Introduction

The Vice President, Dr. Mahamadu Bawumia, has with the consent of the President Nana Akufo Addo, set up a Commission of Inquiry on the 6th of February, 2019, to investigate the violence which occurred during the by-election in the  Awawaso West Wuogon Constituency on 31st January, 2019 - as reported by Graphic on-line and other media outfits. This piece of work is my honest attempt to through more light on the nature of Commissions of Inquiry in general and give my humble opinion on questions and issues relating to the Ayawaso Commission of Inquiry as it stands.

The nature of Commissions of Inquiry

Commissions of Inquiry are temporary or interim bodies set up by the President of the Republic backed by a Constitutional Instrument (CI) in accordance with Art. 278(1) of the 1992 Constitution, giving it the mandate to inquire into any matter of public interest.

The CI, inter alia, gives the Commission the legitimate powers, terms of reference and High Court status of its existence and findings - with all the incidents attached thereto such as enforcement, appeal and estoppels. A commission of inquiry remains one of the legally recognized institutions of administrative justice directly placed under the Executive branch of Government.

Hence, it has been described by Azu Crabbe in the case of "Gbedemah v. Awoonor-Williams" as an "agency of the Executive". The President, as Head of State as well as Head of the Executive branch, may set up a commission of inquiry on any of the following three conditions under Art 278(1):

(a) by his own initiative when deemed necessary;

(b) on the advice of Council of State to do so;

(c) upon the resolution of parliament requesting him to do so.

Generally, they are set up in the following circumstances:

(a) where a matter threatens national security or stability or is likely to bring about tribal conflicts;

(b) where serious allegation of corruption or misconduct are made against a public officer;

(c) where a matter cannot be adequately dealt with before the court.

 Eligibility for appointment

In clause 3 of Article 278 of the 1992 Constitution, "a person shall be appointed a sole Commissioner or the chairman of a commission of inquiry under the said article unless he or she is

(a)  a Justice of the Superior Court of Judicature; or

(b) a person qualified to be  appointed a Justice of the of the superior courts of judicature;

(c) a person who has held office as a Justice of the superior court of adjudicature;

(d) a person who possesses special qualification or knowledge in respect of the matter being investigated. 

Legal issues relating to the setting up of Ayawaso West Commission

The setting up of the Commission of Inquiry into Ayawaso incident raises several legal questions and issues for both Criminal Law and Administrative Law (both public laws) that need some clarifications from the legal perspective. Apparently what had been shown on the airwaves so far seem factual to suggest that it is more of a criminal matter than administrative one? An adequate testimony to this is the fact that the police are conducting investigations into the matter according to the IGP. But this may probably not be exactly what it seems to portray in the public's eye. Questions that have been raised thereafter amidst the public outcry include the following and will only be briefly discussed here:

1. What happens to the police investigations now that a Commission of Inquiry has been set up to do the same job that the police have begun?

2. What about the argument that if the Commission's powers are equivalent to a High Court, then the indicted persons cannot be tried by a High Court. Neither can they be tried by the court of appeal because it is not a court of first instance.

3. Assuming any indicted person is to be tried, can the evidence taken before the commission be used to discredit or support the credibility of any witness?

4. Will the finding of the Commission be binding on the President? Can he ignore or substitute the recommendations of a Commission that he has himself set up?

First, the police criminal investigation can run parallel to an inquiry, where the former results into a prosecution or criminal conviction and the latter ending up with adverse findings or legal disabilities. This distinction in the work of the two bodies is normally determined or defined by the Constitutional Instrument (CI) setting up the Commission.

Secondly, the Commission of Inquiry has the powers of the High Court for carefully circumscribed purposes only, such as to compel attendance of witnesses, examining them on oath, compelling the production of document, etc. But it is never a High Court for all purposes. (see, Inkumson v. the Republic). The Commission, for instance, cannot punish a person for contempt but can only site a person for contempt in the High Court because it lacks final judicial power, (by interpretation of Article 279 of the 1992 Constitution). 

