High Court Ruling on Mpiani, Wereko Brobbey case
Written by danquahinstitute.org Tuesday, 17 August 2010 20:13
IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT OF JUSTICE
(FAST TRACK DIVISION)
ACCRA – A.D. 2010
CASE NO. ACC 39/2010
10TH AUGUST, 2010
THE REPUBLIC PLAINTIFF
1. CHARLES WEREKO-BROBBEY
2. KWADWO OKYERE MPIANI DEFENDANTS
The first accused person namely Charles Wereko Brobbey, was the Chief Executive Officer of the Ghana @ 50 Secretariat. The second accused Kwadwo Okyere Impiani was the Chairman of the National Planning Committee of the staff of Ghana @ 50 Celebration. The second accused was also the former Chief of Staff and Minister for Presidential Affairs under the government of former President J.A. Kuffour.
The two have been charged before this court with four counts of wilfully Causing Financial Loss to the State contrary to Section 179A (3) (a) of the Criminal Offences Act, 1960 (Act 29). The two have pleaded not guilty to all the four counts. Before the prosecution could start adducing evidence to discharge its burden, the accused persons separately filed two motions on notice challenging the jurisdiction of this court in trying them. The application filed by the first accused on the 24th May 2010, prayed as follows:
“(a) an order striking out the instant criminal action and charges against the first accused person and dismissing same as being premature and a gross violation of the right of appeal of first accused person against adverse findings of a Commission of Inquiry under Article 280 (1), (2), (3), (4), (5) and (6) of the 1992 Constitution or in the alternative;
“(b) an order staying proceedings of this criminal action until such time as the period allowed under the Constitution for first accused to challenge any adverse findings made against him by the Commission of Inquiry into the activities of Ghana @ 50 Secretariat has elapsed.
Attached at first accused application were the Charge Sheet filed in this case and a photocopy of the White Paper on the Report of the Ghana @ 50 Commission of Inquiry.
The second accused in his application to this court prayed that the charges against him be struck out and the criminal action dismissed as being unlawful and a gross violation of his constitutional right. The second accused also exhibited the Charges Sheet and the White Paper on the Report of the Commission of Inquiry on the Ghana @ 50 celebrations. For purposes of easy reference the two accused persons will be referred to simply as applicants in this ruling.
Learned Counsels for both applicants have argued strongly that the prosecution mounted against the applicants violates articles 278 and 280 of the 1992 Constitution. The main thrust of learned Counsels for applicants argument is that, in as much as the charges preferred against the applicants originates from the adverse findings of the Ghana @ 50 Commission of Inquiry, the Attorney General is wrong in law by initiating this trial against applicants, who have a right of appeal against the said findings. The reasons advanced by Counsels are that by virtue of Article 280 of the 1992 Constitution the adverse findings of the Commission of Inquiry constitute a judgment of the High Court. They argued that being a judgment of the High Court; the Attorney General cannot prefer charges from the adverse findings. According to learned Counsels for applicants the only court proceedings that could take place after the Commission’s report, is for the applicants to exercise their right of appeal against the findings of the Commission at the Court of Appeal. Counsels submitted that in view of applicants’ constitutional rights of appeal, which they intend to exercise, the High Court cannot investigate or evaluate the adverse findings as the Attorney General is seeking to do in mounting this prosecution. Counsel for the second applicant in particular traced the constitutional history of Commissions of Inquiry in Ghana before the 1969 constitution and submitted that the framers of the 1969, 1979 and 1992 constitutions accepted the proposal that the findings of Commissions of Inquiry should no longer form the basis of criminal trials. Learned Counsel argued that the period before 1969 when adverse findings of Commissions of Inquiry were deemed prima facie evidence against persons adversely affected was no longer the law in view of article 280 (2) of the 1992 constitution, which virtually is a re-enactment of the provision in the 1979 constitution. Counsels further argued that the applicants appeared before the Commission as witnesses complying with the Commission’s requirement and like all such persons they should not be subjected to any civil or criminal proceedings, under any enactment in accordance with section 8 (2) of the Commission of Inquiry (Ghana @ 50) Instrument, 2009, CI 61. Learned counsel again submitted that by initiating this prosecution contrary to the provisions of article 280(2) of the 1992 Constitution as well as section 8(2) of CI 61, the Attorney General was exercising her discretion wrongly and arbitrary contrary to article 296 of the 1992 constitution.
Learned Counsels for the applicants therefore submitted forcefully that the instant prosecution of their clients is a blatant violation of their constitutional rights and for that matter the criminal charges should be struck out the action against the applicants dismissed or stayed until their rights of appeal as provided by the constitution elapses.
PROSECUTION’S ARGUMENTS IN RESPONSE
The Attorney General in opposing the application by the applicants filed an affidavit on 10th June, 2010 and a supplementary affidavit on the 14th July 2010. In his submissions before this court leaned Chief State Attorney who appeared for the Republic argued that the powers of the Attorney General to prosecute criminal offices in Ghana under article 88 of the 1992 constitution cannot be restrained by any court in as much as the power is exercised within the limits of the constitution. On this point Counsel referred this court to the case of Republic v. Circuit Tribunal, Koforidau, Ex-parte Nana Anku-Dododzah Didieye III , Court of Appeal unreported of 8th July 2005. Counsel argued further that there is no provision in the constitution that stops the Attorney General from prosecuting the applicants herein on the basis of the adverse findings made against them by the Commission of Inquiry into the Ghana @ 50 celebrations. Counsel submitted that the findings of the said Commission could only be deemed a judgment the of the High Court after six months of the publication of the Commission’s report; hence nothing stopped the Attorney General from prosecuting the applicants before the six months matured. In a response to Counsel for the second applicant’s submission that present prosecution amounts to a wrong and arbitrary exercise of discretion by the Attorney General, the Chief State Attorney cited the case of Republic v. Minister for the Interior; Ex-parte Bombelli (1984-86) 1 GLR constitutional and statutory duties it cannot be said that the exercise of such duties amounted to abuse o discretion.
Counsel for the Republic argued further that the applicants herein were the main subject of the Ghana @ 50 Commission, so they should not be treated as ordinary witnesses for which they would take advantage of section 8(2) if CI. 61. Counsel concluded that the applicants will be given a fair trial and for that matter this court should dismiss the application since they are without any merit.
