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JUDGMENT
DR. SETH TWUM, J.S.C.:
The Defendant, (hereinafter
called “the Commission”)
investigated a complaint of
corruption lodged by Mr. Kweku
Baako, Editor of Crusading
Guide, against the Plaintiff.
At the conclusion of the
investigations the Commission
made adverse findings against
the Plaintiff and made a number
of recommendations including.
(a) that Mr. Appiah Ampofo
be barred forthwith from holding
any public office.
(b) that he should be
barred from membership of any
Insurance Institution or
Association.
(c) that the
Attorney-General should consider
bringing criminal prosecution
against Mr. Appiah Ampofo for
corruption.
Even though under Article 218 of
the Constitution, if the
Commission desires that its
recommendations should be
enforced, it must apply to the
court for appropriate orders,
the Plaintiff did not wait for
such proceedings to be mounted
by the Commission. Rather he
issued a Writ of Summons in the
High Court and sought a
declaration, inter alios, “that
the decision of the Defendant
dated the 5th April
2002, which made adverse
findings against the Plaintiff
is absurd, perverse, illogical
and unreasonable to the effect
that it cannot stand in law and
same should be set aside by the
Honourable Court”.
At the Summons for Directions
the following issues amongst
others were set down for trial.
(g) “Whether or not the
Defendant was properly
constituted when it purported to
adjudicate the matters
concerning the Plaintiff”
(h) “Whether or not by
reason of (g) above the
Defendant lacked the
jurisdiction to adjudicate the
matter affecting the Plaintiff”.
The learned trial judge made the
primary finding that there was
no doubt that the functions of
the Commission were purely
investigative. Further he held
that the Commission had another
function of “educating the
public on human rights and
freedom”.
The learned trial judge, after
taking legal argument on the
issues submitted for trial, the
parties having previously
elected to adopt the proceedings
before the Commission, proceeded
to write his judgment. He posed
the following questions:-
(i)
“Is the constitution of the
Panel to perform the function of
the Commission consistent with
the constitutional provision
conferring the functions of the
Commission on the Commission as
defined by Article 216?”
(ii)
In the face of Article 216 can
any other law permit other
persons other than the
Commission to perform the
investigation function of the
Commission?”
(iii) Is C.1.7, which
seeks to confer jurisdiction in
investigating cases before the
Commission on persons other than
the Commissioner and his two
persons (?) in violation of the
Constitution?”.
The questions clearly indicated
how the mind of the learned
judge was working. In the end
the said: “In accordance with
Article 130 (2) of the 1992
Constitution I will pose the
question to the Supreme Court
for determination “whether in
the face of Article 216, which
defines the Commission, C.1.7
can confer investigation powers
on any other body like the panel
defined in Regulation 6 of
C.1.7.”
For the purpose of the reference
the panel which his Lordship
referred to comprised the
Commissioner, Mr. Emile Short,
and two others, namely Miss
Jacinta Geral (Senior Legal
Officer) and Mr Isaac Annan
(Principal Investigator). It
was the Plaintiff’s case that
the functions of the Commission
could only lawfully be carried
out by the Commissioner and his
two Deputy Commissioners.
By Article 216 of the 1992
Constitution, Parliament was to
establish by an Act, the
Commission. This was done by
the Commission of Human Rights
and Administrative Justice Act
1993, (Act 456). The Article
further directed that the
Commission when established
shall consist of the
Commissioner and two Deputy
Commissioners. Article 220
provided that the Act of
Parliament shall provide for the
creation of regional and
district branches of the
Commission. All these
provisions were faithfully
incorporated into Act 456.
Article 230 provided:
“Subject to the provisions of
the Constitution and to any Act
of Parliament made under this
chapter, the Commission shall
make by constitutional
instrument, regulations
regarding the manner and
procedure for bringing
complaints before it and the
investigation of complaints”.
