indicate what must be done to an existing law and proceeded on the lines indicated in article 11(6) of the Constitution, 1992 since there was a provision in pari materia in the Constitution, 1969.

The question therefore is whether any changes has been made by the Constitution, 1992 to which we must give effect? I do not think so. Because the Constitution, 1992 places limitations on the freedom of speech and of the press and allows for laws that are reasonably required for the protection of the rights of other persons and in the public interest and subjects the freedom of the press to laws that are reasonably required in the interest of national security, public order, public morality etc. And as pointed out earlier in this judgment, the proposal of the committee of experts which is the blue-print for chapter 12 of the Constitution, 1992 on the ‘Freedom and Independence of the Media”14(14)[sic], recognises the need for freedom of the press and expression to be “limited . . . by practical considerations of space and time, and by existing laws of sedition, criminal libel and those protecting privacy.”

I will next deal with the contention that article 162(4) of the Constitution, 1992 insulates editors and publishers from criminal prosecution for libel. For the sake of emphasis I will quote the said article 162(4) again:

“(4) Editors and publishers of newspapers and other institutions of 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.”

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The above provision is often plucked out of context, interpreted and relied upon as a constitutional provision which insulates the press from judicial proceedings like contempt and criminal libel. This certainly is a wild claim to make since the Constitution, 1992 itself provides in article 17(1) that “All persons shall be equal before the law.” And journalists as a group of people most prone to commit criminal libel cannot be placed outside the reach of a law intended to check such a conduct while the ordinary citizen is subject to such a law.

So that, to interpret the Constitution, 1992 in such a way as to put journalists above the law would be a violation of article 17(1) and (2) of the Constitution, 1992 which stipulate that everybody shall be equal before the law, and that nobody shall be discriminated against on grounds of social standing. And to interpret the Constitution, 1992 in a way which will achieve a result which will breach another provision will be very absurd. And the canons of interpretation do not permit me to do this. Moreover the committee of experts’ report clearly shows that the provision is intended to secure for the journalist protection from the executive. The said report in paragraph 190 states:

“[T]he major purpose of setting up the Media Commission is to insulate the press from direct political control and interference so that public sector editors and reporters can discharge their democratic duty of objectively informing the people and acting as constructive critics of government policies and activities without fear of reprisals and victimisation from the government in power.”

(The emphasis is mine.) Clearly, article 162 (4) of the Constitution, 1992 is intended to prevent re-emergence of cases like the “Cameron Duodou case.” This was a case in which Mr Cameron Duodou was removed by the executive as editor of the Daily Graphic, a publicly owned newspaper, because the paper took issue with the then government on its foreign policy of dialogue with South Africa. Unless, of course, one is prepared to submit that the judiciary and the executives are fused by the Constitution, 1992 one cannot meaningfully say that article 162(4)

[p.569] of [1997-98] 1 GLR 515 applies to judicial proceedings as well. The committee puts this beyond doubt in paragraph 191 of the Report:

“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.”

I would place emphasis on, and adopt every word as my own dictum.

More importantly, article 41 of the Constitution, 1992 deals with the duties of every citizen, including journalists, and recognises that rights have corresponding duties. Article 41 is one of the Directive Principles of State Policy which must guide the courts in interpreting the Constitution, 1992 and the laws of Ghana. It provides:

“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 . . .

(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 . . . “

The provision in article 41(a) above is particularly important or significant in the current exercise. This is not meant to diminish what, in my view, is the relevance of article 41(d) of the Constitution, 1992 also. As pointed out by P K Twumasi in his book, Criminal Law in Ghana, a sovereign state, like any individual person, has a good name of which, as an international personality, it must be jealous. The learned author then said at p 439:

“A false report or statement made about Ghana may be likely to injure the confidence which is reposed in her by creditor countries or countries which are minded to give her aid in

[p.570] of [1997-98] 1 GLR 515 any field of national development or those which are friendly with her. The same thing may apply to the Government. The former represents the whole country without regard to political party affiliation. It refers to the country as a whole, represented by its Head of State. The latter refers to that group of persons which has the political mandate to control the affairs of the country.”

Again, I adopt these words as my own.

It has been urged upon us that section 185 of Act 29 which prohibits false reporting likely to injure the reputation of the State is against the spirit of our Constitution, 1992. What then is the spirit of the Constitution, 1992? The committee of experts’ report states in paragraph 94 as follows: “[T]he Directive Principles of State Policy . . . may . . . be regarded as spelling out in broad strokes the spirit or conscience of the Constitution.” And the Directive Principles of State Policy enjoin the courts to interpret the Constitution, 1992 and the laws of this country taking into account our traditional values as a people. Our culture and custom abhor insulting the occupant of a stool (that is a chief); and such a conduct is taken to be disrespect for the stool itself, ipso facto, the State. This is reflected in the Akan saying: “Obi mfa ne nsa benkum nkyere opapa akurqaa kwan”; in Ewe it is, “Ame adeke metsoa miasi fia wode o”; and in Ga it is, “Moko moko ke ebeku etsoo etsemei awe.” This means that “no one uses his left finger to point to his hometown.” It is a saying which is known to every tribe in Ghana and demonstrates the cultural value of the people and the esteem in which they hold the State and its authority, and those who personify it. Therefore, a law enacted to protect the reputation and integrity of the modern state of Ghana cannot be against our values as a people and therefore against the spirit of our Constitution, 1992. Indeed, the Constitution, 1992 itself in article 41(a) imposes on every citizen the duty “to promote the prestige and good name of Ghana.” And, how in the face of this specific provision in article 41(a) of the Constitution, 1992 a claim can be made by the accused persons that section 185 of Act 29 which seeks to achieve just that, is against the spirit of the Constitution, 1992 not only surprises me but has devastated my judicial ego as well.

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We cannot deny the fact that by our long association with the British legal system, our thinking has been greatly influenced by their jurisprudence. It may be very simple, and very convenient to tag a law as a repressive colonial relic, if one does not seriously consider what may be the jurisprudential justifications of that law. Section 185 of Act 29 is likely to suffer this fate and be categorised as a law used by our colonial masters to suppress our aspirations by muzzling the press. It is stated elsewhere in this opinion that customary law protects the integrity of the State and its servants. And there are customary sanctions for its violation. This is no different from the law of sedition and seditious libel in Britain which protects the Crown or government. This law prohibits practices, whether by word, deed or writing, which falls short of high treason, calculated to excite discontent or disaffection among the sovereign’s subjects, or to bring into hatred or contempt the sovereign or government. The first legislation in this direction in the country was the Criminal Code, Cap 9 which came into force on 31 October 1892. Section 345 thereof provided thus:

“345. Whoever with intent to bring Her Majesty into hatred, contempt, or ridicule, published any defamatory or insulting matter, whether by writing, print, word of mouth, or in any other manner, concerning Her Majesty, is guilty of a misdeamemour15(15) [sic].” .

Cap 9 was later amended by inserting, immediately after section 345, section 345A. This was achieved through the Criminal Code (Amendment) Ordinance, 1952. The effective date of commencement was 6 March 1957. The new insertion created the offence of “insulting the national flag”. This was intended to take care of the new flag after independence. On our attainment of a Republican status the Criminal Code was further amended by adding section 345B after section 345A. The law which achieved this, the Offences against the State (False Report) Act, 1959 provided:

“345B.(1) Whoever communicates to any other person, whether by word of mouth or in writing or by any other means, any false statement or report which is likely to injure the credit or reputation of Ghana or the Government [p.572] of [1997-98] 1 GLR 515 of Ghana, and which he knows or has reason to believe is false, shall be liable to imprisonment for a term of not more that fifteen years.”

Subsection 2 gave three circumstances in which the above provision will be applicable. Subsections 3 and 4 are in pari materia with subsections 3 and 4 of section 185 of Act 29 so I need not quote them. Later, the Constitution (Consequential Provisions) Act, 1960 was passed which removed from Cap 9, section 345 which related to the occupant of the British Crown.

The First Republican Parliament then passed an Act to consolidate and amend the law relating to criminal offences in Ghana. This is Act 29. Section 345B of Cap 9 was reenacted in section 185 of Act 29. I can see nothing in these provisions than an attempt to extend to the modern state and government our customary protection to the stool, its occupant and the whole oman or duko or the State. This accords perfectly with our cultural values and cannot be said to be against the spirit of the Constitution, 1992 and this consideration must guide us in interpreting section 185 of Act 29.

Next, is the issue of section 185 being against the letter of the Constitution, namely articles 21(1)(a) and 162 of the Constitution, 1992. It has been pointed out that the right which is the concern of article 21(1)( a) is subject only to the “respect for the rights and freedoms of others and for the public interest.” That which is the concern of article 162 is subject to “laws that are reasonably required” in the interest of national security, public order etc. What tests must be applied to justify a law which is said to impinge the freedom of speech? In the case of Fattal v Minister for Internal Affairs [1981] GLR 104, SC Archer JSC (as he then was) remarked that it is no business of the court to strike down a law simply because it is unreasonable. This is what he said at 117:

“Although S.M.C.D. 172 may be unjust, unreasonable and even autocratic, yet it is not within the province of this court to strike it down merely because it is an unjust or unreasonable law. The days when courts of law could embark upon such an exercise are over.”

