The Ghana@50 Ruling: Why Justice Marful-Sau is wrong

The ruling of the High Court concerning the trial of Messrs Wereko-Brobby and Kwadwo Mpiani has generated significant discussion in the media and within the legal community regarding – not only the work of the Ghana@50 Commission of Inquiry but, more significantly, about the role of commissions of inquiry in the administration of the country. Both in the ruling of the High Court and in the media discussion following the ruling, there have been views expressed on what the drafters of our current Constitution intended when they wrote the provisions of Chapter 23 dealing with Commissions of Inquiry.

Specifically, did the drafters of the Constitution intend that there be no criminal trials arising out of or in connection with the reports of such commissions? Or did they intend that the proceedings of such commissions not be turned into criminal trials with the resultant reports being evidence of the guilt of those whose conduct is the focus of the investigation?

Before the High Court, the issue was whether or not the accused persons could be tried by the High Court in the face of, the constitutional provision to the effect that the adverse findings of a commission of inquiry are deemed to be a judgement of the High Court for the purposes of the Constitution from which an automatic right of appeal to the Court of Appeal is conferred on the accused persons. A subsidiary issue was whether the accused persons were entitled to immunity from criminal and civil proceedings by reason of their appearance before the Ghana@50 Commission of Inquiry as “witnesses”?

These are certainly weighty issues of law not only because of their novelty within the context of our constitutional jurisprudence but also because their correct resolution portends far-reaching implications for the administration of the state. Commissions of inquiry are without’ doubt an important mechanism for the effective administration of the affairs of state; they serve not only as means to unearthing the truth about how certain public affairs have been conducted but also as a transparent means of exacting accountability of public officeholders. In light of these considerations, the reasoning of Justice Marful-Sau and the conclusions he came to as a result of that reasoning are troubling. His Lordship not only misapplied the law but drew conclusions and rendered a decision that effectively deprives commissions of inquiry of their use as tools for holding public office holders accountable for their actions that might have caused injury to the public welfare.

Before I proceed to examine the issues raised before the High Court, I wish to state that I am keenly aware of the political overtones of this ruling and I do not intend to wade into the political debate. My motivation for writing this piece is to put out in the public domain a less politicised perspective of the ruling and also to re-educate my students of Administrative Law with whom I had an extensive and lively debate in class on the role of commissions of inquiry in our system of law and politics. Some of them called me after the announcement of the decision of the High Court and questioned some of the views I expressed in class in the face of this ruling. As a teacher, I owe them a duty to explain why my views may still reflect the correct position of the law, the ruling notwithstanding.

So why is Justice Marful-Sau wrong? As noted above, the critical issue before the High Court was whether the adverse findings of the Ghana@50 Commission of Inquiry report had crystallised into a judgement of the High Court thereby granting the accused persons an automatic right of appeal against those findings to the Court of Appeal. It must be conceded that if the findings constituted a judgement of the High Court, then it is legally anomalous to ask the High Court to try them based upon its own judgement. On that score the judge would be right in concluding that a trial cannot occur based upon a judgement of the High Court (or of any court for that matter).

On this issue, Justice Marful-Sau came to the wrong conclusion based upon incorrect and illogical legal premises. This is because the Constitution sets two alternative conditions that must be fulfilled before the adverse findings of a commission of inquiry can be deemed to be a judgement of the High Court. The first condition is that six months must have expired since the publication of the commission’s report.
The second condition is that the government would have issued a statement (not a white paper) in the Gazette, to the effect that it does not intend to issue a White Paper on the report of the commission. Because these conditions are time bound events, the constitutional provision setting them ends with the words “whichever is earlier,” This means in effect that if the Government fails to issue a statement of its intention to issue a White Paper within six months, the default position is that the person against whom adverse findings have been made has a right of appeal after six months.
If, however, the Government issues the statement to the effect that it does not intend to issue a White Paper even a day after the publication of the report of the commission of inquiry, then the right of appeal against the adverse findings of the commission accrues immediately.

In resolving this issue, Justice Marful-Sau misinterpreted and misapplied the law. His Lordship ruled that:

“It is evidently clear that inasmuch as the Government has issued a White Paper on the report of the Commission the findings had become a judgement of the High Court. The reason is that under article 280 (5), the findings became a judgement when either of the two conditions stated therein first occurred. By issuing the White Paper the Government had elected to make the findings a judgement of the High Court, making the six months condition nothing to count.” (Emphasis added).