It was pursuant to this Article
that “the Commission on Human
Rights and Administrative
Justice (Complaint Procedure
Regulations, 1994 (C.1.7) were
made. Regulation 6 (2) provided
that “the panel shall be
composed of a Chairman who shall
be a member of the Commission or
any legal officer in the
employment of the Commission and
not less than two other officers
of the Commission”.
Regulation 7 (1) stated that a
panel composed under these
regulations shall make a full
report in any matter before it
with its recommendations to the
Commission.
7 (2). The
Commission shall consider every
report submitted under
sub-regulation (1) and may
accept or reject the
recommendations or ask for
further investigations.
The Plaintiff’s strictures
against the investigations
conducted into the complaint
lodged against him by Mr. Kwaku
Baako may be explained as
follows:-
The functions of the Commission
set out in Article 218 of the
Commission were to be performed
by the Commissioner and his two
deputies. He took the view that
the panel that investigated him
was set up as stated in
regulation 6 (2); hence his
submission that C.1.7 was made
in violation of the
Constitution.
It is not clear whether the
Commission was established as a
body corporate. In such
situations it is advisable to
proceed empirically. In our
view, the word Commission
appearing in chapter 18 of the
Constitution is used in two
senses. In Articles 216 and
217, it must refer to the three
persons, namely the Commissioner
and the two Deputy
Commissioners. In particular,
when Article 217 speaks of
appointing the members of the
Commission, it can only be a
reference to these 3 persons.
But where Article 220 provides
for the creation of regional and
district branches of the
Commission, this can only refer
to something which can have
branches. It will lead to
manifest absurdity if the word
“Commission” were interpreted to
mean the three persons would
have branches. In this context,
the word must refer to an
organization, a body, an
institution, an establishment or
a bureaucracy. Now, obviously,
the people who will man the
regional and district branches
cannot be the Commission in the
narrow sense of the Commissioner
and his two deputies. It must
refer to the wider sense in
which the Commission is used.
This will include the narrow
sense Commission and the
supporting staff and employees.
Indeed, the appointment of
officers and other employees of
the Commission mentioned in
Article 226 can only be a
meaningful activity if such
employees and officers are going
to share in the execution of the
functions of the Commission.
The Commission in the wider
sense is a bureaucracy
established all over the country
to carry out the functions spelt
out in Article 218.
Learned Counsel for the
Plaintiff, Mr. Atta Akyea,
submitted that when persons
other than the three mentioned
in Article 216 discharge the
functions of the Commission,
they must have had the power to
do so delegated to them by the
Commission in the narrow sense.
And the Commission cannot
delegate what has been delegated
to it. It is quite clear this
argument is flawed. The
regional and district branches
are expected to discharge all
the functions of the Commission,
not some. And they will be
doing so in their own right as
officers and employees manning
the regional and district
branches. There is no provision
in Act 456 allocating specific
functions to the branches and
leaving the rest to the
Commission in the narrow sense.
Section 10 of Act 456 provides:
10 (1) There shall
be established in each Region
and District of Ghana Regional
and District branches
respectively of the Commission.
(2) There
shall be appointed by the
Commission an officer who shall
be the head of a Regional or
District branch of the
Commission.
(3) The Commission
may create such other lower
structures as would facilitate
its operations.
Section 11 (1) (a) complements
this position by stating that a
representative of the Commission
in a Regional or District office
of the Commission shall receive
complaints from the public in
the Region or District, and (b)
make such on-the-spot
investigation as may be
necessary.
During the hearing when it was
suggested to Learned Counsel for
the Plaintiff that if his
submission that the entire gamut
of the functions of the
Commission could only be
discharged by the Commission in
the narrow sense that would lead
to obvious absurdity, he
persisted that that was the
law. Our view of the matter is
that it is not the duty of a
court of law to be astute to
find out ways in which the
object of an Act of Parliament
may be defeated. The framers of
the Constitution realized only
too clearly that if the work of
the Commission were to have the
desired impact, its activities
must pervade the entire
country. Hence the provision
that braches may be
established. It will be height
of absurdity to create these
branches and then insist that
only three persons should
criss-cross the whole country
making investigations and
educating the public on
fundamental rights and
freedoms. If such absurdity
were indeed enacted in the Act,
we would have held that to avoid
the absurdity, the word
Commission was used in the wider
sense so as to be able to cover
the whole country. Fortunately,
no such absurdity is evident in
the Act.
