Probing judgment debts: Why by a Commission?
By I. K. Gyasi
It was Professor Cyril Northcote Parkinson, a British Professor of public administration, who formulated the ‘law’ that a commission of inquiry is appointed merely to postpone discussion on a matter until after the next general election.
Last week, President John Dramani Mahama seemed to have done just that by appointing an Appeal Court Judge, Mr. Justice Yaw Appau, to investigate the matter of what Mr. Martin Amidu, the dismissed Attorney-General, has described as “the gargantuan, collusive and collaborative judgment debts.”
It is obvious that there is no way that the Justice Appau Sole Commission can complete its work before December 7, 2012, the day the presidential and parliamentary elections will take place. We have the record of previous investigations before us.
The DAILY GRAPHIC issue of Tuesday, October 9, 2012, quotes President Mahama as saying, “While providing mechanisms for ensuring that we do not make mistakes in the future, we also need to look back and learn from history. As a historian, I am pretty certain that some useful lessons will be learnt from that exercise. (From the front page story headlined, SOLE C’SSIONER APPOINTED, with the shoulder headline, CONUNDRUM OF JUDGEMENT DEBTS. The byline is Musah Yahaya Jafaru).
There are clearly lessons which President Mahama and his government of the National Democratic Congress (NDC) can learn from the tragic-comic debacle of the Ghana@50 investigations conducted by the Duose Commission.
The Constitution Instrument, (CI 61) that set up the Duose Commission was tragi-comically inept and effective. The surprising thing was that it was signed by no less a person than the then and now late President John Evans Fiifi Atta Mills, a Professor of law with about 25 years experience under his belt.
I have a copy of the judgment delivered by Mr. Justice Samuel Marfu-Sau, a Justice of the Court of Appeal, who heard the case between the Republic on one hand, and Dr. Charles Wereko-Brobbey and Mr. Kwadwo Okyere Mpiani on the other.
Dr. Wereko-Brobbey had been the Chief Executive officer of the Ghana@50 Secretariat, while Mr. Mpiani had been the Chairman of the National Planning Committee of the Ghana@50 Secretariat.
The Duose Commission had made adverse findings against them, and the Republic had charged them with four counts of willfully causing financial loss to the state, contrary to section 197A (3) (a) of the Criminal Offences Act , 1960 (Act 29).
The two persons had separately filed two motions on notice, challenging the jurisdiction of the High Court in trying them. As is now well known, Mr. Justice Marfu-Sau upheld their submissions.
According to the Terms of Reference for the Douse Commision, Section 5 of CI 61, the Commission was
(a) To inquire and report on allegations of improper use of public and any other funds;
(b) To inquire into the use by the Secretariat of any property, movable and immovable;
(c) To inquire into any other matter which appears to the Commission to be incidental or reasonably related to the Ghana@50 celebrations which in the opinion of the Commission ought to be inquired into; and
(d) To make recommendations in respect of the findings of fact by the Commission.
The learned judge was of the opinion that the object of the inquiry was the Secretariat of the Ghana @50 celebrations, and NOT Dr. Wereko-Brobbey and Mr. Mpiani, since the two persons were not specifically named in CI 61.
The learned judge also expressed the opinion that “A careful reading of CI 61 creates no doubt at all that those persons who appeared before the Commission were witnesses.”
The learned judge further expressed the opinion that CI 61 of June 5, 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 subjected 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 question as regards the subject matter of the proceedings, although the document or article may incriminate that person.
“10 (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.”
If anyone appearing before the Duose Commission was a witness and not a suspect, if Section 10 (1) took away the right of a witness to remain a silent, but Section 10 (2) gave him immunity against any criminal or civil proceedings, then what was the point in setting up the Commission?
When the then Attorney-General decided to prosecute the two persons, she was clearly in breach of Article 280 of the 1992 Constitution?
Article 280 (2) states, “Where a Commission of inquiry makes an adverse finding against any person, the report of the Commission of inquiry shall, for the purpose 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.”
Article 280 (6) states, “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 Article, 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.”
The government issued a White Paper, but the time for an appeal by the two persons had not lapsed when the Attorney-General decided to prosecute the two.
The advice of Mr. Justice Marfo-Sau in his judgments was as follows: “What the findings and the 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 Commission of Inquiry, under Article 278 of the Constitution, because of the constitutional history behind the establishment of such Presidential Commissions, under our Constitution.”
He advised further: “That intention requires government to use the traditional investigative agencies under our laws, so that the Attorney-General could report to the powers granted her under Article 88 of the 1992 Constitution to mount the appropriate criminal proceedings, if necessary.”
After the Ghana@50’s failed prosecution, and after the debacle of the aborted Mabey and Johnson inquiry by the Commission for Human Rights and Administrative Justice (CHRAJ), is President Mahama sure that he has chosen the right path in appointing a Commission to investigate the so-called judgment debts?
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