Having heard Counsels for the Accused persons and the Republic, and having examined and studied the processes and exhibits filled in this application, I am of the view that the application raises one fundamental issue to be resolved. That issue is whether or not the adverse findings or the report of the Ghana @ 50 Commission constitute a Judgment as defined by Article 280 of the constitution and if so whether or not the Republic through the Attorney General can mount this prosecution in the circumstances of this case having regard to the provisions of Article 278 and 280 of the 1992 Constitution.
Before I proceed to address this major issue I would like to make some observations and also address some collateral issues that were joined in this application. The first observation is that the case of the applicants is not that the Attorney General has no power to prosecute crimes detected in the country as urged by learned Counsel for the Republic and averred in paragraphs 15 to 18 of the affidavit in opposition. The case argued by Counsels for the applicants is that I the circumstances of this particular case, in as much as the prosecution is based on the adverse findings of the Ghana @ 50 Commissions of Inquiry, the 1992 Constitution does not confer on the Attorney General the right to prosecute the applicants.
This court is mindful of the powers conferred on the Attorney General of the Republic by article 88 of the 1992 Constitution. Indeed by article 88 (3) the Attorney General shall be responsible for the initiation and conduct of all prosecution of criminal offices in Ghana. What I understood Counsels for the applicants as submitting is that under Articles 278 and 280 of the 1992 Constitution adverse findings of Commissions of Inquiry established under the said provisions are deemed to be judgments of the High Court subject only to appeal to the Court of Appeal; and by that constitutional provisions and arrangements the Attorney General has no right to prosecute persons against whom adverse findings are made, since the adverse findings constitute a judgment. Simply put the case of applicants is that; the Attorney General cannot prefer charges against the applicants out of an existing judgment against them. In other words Counsels for applicants are submitting that in the circumstance of this case of Attorney General already has a judgment against applicants, which judgment the applicants have the right of appeal to the Court of Appeal.
A collateral issue I seek to address is whether the charges preferred against the applicants in the charge sheet filed in this case is derived from the adverse findings of the Ghana @ 50 Commission. Clearly, the fact that the Ghana @ 50 Commission of Inquiry was established under article 278 of the 1992 Constitution is without any dispute. Indeed paragraph 1.0 of the Government White Paper exhibited by all the parties in this case provides as follows:-
“1.0 on June 1 2009 the Government of Ghana by Constitutional Instrument No. CI 61 of 2009 appointed a Commission of Inquiry under Article 278 of the 1992 Constitution of the Republic of Ghana to enquire into the operations of the Ghana @ 50 National Planning Committee, the Ghana @ 50 Secretariat an matters incidental to the Ghana @ 50 celebrations.”
From the above provision there an be no dispute that the Commission was established under Article 278 of the 1992 Constitutions. The issue joined really by the affidavits filed by the parties was whether the charges preferred against the applicants originated solely from the Commission’s findings. Even though in his submissions before this court, learned Counsel for the Republic conceded that the Charges are derived from the findings of the Commission’s report, I deem it necessary to address this issue in view of the disposition in paragraph 22 of the Attorney-General’s main affidavit in opposition to the application and the attached exhibit marked “AG3”. The resolution of this issue is important particularly so since this application is being tried on affidavit evidence. The said paragraph 22 reads follows:
“22. That the accused/applicants are very much aware that apart fro the Commission’s work, separate SFO/Police Investigations were conducted into their conduct relating to the Ghana @ 50 affairs and the Police contacted them in that regard”
The Attorney General then proceeded to exhibit a letter from the Serious Fraud Office marked as AG3 to support the above deposition. The content of the said exhibit which is addressed to the Director General of the Criminal Investigations Department, Police Headquarters, Accra, copied to the Honourable Attorney General and dated the 7th of January, 2010 will be reproduced for purposes of sound reasoning.
INVESTIGATIONS INTO SUSPETED STEALING OF STATE PROPERTY: TRASSACO VALLEY RESIDENTIAL FURNISHING FOR THE GHANA @ 50 CELEBRATIONS
This office had information about the suspicious removal/disposal of property purchased by the state and used to furnish houses at the Trassaco Valley for the Ghana @ 50 Celebrations.
The information available to the office is that the said items, which include furniture, air-conditioners and other fixtures, were subsequently taken away and cannot be traced.
We are forwarding to you a duplicate copy of our docket on the preliminary investigations we have conducted in order tat you may undertake investigations into the said allegations as well as ay other related issues which may come to your notice.
I am by a copy of this letter advising the Honourable Attorney General of our action.
Please kindly acknowledge receipt.
B. MORTEY AKPADZI
Cc: The Hon. Attorney General and Minister for Justice
Attorney General’s Department, Accra.
It is obvious that the investigations which is the subject of the above letter relates to alleged removal or disposal of fixtures from furnished houses at the Trassaco Valley for the Ghana @ 50 Celebrations. Having reproduced the letter from SFO, I think it is important I examine the charge sheet and the facts supporting same as an aid to determine whether the charges preferred against the applicants are derived from the findings of the commission or other source as paragraph 22 of the Attorney Generals affidavit in opposition sought t portray.
As indicated the applicants are charged with four counts as follows;
Willfully causing financial loss to the state contrary to Section 179A (3) (a) of the Criminal Offences Act, 1960 (Act 29).
PARTICULARS OF OFFENCE
Charles Wereko Brobbey, ie Executive Officer of the defunct Ghana @ 50 Secretariat, 2. Kwadwo Okyere Mpiani, Chairman of the National Planning Committee of the Ghana @ 50 celebrations, that you between May 2006 and December 2008 willfully caused financial loss to the state to the tune of Ghc46,999,563.00 by spending Ghc46,999563.00 in excess of the amount of US$31.80 million or the cedi equivalent of Ghc29.31 million that was approved by Parliament for the Ghana @ 50 celebrations.
STATEMENT OF OFFENCE
Willfully causing financial loss to the state contrary to Section 179A (3) (a) of the Criminal Offences Act, 1960 (Act 29)
PARTICULARS OF OFFENCE
Charles Wereko Brobbey, Chief Executive Officer of the defunct Ghana @ 50 Secretarait, 2. Kwadwo Mpiani, Chiarman of the National Planning Committee of the Ghana @ 50 celebrations, that you between February 2007 and January 209 willfully caused financial loss of Ghc2,116,906.91 to the state in the form of interest paid by the State on a loan of Ghc10,438,036.37 you contracted from Prudential Bank without authority.