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Archer JSC (as he then was) said that before the seventeenth century it was possible for the judges, most of whom were clerics, to condemn Acts of Parliament as unjust, contrary to good reason and divine law. He cited the case of Benham (1610) 8 Co Rep 13 (b) at 18 (a) where Sir Edward Coke said that an Act of Parliament that is repugnant or against common right and reason must be void. Coke did not cite any authority for his views but was probably echoing the judicial sentiments of the period. But Blackstone, an adherent of divine law, was to admit later that the courts had no right to upset Acts of Parliament otherwise the judicial power would be subversive of all governments.

But our Constitution, 1992 requires that laws which restrict the freedom of the press must be “reasonably required” in the interest of certain societal concerns or be declared unconstitutional and therefore void. This imposes on the courts the need to develop the test of “reasonableness.” Although I have prefaced this ruling with a quotation from the Bible, I must not be taken as advocating divine considerations as our test for the “reasonableness” or otherwise of any law which may impinge upon the freedom of the press. Should the test then be that of the reasonable man in the street like in negligence cases? It will be too simplistic an approach since this test is almost always based on behaviour in a certain factual situation. The test of “reasonableness” in this context may possibly be related to the right being asserted by the individual as against that being asserted by the law.

The first consideration, in my view, is to first answer the question: Is the law being impeached, on its face and in all its applications, a complete curtailment of the right being asserted, such as the freedom of speech? If the answer is in the negative, then that may terminate the issue of unconstitutionality; if it is answered in the affirmative, then the next question must be asked: is the law reasonably required to protect the interest being asserted by the government?

This pitches the interest being asserted against the right being impinged. It is most important that the values that must guide our interpretation of articles 21(1)(a) and 162 of the Constitution, 1992 and still justify the primacy of free speech in our society, must go beyond our immediate past or history. These values must be discerned from answers to another question rooted in

[p.574] of [1997-98] 1 GLR 515 philosophy: What are the values and functions of free speech in a given society? In other words what are the philosophical justifications for free speech? These may be broadly stated as: first, the values which place emphasis on the individual; that is to say, the consideration that the freedom of speech gives the individual self-expression and self-realisation or fulfilment. Secondly, the consideration which places premium on the value of free speech to a representative government or democracy. And as a collorary to both, is the assertion that free speech enhances the search for knowledge and truth in the free “marketplace of ideas.”

Judicial efforts have been made in other jurisdictions to articulate the values and functions of speech and yet the courts in those jurisdictions are still divided on what is or is not the legitimate exercise of the right of free speech. Some advocate greater protection for political speeches than for non-political speeches. But the “balancing” concept appears to favour a case by case approach. And from the nature of our constitutional provisions we have to adopt the “balancing” concept in resolving disputes in such matters unless the law is intrinsically or inherently and manifestly inconsistent with a provision of the Constitution, 1992.

I am not to be taken to be advocating for the judges a wide latitude for enforcing own prejudices since the Constitution, 1992 enjoins them to consider rather the values of the people. Whatever , test we find suitable to develop in solving such disputes, we must always remember that our country is frail and our democracy is young, fragile and vulnerable. We must also remember that our Constitution, 1992 is drafted in such a way that it does not exalt or elevate individual liberty above legitimate concerns of the society which may be peculiar to us. Also, it is not to be taken that I am saying the individual has no inalienable right to speak; that he has, cannot be controverted. What, however, I can be taken as saying is that the individual has no inalienable right to libel another person or the government.

Much has been said about the word “communicate” as used in section 185 of Act 29. It is said to be too wide a word to use and makes the law applicable to almost every conceivable situation thereby eroding the individual’s right to free speech; that is section 185 of Act 29 is an overbroad section. As counsel for the accused

[p.575] of [1997-98] 1 GLR 515 persons put it, the section criminalises even conversation between husband and wife; even conversation in the classroom. To this school of thought on the overbroadness of section 185 of Act 29, if the word “publish” had been used instead, the section would have been acceptable. This view presupposes that the constitutionality of a law depends solely on how wide the nest is cast. On this criteria alone a lot of laws can be declared unconstitutional in this jurisdiction. The evil the law is intended to prevent may be a more acceptable consideration which may not be ignored. The essential elements or ingredients of the offence may also be relevant. However, it must be pointed out that before the argument relating to the overbroadness of section 185 of Act 29 can be sustained, the said section must be shown to be unconstitutionally vague and indefinite both in form, and as interpreted. So that the scope of its language will clearly include for sanction conduct that is properly within the freedom of speech and expression guaranteed by the Constitution, 1992. In this regard, therefore, the definition of the offence, that is, the ingredients of the offence assume importance and relevance. I will return to this aspect later but will now deal with the scope of section 185 of Act 29 in view of the word “communicate” as used in the said section.

The word “publication” in law is not a term of art. It may mean different things depending on what branch of law one is considering. But the word “publication” generally means to make public something, or offering it to public notice or rendering it accessible to public scrutiny. And as descriptive of publication of laws and Ordinances, “publication” means printing or otherwise reproducing copies of the law and distributing them in such a manner as to make their contents easily accessible to the public. In the law of wills, it means a formal declaration made by a testator at the time of signing his will that it is his last will and testament. In copyright law, it means the act of making public a book, writing, etc and offering or communicating it to the public by sale or distributing of copies. And in the law of libel, “publication” simply means communicating a defamatory matter to one or more persons about another in a permanent form. I do not therefore see any problem with the word “communicates” as used in section 185 of Act 29 since we are dealing with the law of libel. The section if interpreted, only means that whoever “publishes” to any other

[p.576] of [1997-98] 1 GLR 515 person any false statement or report, which is likely to injure the credit or reputation of the government, and which he knows or has reason to believe is false, shall be guilty of second degree felony.

We may have to make a distinction between a “mere untruth” which is not punishable, and a “criminal untruth” which is punishable. The word “false” as used in the section, to me, applies to the later16(16)[sic]. Criminal untruth is a deliberate or malicious “falsehood.” In the case of R v Harvery (0000) 2 B & C 257, the accused were charged with publishing a false report which imputed that His Majesty laboured under mental insanity. Bayley J said 263:

“It is conceded, that to state falsely of His Majesty that which is stated in this publication is libel . . . I am of opinion that falsely making that assertion was evidence that the party made it maliciously. A distinction has to be made between an untrue and false assertion, and it has been argued, that if a party assert a particular fact, believing that the fact exists when it does not, although that be an untrue assertion, yet there is no criminality in it; but that if he asserts that which he knows to be untrue, that is a criminal untruth or falsehood. Assuming that that is a well-founded distinction, I think that if a party knowing a fact not to be true, or not having the means of knowing whether it be true or not, takes upon himself to assert that it is so, then he makes a false assertion, or is guilty of a criminal untruth, if it turns out that his assertion is unfounded. In the one case the criminality consists in asserting that which he knows not to be true; in the other he is making an assertion unwarrantably, when he does not know whether it be true or not.”

The above approach will seem to suggest that the “reasonableness” of a law as required by article 164 of the Constitution, 1992 can be ascertained from the ingredients which constitute the crime charged. For example, the specific mens rea required by section 185 of Act 29. For, where a statute fully defines a crime and a specific mens rea is required, as is the case with section 185 of Act 29, nothing amounts to that offence unless the specific intent is proved to exist. So that even if the ingredients of the

[p.577] of [1997-98] 1 GLR 515 offence should be an important consideration, I do not think that section 185 of Act 29 prevents a candid and free discussion of any public matter which is the right of every citizen. It only means that any person may criticize, either by word or by writing, the servants of the State, or the government, freely and liberally without malicious motives and the person must avoid defamation. This is a requirement which any democratically minded journalist, who does not consider himself a crusader who should be above the law, can meet.

Although I did say at the outset that I will not be considering the constitutionality of sections 182A, 183 and 184 of Act 29 because they are not relevant to our decision, I would like to make a comment on the claim that section 184 of Act 29 is also unconstitutional and thereby demonstrate a certain mentality by a section of the press. Also, I intend to consider it if only to demonstrate the absurdity of such a claim, and others this court had had to deal with only to incur undeserved vituperations in the press. The section creates the offence of “insulting the national flag and emblem”. It provides:

“184. Whoever does any act or utters any words or publishes any writing with intent to insult or bring into contempt or ridicule the official national flag or emblem of Ghana or any representation or pictorial reproduction thereof is guilty of misdemeanour.”

