Read the judgment on GhaLII 


AT the centre of this extremely sensitive case are three men who took part in a live radio panel discussion on 29 June 2016. They commented on a supreme court case related to elections, in which judgment was awaited and threatened to kill judges involved if the case went in favour of the electoral commission, one of the parties to the court action.

A week later the three appeared before the supreme court which had summonsed them to explained why they should not be held liable for contempt. They pleaded guilty and each was sentenced to four months and a fine.

Almost immediately petitions sprung up for them to be shown mercy by the then-president, John Dramani Mahama, and before they had served a full month of their sentence the president obliged, setting them all free.

Was his action in showing them clemency constitutional? – That was the question raised by several applicants, who argued that his pardon amounted to unjustified infringement of the separation of powers and an assault on judicial independence.

The court’s decision was not unanimous: five judges found the president had not acted unconstitutionally in pardoning the “Montie 3”; two however held he had not acted lawfully. But though the judges were not united in their preferred outcome, there is a sense that they were all deeply concerned for the implications of their decision on the role and future safety of the court and on the success of Ghana’s constitutional project.  

No doubt about it: the panel discussion was shocking. One supreme court justice commented that the remarks were “so vile and disparaging” that they should not be recounted in the judgment. The panelists had attacked the Chief Justice by name, accusing her and the rest of the court of favouring the electoral commission in order to help the opposition party in the elections. They incited listeners among the public to reject the decision. They also reminded listeners of the murder of three high court judges in 1982, “doubtlessly, intended” to cow the court into doing what the panelists wanted.

Given this background, observers may well have been alarmed to discover that among those who signed petitions urging the president to exercise his power of mercy in favour of the three were ministers of state and other top officials.

The lead decision was written by Justice Anthony Benin. He said there was no doubt that the president enjoyed the prerogative of mercy under the constitution, but that the question was whether that power was unfettered or if it could be exercised only strictly according to the letter and spirit of the constitution.

Related to these questions the court had to consider whether the prerogative was exercisable in relation to contempt of court. In his view this was a legitimate question: “the power to grant mercy” was not an “arbitrary presidential act of grace or favour”, but one that had to be constitutionally justifiable.

The court also needed to decide whether contempt was “an offence” since it was not specifically contained in written law.

According to Justice Benin, contempt was a “peculiar type of offence”. After a lengthy survey of decisions from other jurisdictions he concluded that criminal contempt was indeed an offence, attracting criminal penalties, and thus the presidential prerogative could extend to someone convicted of criminal contempt just as much as to anyone else convicted of an offence.

As long as an executive president was given the discretionary power to pardon, “he must have the right and privilege to exercise it, untrammeled by any narrow and restrictive construction of the constitutional grant”.

In some jurisdictions there were rules and even an advisory body related to the presidential prerogative of mercy. These helped “ensure a certain level of transparency and certainty as (to) what considerations go into the advisory process.” What was important however is that the exercise of discretion “should be marked by fairness and candour” and any exercise of the discretion that could be described as “capricious, borne out of resentment, or bias by personal dislike, or (that) falls short of due process” would amount to improper exercise of discretional power and “constitutes abuse”.

The associated question – whether the independence of the judiciary was undermined if a president exercised a discretionary power to pardon – had long been a troubled issue. But it appeared that in this case the issue had come to Ghana’s highest court for the first time and it had sparked widespread debate.

Again, the judge surveyed a wide sweep of views from other jurisdictions before considering the situation in Ghana. Checks and balances via separation of powers was critically important, he said. Why should the judiciary not also be subject to such checks and balances rather than enjoying absolute power? “Why should we believe that members of the judiciary, being human …, also do not act in excess in situations where they adjudge themselves to be under attack”? Justice emanates from the people, according to the constitution, “So the people can decide that if they err against the law and are found liable, they could be forgiven, and they have entrusted the power of forgiveness to the President, … without limitation or exception.”

Given the extraordinary power of the court to punish for contempt, was it not “fair and reasonable” that there should be “a body to temper justice mercy when the court has applied its almost arbitrary power to punish somebody, if the people want the transgressor to be forgiven?”

Justice Benin therefore dismissed the applications and upheld the president’s power to act as he did.

Though his analysis and conclusion were followed by four of his colleagues, two judges wrote dissenting decisions. Justice Jones Victor Dotse said that in his view, the President acted unconstitutionally when it pardoned the three.

He said that if the judiciary surrendered “willy nilly to the executive”, it could “sound the death knell of the judiciary”, especially given how polarized politics in Ghana had become.

Giving his opinion on the state of affairs in Ghana he added, “In my candid opinion, at the moment the last vestige of semblance of authority is the judiciary. Erode the power of the judiciary and there will be chaos in the country.” The courts would lose their authority if their contempt powers were subjugated.  

Finally, Justice Anin Yeboah referred to the country’s difficult history in relation to political interference with judicial decisions, commenting that “executive intervention” had “plagued Ghana’s judiciary since independence.”

The network of decisions in the case are long, complex and at times not easy to follow, and though the outcome was clear, via a strong majority decision, still a reader is left with the uneasy feeling that the last word has not yet been said about judicial independence, political interference and populist politics in Ghana.