Willfully causing financial loss to the state contrary to Section 179A (3) (a) of the Criminal Offences Act, (Act 29)
PARTICULARS OF OFFENCE
Charles Wereko Brobbey, Chief Executive Officer of the defunct Ghana @ 50 Secretariat, 2. Kwakwo Okyere Mpiani, Chairman of the National Planning Committee of the Ghana @ 50 celebrations, in or about September 2006, willfully caused financial loss of Ghc966,048.52 to the State in the form of interest paid by the State on a bank overdraft you contracted from Prudential Bank without authority.
Willfully causing financial loss to the state contrary to Section 179A(3) (a) of the Criminal Offences Act, 1960(Act 29).
PARTICULARS OF OFFENCE
Charles Wereko Brobbey, Chief Executive Officer of the defunct Ghana @ 50 Secretariat, 2. Kwadwo Mpiani, Chairman of the National Planning Committee of the Ghana @ 50 celebrations, that you between May 2006 and December 2008 willfully caused financial loss to the State by expending the amount of Ghc19,352,498.00 being income that was realized from the activities and programs of the Ghana @ 50 Secretariat without authority.
The facts presented by the prosecution in support of these charges and to basically explain the circumstances under which the offences charged were allegedly committed, clearly demonstrates that the preferred charges originates from the findings of the Ghana @ 50 Commission. In fact in the particulars of the four charges as stated above, the applicants are charged for expending the various sums of money. There is no count on the charge sheet that relates to removal or disposal of furniture, air conditioner r other fixtures from the furnished houses of the Ghana @ 50 Secretariat at the Trassaco Valley. Having examined the charge sheet and the facts presented by the prosecution, I find clearly that the charges preferred against the applicants in this case have its origins from the adverse findings made by the Commission which was established under Article 278 of the 1992 Constitution.
I now address the fundamental issue in this case, which is whether the adverse findings so made by the Commission constitute a judgment of the High Court as defined by Article 280 o the 1992 Constitution. And if it is a judgment, is the Attorney General right in law in mounting this prosecution? In addressing the legal issues raised in this case, I have cautioned myself that the High Court has no jurisdiction to interpret provisions of our constitution and I do not attempt to assume that jurisdiction, which is preserved for our Supreme Court. I seek to address the legal issues under the authority of article 33 of the 1992 constitution, which vest the High Court jurisdiction to enforce the fundamental human rights enshrined in our constitution. The said article 33 provides as follows:-
“33(1) Where a person alleges that a provision of this constitution on the fundamental human rights and freedoms has been or is being or is likely to be contravened in relation to him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress”.
The applicants herein are invoking the jurisdiction of the High Court to strike out, dismiss or stay this prosecution mounted by the Attorney General, in the circumstances of this case because it is a violation of their right of appeal guaranteed under article 280(2) of the 1992 Constitution. It is clear that the right of appeal, as provided under article 280(2) is not one of the specified rights and freedoms enshrined in Chapter 5 of the 1992 Constitution, however article 33(5) of the constitution guarantees other rights not specially mentioned in chapter 5 of the constitution. Article 33(5) provides as follows:-
“33(5) The rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man”.
I find the right of appeal guaranteed under article 280(2) of the constitution one of such rights inherent in a democracy and as such the High Court has the jurisdiction to enforce same under article 33 of the Constitution.
From the report of the Commission which was exhibited in this proceedings by the Attorney General and marked as “AG2” there is no doubt that the Commission made adverse findings against the applicants herein. Indeed the White Paper issued by the Government contained a summary of the adverse findings. The particulars of offence recited under the four counts preferred against the applicants are but some of the adverse findings made against the applicants by the Commission. It is applicants’ right of appeal against the said adverse findings, that they argue, cannot be taken away by the Attorney General in mounting this prosecution.
For clarity of thought I shall reproduce the relevant provisions of Article 280 of the Constitution.
“280(1) A Commission of Inquiry shall
(a) Make a full, faithful and impartial inquiry into any matter specified in the instrument of appointment
(b) Report in writing the results of the inquiry and conclusions stated in the report
(c) Furnish in the report the reasons leading to the conclusions stated in the report
(2) Where a Commission of Inquiry makes adverse finding against any person, the report of the commission of inquiry shall, for the purposes of this constitution, be deemed to be the judgment of the High Court; and accordingly, an appeal shall lie as of right from the finding of the commission to the Court of Appeal.
(3) The President shall, subject to clause (4) of this article cause to be published the report of a commission of inquiry together with the White Paper on it within six months after the date of the submission of the report by the commission.
(4) Where the report of a commission of inquiry is not to be published, the President shall issue a statement to that effect giving reasons why the report is not to be published.
(5) A finding of a commission of inquiry shall not have the effect f a judgement of the High Court as provided under Clause (2) of this article unless:
* (a) Six months have passed after the finding is made and announced to the public; or
(b) The Government issues a statement in the Gazzette and in the National Media that it does not intend to issue a White Paper on the report of the commission, whichever is the earlier.
(6) The right of appeal conferred by Clause (2) of this article on a person against whom a finding has been made, shall be exercisable within three months after the occurrence of either of the events described in clause (5) of this articles or such other time as the High Court or the Court of Appeal may, by special leave and on such conditions as it may consider just allow”.
For purposes of appreciating the nature, scope and effect of proceedings before Commissioner of Inquiry established under Article 278, it is important to also consider the provisions of Article 281 of the constitution which provides as follows:
“281 (1) Except as may be otherwise ordered by the commission in the interest of the public morality, public safety or public order, the proceedings or a commission of inquiry shall be held in public.
2. Subject to the provisions of the chapter, the Rules of Court Committee established under article 157 of this constitution shall, by constitutional instrument, make rules regulating the practice and procedures of all commissions of enquiry and for appeals from commissions of inquiry.”
I shall later in this ruling revert to article 281(2) with regards to the legal effects or article 280(2), which deems the report and adverse findings a commission of inquiry a judgment of the High Court, particularly the fact that Rules of Court Committee have the constitutional mandate to formulate rules to regulate the practice and procedures of Commissions of Inquiry and the Court of Appeal’s jurisdiction to hear appeals from the findings of such Commissions. For now I shall address the constitutional history and development of Commissions of Inquiry in our country’s constitutional journey.
