After Justice Isaac Addo jailed Herald editor Larry Alan Dogbe for 7 days over a Dubai arrest story, lawyers and journalists ask: If the news was true, how is it contempt?
Larry Alan Dogbe, Editor of The Herald, reported that businessman Kelvin Okyere had been arrested in Dubai. For that story, Justice Isaac Addo of the High Court sentenced him to 7 days imprisonment for contempt of court last week.
The ruling has reignited a decades-old debate in Ghana: Is contempt of court law being used to shield the judiciary from scrutiny, and does it violate the Constitution?
What happened
According to court records, The Herald published that Kelvin Okyere was arrested in Dubai in connection with an ongoing case before the Ghanaian courts. Justice Addo held that the publication was “calculated to prejudice” proceedings and amounted to contempt ex facie curiae – contempt committed outside the court.
Dogbe’s lawyers argued the report was factual. The question now filling newsrooms and law faculties: If the man was arrested, how is reporting it a crime?
The law judges rely on
Ghana has no Contempt of Court Act. The power comes from Article 126(2) of the 1992 Constitution: “The superior courts shall have power to commit for contempt to themselves.” Judges also cite English common law, preserved by Article 11(1)(e) as part of Ghana’s common law.
Two types exist:
1. Civil contempt – Disobeying a court order.
2. Criminal contempt – “Scandalising the court,” sub judice commentary, or acts that interfere with justice.
It was under “sub judice” and “scandalising” that Dogbe was jailed. The test, from R v Metropolitan Police Commissioner, ex parte Blackburn , is whether the publication creates a “real risk” of prejudice to a fair trial.[1968]
The laws critics cite
1. 1992 Constitution, Article 21(1)(a): “All persons shall have the right to freedom of speech and expression, which shall include freedom of the press and other media.”
2. Article 12(2): Rights can only be limited by laws “reasonably required” in the interest of public order or the administration of justice.
3. Article 17(1): “All persons shall be equal before the law.”
4. Criminal Offences (Amendment) Act, 2001 (Act 602): Parliament repealed criminal libel. You can no longer be jailed for defaming the President. Yet judges can still jail you for “scandalising” them.
The contradiction: If Parliament said criminal punishment for words against the President chills free speech, why keep it for words about judges?
The case against contempt as used
1. Vague and broad: “Scandalising the court” has no codified definition. In Republic v Mensa-Bonsu & Others [1995-96] 1 GLR 377, the Supreme Court tried to narrow it to statements that “scurrilously abuse” judges or impute corruption. But trial judges still apply it to critical reporting.
2. Judge, jury, executioner: In contempt, the same judge who feels offended initiates charges, hears the case, and sentences. Article 19(2)(c) guarantees a “fair and public hearing by an independent and impartial tribunal.” Can a judge be impartial in his own cause?
3. Chilling effect on journalism: The Ghana Journalists Association says 11 journalists have faced contempt threats since 2020. Most were reporting on high-profile corruption or land cases. After Dogbe’s 7-day sentence, several editors told this reporter they are “reviewing” court stories. Article 162(4) says “Editors and publishers shall not be subject to control or interference by Government.” Does the judiciary count as “Government”?
4. Truth is not always a defence: In Ahumah-Ocansey v Electoral Commission , the Supreme Court said truth alone does not excuse contempt if the publication still prejudices a trial. But in Dogbe’s case, lawyers ask: Was Okyere’s Dubai arrest even part of the Ghanaian trial? If not, what was prejudiced?[2010]
The judges’ defence
Justice Anin Yeboah, former Chief Justice, argued in 2022: “The authority of the courts would be meaningless if anyone could say anything about a pending case and sway the public.” Section 52 of the Courts Act, 1993 (Act 459) gives courts power to punish contempt to protect the administration of justice.
Supporters say media trials can pollute jury pools, though Ghana uses judges, not juries, in most cases. They also cite Article 127(3): “A Justice of a Superior Court… shall not be liable to any action or suit for any act or omission by him in the exercise of the judicial power.” If judges have immunity, they argue, the institution needs protection from attack.
Comparative law: Ghana is an outlier
– UK: Scandalising the judiciary was abolished by the Crime and Courts Act 2013 after judges said it was “obsolete.”
– USA: The First Amendment bars punishing out-of-court speech unless it poses a “clear and present danger” to justice – a near-impossible test.
– South Africa: Contempt by publication requires proof of intentional interference. Truth and public interest are defences under the Constitution, Section 16.
– Nigeria: Scandalising still exists, but the Supreme Court in Okoduwa v The State said it must be used “sparingly.”[1988]
What reform would look like
1. Pass a Contempt of Court Act: Codify what is contempt, require proof of “substantial risk of serious prejudice,” and make truth + public interest a defence. The GJA submitted a draft in 2019. It’s still with the Attorney-General.
2. Remove “scandalising”: As the UK did. If a judge is defamed, sue for civil defamation like everyone else. Order 63 of C.I. 47 already exists.
3. Independent prosecutor: If contempt is alleged, let the Attorney-General prosecute, not the aggrieved judge. Satisfies Article 19 fair trial rules.
4. Limit summary procedure: Reserve jail to cases where an order is disobeyed. For speech, use fines after full trial.
The bigger picture: Who watches the judiciary?
Article 125(1) vests judicial power in the Judiciary and says it is “independent.” Article 146 provides how judges are removed – by the President with a committee. Citizens have no direct accountability lever except commentary.
When contempt silences commentary, lawyers argue, it breaches Article 35(6)(d): “The State shall take appropriate measures to ensure that the media are free and independent.”
Back to Dogbe
Was Kelvin Okyere arrested in Dubai? Dubai Police have not commented. Ghana’s case docket is not public. But The Herald cited “security sources.” If false, civil defamation exists. If true, what was the crime?
Justice Addo’s 7-day sentence was served. Dogbe is out. But the question remains in every newsroom: If reporting a fact can land you in Nsawam, is Article 21 real?
Parliament’s Public Accounts Committee, GJA, and the Bar Association have all called for review of contempt laws since 2020. The Constitution Review Commission in 2011 recommended codification. Nothing has moved.
Until it does, the law remains: The President can be criticised without jail. A chief can jail you under Act 759 s.63(d). And a judge can jail you for a headline. Article 17 says all are equal. The cells tell a different story.