My Lords, I am baffled, to put it mildly, at the claim of unconstitutionality against the above provision by the accused persons in the face of a specific provision in article 41(a) of the Constitution, 1992 imposing a duty on every citizen, without exception, not only to promote the prestige and good name of Ghana but also to “respect the symbols of the nation.” In my view, such a claim, in the face of article 41(a) of the Constitution, 1992 is a legal heresy rather than having a docile or timorous judiciary which is unwilling or afraid to protect the ordinary man.

The limitations imposed on the freedom and independence of the press by the framers of the Constitution, 1992, may be due to a realisation that the journalist wields enormous powers in shaping public opinion and attitude. This means that society should

[p.578] of [1997-98] 1 GLR 515 demand of him the highest standard in the pursuit of his profession. That is to say, our journalist must be only a messenger of truth and objectivity. He must mirror that which is best in journalism and not operate on the principle of “give a dog a bad name and hang it.” I have always thought that the ethics of his profession enjoins the journalist to check and cross-check his facts before he comes out. This is the irreducible minimum standard of behaviour our society can expect of its journalist. Because deliberate falsehood can set fire to the minds of a gullible, ignorant and unsuspecting public just as eloquence can set fire to reason. Terrorism of the press is as inimical to democracy as a dictatorial tendency is. Democracy needs protection from the irresponsible pressman. In the case of Gitlow v New York, 268 US 652 at 666 (1925), Justice Sanford observed:

“It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak and publish, without responsibility, whatever one may chose17(17)[sic].”

I cannot conclude this ruling without giving the last word to the oldest newspaper on our newstand. The editorial of the Daily Graphic of 20 December 1996 (No 14322) said:

“While all journalists and indeed all democratically-minded people must cherish press freedom because it nourishes democracy and helps guarantee the liberty of the individual, sight must never be lost that such freedom is not an open licence to say and do anything to anybody at any time with impunity. Press freedom carries with it a very important responsibility or obligation to pursue the cause of truth, objectivity and fairness so that the media practitioner at the end of the day, does not misuse the freedom offered to trample upon the rights and liberties of others or even to engage in the propagation of falsehood and diabolical acts that endanger the peace, order and stability of the state.”

I do not think that section 185 of Act 29 is an arbitrary, or irresponsible use of the police powers of the State which unrea-

[p.579] of [1997-98] 1 GLR 515 sonably impinges upon the freedom of speech or of the press as is being advocated by the accused persons. I will therefore urge that the law’s constitutionality be sustained and the court below directed to proceed in accordance with our decision.

JUDGMENT OF ADJABENG JSC.

The questions that call for answers in this reference are:

“(1) Whether or not section 185 of the Criminal Code, 1960 (Act 29) is inconsistent with and in contravention of the spirit and letter of the Constitution, 1992, particularly articles 21(1)(a) and 162(1) and (2), and therefore null, void and of no effect.

(2) Whether or not sections 182A, 183 and 184 of Act 29 are equally inconsistent with the spirit and letter of the Constitution, 1992.

(3) Whether or not the Circuit Court, Accra has jurisdiction to try the accused persons.”

Let me say at once that I agree with the submission that only the first and last questions quoted above are relevant in this reference. The second question which puts sections 182A, 183 and 184 of the Criminal Code, 1960 (Act 29) in issue is irrelevant in that these sections have nothing to do with the offences in issue or the proceedings in the court from which this reference emanates.

The facts giving rise to this reference are that the accused persons published in their newspapers some allegations imputing some serious criminal conduct to the Government of Ghana. The government, being of the view that these allegations were false and that the publications were likely to injure the credit or reputation of the government, arraigned them before the Circuit Court, Accra on charges under section 185(1) of Act 29. In the trial court, the accused persons through their counsel, objected to the jurisdiction of the court on the ground that the said section was unconstitutional as it was inconsistent with articles 21(1)(a) and 162(1) and (2) of our Constitution, 1992. The matter was accordingly referred to us by the trial court under article 130(2) of the Constitution, 1992.

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In this court, counsel for the accused persons filed elaborate submissions in support of their contention that the section in question is unconstitutional. The learned Deputy Attorney-General, representing the Republic, also filed submissions disputing the claim of the accused persons that the provision under which they have been charged is unconstitutional. To him, the section is constitutional in that it is justified under articles 12(2) and 164 of the Constitution, 1992.

What do these provisions in issue say? That is, section 185 Act 29 and articles 21(1)(a) and 162(1) and (2) of the Constitution, 1992. Section 185 of Act 29 provides as follows:

“185. (1) Whoever communicates to any other person, whether by word of mouth or in writing or by any other means, any false statement or report which is likely to injure the credit or reputation of Ghana or the Government and which he knows or has reason to believe is false shall be guilty of second degree felony.

(2) This section does not apply to any statement which is absolutely privileged under section 117.

(3) It is no defence to a charge under this section that the person charged did not know or did not have reason to believe the statement or report was false unless he proves that, before he communicated the statement or report, he took reasonable measures to verify the accuracy of the statement or report.

(4) A citizen of Ghana may be tried and punished for an offence under this section whether committed in or outside Ghana.”

Article 21(1)(a) 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.”

And article 162(1) and (2) of the Constitution also provide that

[p.581] of [1997-98] 1 GLR 515

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

(2) Subject to this Constitution and any other law not inconsistent with this Constitution, there shall be no censorship in Ghana.”

It is conceded by the learned Deputy Attorney-General rightly and commendably, in my view, that section 185 of Act 29 imposes restrictions on the enjoyment of the freedom of speech and expression guaranteed by article 21(1)(a) of the Constitution, and also on article 162 on the freedom of the press. I quote his submissions on these. In respect of article 21(1) (a) of the Constitution, 1992 he submits: “We acknowledge in all candour that section 185 of Act 29 imposes restrictions on the enjoyment of the freedom of speech and expression guaranteed by article 21(1)(a) of the Constitution, 1992. No prudent analysis can fail to bring this out. This is because the issue of the content of any speech or expression sought to be restricted has no place at this stage of the analysis. The plain and ordinary meaning of section 185 and article 21(1) (a) have to be looked at and nothing more.”

On article 162 of the Constitution, 1992 the learned Deputy Attorney-General submits: “For the reasons given in our submission on the first issue as to whether section 185 imposes a restriction on article 21(1)(a), we acknowledge that section 185 of Act 29 also imposes a restriction on article 162 (1) and (4) of the Constitution, 1992.”

The learned counsel for the Republic, however, submits that section 185 of Act 29 is a reasonably justifiable restriction under articles 12(2) and 164 of the Constitution, 1992 on the freedoms in issue, namely the freedoms of speech, expression, of the press and the media. Article 12(2) of the Constitution, 1992 provides that:

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“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.”

Article 164 of the Constitution, 1992 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.”

Both counsel for the accused persons, in their joint submissions, concede that laws that can be justified under those articles of the Constitution, 1992, ie articles 12(2) and 164 can be legitimate restrictions on the freedoms in question and would therefore be constitutional. In their written submissions, counsel for the accused persons write:

“It is our contention that the net effect of these provisions is that the only constitutionally sanctioned limits to the enjoyment of the right to free expression are those reasonably required to ensure respect for the reputations, rights and freedoms of other persons and for the public interest.”

Again, in their submissions, counsel for the accused persons submit as follows:

“To gain the merit of constitutionality therefore, section 185 of Act 29 must first be able to justify its existence under one of the different categories provided for in article 164 of the Constitution, 1992 as construed in conformity with article 12(2) of the Constitution, 1992.”

Counsel for the accused persons contended, however, that section 185 of Act 29 is not a reasonably justifiable provision as it does not “meet the test of being reasonably justifiable in terms of the

[p.583] of [1997-98] 1 GLR 515 spirit of the Constitution, 1992 and the needs of a democratic society.” In their view, the provision “represents an impermissible limitation on and, thus, violation of the freedom of expression.”

Again, counsel for the accused persons submit as follows:

“Clearly, then, the object of section 185 of Act 29 was one of punishment of false reports and statements likely to injure the reputation of the Government of Ghana. The most obvious targets of such law were the political opponents of the government of the day. Section 185 of Act 29 was and is clearly then an instrument of political suppression directed at protecting the reputation of the government of the day against its political opponents. Its objects and purpose were and are antithetical to the broad libertarian spirit which animates the Constitution of the Fourth Republic, a Constitution consciously tailored to serve the needs of a democratic society governed according to the rule of law and permitting the full flourishing of the fundamental human rights of its citizens.”