In fact it is subject to the supervisory jurisdiction of the High Court. Also, importantly, even when it comes to appeals over Commission of Inquiry reports, it is only the adverse findings that are for the purposes of the appeal deemed to be the judgment of a High Court. But then again, those adverse findings merely impose legal disabilities like ineligibility to run for President or parliament, and are never criminal convictions. So if there’s no immunity granted to a witness by the CI that set up the Commission, I do not see how the adverse findings may prevent prosecution and possible conviction—a process with a different legal consequence.

Thirdly, some have made reference to the case of (the Republic v Mpiani) with regard to the use of evidence of witnesses.  But we may have to look at that case within the context of its peculiar facts. In that case, the CI that set up the Commission expressly granted immunity to all witnesses who testified before it. It was therefore anomalous for the Attorney General to turn around to use the evidence which the witnesses had given without insisting on their right against self-incrimination in a criminal prosecution.

The Minister of Information disclosed on Joy FM on February 7th, that the CI setting up this Ayawaso Commission has no similar provision granting immunity from prosecution to any witness. So in my view and expectation, the outcome in this particular Commission’s work may be different. And this is particularly so when one considers that although an adverse finding by a Commission of Inquiry imposes some legal disabilities, it is never a criminal conviction. As such, the absence of an immunity provision in the CI setting up the Commission, should not prevent subsequent prosecution of any person against whom an adverse finding may be made.

I do not also think there is any Supreme Court decision at the moment that makes immunity of witnesses automatic as asserted by some commentators. In fact, even in the Republic v. Mpiani (High Court case), I do not think the Judge makes the argument that there is automatic immunity for witnesses. It is always case specific and varies from one CI to the other.

Finally, the President, by jurisprudence and common law considerations is expected to appoint to the Commission of Inquiry only persons of integrity, of lndependent mind, of competence and trust. Also their findings are deemed to be judgment of the High Court. It will, therefore, cast an insinuation on the conduct of the President if at the end of the Commission's work the President rejects the findings of the same commission that he had set up himself on those principles. In the contrary, findings of the Commission of enquiry under administrative law in Ghana are not expressly made to be binding on the President.

In other words he is not bound by the commission's report. The clear danger with such a scheme has been the tendency for commissions of inquiry to be set up to "confirm" the views of the Executives on the matter of inquiry and casting doubt on their independence and impartiality. Apart from the case of Quayson v Attorney General, which came very close, I do not know of any other case directly dealing with the binding nature of a commissions of inquiry report.

Also, in the Constitution Review Commission case of Asare v. Attorney General, the Supreme Court discussed whether it was lawful for the President to use a report of the commission of inquiry to initiate amendments to the Constitution. So the Court just discussed the general use of the report of Commissions of Inquiry and not specifically whether the findings of the commission will be binding on the President or not.

As the Commission is appointed by the President, its report must be sent to the President who must cause it to be published together with a "White Paper" (i.e government's position on the report including the policy measures to be taken on the report) within 6 months after date of the submission of the report or where the report is not to be published then must issue a statement to that effect giving reasons why the report is not to be published. The public has the right to know the outcome of the Commission's work since the matters are of public interest. Note that the government’s "White Paper" cannot be used as a tool for arbitrary action.

In the case of Quayson v Attorney General, for instance, the Government's "White Paper" recommended punitive sanction against the appellant though the Commission did not in its report recommend punishment to be meted out to him. The government reasoned that the failure by the Commission to recommend punishment was an oversight. It was held by the court that, the Commission's failure to recommend sanction was deliberate and the statements in the "White Paper" were diametrically opposed to the clear unambiguous and plain language of the Commission's report. So the appellant was granted certiorari to quash the decision of government.

So, even though the government is not bound by the findings and recommendations of the commission of inquiry, it is equally not permissible in law for government to purport to act on a finding where none existed. This is a legitimate restraint because if there were no issues, there would not have been the need to set up the Commission in the first place.

In another case "Kwapong v GCMB (Consolidated), it was held that the "White Paper" contained policy directives of Government, consequently, where a person misapplied the directives contained therein and thereby injure the legally protected rights of a person the latter could bring an action to vindicate his rights. Indeed the courts have been cautious in their treatment of executive actions purportedly based on the findings of commissions of inquiry. See also, "Darkwa v. The Republic" on this.

On other related issues of commissions of inquiry under the various regimes in Ghana and for further reading, see my latest publication (Introduction to Administrative Law in Ghana, 2018, by Oswald Seneadza).