There is one other practical
reason why the plaintiff’s
submission cannot be upheld. At
the moment, the Commissioner and
his two deputies are lawyers.
Now, lawyers are, of course,
learned people. But we are
persuaded that lawyers are not
necessarily endowed with special
investigative skills to unravel
well-conceived white collar
crimes. There is expertise and
skill acquired by special
training in this field of
investigation and there is no
legal reason why the Commission
cannot employ officers of
specialized skills to bring
their expertise to bear on
investigations. There will be a
need for auditors, financial
analysts, forensic examiners, if
the work of the Commission is to
produce the desired results. A
reading of chapter 18 of the
Constitution, Act 456 and C.1.7
which insists that only the
Commissioner and his two
deputies are the persons with
legal authority to discharge the
Commission’s function will sound
the death knell of the
Commission.
The duty to educate the public
on human rights and freedoms by
the Commission, similarly
disavows the view that the three
persons must do this
themselves. Educating the
Ghanaian public on such matters
as human rights and fundamental
freedoms is an important process
in the quest for freedom and
justice in our land. Even with
plenty of money and other
logistics, three human beings
cannot meaningfully be expected
to cover the entire country and
leave them enough time to
undertake investigations, write
reports on their investigations
and personally institute
proceedings in court to seek
appropriate remedies, etc, etc.
Only one result can be predicted
with absolute certainty. It
will reduce the Commission to
sheer impotency.
From what we have stated above
we have no doubt that
regulations 6 and 7 of C.1.7 are
in accord with spirit and letter
of the Constitution as well as
Act 456. To answer the
reference specifically, we hold
that C.1.7 properly confers
investigative powers on officers
and employees of the Commission
other than the Commissioner and
his two deputies. For the
avoidance of doubt we hold that
the learned High Court judge
must complete his judgment upon
the ruling of this court.
G. K. ACQUAH
CHIEF JUSTICE
S.A.B. AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
DR. S. TWUM, J.S.C.
JUSTICE OF THE SUPREME COURT
PRO. M. OCRAN
JUSTICE OF THE SUPREME COURT
DR. DATE-BAH J.S.C:
I agree with my learned brother
Dr. Twum JSC that the
investigative panel system of
CHRAJ, put in place under CI 7,
is constitutional. My path to
this conclusion is similar but
not identical to that of my
brother and so I have I have set
down my own reasons for this
conclusion.
This case is a classic
illustration of the need for
purposive interpretation in
constitutional matters. The
Plaintiff’s contention is for an
interpretation of provisions in
Chapter 18 of the Constitution
which might have some
plausibility on a literal
reading of the provisions but
which, when viewed purposively,
undermines what must have been
the purpose of the framers of
the Constitution and is
therefore not a credible
interpretation of the relevant
provisions.
Chapter 18 of the Constitution
deals with the Commission on
Human Rights and Administrative
Justice (“CHRAJ”), whose
raison d’etre is stated as
follows in the Proposals for
a Draft Constitution of Ghana
prepared by the Committee of
Experts whose Report, i.e.
the Proposals, was
deliberated upon by the
Consultative Assembly which
produced the 1992 Constitution:
“358. The constitutional
experience of many countries,
including ours, demonstrates
that a catalogue of
constitutional rights together
with provisions for judicial
enforcement is inadequate to
ensure meaningful enforcement of
fundamental rights and freedoms
on the ground. The Committee
accordingly proposes the
establishment of a Commission on
Human Rights and Administrative
Justice which would sensitize
people to their constitutional
rights, investigate violations
of such rights, and assist
individuals in prosecuting
them.” (See p. 163 of the
Report).