CONSTITUTIONAL DEVELOPMENT OF COMMISSIONS OF INQUIRY IN GHANA
This case calls for a judicial determination of the legal effects of reports of Commissions of Inquiry appointed under article 278 of the 1992 Constitution. Such a determination cannot be made without reference to the historical antecedents behind the establishment of Presidential Commissions under our constitutions.
I will take the history from the period before the 1969 constitution bringing into prominence in this ruling, two important documents in our constitutional history. These documents are the Memorandum on the Proposal for a Constitution for Ghana, 1968 and the Proposals of the Constitutional Commission for the Establishment of a Transitional (Interim) National Government for Ghana, 1978. for purposes of sound reasoning I shall again reproduced Chapter Twenty Four of the 1968 Report which is on Commissions of Inquiry and begins with paragraphs 716 of that report.
COMMISSIONS OF INQUIRY
“716. There may be circumstances where the National Assembly may appoint a Select Committee to inquire into a matter of public importance. But there may also be circumstances where an inquiry by a Select Committee would be inappropriate to deal with an inquiry into a matter of public importance. Where such is the case and where political considerations are apt to bedevil an issue it is out view that the matter in hand should be dealt with by an impartial and independent body charged with the duty of finding facts.
717. This means that the procedure of such an inquiry is bund to be inquisitorial rather than accusatorial as is the case with criminal trials. This will be so since the inquiry will be fact-fining and at worst censorial. We do not think that public inquiries should ever develop into criminal trials.
718. Since February 1966, there have been no less than seven Commissions of Inquiry which have investigated or are investigating various aspects of the conduct of public figures in high places. The revelations are startling. These Commissions of Inquiry have proved the value of impartial and independent ascertainment and discovery of facts. They illustrate, if any illustrations are needed, the need to have such inquiries conducted independent of both the Executives and Parliament.
719. Such considerations lead us to propose that the establishment of a Commission of Inquiry should be a constitutional matter and we accordingly propose that, in order to ensure the independence and impartiality of Commissions of Inquiry, a sole Commissioner or the Chairman of a Commission of inquiry should always be a Judge of the Superior Court of Judicature or a person qualified to be appointed as such or a retired Judge of the Superior Court of Judicature.
720. The Commission should have all powers, rights and privileges of the High Court of Justice such as powers in respect of enforcement of attendance of witnesses, the production of documents and immunity from action or suit for acts done in good faith in the performance of the duties of the Commission.
721. A Commission of Inquiry should make a full, faithful and impartial inquiry into any matter special in its commission of appointment, report in writing the results of its enquiry and furnish in the Report the reasons leading to the conclusions arrived at or reported. The Commission should hold its sittings in public but where public morality, public safety or public order requires, we propose that a Commission of Inquiry should be able to sit in camera.
722. We propose that the rules of evidence to govern Commissions of Inquiry should be promulgated by the Rules of Court Committee of the Judiciary. As a guide to that Committee we think that such rules should not require a Commission of Inquiry to be bound by the ordinary strict rules of evidence applicable in the Courts of Law. A person duly summoned before a Commission of Inquiry should not be regarded as a witness of any particular party. He must be considered to be a witness of the Commission. Such a person should therefore give formal evidence as to the matters related by him in his written statement to the Commission and then be subject to cross-examination by Counsel on behalf of the Commission to test the accuracy of his statement and to deal with matters which are not dealt with in his statement. He should be liable to examination by Counsel on behalf of any person affected by the evidence given or that person himself and should be subject to re-examination on behalf of the Commission when this is required.
723. Finally, we propose that the appointment of a Commission of Inquiry should be by a statutory instrument issued by the President on the advice of the Prime Minister or as a result of a resolution passed by the National Assembly for the appointment of a Commission to inquire into a matter of public importance.
724. For the guidance of future authorities we quote hereunder a statement by Lord Kilmur on public enquiries made in the House of Lords on the 14th day of May, 1959:
“The sanction of a public inquiry is necessary on occasions for the purpose of maintaining a high standard of public administration, and the modern system was deeply aware of the inadequacies of the machinery or inquiry by a select committee, on the one hand, and the limitations of the ordinary processes of law on the other………..
One must frankly admit that there is a conflict between the need of the State that the truth should be discovered on weighty matters which reflect on the functioning of its important agencies, and the position of the individual who finds himself involved. The vital point…..is that the procedure should only be invoked for weighty and important matters, for it is only then the sacrifices on the part of the individual can be fairly demanded.
That leaves our unending problem. Where the ordinary life of the ordinary citizen is invaded we must use all our skill and sympathy to ensure ht this in the least hurtful manner. I hope I shall not be thought to be presumptuous if I ask for the co-operation of Parliament and of the Press in this important task.”
The next historical document I have considered is the Proposals of the Constitutional Commission for a Constitution for the Establishment of a Transitional (Interim) National Government for Ghana – 1978. The proposals which was an improvement of the 1968 memorandum, provided at Chapter Twenty-Three on Commissions of Inquiry, starting from paragraph 299 of the report as follows:
COMMISSSIONS OF INQUIRY
“299. With the exception of two changes, we have recommended the re-enactment of the provisions of the 1969 Constitution on Commission of Inquiry.
300. The first change proposed by us is to make it possible for a person adversely affected by the findings or recommendations of a Commission of Inquiry to appeal against such findings or recommendations.
301. Having regard to the fact that the findings and recommendations of a Commission of Inquiry can have serious legal consequences for persons affected thereby, not to mention the possible adverse impact on the reputation and image of such persons in the society, we consider it necessary that a person adversely affected by such findings or recommendations should be able to challenge the soundness, or legality of such findings or recommendations in court. For this purpose we propose that the report of a Commission of Inquiry shall be deemed to be a judgment of the High Court of Justice from which an appeal shall lie as a right to the Court of Appeal and if need be, to the Supreme Court.
302. The second change we propose relates to the publications of the Reports of Commissions of Inquiry. We believe that the findings of a Commission of Inquiry, established in the name of the people and financed from public funds, are of legitimate concern and interest to the people. Therefore, the public has a right to be informed of the findings and recommendations which result from the work of such a Commission. On the other hand, we recognize that in some cases the publication of the findings of a Commission of Inquiry may not be in the interest of the State or may be Contrary to State security or may not be suitable for publication for the other legitimate reasons. We do not think that it is wise or justifiable to oblige the Government in al cases to make such findings. But we consider that the public has a right to know whether or not they may expect to see the report of a particular Commission of Inquiry or whether the government has decided not to make the Report public. We, therefore, recommend a provision to the effect that where the Report of a Commission of Inquiry is not to be published the President shall issue a statement to that effect, giving reasons for the decision not to publish.
