Reports of Commissions of Inquiry And The White Paper
Commission of inquiry is a constitutional mechanism employed by the government to investigate any matter that is in the interest of the public. The appointments, functions, and duties Commissions of Inquiries is regulated by Chapter 23 of the 1992 Constitution. Article 278(1) provides that Subject to Article 5 of this Constitution, the President shall, by constitutional instrument, appoint a commission of inquiry into any matter of public interest …”.
A commission of inquiry can be justified on three main grounds; (a) if the President is satisfied that a Commission of Inquiry should be appointed, (b) the President acting on the advice of the Council of State and; (c) if Parliament by resolution requests the appointment of a commission of inquiry to inquire into any matter of public interest.
The primary functions of a commission of inquiry are provided for in Article 280 of the 1992 Constitution. They include; (a) making a full, faithful and impartial inquiry into any matter specified in the instrument of appointment, (b) reporting in writing the results of the inquiry and (c) furnishing in the report the reasons leading to the conclusions stated in the report.
It suffices to note that the report of the commission of inquiry is deemed to be a 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. The Constitution mandates the President to within six months after the date of the submission of the report by the commission cause to be published the report of a commission of inquiry together with the White Paper. If the report is not published within the stipulated time, the President shall issue a statement providing reasons why the report is not to be published.
Again, the finding of a commission of inquiry shall not have the effect of a judgment of the High Court unless in Article 280(6) are met, they are:six months have passed after the finding is made and announced to the public; or 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. However, the right of appeal shall be exercisable within three months after the publication of the findings and the white paper or such other time subject to the discretion of the High Court or the Court of Appeal.
The locus classicus case on Commission of inquiries under Ghana’s 4thRepublic isRepublic v. Wereko-Brobbey & Mpiani. In this case,the President in June 2009, appointed a Commission of Inquiry (The Ghana @ 50 Commission of Inquiry), through a constitutional instrument.
The functions of the commission were:
- to inquire into and report on allegations of improper use of public and of any other funds;
- to inquire into the use by the Secretariat of any property, movable and immovable;
- 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
- to make recommendations in respect of the findings of fact by the Commission’’.
The commission of inquiry made adverse findings against Charles Wereko Brobbey and Kwadwo Okyere Mpiani. The two were further charged before the High Court with four counts of willfully causing financial loss to the State contrary to section 179 A (3) (a) of the Criminal Offences Act, 1960 (Act 29). The two pleaded not guilty to all charges and before prosecution could start adducing evidence the two accused persons filed applications which challenged the jurisdiction of the court.
Counsel for the accused persons/applicants argued that the action was a violation of articles 278 and 280 of the Constitution 1992. The main argument was that the charges preferred against the applicants was unconstitutional because the action originated from the adverse findings of the Ghana @ 50 Commission of Inquiry and that they have a right of appeal against the said findings before three months. Counsel also 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.
Marful-Sau J.A, stated in his very erudite, and incisive ruling setting down the issue for determination as follows:-
“Having heard counsel for the accused persons and the Republic, and having examined and studied the process 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 of 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 circumstances of this case having regard to the provisions of Article 278 and 280 of the 1992 Constitution.”
Justice Marful-Sau described the rationale behind the establishment of Commissions of Inquiry as stated in paragraph 301 of the 1978 proposals as follows:
“In summary, 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 findings 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.”
From the above, one can safely conclude that the findings made by a commission of inquiry have serious legal implications once the findings are published after six months and a white paper issued by the executive. The provision in Article 280(2) was reiterated in the case of Republic v. Wereko-Brobbey & Mpiani that such findings of a commission of inquiry are analogous to the judgment of the high court. Thus, persons against which these findings have been made have within three months to appeal against the findings in the court of appeal to clear their name.
Government on the other may refuse to declare or publish the findings of the commission of inquiry for a variety of reasons. These reasons include national security concerns or where it is in the interest of the public not to publish such findings. Where the government opts not to declare or publish the fundings of a commission of inquiry, the law requires the government to issue a statement giving reasons for its decision. When this happens, persons against whom adverse findings might have been made no longer have reason to appeal against the findings at the court of appeal. This is largely because such a person may be oblivious, just like the general public of any such finding.
The failure to publish the findings of a commission of inquiry may have its own political consequences. For instance, such as a failure may fuel speculations that the executive may be protecting some persons or certain matters identified by the commission of inquiry. However, this is constitutional as far as Article 280(4) is in force. What is not clear is whether or not the government of the day can reject the findings of a commission of inquiry if government is of the view that the commission did not perform to expectation the mandate or terms of reference it was provided in the Constitutional Instrument (C.I). When this occurs, the likely questions that may arise are: is the executive serving as an appellate body to the findings of the commission? Do persons against whom adverse findings have been made have to appeal to the court of appeal for redress? Or rejection by the executive is enough to absolve them of any liability?
Articles 278- 283 of 1992 Constitution
A white paper is a policy document, indicating government’s position on a particular subject
Case No. ACC 39/2010