This passage from the Report of
the Committee of Experts
provides evidence that the
objective of the framers of the
Constitution was to provide for
the establishment of an
institution which would be
effective in investigating
violations of the fundamental
human rights of individuals in
Ghana. It is against this
objective that one should
evaluate the interpretation put
forward by the Plaintiff in this
case.
The Plaintiff’s case is as
follows. The Plaintiff was
aggrieved by a decision of 5th
April 2002 reached by a CHRAJ
Panel consisting of Mr. Emile
Short, Commissioner of CHRAJ,
Miss Jacintha Gerald, a senior
legal officer of CHRAJ and Mr.
Isaac Annan, a principal
investigator of CHRAJ.
Accordingly, he issued a writ in
the High Court, Accra, against
CHRAJ for the following reliefs:
“A declaration that the decision
of the Defendant dated 5th
April 2002, which made adverse
findings against the Plaintiff,
is absurd, perverse, illogical
and unreasonable to the effect
that it cannot stand in law and
same should be set aside by this
Honourable Court.
1.
An order setting aside all the
consequential orders contained
in the decision of the Defendant
dated 5th April 2002.
2.
Costs.”
After the close of pleadings in
this suit and the setting down
of the issues for trial in the
case, the learned trial judge
heard legal submissions from
counsel for both parties as a
result of which he decided to
refer an issue of constitutional
interpretation to this Court for
determination. The issue
referred to this Court by the
learned trial judge was
expressed in the following terms
by His Lordship Ofoe J., the
learned trial judge:
“Under Article 216 the
Commission is established to be
the Commissioner and his two
Deputies. And the functions of
the Commission are spelt out in
Article 218 and Section 7 of the
Commission on Human Rights and
Administrative Justice Act,
456. In the face of Article 216
can any other law permit other
persons other than the
Commission to perform the
investigation function of the
Commission? Counsel for the
Plaintiff says no Counsel for
the Defendant yes. Is C.I.7,
which seeks to confer
jurisdiction in investigating
cases before the Commission on
persons other than the
Commissioner and his two persons
in violation of the
constitution. In accordance
with Article 130(2) of the 1992
Constitution I will pose the
question to the Supreme Court
for determination whether in the
face of Article 216, which
defines the Commission, C.I. 7
can confer investigation powers
on any other body like the panel
defined in Regulation 6 of C.I.
7.”
Before this Court, the Plaintiff
has argued as follows ( in
paras. 2.1, 2.2, 2.3 and 2.4 of
his written submission):
“2.1 The conclusion of
reason, borne out by the clarity
of language, is that only the
trinity, i.e. the Commissioner
and the 2 deputies who Article
221 provides that they shall
qualify as Court of Appeal judge
and High Court judges
respectively who can investigate
a complaint duly lodged with
them. Needless to say that
‘investigation’ as used in this
context is not the Police type
of investigation, but rather
‘adjudication’, which entails
the calling of witnesses,
testimonies on oath,
cross-examination,
re-examination (if any) and
finally a reasoned decision
borne out by the evidence led.
2.2 Apart from the trinity
getting together no other panel
can investigate even for and on
behalf of the Commission. To
think that some other person can
do the job of the Commission as
spelt out by the Constitution is
a flagrant and lawless breach of
the supreme law of the land. No
other person can usurp or
imitate the powers of the
trinity under Article 216 supra.
2.3 It is our respectful
submission that it is this
strong constitutional foundation
which makes regulation 6 CI 7
null and void and as totally
inconsistent with Article 216,
217, and 218 of the 1992
Constitution.
Regulation 6 of CI 7 regulates
as follows:
“For the purposes of regulation
5 the Commissioner may on the
recommendation of any other
member of the Commission, an
investigator of the Commission
or any other officer of the
Commission, constitute a panel
to investigate any complaint and
report to the Commission.
(2)The panel shall be composed
of a chairman who shall be a
member of the Commission or any
legal officer in the employment
of the Commission and not less
than two other officers of the
Commission.
(3)Notwithstanding sub
regulation (2) of this
regulation there may be co-opted
on any such panel such person as
the Commissioner may approve.