303. This provision does not require either that the President should publish all Reports of Commissions of Inquiry, o indeed, that he should actually justify the decisions not to publish in any particular case. What it does id to require the President to let the public know when he has decided not to publish a particular report and to tell them why he has taken such a decision. The reason given may – and most probably will – be so general as to be barley informative; but it will at least provide a good occasion for the pres and interest members of the public to ask further questions or draw appropriate conclusions.
The above proposals clearly, formed the basis of the provisions under Chapter Twenty-three of the 1979 and 1992 Constitutions on Commissions of Inquiry. Indeed the 1992 Constitution did improve on the 1978 proposals by providing conditions under which the findings could be deemed judgment of High Court.
What then is the rationale behind the establishment of Commissions of Inquiry under our constitution? The rationale is not farfetched; it is what was stated in paragraph 301 of the 1978 proposals. In sum it is to accord the President the opportunity to cause investigations into certain matters of public importance by an impartial and independent body. And because the findings of such a body can have serous legal consequences for the persons affected thereby including adverse impart on their reputation in society, such persons should be able to challenge the soundness of legality of such finding in the courts of law, hence the arrangement that such findings be deemed to be a judgment of the High Court, from which an appeal shall be as of right to the Court of Appeal.
The proposal that findings of Commissions of Inquiry, established under the constitution should be deemed to be a judgment of the High Court and the acceptance thereof by the framers of our constitutions has changed the legal effects of such findings or reports. Before the 1969 Constitution, Commissions of Inquiry were appointed under the Corrupt Practices (Prevention) Act, 1963 (Act 230). The findings of such Commissions were prima facie evidence of the facts found and the persons affected suffer no liability until the Attorney General decided to prosecute and secured a conviction. In Akainyah and another v. The Republic (1968) GLR 548 at 555, Apaloo J.A (as he then was) delivered as follows:-
“No liability to suffer any penalty attaches to any person against whom the commissioner makes adverse finding until the Attorney General, in exercise of the power conferred on him by section 4 of the Act, invokes the judicial power of the courts and procures conviction.”
The persons affected by the findings were only require to shoe cause, why they should not be convicted and sentence based on the evidence adduce at the commission. Discussing the topic Commissions of Inquiry at Chapter Eight of his celebrated books, Criminal Procedure in Ghana, A.N.E. Amissah stated at page 220 as follows:-
“It is submitted that in showing cause, the accused may advance any reason which may persuade the court that he should not be convicted and sentenced on the basis of the report. In this aspect the procedure under Act 230 is similar to the summary committal for perjury procedure in respect of which it ahs been held that a judge is not entitled to prejudge in the issue. The Act does not restrict the ways in which the accused may show cause. Section 6 provides that where the accused in showing cause states that he had no opportunity of cross examining any of the witnesses referred to as relied upon in the report; the court may call such witness to be cross-examine by the accused in which case both the court and the Attorney General can put further questions to the witness.”
The effect and consequence of the report or findings of Commission of Inquiry under the 1969, 1979 and 1992 constitutions is quite different. Under the aid constitutions the effect of a report with adverse finding was to be deemed a judgment of the High Court and appealable to the Court of Appeal. Unlike the findings of the pre-1969 commissions, the post 1969 commissions attracted automatic constitutional sanctions until the persons affected succeed in setting aside the findings on appeal. For example under article 94(2) (d) of the 1002 Constitution a person, being a public officer who is found by a Commission of Inquiry to have defrauded the state or misused or abused his office, or willfully acted in a manner prejudicial to the interest of the state and the findings have not been set aside on appeal or judicial review, shall not be qualified to be a Member of Parliament.
Article 94(5) then provides thus:-
“95(5) A person shall not be taken to be disqualified to be a member of Parliament under paragraph(c) or (d) of clause (2) of this article if:-
(a) ten years or more have passed since the end of the sentence or the date of the publication of the report of the commission or committee of inquiry; or
(b) he has been pardoned.
Further by article 62 of the 1992 constitution, a person affected by the adverse finding of a commission of inquiry shall not be qualified for election as the President of Ghana and the disqualification is not to be removed by the occurrence of the two event stated under article 94(5) above.
By these constitutional arrangements the Attorney General is not required to take any legal step to secure the criminal liabilities to be suffered by persons affected by the adverse findings or reports of Commissions of Inquiry, which are deemed to be judgments of the High Court against the persons affected and not just a prima facie evidence.
From the historical development of Commissions of Inquiry under our constitutional framework, it should now be clear that reports of such commissions containing adverse findings are judgments of the High Court as defined by the constitution, and the persons affected by the said judgment have the right of appeal to the Court of Appeal. If this was the thinking of the framers of our constitution, as demonstrated by the Constitutional Proposals cited in this ruling, can it then be right for the Attorney-General to prosecute the affected persons against whom the Republic has already secured a judgment; from which judgment they have the automatic right of appeal? No, I think the provisions in Chapter Twenty Three of the 1992 Constitution are clear enough on the intentions and aspirations of the framers as expressed in paragraph 301 of the 1978 Constitutional Proposals.
Now, what are the nature, effect and scope of the adverse findings made by the Ghana @ 50 Commission which forms the basis of this prosecution? The 1992 Constitution by article 280 (5) clearly sets the conditions under which such adverse findings shall be deemed to be a judgment of the High Court. The conditions are simply thus:-
(a) Six months after the findings is made and announced to the public; or
(b) If the Government does not issue a statement in the Gazette and in the national media that it does not intend to issue a White Paper on the report of the commission, whichever is earlier.
In the circumstances of this case the Government has issued a White Paper on the report of the Commission. Form article 285(5) it is evidently clear that in as much as the Government has issued a White Paper on the report of the Commission the findings had become a judgment of the High Court. The reason is that under article 280(5), the findings became judgment when either of the two conditions stated therein first occurred. By issuing the White Paper the Government had elected to make the findings a judgment of the High Court, making the six months condition nothing to count. I am of the considered opinion that at the time this prosecution was mounted by the Attorney-General, the findings of the Commission which formed the basis of the charges against the applicants herein, was already a judgment of the High Court, by the issuance of the White Paper.
