Election Petition: “Scandalising the judiciary is abolished as a form of contempt of court under the common law of England and Wales.”- Prof Kwaku Asare

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When you study the English law, you’d find that they had some offenses on their books that were not meant for their own people but meant for their colonies.

One of such offenses is the contempt of scandalizing the court. The British believed that they were civilized enough to allow their media and citizens to engage in robust and rambunctious criticisms of their judges. However, their less uncivilized subjects could not be granted that luxury.

This view is immortalized in McLeod v. St. Aubyn ([1899] AC 549, p. 56), an 1899 case where the Judge wrote that “Committals for contempt of court by scandalizing the court itself have become obsolete in this country…. But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of court for attacks on the court may be absolutely necessary to preserve in such a community the dignity of and respect for the court.”

So today when one reads their Crime and Courts Act, 2013 at section 33, it reads

“Scandalising the judiciary (also referred to as scandalising the court or scandalising judges) is abolished as a form of contempt of court under the common law of England and Wales.”

In Canada, a lawyer commenting on a court decision against his client said,

“This decision is a mockery of justice. It stinks to high hell. It says that it is okay to break the law and you are immune so long as someone above you said to do it. Mr. Dowson and I have lost faith in the judicial system to render justice. We’re wondering what is the point of appealing and continuing this charade of the courts in this country which are warped in favour of protecting the police. The courts and the RCMP are sticking so close together you’d think they were put together with Krazy Glue.”

The Canadian Court did not find the lawyer guilty of scandalizing it. Rather, it said

“But the courts are not fragile flowers that will wither in the hot heat of controversy…. The courts have functioned well and effectively in difficult times. They are well-regarded in the community because they merit respect. They need not fear criticism nor need to sustain unnecessary barriers to complaints about their operations or decisions.”

But while the offense is dead in England and Wales and it has fallen into desuetude in the rest of the world where free expression and judicial accountability are taking seriously, it is very much alive here raising the question of whether the colonialists were right in thinking that we are not civilized enough to be given the right to criticize our judges.

Or perhaps, we are civilized enough but our Judges feel they must hold on to that offense, notwithstanding all the constitutional protections provided free speech.

GOGO will repeal this offense from our books and bury it next to the remains of PDA!

Either way, #SALL, the cardinal sin of the 8th Parliament, scandalizes the Constitution and equal representation.

Da Yie!