I must say at once that I cannot see how counsel for the accused persons can justify their assertion that section 185 of Act 29 was “an instrument of political suppression directed at protecting the reputation of the government of the day against its political opponents” when earlier, in their submissions counsel stated categorically that there was no prosecution in respect of this provision. Nor can such an assertion be justified in respect of the present government. Where is the evidence, or such a sweeping assertion? I think that one very serious mistake that people in this country make is to think and behave as if constitutional rule or democracy or freedom of speech or expression or of the press mean freedom to do whatever one likes. It is because of this kind of mentality that people can take the law into their own hands and attack others and even lynch them, as it has been happening, merely because they suspect these others of committing some wrong. It is a very sad reflection of the irresponsibility that is gradually becoming part of our society. This is especially sad because our Constitution, 1992 does not support such conduct or thinking. As counsel for the accused persons rightly stated in their

[p.584] of [1997-98] 1 GLR 515 submissions: “Is freedom of the press and other media then absolute, without any limitation? Certainly not. That would be an obvious recipe for social anarchy.”

It is clear from our Constitution, 1992 that the enjoyment of our fundamental human rights and freedoms is “subject to respect for the rights and freedoms of others and for the public interest”: see articles 12(2) and 164 of the Constitution, 1992 which have been quoted above. Also in article 41(a), (b), (c) and (d), of the Constitution, 1992 we find the following:

“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 doing acts detrimental to the welfare of other persons . . .”

Is it then, in the light of the foregoing, contrary to the letter and spirit of our Constitution, 1992 to have a law that seeks to punish false statements or reports made or published that are likely to injure the credit or reputation of Ghana or the government and which the maker or publisher knows or has reason to believe are false? I do not think that such a law would be inconsistent with the Constitution, 1992. In the first place, I have just quoted article 41(a) which mandatorily requires every citizen “to promote the prestige and good name of Ghana and respect the symbols of the nation.” Making or publishing false statements or reports about Ghana or her government, which are likely to injure the credit of the country or her government does not, in my view, promote the prestige and good name of the country. Secondly, making or publishing such statements or reports would be against the public interest. What is “public interest”? In article 295(1) of our Consti-

[p.585] of [1997-98] 1 GLR 515 tution, 1992 public interest is defined as follows: ‘‘‘public interest’ includes any right or advantages which enures or is intended to enure to the benefit generally of the whole of the people of Ghana.” Does the making of false statements or reports which are likely to injure the credit or reputation of Ghana or her government enure to the benefit generally of the whole of the people of Ghana? I do not think so.

It is clear that it is not just the making or publishing of a false statement or report that is sought to be made a criminal offence. It is the making of a false statement or report that is so serious that it is likely to injure the credit or reputation of the country or her government, and which the maker knows or has reason to believe is false. The questions that come to mind are these: Would it be in the interest of the people of this country as a whole to allow in this country this state of affairs where people can make or publish serious false statements or reports about the country or the government, statements which the maker knows or has reason to believe are false? What would such an exercise achieve? Would it not bring about confusion and thus endanger our young democracy? I do not think that anybody can doubt the possibility of a situation like this being “an obvious recipe for social anarchy” as counsel for the accused persons stated in their submissions. It would no doubt endanger our young democracy. I do not think that anyone in this country would want the country to go back to those days of unconstitutional rule in the history of this country. For the protection, preservation and sustenance of our young democracy, therefore, it is my candid opinion that such a provision as section 185 of Act 29 is reasonably required.

It is suggested in the submissions made by counsel for the accused persons that the provision is likely to prevent people from criticising the government. In other words, the provision would stifle criticism of the government. I do not see how this can be the case. The question that comes to mind is does the making of deliberate false statements mean criticism? Or does freedom of speech, expression, of the press and media mean the making of deliberate false statements or reports? I do not think so. Criticism, in my view, means bringing out the things which somebody or the government is doing, in fact, and which the critic thinks are bad and so should be corrected. Criticism does not mean telling lies

[p.586] of [1997-98] 1 GLR 515 about others or about the government. If democracy or freedom of expression means telling lies about others, then I do not think we need this type of democracy or freedom of expression in this country. I am relieved that our Constitution, 1992 does not allow that type of democracy or freedom of speech in this country.

I must say that am not alone in the views I hold in this respect.

In the case of Richards v Attorney-General of St Vincent and the Grenadines [1991] LRC (Const) 311 at 327, in a case similar to the matter before us, the court made the following pertinent pronouncements: “I cannot and will not go along with or sanction Dr. Gonsalves’ submission that ‘in this country a person has a constitutional right to utter deliberate falsehood’.

This bold and bald statement coming from Dr. Gonsalves without more could only have been made by him with some oblique gallery motive. It is forensic nonsense and coming from an officer of the court I find it to be an unfortunate, irresponsible and reckless statement.

Hector’s decision before the Privy Council referred to by Dr. Gonsalves does not support such an alarming proposition in the manner put by Dr. Gonsalves and there is no such right given to anyone in this state by the Constitution. That being the state of mind of Dr. Gonsalves, one can well understand his advice to the plaintiffs to challenge the constitutionality of s 64. The tendency in a democratic society to malign and/or recklessly to utter deliberate falsehood resulting in public or personal fear and/or alarm cannot and will not be sanctioned by this court and ought not to be sanctioned by any court.”

Earlier in the judgment at 318, the court, quoting Blackstone, said:

“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 [p.587] of [1997-98] 1 GLR 515 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 of his own temerity . . . But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundation of civil liberty’ (See 4 B1 Comm at 151-152).

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 had 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, Blackstone thought, punish a man for what he said after he had said it. This is entrenched in all democratic institutions of free peoples and the idea behind it all is there would be less abuse of governmental power if persons are free to speak in criticism of government and only made to undergo punishment for a distinct violation of the law. When the publication is in circulation for which punishment is sought to be inflicted, all the world can see whether the government is abusing its power and unjustly punishing a man merely for criticising or whether there is proper enforcement of the law.”

In conclusion, it is my view that section 185 of Act 29 is reasonably required in terms of articles 12(2) and 164 of our Constitution, 1992. Accordingly, the section is reasonably justifiable. I hold, therefore, that the provision is not inconsistent with the letter and spirit of the Constitution, 1992 and so the trial court has jurisdiction to hear the matter.

[p.588] of [1997-98] 1 GLR 515

JUDGMENT OF AMUAH JSC

This was a reference to the Supreme Court by way of case stated in accordance with rule 54 of the Supreme Court Rules, 1970 (CI 13) by his Honour Alhaji Nuhu Billa of the Circuit Court, Accra on Friday, 3 February 1996 under the provisions of article 130(2) of the Constitution, 1992. The questions asked in the reference were:

“(1) Whether or not section 185 of Act 29 is inconsistent with and in contravention of the spirit and letter of the Constitution, 1992, particularly articles 21(1)(a) and 162(1) and (2) and therefore null and void and of no effect.

(2) Whether or not sections 182A, 183 and 184 of Act 29 are equally inconsistent with the spirit and letter of the Constitution, 1992.

(3) Whether or not the circuit court has jurisdiction to try accused persons.”

Before attempting to answer the questions posed by the reference, I will trace the course which this case took before coming to this court. The four accused persons were jointly charged with the offence of: “Publishing false report which is likely to injure the reputation of the Government contrary to section 185 (1) of Act 29 [on four counts].” Brief facts of the case are contained in the ruling of the court which referred the matter to the Supreme Court. The facts are as follows:

“On 22 February 1996 when the case, the Republic v Tommy Thompson Books Ltd and Three Others, was called, leading counsel for the accused persons filed a notice of motion applying to raise preliminary legal objection to the constitutionality of section 185 of the Criminal Code, 1960 (Act 29) and consequently, the jurisdiction of the court to try the case. That the court should refer the constitutional issue to the Supreme Court for determination and lastly, stay proceedings in this court pending the determination of the reference by the Supreme Court . . . The Chief State Attorney replied that he had no objection to the issue being raised to the Supreme Court for determination.”

[p.589] of [1997-98] 1 GLR 515

The circuit judge being satisfied that the question of law raised related to an issue or matter referred to in article 130(1) of the Constitution, 1992 in respect of which the Supreme Court has “exclusive and original jurisdiction” exercised its power in accordance with article 130(2) of the Constitution, 1992 by staying proceedings in his court and referring the questions or issues involved to the Supreme Court for determination.

For easy reference I will set out the articles of the Constitution, 1992 and the sections of the Act 29 relevant to this case. 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. . .

(3) All citizens shall have the right and freedom to form or join political parties and to participate in political activities subject to such qualifications and laws as are necessary in a democratic society and are consistent with the Constitution.”

Article 162 of the Constitution, 1992 provides:

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

(2) Subject to the Constitution and any other law not inconsistent with this Constitution there shall be no censorship in Ghana.”

Article 164 of the Constitution, 1992 provides:

“164. 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 reputation rights and freedoms of other persons.”

Article 165 of the Constitution, 1992 provides:

[p.590] of [1997-98] 1 GLR 515

“165. For the avoidance of doubt, the provisions of this Chapter shall not be taken to limit the enjoyment of any of the fundamental human rights and freedoms guaranteed under Chapter 5 of this Constitution.”