Assuming however that the six months condition is still to be counted, notwithstanding the issuance of the White Paper, then we have up to the 20th October, 2010 for the findings to mature into judgment. This is because pursuant to article 280(3), the report of the commission was published together with the White Paper on the 21st April, 2010. Clearly, counting from the 21st of April, 2010 the six months will elapse on 20th October, 2010, about seventy-one (71) days from today the 10th of August, 2010. The significance of this date therefore is that the adverse findings made by the commission shall be deemed a judgment of the High Court by that date, if my finding above that the Commission’s report is already a judgment is disputed. What then would be the current position of the applicants herein if findings should be deemed a judgment in October, 2010?
Is It the case that before the adverse finding is deemed to be a judgement of the High Court, the affected persons could be prosecuted, because there is no judgment yet? No, as I have demonstrated in this ruling the intention of the framers of Chapter Twenty-Three of the 1992 constitution derived from the 1969 and 1979 constitutional arrangements under article 280 of the 1992 constitution therefore does not allow the Attorney General to initiate prosecution against persons affected adversely by he findings of a Commission of Inquiry established under article 278 of the constitution. The initiation of this criminal trial against the applicants herein should it be allowed, will only lead to judicial absurdity, of the affected persons decide to exercise their right of appeal to the Court of Appeal. The reason is that engaging in this prosecution will not change the constitutional provision that six months after the publication of the Ghana @ 50 Commission of Inquiry report, the findings shall be deemed a judgment of the High Court. In the circumstances, I hold that the prosecution mounted against the applicants herein by the Attorney General violates the democratic right of appeal offered the applicants against the findings of the Commission of Inquiry into the Ghana @ 50 celebrations, since the constitution deems the findings a judgment against the applicants, subject only to an appeal under article 280 of the constitution.
The learned Chief State Attorney has argued that the prosecution of the applicants herein should not be disturbed because the Rules of Courts Committee established under article 157 of the constitution has not formulated rules to regulate the hearing of appeals against the findings of Commissions of Inquiry as required by article 281(2) of the constitution. It is not very clear whether or not the Rules of Court Committee as at today has published rules to regulate the procedure and practice of such commissions. Indeed at page 2 and paragraph 3.1 of the Commission’s report, the Commission commented that the absence of regulations governing the procedure for the Commissions of Inquiry was one of the main challenges encounted by the Commission in the discharge of its duties. The Commission however acknowledged the existence of a draft regulation put together by the Drafting Division of the Attorney General’s Department.
I am of the considered opinion that even though there is the need or such rules to regulate the practice and procedure of Commissions of Inquiry, the absence of such rules, if al all, does not take away the right of appeal of the applicants herein as guaranteed by article 208(2) of the constitution. Indeed the Court of Appeal has its own rules that regulate its practice and procedures. The Court of Appeal Rules, CI 19 as amended under Rule 7 grants the Court the right to prescribe its own rules in the exercise o its jurisdiction to hear appeals, in case no specific rules are prescribed in CI 19.
The prosecution of applicants herein, being persons affected by the adverse finding of the Ghana @ 50 Commission, undermines the provisions of Chapter Twenty-three of the 1992 Constitution, particularly article 280(2) and (5) thereof. This trial will amount to a High Court evaluating its own judgment a duty reserved for the Court of Appeal under articles 280(2) and (6), 281 and 137(1) if the Constitution. Under article 137(10 of the 1992 Constitution, it is only the Court of Appeal that has the jurisdiction to re-evaluate the findings and decision of the High Court. The said article provides as follow:-
“137(1) the Court of Appeal shall have jurisdiction throughout Ghana to hear and determine, subject to the provisions of this Constitution appeals from a judgment, decree or order of the High Court and Regional Tribunals an such other appellate jurisdiction as may be conferred on it by this Constitution of nay other law.”
Clearly as demonstrated article 280(2) and (6) of the 1992 Constitution confers on the Court of Appeal the jurisdiction to hear appeals against the findings of Commissions of Inquiry established under article 279 of the Constitution. It is thus evident that constitutionally this High Court as constituted has no jurisdiction to evaluate the soundness or legalities of the findings of the Ghana @ 50 Commission as the finding is deemed to be a judgment of the High Court.
This case for me reveals a very important constitutional development in this country, regarding the legal effects of findings or reports of Commissions of Inquiry appointed under the constitution. It is clear from my findings herein that such Commissions of Inquiry as established have undergone remarkable constitutional development from the 1969 constitution which ought to be recognized, registered and sealed with the judicial stamp of this country. This sis a solemn and sacred duty that the courts are established to do. Under the 1993 constitution about four commissions of inquiry, including the Ghana @ 50 Commission had been established to investigate various important matters of public concern and interest. These commissions established under the 1992 constitution are as follows:-
1. The Commission of Inquiry (International Transfer of Football Players) Instrument, 1999 established under CI 22 of 12th march, 1999.
2. The Commission of Inquiry (Accra Sports Stadium Disaster) Instrument, 2001 established under CI 34 of 11th May, 2001.
3. The Commission of Inquiry (Yendi Events) Instrument, 2002 established under CI 36 of 26th April, 2002.
Indeed by article 280 of the constitution the reports of all the above commissions were deemed to judgments of the High Court and persons affected by the adverse findings had the constitutional right of appeal to the Court of Appeal. It is however a matter of judicial notice that persons against whom adverse findings were made by the Commission of Inquiry into the Yendi events and the Commission of Inquiry into the Accra Sport Stadium Disaster were prosecuted in the High Court, notwithstanding the clear provisions of article 280 of the constitution, which clearly represent the aspirations of the great men and women who engineered our 1969, 1979 and the 1992 constitutions; the aspiration being that findings of commissions of inquiry should never develop into criminal trials. It is obvious that the objections raised in this case were lost on the persons against whom adverse findings were made by the two previous commissions mentioned above. The prosecution of the said persons at the High Court was a violation of their constitutional right of appeal against the findings of the two commissions; and it is this right that this court has been called upon to enforce under its jurisdiction as provided by article 33 of the constitution.
