27th May 2010
Mr. Kobby Fiagbe
The Ghanaian Lens
No. 2 Aku Lane
P. O. Box LT 472
I had neither heard of your newspaper nor read it, obviously, until today, when some friends drew my attention to your ‘Frontpage Comment’ that was directed at me. I am intrigued by your amazing ability to dig up and hurl insulting words and unpalatable language at me simply because you disagree with my view on what the law says. I do not pretend to be the ‘be-all-and-end-all’ in matters of the law. I just state what I think. It is your right to disagree with me. Although some would wish that I also dig up choice insults and toss them back at you, I am just not able to express myself with that kind of diction.
I prefer to engage with people who disagree with me, even if they do so in a disagreeable manner. Somehow, I believe that when we learn to engage, talk and debate, we discover that we are often sitting on the same pew and singing from the same hymn sheet, even if we sing in different parts, and even if our voices are discordant.
Let me re-state my complete abhorrence of insults directed at anyone, let alone the President of this realm. If I were to heed to my baser instincts, then I would advocate that the gentleman (I use this term advisedly) who had the effrontery to utter foul words about the President should be locked up and the key thrown away. Years ago, a good 12 lashes adminstered to his sorry, ashy behind would have been in order. But I have grown to learn that acting by those instincts has not served society well, and that is why we are guided, not by fuming rage, but by sober, cold laws.
INSULTING THE PRESIDENT
So what does the law say about this situation, and why are you so angry that I said what I think the law says? In 1969, the NLC government amended the then Criminal Code (now the "Criminal Offences Act") by introducing section 183A, which made it an offence to insult the President. The section (as subsequently amended) provided specifically as follows:
A person who with intent to bring the President into hatred, ridicule or contempt publishes a defamatory or insulting matter whether by writing, print, word of mouth or in any other manner concerning the President commits a criminal offence and is liable on summary conviction to a fine not exceeding seven hundred and fifty penalty units or to a term of imprisonment not exceeding three years or to both the fine and the imprisonment.
Just by way of analogy, this was not the only legal provision that made it an offence to insult certain persons. Section 63(c) of the 2008 Chieftaincy Act makes it an offence to “knowingly” use disrespectful or insulting language or insult a chief by word or conduct. This re-enacted section 53(a) of the erstwhile 1971 Chieftaincy Act. I make this point because although we found it expedient to repeal section 183A of the Criminal Offences Act in 2001, we have kept the parallel provision in the Chieftaincy Act and even had it re-enacted in 2008.
There is no doubt that this gentleman, who is inaptly nicknamed ‘High Priest,’ would be making a beeline to jail if section 183A was applicable today or if he had uttered those words with respect to a chief. However, parliament repealed section 183A in 2001. You and I did not have much of a say in that. In effect, notwithstanding our collective angst (real or pretended) at what the gentleman said, it does not constitute a criminal offence; and that is my position. For will or for woe, we have the rather anomalous situation where it is not an offence to insult the President, who is by law the number one citizen of the lad, but it is an offence to insult a chief.
You make quite a song and dance over section 207. Of course, I am aware of section 207. However, I think that it would have been better if that section had not been mentioned at all in connection with this matter. You are right that that section relates to offensive conduct, but it specifically provides as follows:
"A person who in a public place or at a public meeting uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or by which a breach of the peace is likely to be occasioned, commits a misdemeanour."
Even upon first reading, one would notice that the arrest under this section was problematic, and that a prosecution under the section would simply have made this gentleman a hero, because he would have walked free. First, the studio of a private radio station cannot be a “public place” by any stretch of legal principles or any person’s imagination, however fertile, especially when you consider the statutory definition of a “public place” as a “place… to which the public are entitled or permitted to have access.” If even the frontage of a house has been held not to be a “public place,” then how on earth was the prosecution going to convince a court that this statement was made in a public place? Second, how would the prosecution have been able to prove that his words were intended to “provoke a breach of the peace”, or that the words were likely to result in a breach of the peace? Was that ‘likelihood’ going to be judged by the level of tolerance or otherwise of the people who marched to the station? And if that was the case, would it not be easy to conjure up this offence simply by organising people to march whenever we are unhappy with something that is said on air? The prosecution would have been faced with an extremely uphill, if not impossible, task. The arrest by reference to that section was a real stretch, and I was waiting to see how this would play out in court.
Third, the police would really have had to deal with legitimate questions about why various people have heaped and dumped insults on others on radio stations and in newspapers (as you have done to me), and yet the police have not acted and stretched section 207 to cover those situations. I am pretty certain that graver minds have prevailed.
Somehow, all of this is now moot because the President forgave the gentleman and requested that the police should abandon the case. That, in my view, and contrary to what others have expressed, is a proper application of the spirit behind section 73 of the Courts Act, which encourages the settlement of non-felony criminal matters, even when they are on trial. Many (including me, I must admit) would have wished the President had sued this gentleman in our civil courts; but I must also concede that it was probably prudent and clever of the President to ignore this and focus on his job.
In conclusion, Mr. Editor, you may state that you disagree with me and my view of the law. That is democracy. But in a near rabid fit of anger and literally foaming at the mouth, you have gone way overboard, waxing adjectival, and describing me with choice words that surprise me. I cannot use the same words, even if I try very hard. I could have gone to court to seek redress; but that is not my style. However if you would do me the honour of publishing this response with the same prominence as your ‘Frontpage Comment’, then maybe, just maybe, your readers would have the opportunity to compare what you wrote with what I have to say, and judge for themselves whether your choice of words was appropriate under the circumstances.
Credit: Ace Kojo Anan