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RULING The first accused person
namely Charles Wereko Brobbey,
was the Chief Executive Officer
of the Ghana @ 50 Secretariat.
The second accused Kwadwo Okyere
Mpiani was the Chairman of the
National Planning Committee of
the 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
willfully 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 to 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 Charge 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. APPLICANTS
ARGUMENTS 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 Cl 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 and 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
learned Chief State Attorney who
appeared for the Republic argued
that the powers of the Attorney
General to prosecute criminal
offences 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, Koforidua, Exparte
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 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 the 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 204, and argued
that where the Attorney General
is called upon to execute its
constitutional and statutory
duties it cannot be said that
the exercise of such duties
amounted to abuse of 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 could take advantage of
section 8(2) of Cl 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 filed 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 acting
through the Attorney General can
mount this prosecution in the
circumstance 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 to18 of the
affidavit in opposition. The
case argued by Counsels for the
applicants is that in the
circumstance of this particular
case, in as much as the
prosecution is based on the
adverse findings of the Ghana @
50 Commission of Enquiry, 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
offences 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 the
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. Cl
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 and
matters incidental to the Ghana
@ 50 celebrations." From the
above provision there can be no
dispute that the Commission was
established under Article 278 of
the 1992 Constitution. 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 as follows: "22. That the
accused/applicants are very much
aware that apart from the
Commission's work, separate
SF0/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. Dear Sir,
INVESTIGATIONS INTO SUSPECTED
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 that you
may undertake investigations
into the said allegations as
well as any 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.
Yours faithfully, B. MORTEY
AKPADZI EXECUTIVE DIRECTOR 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 SF0, 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 to portray. As indicated
the applicants are charged with
four counts as follows; COUNT
ONE Willfully causing financial
loss to the state contrary to
Sections 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 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 GH¢
46,999,563.00 by spending GH¢
46,999,563.00 in excess of the
amount of US$ 31.80 million or
the cedi equivalent of GH¢ 29.31
million that was approved by
Parliament for the Ghana @ 50
celebrations. COUNT TWO
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
Secretariat, 2. Kwadwo Mpiani,
Chairman of the National
Planning Committee of the Ghana
@ 50 celebrations, that you
between February 2007 and
January 2009 willfully caused
financial loss of GH¢
2,116,906.91 to the state in the
form of interest paid by the
State on a loan of GH¢
10,438,036.37 you contracted
from Prudential Bank without
authority. COUNT THREE 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. Kwadwo Okyere
Mpiani, Chairman of the National
Planning Committee of the Ghana
@ 50 celebrations, in or about
September 2006, willfully caused
financial loss of GH¢ 966,048.52
to the State in the form of
interest paid by the State on a
bank overdraft you contracted
from Prudential Bank without
authority. COUNT FOUR 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 GH¢ 19,352,498.00
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
circumstance 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
monies stated therein without
authority or causing the state
to loss such sums of money.
There is no count on the charge
sheet that relates to removal or
disposal of furniture, air
conditioners or 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 of 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
specifically 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 an 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 of a judgment 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 Gazette 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 Commissions
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 of a commission
of Inquiry shall be held in
public. (2) Subject to the
provisions of this 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 of article 280(2), which
deems the report and adverse
findings of a commission of
inquiry a judgment of the High
Court, particularly the fact
that the 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 heat- 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 the1969 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
paragraph 716 of that report.
CHAPTER TWENTY-FOUR 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 our
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
bound to be inquisitorial rather
than accusatorial as is the case
with criminal trials. This will
be so since the inquiry will be
fact-finding 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 independently of both
the Executive 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 the
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 specified 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
enquires 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 on 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
that 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 that this is done in the
least hurtful manner. I hope I
shall not be thought to be
presumptuous if 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: CHAPTER TWENTY-THREE
COMMISSIONS OF INQUIRY "299.
With the exception of two
changes, we have recommended the
re¬enactment of the provisions
of the 1969 Constitution on
Commissions 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 other legitimate
reasons. We do not think that it
is wise or justifiable to oblige
the Government in all cases to
make such findings public. 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 1eport 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, or indeed, that he
should actually justify the
decisions not to publish in any
particular case. What it does is
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 barely
informative; but it will at
least provide a good occasion
for the press and interested
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 serious
legal consequences for the
persons affected thereby
including adverse impact on
their reputation in society,
such persons should be able to
challenge the soundness or
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 a conviction." The
persons affected by the findings
were only required to show
cause, why they should not be
convicted and sentenced based on
the evidence adduced at the
commission. Discussing the topic
Commissions of Inquiry at
Chapter Eight of his celebrated
book, Criminal Procedure in
Ghana, A.N.E Amissah stated at
page220 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 has been
held that a judge is not
entitled to prejudge 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-examined 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 Commissions of
Inquiry under the 1969, 1979 and
1992 constitutions is quite
different Under the said
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 1992
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:- "94(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 events
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 finding 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
circumstance of this case the
Government has issued a White
Paper on the report of the
Commission. From 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 the findings should be
deemed a judgment in October,
2010? Is it the case that before
the adverse finding is deemed to
be a judgment 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 constitutions is
that public inquiries should not
develop into criminal trials.