Flowing from the aspirants of the framers of our constitution that the findings of a commission of inquiry are not tot develop into a criminal trial, I find that the Ghana @ 50 Commission of Inquiry itself respectfully erred when it recommended that Government may prosecute the applicants herein. At page 17 and at paragraph 6.1(xiii), the Commission recommended the following:-
“xiii. For the following reasons Government has the option of prosecuting the CEO and the Chairman under section 179A(3) of the Criminal Offences Act, 1960 (Act 29) for causing loss to the state.”
The Commission then went ahead to formulate three reasons for this recommendation at page 17 and 18 of the report.
Besides the constitutional development of commissions of inquiry in our country a discussed in this ruling, the Constitutional Instrument that established the Ghana @ 50 Commission of Inquiry, CI 61, of 5th June, 2009 raised a serious legal issue by the provisions of its sections 8(2) and 10 which provided as follows:-
“8(2) A person shall not be subject to any civil or criminal proceedings under any enactment by reason of that person’s compliance with a requirement of the Commission.”
10(1) Subject to paragraph (2), in any proceedings before the Commission a person called a witness shall be compelled to produce any document or article an answer any question as regards the subject matter of the proceedings although the document, article or answer may incriminate that person.
(2) Where a person gives incriminatory evidence under paragraph 1, the evidence shall not be used in any criminal or civil proceedings against that person.”
The requirements of the Commission that persons appearing before it had to comply can be deducted from section 7 of CI 61, which is as follows:-
“7. For the purpose of the conduct of its proceedings, the Commission shall have power;
(a) to require a person to disclose truthfully, information within the knowledge of that person and which is relevant to the proceedings;
(b) to examine a witness on oath or affirmation and to administer the oath or affirmation;
(c) to issue subpoenas requiring the attendance of a person before the Commission and require the production of any article, documents or other record relevant to the proceedings;
(d) to cause a person who refuses to comply with the order or directives of the Commission or acts in any manner contemptuous of the Commission to be charged with the contempt of court and for that person to be tried at the High Court; and
*e) to require a person to fill a form providing the information and within the period specified in the form.”
There are the requirements of the Commission the compliance of which a witness shall be immune from any civil or criminal proceedings under any enactment. It is therefore, my opinion that the combined effect of sections 8(2) and 10 of CI 61 is that when a person or a witness attends the Commission in compliance with its requirements then no civil or criminal proceedings shall be brought against such a person under any enactment, in this case for example the Criminal Offences Act 1960, the enactment under which the applicants herein have been charged. It is a matter of judicial interest to observe that section 10 of CI 61 makes persons attending the Commission compellable witnessed with regards to the production of documents and answers to any question, even though such documents or answers may be incriminating. The legal effect to be noted here is that unlike criminal trials where the accused cannot be compelled to give evidence that may incriminate such accused; the situation was the opposite with proceedings before the Commission. It therefore made sense for the provision in section 10(2) that such incriminating evidence in the form of answers to questions and the production of documents was not to be used in any criminal or civil proceedings against the persons who appeared before the Commission.
In this case it is settled that the prosecution of applicants herein is derived from the evidence and findings of the Ghana @ 50 Commission created under CI 61, so how is one to reconcile the clear provisions of sections 8 (2) and 10 of CI 61, with the Attorney General’s decision to use the evidence adduced through the attendance of the applicants herein before the Commission to prosecute them. I find the instant proceedings very contradictory to the very Constitutional Instrument which gave birth to the Commission and empowered it.
In drafting this ruling I have carefully examined the provisions of the Constitutional Instruments that established the three other Commissions under the 1992 constitution that preceded the Ghana @ 50 Commission. As stated earlier in this ruling these are; the Commission of Inquiry (International Transfer of Football Players) Instrument, 1992 CI 22; Commission of Inquiry (Accra Sport Stadium Disaster) Instrument, 2001, CI 34 and the Commission of Inquiry (Yendi Events) Instrument, 2002, CI 36. I observed that these three earlier Commissioner only had a provision in their section 6 as follows:-
“A witness or lawyer appearing before the Commission is entitled to the same privileges and immunities as a witness or lawyer appearing before the High Court.”
The Constitutional Instruments that established these three earlier Commissions did not have a provision like section 8 (2) of the CI 61 that established the Ghana @ 50 Commission, which provision sought to immune witnesses from any criminal or civil proceedings. Indeed, the provision quoted above from the Constitutional Instruments of the earlier Commissions was reproduced in CI 61 but in addition to that was section 8 (2). The provision of section 8 (2) in CI is thus a departure from the earlier Constitutional Instruments created under the 1992 Constitution, as it guaranteed the immunity of witnesses who appeared before the Commission from any criminal proceedings. Consequently, it is my holding that besides the constitutional provision in article 280(2) that declares the report of the Commission a judgment of the High Court thus making any prosecution based on the report a violation of the applicants right of appeal; the provisions of CI 61 particularly section 8 (2) makes the prosecution of the applicants herein an exercise contrary to CI 61 and hence wrong in law.
In this proceeding the learned Chie State Attorney argued in response to the submissions of learned Counsel for the second applicant, that the applicants herein attended the Commission not as ordinary witnesses, but as the main subject of the Commission. I observed that learned Counsel for the Republic took that stand due to the legal effects of sections 8 (2) and 10 of CI 61. For that reason leaned Counsel for the Republic submitted that the applicants herein cannot take advantage of section 8(2) of CI 61, which granted immunity to witnesses who attended the Commission and complied with its requirements, from any civil or criminal proceedings. Learned Counsel for the applicants have earlier argued that by this provision the applicants who appeared before the Commission in compliance with its requirement were immune from any civil and criminal proceedings under any enactment. What then was the status of the applicants before the Commission? And what was the subject of the Commission’s inquiry? Let me first address the issue of the subject of the Commission’s inquiry.
The terms of reference of the Commission were stated at section 5 of CI 61 and it provides as follows:-
“5. The terms of reference of the Commission were:-
a. to inquire into and report on allegations of improper use of public and of any other funds;
b. to inquire into the use by the Secretariat of any property, movable and unmovable;
c. to inquire into any other matter which appears to the Commission to be incidental to or reasonably related to the Ghana @ 50 celebrations which in the opinion of the Commission ought to be enquired into; and
d. to make recommendations in respect of the findings of fact by the Commission.”
