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J U D G M E N T
I have had the benefit of
reading in advance the decision
of my noble and eminent
President- The Chief Justice, as
well as those of my other
learned senior colleagues, -
Justice Brobbey and Dr. Date-Baah.
Their decisions have exhausted
whatever there is to be said.
The Rules and Cannons of
Interpretation have been fully
discussed.
I fully agree with the decision
read by the Honourable President
and Justice. I will therefore
concern myself only with a
little of what I think of the
issue before us. i.e.:
The Supreme Court on 30th
October, 2007 after quashing the
decision of the High Court,
Accra, which purported to
interprete the word “Complaint”
in Article 218 (a) of the 1992
Constitution, formulated the
following issue for
determination under Article
130(2) of the Constitution,
i.e.:-
“For a Complaint within the
meaning of Article 218(a) of
the 1992 Constitution to form
the basis for investigation by
the Commission on Human Right
and Administrative Justice –
must it be made by an
identifiable individual or
corporate body and lodged with
the Commission or are
complaints (in other words,
expressions of dissatisfaction)
made through the media and
other public fora regarding
“Violations of Fundamental Human
Rights and Freedoms, injustice,
corruption, abuse of power and
unfair treatment of any
person by a public officer in
the exercise of his official
duties “an adequate basis for
the institution of
investigation by CHRAJ?”.
The Supreme Court then invited
submissions from the
stakeholders i.e. CHRAJ
(hereinafter referred to as the
applicant), the Respondent
(hereinafter referred to as the
Interested Party) and the
Attorney General.
In their respective submissions,
whiles the Applicant insists
that it requires no formal
complaint to empower it to
commence investigation into
matters aforesaid, both the
Interested Party and the
Attorney General are of the
strong opinion that the
Applicant requires formal
complaint by an identifiable
individual or group of persons
to trigger investigation into
matters mentioned under Article
218(a) of the 1992 Constitution.
And whiles the Applicant prefers
that the word “Complaint” be
given a Liberal and purposive
interpretation, the Interested
party proposes the Literal and
purposive interpretation and the
Attorney General will be
comfortable with the Literal
meaning of the Word “Complaint”.
For the purpose of considering
the two proposition argued by
the parties herein, the
following legislations come in
for consideration and must be
read together:-
1.
Article 218(a)-(e) of the 1992
Constitution.
2.
Articles 230, 284, 287 and (1) &
(2) of the 1992 Constitution.
3.
Commission on Human Rights and
Administrative Justice Act 1993,
(Act 456).
4.
(Complaint Procedure)
Regulations, 1994 C.I. 7.
Article 218 provides for the
functions of CHRAJ and the said
functions are put into
compartments each compartment
taking care of their respective
situations.
In Art 218 (a) the Commission
i.e. the Applicant is empowered
to “investigate complaints of
violations of fundamental
rights and freedoms, injustice,
corruption,
abuse of power and
unfair treatment of any person
by a public officer
in the exercise of his
official duties”.
(emphasis supplied)
In 218(b) – Applicant is to –
“Investigate complaints
concerning the functioning of
the Public Services Commission,
the Administrative organs of the
State, the Armed Forces, the
Police Service and the Prisons
Service in so far as complaint
relate to the failure to achieve
a balanced structuring of those
services or equal access by all
to the recruitment of those
services or fair administration
in relation to those services.
In 218(c) the Applicant is to
“investigate complaints
concerning practices and actions
by persons, private enterprises
and other institutions where
those complaints allege
violations of fundamental rights
and freedoms under this
Constitution”.
218(d) creates an enabling power
in the applicant to take
appropriate action to call for
the remedying, correction and
reversal of instances specified
in paragraphs (a), (b), and (c)
of the clause through such
means as are fair, proper and
effective, including,
(i)
negotiation and compromise
between the parties concerned;
(emphasis mine).
It is observed from Article
218(a) - (c) that the
personalities, institution and
matters to be investigated
thereunder are different.
Whiles under paragraph (a)
matters to be investigated
include – “corruption and abuse
of power” and by a public
officer in the exercise of his
official duties under paragraph
(b) you have complaints to be
investigated involving the
functioning of the Public
Services and Organs of the State
Institutions, matters to be
investigated include failure to
achieve a balanced structuring
of those services or equal
access by all to the
recruitment of those services
or fair administration in
relation to those services.
