Why the courts need to block SLAPPs to protect our frail democracy



The last thing our fledgling democracy needs at this crucial moment is the use of legal manoeuvrings to stifle public participation.

Nonetheless, there have been many attempts by the powerful in our society to ensure politically active Ghanaians are cowed into inactive spectators.

One recent such attempt, which was fortunately thrown out by the High Court involved the case between Member of Parliament for North Tongu, Samuel Okudzeto Ablakwa, and Rev Kusi Boateng (also known as Kwabena Adu Gyamfi), the Secretary to the Board of the National Cathedral, whose credibility the MP questioned.

If this suit had been filed in the U.S., it would not have been uncommon to see a news report suggesting the MP had been SLAPPed, SLAPPs being the acronym for ‘Strategic Lawsuits Against Public Participation’.

Two law Professors at the University of Denver in the U.S., George Pring and Penelope Canan, found an unusual trend in lawsuits against ordinary Americans in the late 1980s. They established that Americans were being sued for speaking out politically. In the  20 years of their study, they found that thousands of American citizens had been “sued into silence.”

The people who were being sued included those who circulated a petition for signatures, wrote to a senator or mayor, called a consumer office for help, spoke up at a school board meeting about a bad teacher, supported a public interest, law reform, and engaged in peaceful boycotts and demonstrations among others.

In their book SLAPPs: Getting Sued For Speaking Out, the Professors revealed the causes and consequences of SLAPPs.

Pring would later conclude, categorically, in an article that appeared in the 1989 edition of the Pace Environmental Law Review that: “The apparent goal of SLAPPs is to stop citizens from exercising their political rights or to punish them for having done so. SLAPPs send a clear message: that there is a ‘price’ for speaking out politically. The price is a multimillion-dollar lawsuit and the expenses, lost resources, and emotional stress such litigation brings.”

However, a significant chunk of those SLAPPs were dismissed by the courts. Among the thousands of SLAPPs that Professor Pring and his colleague studied in the late 1900s, a whopping 77% were dismissed.

One will wonder why corporations, politicians, and other powerful individuals will continue to sue citizens for engaging in some of the most fundamental political activities in a democracy.

The Professors found that the aims of such lawsuits are often less to seek any valid legal redress than to prevent active citizens from raising issues that affect the public. Moreover, the determination of these lawsuits could take years, thereby, preventing the immediate tackling of the issues. These findings prompted the U.S. Senate to enact a law that ensures SLAPPs lawsuits, mostly frivolous, are attended to by the courts promptly. This ensures that the substantive is dealt with without delay. The latest of such enactments by the U.S. Senate was the amendment of title 28 of the United States Code to create The SLAPP Protection Act of 2022.

The purpose of the Act was to “establish a procedure to dismiss, punish and deter strategic lawsuits against public participation, and for other purposes.”

The fate of most SLAPPs in the U.S. has not been any different from lawsuits with similar intent in Ghana.

Here in Ghana, SLAPPs have often targeted journalists and journalism. In the past decade, numerous lawsuits have been filed with the intention to prevent critical reports from being published. Journalists have been sued for publishing public interest stories. And as it is in America, most of these SLAPPs have been dismissed in our courts.

However, recently, politicians who have shown considerable interest in the fight against illegal mining and those that have questioned the unconscionable desire to build a national cathedral during an economic crisis, have all been SLAPPed.

The contempt case against Mr Ablakwa which was incidentally thrown out by the court as meritless, was doubtlessly filed to stifle the MP’s attempts to shed light on the abuse of power, and possible corruption, that the building of the cathedral might be shrouded in secrecy.

Okudzeto Ablakwa at court 19 1536x1024 1
North Tongu Member of Parliament was sued for contempt of court. PC: Adom Online

We may not witness SLAPPs in such droves against ordinary Ghanaians as Professors Pring and Canon found in the U.S. The Ghanaian, in the generality, is already clutching at safety, the illusory, straw-like pillar, that has forced him or her to sew his teeth and glue his lips. In most cases, when the Ghanaian is being bullied, he is more likely to withdraw like a mimosa plant rather than to fight back like a thorny tree. The bulk of the citizenry is therefore not participants in this important democratic experiment.

And that is why Strategic Lawsuits Against Public Participation are more damaging to our already troubled democracy. If the few who are bold enough to question authority and confront impunity are being intimidated and forced to run into non-existing caves for safety, how different is our democracy from a despotic military junta?

The consequences of these SLAPPs are dire for our young democracy and for our country.

Therefore, parliamentarians, with the power of enacting laws through the Private Members Bill, must study what has been done in the U.S. and if not to make it better, at least replicate such laws to protect individuals who speak out politically from bogus lawsuits.

The Executive also has a role to play to protect our democracy. As Professors Pring and Canon established, interactions between citizens and the Executive branch of the U.S. government generated the most SLAPPs. Recent cases in Ghana are not unlike what the law Professors found. It, therefore, behooves the officials in the Executive to speak out against SLAPPs.

The Attorney General must file amicus curiae to intervene and urge lawsuits that are evidently SLAPPs to be fast-tracked with some urgency. Equally important, the budgetary allocations due to the Judicial Service must be appropriately disbursed to ensure the fluid delivery of justice.

As for the judiciary, it is crucial for judges to see through the pretence that most SLAPPs are clothed in. As Professor Pring wrote in an article, SLAPPs “masquerade” as ordinary torts. Although it can be difficult, sometimes, for judges to identify SLAPPs, they must critically scrutinise defamation suits. Out of every 228 SLAPPs the University of Denver studied, 53% were “camouflaged” as defamation suits.

Our democracy is young. We, therefore, need all hands on deck to ensure that we protect, sustain and maintain the gains that have been made in the last three decades.

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