(4)Any person appearing before a
panel under these regulations
may raise an objection to the
membership of the panel to the
Commissioner who shall determine
the issue.”
2.4
It seems to us that the
Commissioner, and not even the
Commission, has wrongfully
assumed the power to appoint a
panel to investigate, and for
that matter to adjudicate, a
complaint. This violates the
Constitution for the simple
reason that the Commissioner by
himself cannot act. This abuse
of power also violates the
Constitution.”
The Plaintiff goes on to argue
that regulation 6 infringes the
maxim delegatus non potest
delegare. It is the
Plaintiff’s belief that the
maxim is applicable to the
Commission since its
investigative function is in the
nature of an adjudication and an
adjudicative function may not be
delegated; the reason for this
being that in adjudication there
is reliance on the individual
judgment and discretion of the
person on whom the power of
adjudication has been
conferred. The Plaintiff cites
various authorities in support
of this proposition.
In my view, there is no need to
resort to the line of
authorities cited by the
Plaintiff since he is wrong to
characterise the investigative
function of the Commission as
adjudicative. Counsel for the
defendant, Dr. Bondzi-Simpson,
was right when he drew this
Court’s attention to earlier
decisions of this Court which
have held that CHRAJ does not
exercise an adjudication
function. (See CHRAJ v
Attorney-General No. 2
[1998-99] SCGLR 871 and, more
doubtfully, Republic v High
Court, Accra, Ex Parte CHRAJ
to be reported in [2003-2004]
SCGLR .)
The leading case establishing
that CHRAJ’s functions are
investigative and educational
and, by necessary implication
from the language of Charles
Hayfron-Benjamin JSC, not
adjudicative is CHRAJ v
Attorney-General No. 2
[1998-99] SCGLR 871. In this
case, Charles Hayfron-Benjamin
JSC said (at pp. 882-883):
“Act 456 was, of course, made in
pursuance of authority granted
to Parliament under chapter 18
of the 1992 Constitution. The
functions – and this is the
expression used in article 218
of the Constitution – which the
plaintiff commission may
exercise, are taken almost
verbatim from the Constitution
and restated in section 7 of Act
456. Similarly, the manner in
which such functions may be
exercised, is copied verbatim
from article 219 and are also
contained in sections 8 and 9 of
the Act. Taken together, it is
clear that the objects or
functions of the plaintiff
commission are investigative and
educational. For the purposes
of effective exercise of its
investigative functions, the
plaintiff commission has certain
powers akin to those of the
regular courts and tribunals.
But it must be said that, in
exercising those powers, the
commission does not thereby
constitute a court or tribunal
properly so-called; nor does it
thereby assume any jurisdiction
to do anything in its
investigations. However, the
plaintiff commission may
institute legal action “before
any Court in Ghana and may seek
any remedy which may be
available from that Court.””
I agree with this conception of
the function of CHRAJ. I thus
believe that it is incorrect to
describe CHRAJ’s investigative
activities as constituting an
adjudication. The mere fact that
the Commission has the power to
issue subpoenas (see s.
8(1)(a) of Act 456) to compel
the attendance of persons before
the Commission and the
production of relevant documents
and records during its
investigations does not convert
its investigative process into
an adjudicative one.
In carrying out its
investigative and educational
functions, CHRAJ would be
emasculated if it could only
ever act if its “trinity” of
Commissioner and two Deputy
Commissioners had to act
personally in each functional
activity. As the Submission
filed by the Attorney-General
puts it (in para. 25):
“The argument of the plaintiff
that in all cases the Commission
should be composed of the three
members investigating matters;
followed to its logical
conclusion, would mean that in
the absence of one member, the
whole investigative system of
the Defendant comes to a stop.
This could hardly be said to be
the intent of the Constitution.”