Section 185 of Act 29, the impugned law, provides as follows:

“185. (1) Whoever communicates to any other person, whether by word or mouth or in writing or by any other means, any false statement or report which is likely to injure the credit or reputation of Ghana or the Government and which he knows or has reason to believe is false, shall be guilty of second degree felony . . .

(3) It is no defence to a charge under this section that the person charged did not know or did not have reason to believe that the statement or report was false unless he proves that, before he communicated the statement or report, he look reasonably18(18) [sic] measures to verify the accuracy of the statement or report.”.

Section 64(1) of the Criminal Code of St Vincent and the Grenadines, 1988, provides.

“(1) Any person who publishes any false statement, rumour or report which is likely to cause fear or alarm or to disturb the public peace, is guilty of an offence and liable to imprisonment for one year”

Section 10 of St Vincent Constitution, Order No S 916 of 979 provides:

“(1) Except with his own consent, a person shall not be hindered in the enjoyment of his Freedom of expression including freedom to hold opinions without interference, freedom to receive ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference of his correspondence.

[p.591] of [1997-98] 1 GLR 515

The Malaysian Act Printing Press and Publication Act, 1984, s 8A provides:

“8A (1) Where in any publication there is maliciously published any false news, the printer, publisher, editor . . . shall be guilty of an offence . . .

“Article 10 of the Malaysian Constitution provides:

“10. (1) (a) Every citizen has the right of freedom of speech and expression . . .

(2) Parliament may by law impose—

(a) on the right conferred by paragraph (a) of clause one such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative assembly or to provide against contempt of court, defamation or incitement to any offence.”

At this stage, I will first explore the legal position relating to the issues. Articles 21(1)(a) and 162(1) and (2) of the Constitution, 1992 confer on a citizen of Ghana the right of freedom of speech and expression. They do not end there. The right is not made absolute and that is in consonance with the view expressed by Robotham CJ in the case Attorney General of Antigua and Barbuda v Hector, 22 June 1987, Court of Appeal of the Eastern Caribbean Supreme Court (Antigua and Barbuda) unreported (Civil Appeal 5/1986 St. V CA) at 12 of the judgment where he said:

‘‘‘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, 26 US 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 is that a publisher has no more right to print what he pleases about a person than that person has to the protection of

[p.592] of [1997-98] 1 GLR 515 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.’’’

The Constitution, 1992 echoes this principle under article 12(2) and even though it does not hinder individuals from forming political parties and participating in them, it requires that (see article 21 (3)) the political activities must be subject to qualifications and laws as are necessary in a free democratice society and are consistent with the Constitution.

Article 164 of the Constitution, 1992, which must be read together with the two preceding articles, permits and authorises the imposition of restrictions on the rights conferred by them, where such restrictions are reasonably required in the interest of national security, public order, public morality and are designed to protect others against defamation. Both articles 21(1)(a) and 162 of the Constitution, 1992 make references to the press or news media. Article 165 of the Constitution, 1992 clearly provides that the enjoyment of any of the fundamental human rights and freedoms guaranteed under chapter 5 of the Constitution, 1992 shall not be taken to be limited. But as already discussed, the right conferred by articles 21(1)(a) and 162(1) of the Constitution, 1992 is not absolute.

It was argued before the court through submissions written and oral by learned counsel for the accused persons that:

“not only must the permissible legislation be thus confined to the specific limits set forth in the Constitution, it must also meet the test of being reasonably justifiable in terms of the spirit and letter of the Constitution and the needs of a democratic society. Section 185 of Act 29 does not meet any of these tests, it represents an impermissible limitation and thus in violation of freedom of expression.”

The section, no doubt, is part of the existing law: see article 11(4) of the Constitution, 1992. And by article 11(6) of the Constitution, 1992 it “shall be continued with modications19(19)sic and adaptations” to

[p.593] of [1997-98] 1 GLR 515 bring it into conformity with the Constitution. A person who publishes a false statement or report which is likely to injure the credit or reputation of Ghana or the Ghana Government and which he knows to be false commits an offence. I find that if the court had adopted this procedure and arrived at a form, the particulars of which were acceptable to both parties, the reference of the aforesaid issues to this court for determination would not have delayed the hearing of the case before the circuit tribunal. For a precedent, see Archibold, Criminal Pleading, Evidence and Practice (36th ed), p 1319.

I now come to the main issue. Section 185 of Act 29 no doubt imposes a restriction on the rights conferred on an individual in his enjoyment of freedom of speech and expression by articles 21(1)(a) and 162 (1) and (2) of the Constitution, 1992. By article 164 of the Constitution, 1992 which is similar to article 11(2) of the Constitution, 1992 laws passed under its authority (article 62 is to be read subject to article 164) must be 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.” In considering whether section 185 of Act 29 falls within article 164 of the Constitution, 1992, I would refer to what was said by Edgar Joseph JSC in Public Prosecutor v Pong Chen Choon [1994] 2 LRC (Const) 237, a Malaysian case, when faced with a similar argument: see headnote (3) which states:

“Section 8A (1) was intended to deal only with maliciously published false news. Publication of merely false news was not an offence, under section 8A (1). In considering whether 8A (1) fell within article 10(2) it was necessary to consider whether the objects of 8A (1) were sufficiently connected to the restrictions referred to in article 19(2). Such a connection had to be real and proximate not far-fetched or problematic and it sufficed that only some of the maliciously published news could, inter alia cause or incite acts or omissions which could lead to unrest and thereby threaten internal security, undermine Malaysia’s friendly relations with other countries, lead to disturbances in the community, damage the reputation of a Malaysian citizen so as to amount to defamation or incite the commission of an offence.

As section 8A(1)

[p.594] of [1997-98] 1 GLR 515 fell within each of the grounds of restriction permitted by article 10(2) it was consistent with article 10(1) and (2).”

I have considered the reasoning in the above mentioned case and I apply it to this case. Section 185 of Act 29 is meant to protect Ghana or the Ghana Government against defamation. If the false news is circulated between a man and his wife when there is no one around when they knew it to be false, then an offence is committed, but in this case they will escape prosecution because what they utter cannot be proved. On the other hand, if they utter this false news before others, then the problem will arise whether they verified the accuracy of the statement before uttering it. If they continue to utter it in the presence of others there will come a time when the security of the State will be threatened as everyone will take the law in his hands. In such a case there will neither be public order nor morality, and there will be unrest. Thus section 185 of Act 29 is not meant for those who communicate false news but rather those who do so with knowledge that it is false. For this reason, I find that section 185 of Act 29 falls within each of the permissible restrictions referred to in article 164 of the Constitution, 1992 and that it is reasonably required for the interests aforementioned.

It was argued that in view of the changes in the Constitution, 1992 towards a democratic set up the retention of this section in the existing law is not justified. I find that apart from the fact that the Constitution, 1992 envisaged a law which is reasonably required, there was no further limitation on the restrictions imposed by article 164. The question whether it is justifiable to retain section 185 of Act 29 in the statute books therefore does not arise. However once the objection has been raised, I have to consider it.

Sotrohan Singh J in the case of Richards v Attorney General of St Vincent and the Grenadines [1991] 1 LRC (Const) 311 at 327 reacted to a similar argument before him. His lordship was to show whether section 64 of the law was reasonably justified in a democratic society. This was what he said at 326-327: “. . . it cannot be reasonably said that by the existence in the statute books the citizen’s fundamental right or freedom of

[p.595] of [1997-98] 1 GLR 515 expression is being eroded, when the pros and cons are properly weighed and evaluated. I do not see how, in a democratic society, a court can properly and justifiably strike down a law which seeks to protect and preserve a citizen’s fundamental rights guaranteed by the Constitution from the deliberate abuse by another citizen in the enjoyment by the citizen of his fundamental right. I find s 64 to be reasonably justifiable in a democratic society. The law that was struck down by Her Majesty’s Privy Council in the Hector case had to do with attacks on the reputations of persons holding public office. What we have in the instant case is a law that seeks to protect not the reputation but the security of the person, a totally different matter.”

I would endorse that reasoning and apply it to this case. The impugned law was the result of human conduct dictated by reason and experience; and Parliament has not found it convenient to repeal it. It is not “arbitrary or excessive” and I find it justifiable and consistent with article 164 of the Constitution, 1992 and therefore with the Constitution, 1992. The section answers the needs of a democratic society of Ghana. I would answer the first question in the negative. It is consistent.

It is also contended that sections 182A and 183 of Act 29 are inconsistent with the spirit and letter of the Constitution, 1992. I find that the two sections relate to the exercise of the President’s discretion. The Constitution, 1992 recognises this and lays down regulations governing its exercise. Article 296 of the Constitution, 1992 provides as follows:

“296. Where in the 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 . . .”

The two sections are not inconsistent with the aforesaid article and therefore not inconsistent with the Constitution, 1992. Section 184 of Act 29 is intended to bring to book acts and utterances of persons which are meant to insult the official national flag or

[p.596] of [1997-98] 1 GLR 515 emblem of Ghana. This section in my opinion agrees with article 12(2) of the Constitution, 1992. It is there to protect individual rights.