Paragraph (c) grants
investigations into complaints
concerning practices and actions
by persons, private enterprises
and other institutions.
In the exercise of its functions
therefore, the applicant is
enjoined to identify the
category of parties or persons,
and the matters to be
investigated in order to know
the appropriate procedures to be
adopted.
Paragraph (d) calls for the
taking of appropriate action for
the remedying, correction, and
reversal of instances specified
in paragraphs (a), (b) and (c)
of this clause through such
means as are fair, proper and
effective, including negotiation
and compromise between the
parties concerned. The
phrase “Between the parties
concerned”, can only bring to
mind two identifiable parties
i.e. the Complainant and the
offending party. That being so,
for investigations into persons
and matters coming under Article
218 (a), (b) and (c), there must
be an identifiable individual
or individuals or corporate
bodies who may lodge complaints
against the offending parties
with the applicant.
Article 218(e) talks of
investigations into all
instances of alleged or
suspected corruption and the
misappropriation of public
monies by officials and to take
appropriate steps, including
reports to the Attorney-General
and the Auditor-General,
resulting from such
investigations.
Even though paragraph 218 (e)
repeats instances of alleged or
suspected corruption, there is
no power reserved in that
paragraph for the Applicant to
investigate the Interested party
for “abuse of power and
conflict of interest” as was
allegedly done by the Applicant.
The Power to investigate a
public official operating in his
official capacity for
corruption and abuse of power
can be found only in 218 (a). A
Pubic Officer operating in his
official capacity therefore,
could only be investigated under
218(a) and not under any other
paragraph. Article 218(a) does
not set out any procedures for
its implementation. However,
Article 230 provides that:- “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”.
Pursuant to the said Article,
the Commission on Human Rights
and Administrative Justice
(Complaint Procedure)
Regulations, 1994, C.I. 7 was
made.
The Commission on Human Rights
and Administrative Justice Act
1993 (Act 456) was given birth
under this Chapter, and in Sec.
7 thereof all functions under
Article 218 are repeated.
C.I. 7 by its title “Commission
on Human Rights and
Administrative Justice
(Complaint Procedure)
Regulations” lay down specific
procedures for lodging a
complaint with the Commission.
These procedures only come into
play on occasions where the
Commission is empowered to
investigate complaints as found
in art. 218 (a) – (c).
Investigating complaints have no
place under Art 218 (e). The
Commission’s function under the
said paragraph is to investigate
all instances of alleged or
suspected corruption and etc and
to submit reports therefrom to
the Attorney General and the
Auditor-General.
The said paragraph, therefore,
enjoys no procedural coverage
under
C.I. 7.
The complaint procedure in
section 1(1) and (2) clearly
state as follows:- (1) A
complaint to the Commission
shall be made in writing or
orally,
(a)
to the national office of the
Commission, or
(b)
to a representative of the
Commission at the regional or
district branch of the
Commission.
(2)
A written complaint shall be
addressed to the Commissioner or
to the regional or district
representative of the Commission
and shall be signed or
thumbprinted by the complainant
or the agent of the complainant.
(3)
Where the complaint is made
orally or the complainant cannot
read and write, the complaint
shall be reduced to writing by
the officer at the registry of
the Commission or its branch to
whom the complaint is made or by
any other person chosen by the
complainant.
In ordinary language “complain
means to make a formal
accusation against a person; to
make a charge. Complaint
therefore connotes an accusation
or a charge.
That being the case a complaint
must necessarily be lodged to an
appropriate authority by an
individual or a group of
persons.
A complaint does not exist in a
vacuum; it must be traceable to
a source, in a person or
persons.
In considering Art 218(a) and
C.I. 7 together, and giving its
ordinary dictionary meaning and
Literal Interpretation I hold
that for a complaint within the
meaning of Article 218(a) of the
1992 Constitution to form the
basis for investigation by the
Commission on Human Rights and
Administrative Justice, it must
be made by an identifiable
individual or corporate body and
lodged with the Commission.
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