These were the same terms of reference captured in the White Paper on the report of the Commission at paragraph 3.0
From the above terms of reference can it be said that the applicants herein were the subject of the inquiry? The applicants are not named in the terms of reference of the Commission. Indeed the applicants are not named personally in the entire CI 61. It will therefore be wrong to hold that the applicants were the subject of inquiry by the Commission. The preamble of CI 61, the instrument that established the Commission clearly provided that the Commission was to inquire into the activities of the Ghana @ 50 Secretariat. The Secretariat was therefore the subject of the inquiry and not the applicants herein.
Now what was the legal status of the applicants before the Commission? A careful reading of CI 61 creates no doubts at all that those persons who appeared before the Commission were witnesses. This finding is re-enforced by the 1968 Constitutional Proposals quoted extensively in this ruling, whose paragraph 722, proposed among others that:
“A person duly summoned before a Commission of Inquiry should not be regarded as a witness of any particular party. He must be considered to be a witness of the Commission. Such a person should therefore give formal evidence as to the matters related by him in his written statement to the Commission and then be subject to cross-examination by Counsel on behalf of the Commission to test the accuracy of his statement and to deal with matters which are not dealt with in his statement. He should be liable to examination by Counsel on behalf of any person affected by the evidence given or that person himself and should be subject to re-examination on behalf of the Commission when this is required”.
It is important for me to emphasize at this juncture that the 1968 Constitutional Proposals which was adopted by the framers of the 1969 Constitution began the constitutional evolution of the legal effects of Commissions of Inquiry established under our constitutions.
In fact the Ghana @ 50 Commission of Inquiry itself stated in its report at page 2 under paragraph 2.2, that “it extended specific invitations to Dr. Charles Wereko-Brobbey (CEO), the Chief Executive Officer of the Ghana @ 50 Secretariat (Secretariat) and Mr. Kwadwo Mpiani (Chairman), the Chairman of the National Planning Committee (NPC) to attend the proceedings.”
Now from the Commission’s own report the applicants were invited to attend the proceedings and they did so in compliance with section 7 of CI 61. In the circumstance, I am satisfied that the applicants did appear before the Commission only as witnesses and no as the subject of the inquiry. The important question then is this, having invited the applicants to attend the Commission’s proceedings in compliance with the requirements of section 7 of CI 61, could the Republic turn round to institute this criminal proceedings against the applicants, notwithstanding the clear provision of section 8 (2) of CI 61; which gives the applicants immunity from any civil or criminal proceedings? It is my considered opinion, as I have found earlier that section 8 (2) of CI 61 makes the prosecution of the applicants in this case unlawful as being contrary to CI 61, the very legal framework that created and empowered the Commission.
In the applications before this court, the applicants who are the accused persons are praying that the charges preferred against them be struck out and the criminal action against them dismissed as violating their constitutional rights. The first applicant in the alternative prays that proceedings in this case be stayed until the time granted for appeal against the findings of the Commission’s report lapses.
I have considered the prayers sought by the applicants herein and I am of the opinion that in view of the clear constitutional provisions on the matter as addressed in this ruling, no useful purpose would be served in staying proceedings of this case. As I have found the Attorney-General is legally wrong in mounting this prosecution against the two applicants herein. Accordingly, I will sustain the prayers of the applicants and therefore struck out all the charges against the two applicants as contained in the charged sheet filed in this court on the 22nd of April, 2010 as in case No. ACC 39/2010. In deed the entire prosecution of the applicants in case No. ACC 39/2010 is hereby set aside as it infringes on the constitutional rights of the accused persons/applicants herein. The applicants herein namely; Charles Wereko-Brobbey and Kwadwo Okyere Mpaini, who are the accused persons in case No. ACC 39/2010 are herby discharged accordingly of the charges preferred against them in this case.
(2) to persons against whom adverse findings have been made by a Commission of Inquiry appointed under article 278 of the constitution. To mount criminal proceedings against such persons to whom the constitution has granted this right of appeal and to allow such prosecution to continue would be undermining the efficacy and the solemn provisions in our constitution. These provisions promote good governance and due process in our constitutional dispensation and we ought not to depart from them as a people.
What the findings and holdings in this ruling show is that if Government’s intention is to prosecute public officers who are alleged to have conducted themselves in a manner prejudicial to the interest of the state, in their public duties, the way to go is not the use of Commissions of Inquiry, under article 278 of the Constitution, because of the constitutional history behind the establishment of such Presidential Commissions, under our constitution. That intention requires Government to use the traditional investigative agencies under our laws so that the Attorney General could resort to the powers granted her under article 88 of the 1992 Constitution to mount the appropriate criminal proceedings, if necessary.
I further observed in this proceeding that it is not clear whether rules have been made by the Rules of Court Committee to regulate the practice and procedure of Commissions of Inquiry established under our constitution; it is urgent that the provisions of article 281(2) is given effect by the Rules of Court Committee. The need for rules to regulate the practice and procedure of Commissions of Inquiry cannot be over-emphasized. The 1992 Constitution has witnessed the establishment of three previous Presidential Commissions of Inquiry as observed in this ruling.
It is not clear whether the three earlier Commissions of Inquiry were guided in their practice and procedure by rules formulated by the Rules of Court Committee under the 1992 Constitution. I am tempted to believe that the Ghana @ 50 Commission of Inquiry may not be the last Commission to be established under the 1992 Constitution. It thus calls for the formulation and publication of rules to regulate the practice and procedures of Commissions of Inquiry by the Rules of Court Committee, so that the procedures and practice of such Commissions would be made clear as we advance in our governance.
In conclusion the charges against the two accused persons and applicants herein are accordingly struck out. The entire prosecution of the applicants in this case No. ACC 39/2010 is set aside as a violation of the applicants’ right of appeal guaranteed under article 280(2) of the 1992 Constitution of the Republic of Ghana.
(JUSTICE OF APPEAL)
* MR. ANTHONY GYAMBIBY, CHIEF STATE ATTORNEY WITH HIM MRS. KEELSON, PRINCIPAL STATE ATTORNEY AND MR. PAUL ABARIGA, STATE ATTORNEY FOR THE REPUBLIC.
* MR. AKOTO AMPAW WITH HIM MR. ALEX QUAYNOR FOR THE FIRST ACCUSED/APPLCIANT
* MR. YONNY KULENDI WITH MR. EGBERT FAIBILLE JNR. FOR THE SECOND ACCUSED/APPLICANT
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