This statement of the law is patently wrong and flies directly in the face of the Constitution which provides that the adverse findings are deemed to be a judgement when the Government issues a ‘statement in the Gazette that it does not intend to issue a White Paper. At the risk of sounding tautologous, the issuance of a White Paper is not logically equivalent to an intention not to issue one; they are direct opposites from a syllogistic point of view. So the conclusion that the adverse findings of the Ghana@50 Commission crystallised into a judgement of the High Court because the Government issued a White Paper is not only illogical, it is also clearly contradictory of the letter and spirit of the constitutional provision that His Lordship cited but ended up misapplying. His Lordship’s ruling on this matter is thus per incuriam. The direct opposite is true – once the Government issues a White Paper, none of the two time-bound conditions can (and should) be triggered and therefore the Commission’s report cannot crystallise into a judgement of the High Court.

Does this conclusion undermine the right of appeal of the person against whom adverse findings have been made? Yes it does but for good reason. If the drafters of the Constitution had intended that such persons should have a right of appeal by all means against the adverse findings, they would have said so and would then have avoided the conditional conferment of that right. By making the right of appeal conditional upon the occurrence of these time-bound events, they surely contemplated the situation where none of the two conditions would occur, thus rendering the right of appeal inoperable.
For those who have framed this issue purely in human rights terms, just pause for a minute and think of the situation where the President decides that the adverse findings have severe implications for national security and that an appeal will result in revelations of sensitive national security issues in the appellate records. Would it not be fool¬ hardy to allow such revelations to occur?

Be that as it may, let us accept for the sake of argument that the adverse findings of the Ghana@50 Commission had crystallised into a judgement of the High Court as held by Justice Marful-Sau. The Constitution employs the generic term judgement and states that the judgement shall be deemed, “for the purposes of, this Constitution”, to be a judgement of the High Court. Since the Constitution does not state whether this “judgement” is civil or criminal, we take it that it can be both.
This conclusion has far-reaching consequences for the process of implementation of the adverse findings of a commission of inquiry. If we accept that it is a civil judgement, then the state and for that matter the Attorney-General stands in the stead of a judgement creditor: That being the case, the principle that the judgement creditor should not be deprived of the fruits of his judgement kicks in, thus entitling the government to proceed to enforcement. On the other hand, if it is accepted as a criminal judgement, then the Government is in the position of having obtained a conviction awaiting sentencing.
In either case, what remains on the part of the state is how to enforce the “judgement” rendered in its favour and for the persons against whom adverse findings have been made the constitutional remedy is to appeal against this “judgement.”

If we accept the above position of the law, then for the Attorney-General what remains to be done by way of enforcement is to seek to enter judgement and proceed to enforce it (in the case of a civil judgement) or to apply for the ‘convicts’ to be sentenced before the High Court (in the case of a criminal judgement).

But there is a snag here. With the exception of the right of appeal granted to the persons against whom adverse findings have been made, the Constitution fails to provide for the procedures for dealing with this “judgement” after it has been rendered. It is for this reason that the words “for the purposes of this Constitution” become important in understanding the context within which the adverse findings can be deemed to be a “judgement” of the High Court.
A narrow purposive interpretation means that the findings become a judgement only for the purposes of an appeal by the persons against whom adverse findings have been made. A broader purposive approach will encompass other provisions of the Constitution, including the purpose of effectuating the prosecutorial powers of the Attorney-General under article 88 of the Constitution in a manner that conforms to the letter and spirit of the Constitution.

It could never have been the intention of the makers of our Constitution that a unidirectional right of appeal, be accorded to the persons against whom adverse findings have been made while the Government (the judgement creditor) is left with no remedy. Put differently, the makers of the Constitution never intended that the Government be saddled with a judgement it cannot enforce.
But that is the effect of the decision of Justice Marful-Sau in this case – none of the accused persons can he held accountable for their actions on the basis of the adverse findings of the Ghana@50 Commission of Inquiry while they have an automatic right of appeal against these findings! That is an absurd situation.

The phrase “for the purpose of this Constitution” was interpreted by His Lordship to be limited to the right of appeal of the accused persons as well as the specific situations in which the Constitution mentions the effects of the adverse findings of a commission of inquiry such as the disqualification requirements of article 94 of the Constitution relating to Members of Parliament.

