Sankofaonline News Desk | December 3, 2025 :
The hushed voices and abrupt refusal by public figures to comment on any matter before the Supreme Court of Ghana have become a familiar, almost ritualistic occurrence. “The case is at the Supreme Court; let us wait after the court’s decision,” is the standard national refrain. This cautious silence, though often rooted in genuine respect for the judiciary, conceals a deeper, more troubling issue: the often-misunderstood and overzealously applied law of contempt of court, particularly the sub judice rule.
Does expressing an opinion on a pending Supreme Court case automatically constitute a breach of the law? The nuanced answer under Ghanaian jurisprudence is: no, not necessarily—but the risk is real and potent. The current culture of absolute silence is a clear sign that the balance between the constitutional right to free speech and the judicial imperative to ensure a fair trial has dangerously tipped, chilling public discourse on matters of profound national interest.
The Law’s Sharp Edge: Contempt and the Sub Judice Rule
Contempt of court in Ghana is not codified in a single statute but is rooted in the common law. It is designed to safeguard the authority and dignity of the court and prevent conduct that impedes or frustrates the administration of justice.
The Supreme Court has affirmed that a party can be in contempt even in the absence of a formal court order. In the case of Republic v Bank of Ghana & 5 Ors; Ex Parte Benjamin Duffour, contempt was defined as arising where a person, knowing a case is sub judice, engages in an act or omission that tends to prejudice or interfere with the fair trial of the case. The principle is the preservation of the status quo and the protection of judicial power vested in the court by the Constitution.
The sub judice rule is not a blanket gag order. Its proper function is to prevent statements or publications that scandalize the court by eroding public confidence in its integrity, or that prejudice the trial by exerting improper influence on judges or undermining the judicial process.
The Constitutional Counterweight: Freedom of Expression
The silence surrounding Supreme Court cases directly clashes with Article 21(1)(a) of the 1992 Constitution, which guarantees freedom of speech and expression. Article 162(4) further protects the press and media from harassment or interference.
Contempt must therefore be seen as a necessary limitation on free speech, permissible only when the risk of prejudice to justice outweighs the public interest in discussion. Many Supreme Court cases, especially constitutional and election-related matters, are of profound public concern.
When politicians, academics, or legal experts refuse to offer reasoned opinions on cases before the court, they do not just protect themselves—they impoverish public education and stifle the marketplace of ideas. Informed legal commentary, citing statutes and precedents, is a contribution to democracy, not an attempt to intimidate the bench. The distinction must be drawn between analytical commentary and scurrilous attacks or false evidence. The former strengthens democracy; the latter undermines justice.
A Call for Judicial Clarity and Public Courage
The pervasive silence suggests that either the boundaries of the sub judice rule are too vague or that the penalties for breach are so severe that the public is unwilling to take any risk.
The judiciary has an obligation to provide clearer criteria for the application of contempt powers, especially in cases of public commentary. The goal should be to protect justice without unnecessarily restricting legitimate criticism.
Ultimately, commentators, analysts, and the media must exercise prudence, responsibility, and courage. We must move away from blanket fear and embrace the right to express reasoned opinions. Analytical and respectful assessments of legal arguments should be seen not as interference, but as an exercise of constitutional freedom.
If contempt law enforces absolute silence on matters of national consequence, then democracy itself is being suffocated. The time has come to elevate the national conversation from fearful silence to informed, courageous dialogue, trusting that the Justices of the Supreme Court are sufficiently insulated by their oath and experience to decide cases based solely on law and fact.
Sources : Can a Writ Breed Contempt? – :: Ghana Law Hub The Supreme Court in the case of Republic v Bank of Ghana & 5 Others; Ex Parte Benjamin Duffour
Laws Ghana lawsghana.com
The Republic Vs Kelvin Ofori-atta, ex Parte; Nii Ashong Sowah-din – Laws Ghana
- Where a party willfully disobeys an order or judgment of a court, and. • Where a party knowing that a case is sub judice, engages in an act or omission.
Ghana Law Hub ghanalawhub.com
Can a Writ Breed Contempt? –
“When a court is seized (sic) with jurisdiction to hear a matter, nothing should be done to usurp the judicial power that has been vested in the court.
ResearchGate
www.researchgate.net
Dignity and Confidence in Our Courts: The Scope of Contempt of Court as Wrought by Ghanaian Pr…
Addo C.J at p. 135; In the Mensah-Bonsu case (n 2), Bamford-Addo JSC. further said: “The public must have confidence in the law and the courts.