The constitutional arrangements
under article 280 of the 1992
constitution therefore does not
allow the Attorney General to
initiate prosecution against
persons affected adversely by
the 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, if 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
circumstance, 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
encountered 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 for such rules to regulate
the practice and procedure of
Commissions of Inquiry, the
absence of such rules, if at
all, does not take away the
right of appeal of the
applicants herein as guaranteed
by article 280(2) of the
constitution. Indeed the Court
of Appeal has its own rules that
regulate its practice and
procedures. The Court of Appeal
Rules, Cl 19 as amended under
Rule 7 grants the Court the
right to prescribe its own rules
in the exercise of 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)
of the Constitution. Under
article 137(1) 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:- "13 7(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 and such other
appellate jurisdiction as may be
conferred on it by this
Constitution or any 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 is a
solemn and sacred duty that the
courts are established to do.
Under the 1992 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 Cl 22 of 12th March, 1999.
2. The Commission of Inquiry
(Accra Sports Stadium Disaster)
Instrument, 2001 established
under Cl 34 of 11th May, 2001.
3. The Commission of Inquiry (Yendi
Events) Instrument, 2002
established under Cl 36 of 26th
April, 2002. Indeed by article
280 of the constitution the
reports of all the above
commissions were deemed to be
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 aspirations of
the. framers of our constitution
that the findings of a
commission of inquiry are not to
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 1
79A (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 as discussed in this
ruling, the Constitutional
Instrument that established the
Ghana @ 50 Commission of
Inquiry, Cl 61, of 5th June,
2009 raised a serious legal
issue by the provisions of its
sections 8(2) and 10 which
provides 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
and 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 deduced from
section 7 of Cl 61, which is as
follows:- "7. For the purposes
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 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."
These 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 Cl 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 of 1960, the enactment under
which the applicants herein have
been charged. It is a matter of
judicial interest to observe
that section 10 of Cl 61 makes
persons attending the Commission
compellable witnesses 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 Cl 61, so how is
one to reconcile the clear
provisions of sections 8 (2) and
10 of Cl 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,
1999 Cl 22; Commission of
Inquiry (Accra Sport Stadium
Disaster) Instrument, 2001, Cl
34 and the Commission of
Inquiry(Yendi Events)
Instrument, 2002, Cl 36. 1
observed that these three
earlier Commissions 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 Cl 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 Cl 61 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 Cl 61 particularly
section 8(2) makes the
prosecution of the applicants
herein an exercise contrary to
Cl 61 and hence wrong in law. In
this proceeding the learned
Chief 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 Cl 61. For that reason
learned 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 Counsels
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 Cl 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
Cl 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 Cl 61. In the
circumstance, I am satisfied
that the applicants did appear
before the Commission only as
witnesses and not 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 Cl 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 Cl 61 makes the prosecution
of the applicants in this case
unlawful as being contrary to Cl
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 Mpiani, who
are the accused persons in case
No. ACC 39/ 2010 are hereby
discharged accordingly of the
charges preferred against them
in this case. Before I end this
ruling, I would like to emphasis
the need for us as a nation to
develop and advance our
constitutional dispensation. I
have tried to show in this
ruling the wisdom behind the
establishment of Presidential
Commissions of Inquiry under our
constitution. It is to enable
the President appoint citizens
of the required expertise to
impartially and independently
investigate matters of national
importance, to evaluate the
performance of our public
institutions with a view of
ensuring and maintaining
efficiency and a high standard
in our public adminstration.
That exercise as rightly stated
in the constitutional proposals
of 1968 and 1978 could have
serious negative consequences on
the reputation of public office
holders in such institutions
investigated by such Commissions
of Inquiry, hence the need to
give such affected people the
right to challenge the soundness
of the findings. A citizen's
right of appeal has always been
respected since ancient times.
That was why Apostle Paul's
right of appeal was upheld by
Governor Porcius Festus as
recorded in the book Acts in the
bible. In Acts, chapter 25:
8-12, we read the following:- "8
Then Paul made his defence: I
have done nothing wrong against
the law of the Jews or against
the temple or against Caesar. 9.
Festus, wishing to do the Jews a
favour, said to Paul, are you
willing to go up to Jerusalem
and stand trial before me there
on these charges? 10. Paul
answered: I am now standing
before Caesar's court, where I
ought to be tried. I have not
done any wrong to the Jews, as
you yourself know very well. 11.
If however, I am guilty of doing
anything deserving death, I do
not refuse to die. But if the
charges brought against me by
these Jews are not true, no one
has the right to hand me over to
them. I appeal to Caesar! 12.
After Festus had conferred with
his council, he declared: You
have appealed to Caesar. To
Caesar you will go!" The right
of appeal clearly as fundamental
as it is was respected and
enforced under the constitution
of the ancient Roman Empire. The
right accorded Apostle Paul is
not different from what our 1992
Constitution grants, under
article 280 (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. In view of the
constitutional significance of
such Commissions of Inquiry; 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. COUNSEL • 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/ APPLICANT • MR.
YONY KULENDI WITH HIM MR. EGBERT
FAIBELLE JNR. FOR THE SECOND
ACCUSED/APPLICANT |