Section 185 of Act 29 creates an offence which is a second degree felony and therefore triable summarily. I find that the circuit court has jurisdiction to try summary offences: see the Courts Act, 1993 (Act 459), s 44. The circuit court can therefore try the offence under section 185 of Act 29.

Finally, I agree with the order of this court refusing the application for joinder. I find that the reference to this court is part of the trial which has begun and that the applicants have never been arraigned as accused persons before that court in this matter.

In all, I would accordingly return the case to the circuit court with directions to proceed with the hearing thereof. It must have regard for the answers to the questions asked in the reference to us. The court will have to make up its mind whether the charge has been established by the prosecution beyond all reasonable doubt.

JUDGMENT OF AKUFFO JSC.

The questions posed by this reference are:

“(1) Whether or not section 185 of Act 29 is inconsistent with and in contravention of the spirit and letter of the Constitution, 1992 particularly articles 21(1) and 162(1) and (2), and therefore null, void and of no effect.

(2) Whether or not sections 182A, 183 and 184 of Act 29 are equally inconsistent with the spirit and letter of the Constitution.

(3) Whether or not the circuit court has jurisdiction to try the accused persons.”

I will first deal with a couple of points arising from the submissions made by both the honourable Deputy Attorney-General and counsel for the accused persons which, I believe, affect the scope of and the approach to this reference.

First, the honourable Deputy Attorney-General in his written submissions on behalf of the Republic, has argued that, regardless of the scope of the reference made to this court by the circuit judge, only the first and third questions are properly relevant to

[p.597] of [1997-98] 1 GLR 515 this reference. His reason is that it is only under section 185 of the Criminal Code, 1960 (Act 29) that the accused persons have been charged and that, consequently, it is only the constitutionality of that section that can properly arise from the proceedings before the circuit judge, within the meaning of article 130(2) of the Constitution, 1992, pursuant to which this reference is made. According to the Deputy Attorney-General, therefore, the second question on reference here is irrelevant since the provisions of Act 29 referred to therein, do not arise in the proceedings and amount to the accused seeking the advisory opinion of the court contrary to this court’s decision in Bilson v Attorney-General [1993-94] 1 GLR 104, SC. I am inclined to agree with the Attorney-General on this point. Although, without doubt, under article 130(1) of the Constitution, 1992 this court has exclusive and original jurisdiction in all matters relating to the enforcement and interpretation of the Constitution, as well all questions as to whether or not any enactment is ultra vires Parliament or any other authority or person, in my view, such original jurisdiction is not the same as the court’s jurisdiction in a reference under article 130(2) of the Constitution, 1992.

Sections 182A, 183 and 184 of Act 29 were brought into question, not because they form part of the charges laid against the accused, or necessarily and essentially arise from the said charges, but, simply because they were included in the contentions raised by counsel for the accused in their preliminary objection. Without that inclusion, those sections could not have arisen as issues in the proceedings before the circuit court. It is worthy of note that, according to the case stated to this court by the circuit judge, the full extent of the second contention of counsel for the accused persons was to the effect that the whole of chapter 1 of Part IV of Act 29 and, in particular, the said sections, is inconsistent with the letter and spirit of the Constitution, 1992.

I do not believe that it is the intent and purpose of article 130(2) of the Constitution, 1992 that in any proceedings it should be open to a party to embark upon a general expedition and raise the constitutionality of just about any enactment or part of the provisions thereof, regardless of its relevance or relation to the proceedings on hand, simply to obtain the Supreme Court’s determination thereon. What if the accused persons had raised no

[p.598] of [1997-98] 1 GLR 515 constitutional objection against section 185 of Act 29 itself, could they, all the same, have raised an objection against the other sections so as to cause the judge to make a reference to this court? I do not think so. Rather, it is my view that, if a party to a proceeding has a constitutional issue to raise with any enactment which is extraneous to the proceedings, his best course, and indeed his only proper course, would be to bring a constitutional action under article 2 of the Constitution, 1992, which is when article 130(1) of the Constitution, 1992 will come into play. Even then, he will have to bear in mind this court’s admonitions expressed in the case of Bilson v Attorney-General (supra). It is my view that for the purposes of a reference, the key words in article 130(2) of the Constitution, 1992 are: “. . . an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in a court other than the Supreme Court … “ (The emphasis is mine.) Thus, the mention made in clause (2) to clause (1) relates to the matters enumerated in sub-clauses (a) and (b) of clause (2) and the intention of clause (2) is to ensure that the exclusivity of the Supreme Court’s jurisdiction in the matters or questions referred to in the said sub-clauses is duly preserved, even when such matters arise in proceedings before any other court.

For the foregoing reasons, I will limit my opinion herein to the first and last questions referred to this court by the circuit judge. Secondly, I agree with the submission made by counsel for the accused persons to the effect that it is the constitutionality of the provisions of section 185 of Act 29 that is in issue here and that, in determining the constitutionality of the section, therefore, it is not necessary and will not serve any objectively useful purpose, to consider the specific publications, statements or reports which have given rise to the charges that have been made against the accused persons. The fulfilment of our task in this matter requires us to look at section 185 and test its constitutionality against the provisions and spirit of the Constitution. To that extent, it is an abstract process and the peculiarities or otherwise of the facts giving rise to the charges in the circuit court are wholly irrelevant. Indeed, for us to delve into or harp upon the facts giving rise to the said charges might, in my opinion, lead to an inquiry into the merits of the case before the circuit court, which would be

[p.599] of [1997-98] 1 GLR 515 improper and beyond the scope of the reference before us. Moreover, it is also my view that to take into account the factual background giving rise to the charges against the accused persons would pose the risk of losing sight of the fact that, although the accused herein are media operators, the section could, as well, be enforced against any private individual whose rights are also guaranteed by article 21(1)(a) of the Constitution, 1992. If the facts have any import here at all, at best, they would only serve as an example of the application of the section. Furthermore, one must not lose sight of the fact that, even without this reference having arisen from the preliminary legal objection or as a result of the charges laid against the accused persons, any person might, as of right, at any time whatsoever and given the proper foundation, have challenged the constitutionality of this provision, in pursuance of article 2(1) of the Constitution, 1992.

In this ruling, therefore, I do not intend to have much, if any, regard to the facts giving rise to the charges preferred against the accused, whatever be their peculiar characteristics, because, to my mind, they are not relevant to the question of whether or not section 185 of Act 29 is inconsistent and incompatible with the letter and spirit of the Constitution, 1992. The question before us is not whether or not, having regard to the facts giving rise to the charges, section 185 of Act 29 is constitutional, rather, the question is whether or not the section, per se, is compatible and in consonance with the present constitutional law and environment.

This, then, brings us to the task at hand. In this matter, it is important to keep in sight the fact that, by virtue of article 290(1), the whole of chapter 5 and the provisions of article 162(1) to (5) form part of the entrenched provisions of the Constitution, 1992 and cannot be amended without stringent procedures, including a national referendum. This fact is a clear indication of the importance attached to the articles which are sought to be enforced. Article 21(1)(a) forms part of chapter 5 of the Constitution, 1992 which deals with the fundamental human rights and freedoms, and reads as follows:

“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.”

[p.600] of [1997-98] 1 GLR 515

(The emphasis is mine.) Article 162(1) and (2) forms part of chapter 12 of the Constitution, 1992 entitled “Freedom and Independence of the Media” and reads as follows:

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

(2) Subject to this Constitution, and any other law not inconsistent with this Constitution, there shall be no censorship in Ghana.”

(The emphasis is mine.) The Constitution, 1992 is the deed of the entire people of Ghana who brought it into being by means of a referendum. It, therefore, reflects and encapsulates the will, values and aspirations of Ghanaians as a whole. It is premised upon the collective belief that individual freedom can survive only under a system of law by which both the government and the governed are bound.

That each of the freedoms assured in article 21(1)(a) of the Constitution, 1992 is one to which is attached the greatest national importance is patent from the fact that, amongst the major objectives assigned to the committee of experts by section 2 of the Committee of Experts (Constitution) Law, 1991 (PNDCL 252), was the task of formulating proposals that would:

“ . . . guarantee, protect and secure the enforcement of the enjoyment by every person in Ghana of the fundamental human rights and freedoms including the freedom of speech, freedom from arbitrary arrest and detention, freedom of assembly and association including the freedom to form political parties, women’s rights, children’s rights, worker rights and the rights of the handicapped . . . (and) . . . guarantee the freedom and independence of the media.”

(The emphasis is mine.) Towards the achievement of this objective, chapters 5 and 12 came into existence and, by article 21(1)(a) and 162(1) and (2), the Constitution seeks to secure to every Ghanaian, the press and other media, the freedom of speech and expression and the right to publish. In the case of the press and other media for mass communication, therefore, the Constitution, 1992 did not simply stop at article 21(1)(a), but rather proceeded,

[p.601] of [1997-98] 1 GLR 515 in chapter 12, to spell out in greater detail some of the essential means by which the freedom of speech and expression was to be achieved, safeguarded and maintained.