Applying a purposive approach to
the interpretation of the
provisions of Chapter 18 of the
1992 Constitution and the
Commission on Human Rights and
Administrative Justice Act, 1993
(Act 456), I am of the view that
the interpretation contended for
by the Plaintiff is not viable
and not in keeping with the
spirit and purpose (both
subjective and objective) of the
provisions concerned. (See
Asare v Attorney-General
[2003-2004] SCGLR 823). I am
further of the view that the
Commission should be viewed as a
particular kind of statutory
corporate entity comprising the
Commissioner, the two Deputy
Commissioners and the staff
employed by them to assist them
in carrying out the functions of
the Commission. Accordingly,
references to the Commission
should be interpreted as
references to this corporate
entity, which may act through
the Commissioner, the Deputy
Commissioners or any duly
authorised employee of the
Commission. This remains my
view in spite of some ambiguity
in the statutory language
employed to establish the
Commission in Act 456. Section
1 of Act 456 provides that:
“There is established by this
Act a body to be known as the
Commission on Human Rights and
Administrative Justice in this
Act referred to as “the
Commission.”
This language leaves unclear
whether the body established is
incorporated or unincorporated.
However, it could hardly be
unincorporated, given its
purpose and functions. In my
view, therefore, the Commission,
by necessary implication, should
be regarded as a kind of
corporate entity. It clearly
needs an independent legal
personality to carry out its
constitutional functions.
In the submission filed by the
Honourable Attorney-General, he
rightly draws attention to
article 297(c) of the 1992
Constitution, which is in the
following terms:
“In this Constitution and in any
other law –
…
(c)
where a power is given to a
person or authority to do or
enforce the doing of an act or a
thing, all such powers shall be
deemed to be also given as are
necessary to enable that person
or authority to do or enforce
the doing of the act or thing;…”
This provision is further
authority for interpreting
Chapter 18 of the Constitution
and Act 456 as giving authority
to the Commission to act in its
investigation function through
persons other than only the
“trinity” acting together
personally and as giving the
Commission a corporate
identity. Failure so to
interpret the relevant
provisions would be equivalent
to making CHRAJ a virtually
irrelevant constitutional
institution since it could only
investigate an infinitesimal
number of cases. If the
“trinity” were to personally
investigate a case in Bolga, for
instance, all investigations
everywhere else in the country
would have to be on hold for the
duration of that investigation.
This would be unacceptable and
not envisaged in the passage
from the Proposals for a
Draft Constitution of Ghana
prepared by the Committee of
Experts referred to supra.
I am reinforced in my view that
the Commission is a corporate
entity by provisions such as
section 20 of Act 456, which is
in the following terms:
“The appointment of officers and
other employees of the
Commission shall be made by the
Commission acting in
consultation with the Public
Services Commission.”
In my opinion, it is best to
interpret the officers and
employees referred to in this
provision as employees of the
corporate body which is the
Commission, rather than to
resort to an unincorporated
concept of the Commission. The
latter view seems to be advanced
by the submission filed by the
Honourable Attorney-General, but
it does not appear to me to be a
sustainable interpretation.
Para. 9 of his submission reads
as follows:
“The Constitution provides the
members as the Commissioner and
two Deputy Commissioners. The
import or the inference from
such a composition is that the
Commissioner is the head with
the two Deputies assisting him.
This is the spirit behind
chapter 18 of the Constitution,
even though several references
are made in the chapter as if
the Commission is a corporate
whole.”
While it is conceded that the
Commissioner is the head of the
Commission, I am unable to
accept any implied assertion in
this passage that the Commission
is not a corporate entity acting
as such, albeit sometimes
through the Commissioner. Some
of the provisions in Chapter 18
refer specifically to the
Commissioner, but I do not
consider that that derogates
from the corporate existence of
the Commission.
A concept of the Commission as a
corporate body comprising the
Commissioner and his or her two
deputies as well as the staff
employed by them to assist them
in carrying out their functions
is compatible with the language
of the relevant provisions and
makes better sense. Although
section 2 of Act 456, reflecting
Article 216 of the Constitution,
provides that the Commission
shall consist of the
Commissioner and the Deputy
Commissioners, this provision
need not be interpreted to mean
that the Commission consists
exclusively of these three. The
employees of an organisation can
hardly be sensibly conceived of
as apart from the organisation.
