Is Free Speech Not In Trouble now?
Following the trial and jailing of three media commentators – Alistair Nelson, Godwin Ako Gunn and Salifu Maase, alias Mugabe or the Montie three, (as they are now popularly referred to in the media); sections of the Ghanaian population are of the view that the judges of the Supreme Court seems to be threatening our right to freedom of speech and expression today.
Indeed, when you see people being jailed and hugely fined for saying the wrong things, you can’t help but feel apprehensive that the right to freedom of speech is really in trouble.
Since the day of the sentencing diverse arguments have been flying around regarding the impact this could have on the ordinary individual’s basic human right to freedom of speech and expression.
In the first place, let us remember that human rights in general and freedom of speech in particular are universal rights. Their enjoyment is not reserved for only privileged persons or groups. They belong to every individual, including you and me.
Secondly, one cannot overstate the value of free speech to our democratic development; therefore, we always need to be careful not to be seen as trying to prevent anyone from enjoying his or her human right to free speech because we feel offended by what others write or say. Voltaire, The 18th Century French writer and advocate for liberties, sums it up this way, “I disapprove of what you say but I will defend to the death your right to say it.”
On the other hand, it is true that no individual’s right to freedom of expression can be interpreted as an unrestricted right to say anything one wishes, at any time, to or against anyone without consequences, since this would be incompatible with the rights of other people to enjoy their own rights to: privacy, dignity and protection of their reputation and others. Thus, freedom of expression is duly qualified – it is not an absolute right, unlike the right not to be tortured and the right not to be enslaved. This means that there are restrictions to what we can say or write, despite the fact that we are guaranteed the right to freedom of speech and expression in the constitution.
Similarly, it must be stressed that, the exercise of the individual’s right to freedom of speech and of expression carries with them certain duties and responsibilities. It means its enjoyment go hand- in- hand with legal conditions, restrictions, prohibitions and sanctions. The goal is to ensure that other people can be equally protected against defamation, privacy breaches and intimidation.
The Individual’s Human Right
The United Nations Universal Declaration of Human Rights (1948) expresses the individual’s right to freedom of expression in Article 19 as follows:
“Everyone has the right to freedom of opinion and-expression; the right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.”
It is clear in this provision that we all, individually, have the right to make up our own minds, to think what we like, to say what we think, and to communicate our ideas to other persons freely. It is also clear that every individual has the freedom to hold opinions without interference from others.
My question then is, where can we draw the line between necessary legal prohibitions and interference from state institutions in the process of enjoying our fundamental right to free speech without fear of being arrested and jailed needlessly?
Also, it is very important that the law is seen to be truly the same for everyone and applied equally without show of BIAS.
Our judges are there to protect the rights of all persons. Thus, they need to always demonstrate to all of us that every individual is indeed entitled to fair trail and equal treatment without discrimination on any grounds, including: race, ethnicity, gender and religious or political affiliations.
Contempt of Court
With regards to the Montie Three who were sentenced and jailed for four months each plus GH10.000 for contempt of court, (including a fine totalling GHC 60,000 against the owners of the radio station – which I’m yet to understand), we are made to believe that they spoke about an issue that was before the Supreme court in a manner that brought the reputation of the Court into disrepute.
In my lay woman’s opinion, what was purportedly said on radio by the panellist was wrong and cannot be condoned. I therefore believe they deserved warning or some form of punishment after a fair trial.
Nevertheless, I personally find the punishment very harsh and the fine extremely excessive. In fact when I heard about the verdict I was shocked and tears of sadness filled my eyes, even though I didn’t know the individuals involved.
We are worried that this verdict can put unnecessary fear in people thereby stopping them from speaking their minds on critical national issues for fear of going to prison, which is not good enough for the growth of our young democracy.
Of course, punishments are sometimes good and necessary for correction and serving as deterrent to other people, yet, if seen as cruel or too harsh it can have boomerang effects (bounce back or rebound) whether you like it or not. Furthermore, it can also provoke antagonism against the person or institution giving the punishment.
Often, punishments that are deemed to be cruel or unfair do not reform people but rather harden their hearts towards the person or persons giving that punishment. This must be avoided as much as possible. We need to always balance the need for justice and the call for mercy in order to promote true reformation of character and change of behaviour in the offender or offenders.
Also extremely worrying is the fact that a risky precedent has been set for future contempt judgements, and who knows which journalist or persons will be affected next.
That is why I’m of the view that those journalists and persons, who rejoiced at the “unfortunate fate” of the three men, are being short-sighted and not considering the boomerang effects this can have on any other journalist or individual citizen in the near future.
The Bible teaches us not to judge others in the book of Matthew 7: 1-5 which is worth considering in this case, and which must serve as a guide for all of us. It says,
“Do not judge others, so that God will not judge you, for God will judge you in the same way as you judge others, and He will apply to you the same rules you applied to others. Why then do you look at the speck in your brother’s eye, and pay no attention to the log in your own eye? How dare you say to your brother, Please, let me take that speck out of your eye, when you have a log in your own eye? You hypocrite! First take the log out of your own eye, and then you will be able to see clearly to take the speck out of your brother’s eye.” – (Matthew 7: 1-5, Good News Bible).
Mercy or No Mercy?
Now, the President is being petitioned by sympathizers of the jailed persons to grant them mercy. Many people including chiefs are still pleading with him to exercise his power of Prerogative of Mercy under article 72 of the constitution. So then my question is, should President John Mahama grant them mercy or not?
My second question is, if it were you that was sentenced to four (4) months in prison with a fine of GHC10,000 Cedis for saying the wrong thing would you like to be shown mercy or not?
Without any doubt, article 72 in chapter 8 of the 1992 Constitution gives the President the power to completely set free any convicted person or reduce the sentence after consulting the council of state.
Article 72 states:
- The President may, acting in consultation with the council of state:
- Grant to a person convicted of an offense a pardon either to free or subject to lawful conditions, or
- Grant to a person respite either indefinite or for a specified period, from the execution of punishment imposed on him for an offense, or
- Substitute a less severe form of punishment for punishment imposed on a person for an offense, or
- Remit the whole or part of a punishment imposed on a person, or a penalty or a forfeiture otherwise due to government on account of any offense
- Where a person is sentenced to death for an offense, a written a report of the case from the trail judge or judges, together with such other information derived from the record of the case or elsewhere as may be necessary, shall be submitted to the president
- For the avoidance of doubt, it is hereby declared that a reference in this article to a conviction or the imposition of a punishment, penalty, sentence or forfeiture includes a conviction or the imposition of a punishment, penalty, sentence or forfeiture by a court – Martial or military tribunal.
From my lay woman’s perspective, the president clearly can grant mercy to any convicted person regardless of the nature of the offense. So then, it is up to him to decide whether to do so or not.
Some have argued that if the president grants them pardon, he will be abusing his powers or creating a constitutional crisis. But I think that argument is completely flawed because if Judges can easily set aside laws passed by parliament such as the one relating to the use of the NHIS card as a form of identification, without causing constitutional crises, then surely the president too can exercise his constitutional power to grant mercy without triggering any form of constitutional catastrophe in this country.
In my opinion, there’s nothing wrong with showing mercy. It is a good thing provided your motive is right. The bible encourages us in Matthew 5:7 to show mercy to others as follows: “Happy and blessed are those who are merciful to others, for God will be merciful to them.”
My unsolicited advice to the president will be: think carefully Mr President and pray for God’s guidance on what to do before proceeding to grant or not to grant MERCY.
By Rose-Mary Kayi (Human Rights Advocate and Executive Director of Stand Ghana Inc.)