As I have already stated, it is, in my view, only section 185 of Act 29 that is relevant to this reference and, at this point, it becomes necessary to set out the provisions of that section. The section appears in Part 4 of Act 29 under the main heading of “Offences Against Public Order, Health and Morality” and under chapter 1 thereof which is headed “Offences Against the Safety of the State.” The section reads as follows:

“185. (1) Whoever communicates to any other person, whether by word of mouth or in writing or by any other means, any false statement or report which is likely to injure the credit or reputation of Ghana or the Government and which he knows or has reason to believe is false, shall be guilty of second degree felony.

(2) This section does not apply to any statement which is absolutely privileged under section 117.

(3) It is no defence to a charge under this section that the person charged did not know or did not have reason to believe the statement or report was false unless he proves that, before he communicated the statement or report, he look 20(20) [sic] reasonable mesures to verify the accuracy of the statement or report.

(4) A citizen of Ghana may be tried and punished for an offence under this section whether committed in or outside Ghana.”

(The emphasis is mine.)

Reading the Constitution, 1992 as a whole, it is patently clear that the rights and freedoms protected by chapters 5 and 12, extensive though they are, are bounded by certain limitations and restrictions spelt out by the Constitution itself. This is in line with the intentions of the drafters of the Constitution, as is evident from paragraph 186 of the Report. Furthermore, paragraph 158, of the Report, at p 73 pertaining to the general fundamental freedoms now enshrined in article 21—also reads as follows:

[p.602] of [1997-98] 1 GLR 515

“The fundamental freedoms mentioned above, should be exercised subject to the laws of the land, in so far as such law imposes reasonable restrictions on the exercise of the rights and freedoms conferred by this Constitution, restrictions which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of Ghana, national security, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”

(The emphasis is mine.) As was acknowledged by this court in the case of New Patriotic Party v Inspector General of Police [1993-94] 2 GLR 459, SC, the principle of prior restraint of a constitutional freedom, even an entrenched freedom, is not unknown to our Constitution, 1992 which itself imposes certain inherent restrictions on such freedoms. This acknowledgment of the need for prior restraint is not peculiar to our Constitution, 1992 and is founded on the universally accepted principle that every right or freedom is subject to the rights and freedoms of others and the protection of the reasonable interests of the common good.

In my opinion, the Constitution, 1992 subjects article 21(1)(a) to articles 12(2) and 21(4)(e). Article 12 (2) states that:

“12. (2) Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest.”

(The emphasis is mine.) And it is stated in article 21(4)(e) of the Constitution, 1992 that:

“21. (4) Nothing in or done under the authority of a law shall be held to be inconsistent with, or in contravention of, this article to the extent that the law in question makes provision— . . .

(e) that is reasonably required for the purpose of safeguarding the people of Ghana against the teaching or propagation of a doctrine

[p.603] of [1997-98] 1 GLR 515 which exhibits or encourages disrespect for the nationhood of Ghana, national symbols and emblems or incites hatred against other members of the community; except so far as that provision or as the case may be, the thing done under the authority of that law is shown not to be reasonably justifiable in terms of the spirit of this Constitution. “

(The emphasis is mine.) As was pointed out by Amua-Sekyi JSC, in his opinion in New Patriotic Party v Inspector-General of Police (supra) sub-clauses (a)—(d) of article 21(4) are concerned with freedom of movement, and sub-clause (e) deals with the freedoms of speech, expression, thought and religion. Likewise, the freedoms enshrined in article 162(1) and (2) of the Constitution, 1992 are, by virtue of article 164, expressly made 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.” This limitation is, of course, in addition to the limitations imposed by the Constitution, 1992 on the general fundamental freedoms. However, as was also carefully laid down in the aforementioned case of New Patriotic Party v Inspector-General of Police (supra) although the citizen’s constitutional freedoms may be restricted by law on the specific grounds stated in the Constitution, 1992 they cannot be completely denied. Any denial will be unconstitutional and void and, therefore, if it is found that the effect of a prior restraint in a legislative provision is a total denial of a constitutional right or freedom, then such a provision must, to that extent, be found to be null and void for being unconstitutional.

As I see it, therefore, the principle is that where a Constitution permits the enactment of legislation the effect of which imposes any limitation on any constitutional rights, it is necessary that such limiting statute be viewed with extreme suspicion by a society, such as ours, which has a declared commitment to the promotion of democracy and the protection of fundamental human rights and freedoms. Thus, in the Canadian case of R v Zundel [1992] 10 CRR (2d) 193 at 209, McLachlin J, in reading the majority opinion of the Supreme Court of Canada, stated, that, in deter-

[p.604] of [1997-98] 1 GLR 515 mining the constitutionality of a criminal provision which has any limiting effect on a freedom guaranteed by the Canadian Charter of Rights and Freedoms the primary proposition must be that “legislation limiting the enumerated rights may be unconstitutional. (There is no presumption of constitutionality).”

In deciding whether or not section 185 of Act 29 is compatible and in accord with the letter and spirit of the Constitution, 1992 vis-à-vis the aforesaid articles, the test to be applied is, therefore:

(1) whether the section restricts or limits any of the fundamental freedoms or rights guaranteed in article 21(1)(a) and, with specific reference to the media, article 162(1) and (2) of the Constitution, 1992; and

(2) if it does, whether such limitation is reasonably required within the specific parameters set by the Constitution, 1992 and, in the case of article 21(1)(a), reasonably justified within the letter and spirit of the Constitution, 1992.

Consequently, if it is determined that section 185 of Act 29, has a restrictive or limiting effect or creates a prior restraint on the rights and freedoms guaranteed by the Constitution, 1992, the section must, to that extent, stand or fall on the determination of the second test of whether or not it is reasonably required for any of the specifically stated purposes expressed by the Constitution, 1992 and reasonably justifiable in terms of the spirit of the Constitution, 1992. This is the extent of the hurdles that have been erected by the Constitution, 1992 in the context of this reference. Our task, in this respect, has been greatly simplified by the fact that both the Attorney-General and counsel for the accused are in agreement that the section does, indeed, impose a restriction on the freedoms guaranteed by articles 21(1)(a) and 162(1) and (2) of the Constitution, 1992. From the language of section 185 of Act 29, the restrictive and limiting effect is quite patent and the conclusion is irresistible that section 185 of Act 29 does, indeed, impose a limitation on the freedom of speech and expression enshrined in the Constitution, 1992. Its effect is to put a prior restraint on speech, expression and publication, by rendering criminal the contents of certain statements, reports (be they oral, written or visual) and publications.

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In the circumstances, I will now proceed with the second test, which is whether the restraint and limitation thus imposed by section 185 of Act 29 on the freedom of speech and expression and the right to publish, enshrined in articles 21(1)( a) and 162(1) and (2), are reasonably required within the specific parameters set by the Constitution, 1992 and reasonably justified within the terms or the spirit of the Constitution, 1992.

I will begin with an examination of section 185 of Act 29 in relation to article 21(1)(a) of the Constitution, 1992 which, in essence, covers the rights of two categories of persons, the individual and the mass communication media. If we consider the essential elements of the offence created by section 185 of Act 29, in juxtaposition to article 21(1)(a) of the Constitution, 1992, the net effect, to my mind, is thus:

“Any natural or artificial person who, in the exercise of his constitutional freedom of speech and expression or right to publish, communicates by any means whatsoever to another person a false statement or report which has the likelihood of causing injury to the reputation of Ghana or the Government of Ghana and which he knows or has reason to believe is false, is guilty of a second degree felony; it matters not whether such communication be made in public or in private, nor, in the case of a Ghanaian citizen, whether the communication was made within or outside Ghana; and, unless the person charged with the offence is able to prove that he previously took all reasonable steps to verify the accuracy of the communication, he cannot raise a defence that he did not know nor had any reason to know that the communication was false.”

As I have already said, the constitutional provisions to which article 21(1)(a) of the Constitution, 1992 is subject are articles 12(2) and 21(4)(e), which I have already quoted above. In ascertaining whether or not a restriction falls within the permissible limits set by these latter articles, it is necessary for one to look at the objective of the enactment on test; and the extent and coverage of the enactment and determine whether it is within the parameters set or exceeds the bounds set. In other words, is the restraint

[p.606] of [1997-98] 1 GLR 515 imposed by the section intended to foster and protect respect for the rights and freedoms of others and for the public interest? Or is it intended to safeguard the people of Ghana against the propagation of a doctrine which teaches disrespect for the nationhood of Ghana etc within the terms of article 21(4)(e) of the Constitution, 1992? Is it within the spirit of the Constitution, 1992?