Thus the employees of the
Commission, for which section 20
of Act 456 makes provision, can
reasonably be interpreted as
forming a part of the
Commission. This implies that
what the Commission does through
its employees it does itself.
No issue of delegation arises
in that situation. In any case,
I do not think that there is
necessarily a problem with the
Commission delegating part of
its investigative tasks to
non-employees, so long as it
retains overall control over the
exercise. But this remark is
made obiter, in view of
the fact that the facts of this
reference relate to a panel
comprising only employees of the
Commission.
It follows, therefore, that I
agree with the Defendant’s
submission that the panel system
instituted under regulation 6 of
the Commission on Human Rights
and Administrative Justice
(Complaint Procedure)
Regulations, 1994 (CI 7) is a
legitimate modality for carrying
out the Defendant’s
investigative functions. It is
not in breach of the letter or
spirit of the Constitution.
The submission filed by the
Honourable Attorney-General
correctly, in my view, states
the legal position thus (in
para. 23):
“The fact that the panels in
issue here are not provided for
either in the Constitution or
Act 456 does not preclude the
Commission from providing
for this mechanism in the C.I.
in pursuit of its powers under
article 230. There is nothing
in Chapter 18 of the
Constitution or Act 456 that
prohibits the setting up of the
panels by C.I. and since under
article 230, the Commission has
power to issue regulations by
Constitutional Instrument,
so long as they are not in
conflict with the Constitution
or its Act, we fail to see the
unconstitutionality of C.I. 7.
Article 230 states –
“Subject to the provisions of
this Constitution and to any Act
of Parliament made under this
Chapter, the Commission shall
make, by constitutional
instrument, regulations
regarding the manner and
procedure for bringing
complaints before it and the
investigation of such
complaints.””
Having construed the Commission
as comprised of more than the
“trinity”, I am predictably of
the opinion that the
Commissioner, by giving, but as
I have held above not
delegating, investigating
functions to the panel in issue
in this case, was not acting
unconstitutionally.
As the submissions filed by the
Defendant and the Honourable
Attorney-General indicate, there
are other illustrations of the
framers’ intent that the
exercise of the functions of the
Commission could be by persons
other than the “trinity”. The
Defendant’s submission, for
instance, states that:
“…it is abundantly clear from
the provisions of Act 456 that
the words “the Commission” do
not always refer to the
three-member Commission. The
Plaintiff submission to the
contrary is based on a
misconception of the law and a
lack of appreciation of
provisions of Act 456. Act 456
makes it clear that the
Commission may act through its
representatives in the regions
and districts.”
The language of section 10 of
Act 456, which makes provision
for Regional and District
branches of the Commission,
makes it obvious that these are
intended to be integral parts of
the Commission. The fact that
Act 456 contemplates that the
Commission may act through
regional and district
representatives buttresses my
view that the Commission was not
acting unconstitutionally by
exercising its investigative
function through a panel.
In sum, my response to the
question posed by His Lordship
Ofoe J is that in the face of
Article 216, which defines the
Commission, CI 7 can confer
investigation powers on a body
like the panel defined in
regulation 6 of CI 7.
Finally, I would like to welcome
the fact that this
constitutional case was argued
ably on behalf of the Republic
by the learned and honourable
Attorney-General himself,
assisted by a large team from
his office. He announced that
there had been a paradigm shift
to such full representation and
I do hope that the new paradigm
will be maintained. I must also
acknowledge the able assistance
given this Court by Mr. Atta
Akyea, learned counsel for the
Plaintiff and Dr.
Bondzi-Simpson, learned counsel
for the Defendant.
DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
COUNSEL:
Ayikoi Otoo Attorney-General
with Joe Ghartey, Ivy Vanderpuye,
Maame Saah Oduro Frimpong, Gifty
Odoi Anim for the Attorney
General.
Atta Akyea for the Plaintiff.
Dr. Boadzi Simpson for the
Defendant.
gso*
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