This is however, a selective reading of the phrase “for the purpose of this Constitution. The Constitution must be read as a whole unless the context otherwise indicates. And so other purposes of the Constitution that may be served by the effective implementation of the adverse findings of a commission of inquiry must not be left out. One such purpose is the implementation or enforcement of the said findings.
Otherwise, commissions of inquiry are inutile; a veritable waste of taxpayers’ money. If the decision of His Lordship is right, just think of the situation where the accused persons in this case decide not to appeal against the findings. In that case, the matter, in the words of my brother Yoni Kulendi, counsel for Kwadwo Mpiani, “is dead, done deal, yaa mutu”. The state would be saddled with a judgement it cannot enforce. How absurd!!

Having come to the erroneous conclusion that the adverse findings of the Ghana@50 Commission had crystallised into a judgement of the High Court, His Lordship then sought to justify why a criminal trial cannot be founded on, and why criminal consequences cannot flow from, these adverse findings. To do so, Justice Marful-Sau relied on the reports of past constitutional commissions and clause 8 (2) of the Constitutional Instrument setting up the Ghana@50 Commission.
More will be said of clause 8(2) shortly, but first the report of past constitutional commissions.
To summarise, the judge reasoned that since 1968. Constitutional commissions set up to draft our various Constitutions took the view that the proceedings of commissions of inquiry should be inquisitorial and not accusatorial.
In short, they should not “develop into criminal trials”. With the greatest respect to His Lordship, to say that commissions of inquiry should be confined to a fact-finding role is not the same as saying that no criminal consequences can flow subsequently from their findings.

Indeed, a logical consequence of the departure from the pre-1968 position is that a full-fledged criminal trial is required to found criminal liability on the adverse findings of a commission of inquiry. But such a trial is legally possible only where the adverse findings have not crystallised into a judgement of the High Court.
A full-fledged criminal trial would allow the persons affected by the findings to impeach them through the normal process of adducing evidence. The report of the commission would in that case not amount to a prima facie proof of guilt, as was the position before 1968, but would constitute mere findings of fact supportive of the case of the Republic.

Indeed neither the Constitution nor the reports of the past Constitutional Commissions copiously cited by Justice Marful-Sau support the proposition that no criminal consequences can flow from the adverse findings of a commission of inquiry. Commissions of inquiry are not truth and reconciliation commissions where persons who give evidence are granted immunity from prosecution in exchange for speaking the truth needed to reconcile a fractured society.

That brings me to the issue whether the accused persons are immune from criminal and civil proceedings. The constitution grants privileges and immunities to witnesses who appear to testify before a commission of inquiry. But those privileges and immunities are, in the sacred words of the Constitution, “the same privileges and immunities as if [the witnesses were before the High Court”. That happens to be the position stated in our Evidence Decree.

Consequently, to purport to grant privileges and immunities in excess of those accorded under the Constitution, as clause 8(2) of the Constitutional Instrument purports to do, is patently unconstitutional. If the drafters of the Constitution intended to confer such privileges and immunities, they would have done so in no uncertain terms. Understandably, the High Court had no power to declare clause 8(2) of the Constitutional Instrument that set up the Ghana@50 Commission unconstitutional. That power is exclusively reserved to the Supreme Court where, I believe, this matter should be headed.

In conclusion, Justice Marful-Sau is clearly wrong in the decision that he rendered. The ruling files in the face of the Constitution and makes erroneous use of reports of past constitutional commissions to arrive at absurd conclusions that have far-reaching consequences for the utility of commissions of inquiry as transparent mechanisms of accountability. As they stand now, the adverse findings of the Ghana@50 Commission have not crystallised into a judgement of the High Court.

That being the case, the accused persons’ right of appeal has not accrued and can no longer accrue by reason of the issuance of the White Paper by the Government. It is also unconstitutional to grant any person privileges and immunities in excess of those granted by the Constitution.
The logical consequence is that witnesses before a commission of inquiry can invoke their rights, such as the right to remain silent or the privilege (indeed right) against self-crimination in the normal process of a trial but no more.

The author, Dominic Ayine is a Lecturer, Faculty of Law,
University of Ghana. He is available at E-mail: akuritinga@gmail.com