First, what objective is section 185 of Act 29 intended to serve? The objective is, in my view quite patent from the language of the section and it is to protect or safeguard the credit and reputation of Ghana and the Government of Ghana from injuries that may be caused by any deliberately false communications. To achieve its objective, any form of communication of any false statement or report which is likely to cause the injury sought to be guarded against is declared to be a second degree felony, if made with knowledge of its falsehood or if the communicator had reason to believe it is false, unless the communicator is able to prove that all reasonable efforts were made by him to first verify the same. The result is that every statement or report made by any person, whether privately or publicly, which turns out to be false and which is likely to injure the credit or reputation of Ghana or the government is criminalised, until the communicator is able to prove that he or she did not know it was false and that he or she had taken reasonable steps to verify it before making the communication.

Secondly, what is the extent and coverage of section 185 of Act 29? It is my view that in securing the attainment of its objective, the section, in effect, uses the means of a scatter-gun, drawing into its sight and range false statements and reports made by any person by means of every conceivable form of communication. Although the Deputy Attorney-General, in his submissions seeks to limit the coverage of the section to publications, (and the main thrust of the submissions on behalf of the accused persons also have the same tendency) the clear meaning of the section spans more than that. It covers all communication of falsehood which is likely to cause the said injury. To “publish”, according to the Oxford Advanced Learner’s Dictionary, means:

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“To prepare and print a book magazine, etc, and make it available to the public; to print something for the public to read; to have one’s work printed and made available to the public; to make something known to the public.”

(The emphasis is mine.) The publication of a matter, statement or report, therefore, involves the making public or generally known, declaring openly or publicly, or noising abroad of such matter. In other words, the matter must be uttered in such a manner as would place it in the public domain. To “communicate” on the other hand, according to the Oxford Advanced Learner’s Dictionary, means: “To make something known; to pass something on; to transmit something; to make one’s ideas, feelings etc, clear to others.” “Communication”, therefore, does not require publication to the general public and, thus, carries a broader connotation, since it may be made either privately or publicly.

Thus, unlike the terms of section 181 of the Canadian Criminal Code, which came into question in the Zundel case (supra); section 64 of the Criminal Code of St Vincent and the Grenadines which came into question in the case of Richards v Attorney General of St Vincent and the Grenadines [1991] LRC (Const) 311 (referred to in the submissions filed on behalf of the Republic); or section 8A of the Printing Presses and Publications Act of Malaysia, which came into question in the case of Public Prosecutor v Pung Chen Choon [1994] 2 LRC 237 (also referred to in the submissions filed on behalf of the Republic), section 185 of Act 29 makes criminal all deliberately false statements and reports which are likely to injure the credit and reputation of Ghana and the Government of Ghana, whether the same be communicated in private between two individuals or broadcast by the mass media. Counsel for the accused persons are therefore, in my view, quite correct in their observation that a deliberately false communication made by one spouse to the other in the private sanctity of their bedroom runs the risk of falling foul of this section. Is such a sweeping criminalisation of speech in consonance with the letter of article 21(1)(a) or with the spirit of the Constitution, 1992? I do not think so.

Moreover, since the section is restrictive of constitutionally protected freedoms of the individual, is its objective one of the

[p.608] of [1997-98] 1 GLR 515 justifications permitted by the Constitution, 1992? Since article 21(1)(a) is subject to articles 12(2) and 21(4)(e) of the Constitution, 1992, the question in this regard is, whether section 185 of Act 29 is justified by article 12(2) for the purposes of ensuring “respect for the rights and freedoms of others and for the public interest”? The honourable Deputy Attorney-General has argued that the defamation of Ghana or the government by the “publication” of deliberate falsehood is a matter of public interest within the meaning of article 12(2) of the Constitution, 1992, and, therefore, the offence created by section 185 of Act 29 is permissible. In support of this assertion the honourable Deputy Attorney-General relies on the Malaysian case of Public Prosecutor v Pung Chen Choon (supra) and the case of Richards v Attorney General of St Vincent and the Grenadines (supra). These cases involved criminal provisions dealing with publications per se and, as has already been pointed out above, section 185 of Act 29 does not limit itself to the noising abroad of deliberately false statements or reports, its ambit is such as to include private communications.

Bearing in mind the wide scope of section 185 of Act 29, are we, therefore, to construe article 12(2) of the Constitution, 1992, so as to require every Ghanaian, wherever she may be, whatever her political, social, economic or personal status may be (be it ever so humble), to take care to ensure that every statement or report she makes, however casual or private, the contents of which might be likely to damage the reputation of the government or likely to bring Ghana into disrepute or discredit, is truthful or previously investigated by her for veracity, else she will be in peril of prosecution and imprisonment for a second degree offence? Such a construction, in my candid view, would result in such unreasonable intrusions into the privacy of the citizen, and an interference with the freedom of speech and expression of the individual to such an extent as to amount to a denial of her freedom of speech. Furthermore, in the enforcement of section 185 of Act 29 against private communications, the spectre of State interception of private communications, through eavesdropping and the reading of private letters, will loom large indeed and create an intolerable situation that cannot be acceptable in any

[p.609] of [1997-98] 1 GLR 515 democratic society. This is contrary to the word and spirit of the Constitution, 1992.

As has been acknowledged on behalf of the Republic, a restriction can be said to be in the public interest only if the connection between the restriction and the said interest is proximate and direct. As far as the individual’s rights under article 21(1)(a) of the Constitution, 1992 are concerned, the connection between the restrictions imposed on the individual’s freedom and the interest sought to be served by the section is, in my view, far-fetched and very remote.

However, article 1 (2) of our Constitution, 1992 stipulates that:

“1. (2) This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.”

(The emphasis is mine.) Additionally, article 1(6) of the Constitution, 1992 states that:

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

My understanding of these two provisions is that where a law is found to be inconsistent with the Constitution, 1992 it is void only to the extent of such inconsistency. Any other part of such law that is not inconsistent remains in effect. In the case of laws that were in existence before the promulgation of the Constitution, 1992 they may be brought into conformity with the Constitution, 1992 through the application of the necessary modifications, adaptations, qualifications and exceptions. Of course, if no amount of modification etc in the latter case is capable of bringing such a law into conformity with the Constitution, 1992 then such a law cannot stand. Consequently, it is my view that, to the extent that section 185 of Act 29 unreasonably and unjustifiably restricts the individual’s freedom of speech and expression, it is inconsistent

[p.610] of [1997-98] 1 GLR 515 with article 21(1)(a) and the spirit of the Constitution, 1992 and, therefore, void. However, since the section, forms part of a law that was in existence before the Constitution, 1992 came into force, it must be modified and qualified by the limitation of its coverage to false statements and reports placed in the public domain.

What about the freedom and independence of the media as enshrined in articles 162(1) and (2) of the Constitution, 1992? As previously stated, this freedom is specifically made subject to the limitations imposed by article 164 of the Constitution, 1992 (already quoted above). Does the objective of the section fall within the permissible parameters of article 164 of the Constitution, 1992 and serve any of the purposes specified therein? For the reasons stated by my brothers Kpegah and Amuah JJSC in the relevant portions of their rulings, I agree that, vis-à-vis articles 162(1) and (2), the limitations and restrictions imposed by the section are within the parameters set by article 164 of the Constitution, 1992.

I only wish to add that, in my view, the defence afforded by section 185 of Act 29 is part of the accepted elementary rules of responsible journalism, which is that information received should be previously checked before publication. The hackneyed description given to the present world order is that of a “global village.” In this “village”, there is a close nexus between the reputation and credibility of a country, or its government, and its economic survival. This is all the more so when the country is vulnerably dependent on international goodwill. Furthermore, this is the age of the “information highway”, when news is capable of being flashed around the world within a matter of seconds. The devastating effect of any negative publication about a government or a state is, thus, capable of achieving immediate impact and, in this new world order, therefore, it has become all the more important that, if such a report be published about Ghana or the government thereof, it should, at least, not be knowingly false. As noted by my learned brother Adjabeng JSC, in his opinion herein, one may even wonder what purpose it would serve any person to publish a knowingly false statement or report about any person. Moreover, the promotion of the prestige and good name of Ghana is part of the declared duties of every Ghanaian, as stipulated by

[p.611] of [1997-98] 1 GLR 515 article 41(a) of the Constitution, 1992 under the Directive Principles of State Policy. To my mind, therefore, to require that the noising abroad of reports and statements likely to injure the credit or reputation of Ghana and the Government of Ghana be made only after making reasonable efforts at prior verification, under the pain of criminal sanctions, is not inconsistent with the word and spirit of the Constitution, 1992.

Regarding the application by the Private Newspaper Publishers Association of Ghana (PRINPAG), for leave to join in this reference as intervenors, I attach myself wholeheartedly to the reasons given by my learned brother Kpegah JSC and have nothing further to add thereto.

DECISION

Order accordingly.

LSNA.

Endnotes

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