WHAT IS A COMMISSION OR COMMITTEE OF ENQUIRY?
Commission of enquiry (or committee of enquiry)is a mechanism under our constitution for investigating any matter of public interest . Commission of enquiry should not be confused with department of enquiry. Commission of enquiry is used in matters of national interest. Before independence it was regulated by the Commission of Enquiry Act CAP 249 which gave the governor General the power to appoint commission of enquiry in any matter. An example is the Gower Commission. Professor Gower, an international company law expert was appointed to examine the laws and practices in Ghana with the view to make recommendation to make it flexible in Ghana , and brought a report which was accepted generally as the most competent commentary on the act (Company act).
Essentially we can say that commission of enquiry or committee of enquiry is a fact finding body put in place to inquire into some matter which is determined to be beneficial to the public interest or public welfare . In the beginning , they were ad hoc and sometimes looked like the permanent one’s like the Anini’s Commission of bribery and corruption , we never finished , the chairman died and so the committee also died.
It was given heighten attention by the passage in 1964 of two pieces of legislation
• Corrupt Practices (Prevention) Act, 1964 (Act 230) with its accompanying regulations , Corrupt Practices (Prevention) (Procedures) Regulations 1967. (L.I. 571)
• Act 250: Commission of Enquiry Act 1954
Under Act 230 , the committee was required to independently report to the appointing authority , this was normally the president. They were also required to submit a copy of the report independently to the attorney general and anyone it made adverse findings against. The submission to the attorney general is to enable the Attorney General to determine whether it is in the public interest to prosecute .
If he decided to prosecute , then the report of the commission operated as prima facie evidence of the case of the offence. What it means is that the act treated the findings in the report as if same was in a normal criminal trial. The prosecution has completed its case against you and you have made a submission of no case which has been turned down by the court. This drastic outcome undermines an important constitutional principle , namely nobody is accused before the enquiry and anyone who appears is just a witness.
So it was a drastic curtailment of people’s rights to fair trial . People therefore started taking the business of the commission or committee of enquiry far more serious. The high court is not allowed to question the report which was a prima facie evidence. The only business of the court was to proceed to sentence you . and on conviction you will be given a minimum sentence of 3 years. Akainya v. republic : akainya was a high court judge accused of corrupt practices ,republic v. Asafu – Adjaye .
REPUBLIC VRS ASAFU ADJAYE: The respondent was arraigned before the High Court on various counts of conspiracy to commit extortion and corruption under the Criminal Code, 1960 (Act 29). The charges arose out of the findings of the Ollennu Commission appointed under the Corrupt Practices (Prevention) Act, 1964 (Act 230), to investigate and report on alleged irregularities and malpractices in connection with the grant of import licences during a specified period. After hearing the submissions of counsel for the respondent and refusing to hear counsel for the State on the ground that by virtue of the provisions of L.I. 571, the Attorney-General had no right to reply in a criminal trial based on findings made under Act 230, the trial judge held that the bare assertion of S. that the respondent demanded a commission of five per cent could not be deemed to be proof in law of the demand by the respondent. He therefore concluded that the burden of proof was not discharged by the prosecution.
PROCEDURE: APPEAL from a judgment of the High Court, Accra, acquitting and discharging the respondent of the offences of conspiracy to commit extortion and corruption contrary to sections 23 (1) and 293 (1) of the Criminal Code, 1960 (Act 29), based on findings made [p.571] under the Corrupt Practices (Prevention) Act, 1964 (Act 230).
ISSUES:
1. Whether a commission of enquiry was a law finding body?
2. Whether there was a burden of proof by the state on the guilt of the accused.
3. What role does the commissioner plays in the hearing?
HOLDING AND REASONS: the court held, allowing the appeal,
1. An inquiry under Act 230 was from the first to last a fact-finding inquiry. In accordance with section 5 (2) of that Act, an adverse finding constituted a prima facie case against the person concerned only when the Attorney-General in his discretion decided to prefer a charge against the person against whom adverse finding had been made. Without any such charge being preferred by the Attorney-General the finding remained a bare finding of fact. The fact that a finding of a commissioner might ground a criminal conviction was only a peculiar characteristic of the Act which was intended to meet extraordinary situations and it was no ground for treating an inquiry under it at any stage as a criminal trial properly so called. The very nature of the inquiry did not admit of such treatment, for no one was ever prosecuted at such inquiry, that is, there was no prosecutor or a defendant; all who appeared at the commission did so as witnesses who were themselves free to call any other witnesses whom they might examine and cross-examine in a manner not ordinarily permissible at a criminal trial.
2. A person brought before the court under Act 230 came before the court on a concluded proof of certain facts which formed the basis of the charge against the accused person, and all that the prosecution was called upon to do was to satisfy the court that adverse findings had been made against the accused person and the charge conformed to the terms of the findings. In a situation like that no question of burden of proof as a determining factor arose. So far as there was any burden of proof it rested on the accused person to satisfy the court that the findings were not supported by the evidence, if as in the instant case, he raised the plea. The findings of the commissioner being concluded proof of facts had to be presumed to be right until the contrary was proved by whomsoever asserted the contrary. There was therefore no burden of proof cast on the prosecution to prove the guilt of the accused (except probably when the Attorney-General elected to adduce fresh evidence) for that, except in so far as the accused person was able to disprove it, was already established by the commissioner’s findings.
3. A commissioner’s duty under Act 230 was not that of merely hearing and determining issues raised by contending parties. His duty was to conduct an investigation on behalf of the public and he was therefore entitled to put as many questions to persons appearing before him as he thought would conduce to an effective investigation of the subject of inquiry. He might even decide to do away with counsel for the commission and conduct the investigation himself from beginning to end. There could not therefore be valid objection to the long series of questionings to which the respondent was subjected. There was no cause however for the commissioner to appear hostile to a party giving evidence no matter what the provocation. Some of the questioning even as it appeared in cold print was done in a mood of annoyance no doubt from the persistent prevarications of the respondent, but a commissioner engaged on such an important inquiry ought not so easily to yield to his passions; but this conduct did not result in any miscarriage of justice.
Then came our first coup when the commission mechanism began to be used , or was put for the first time to another kind of rules to investigate key officials of the government which has been overthrown with a view to finding either that they acquired assets which could not be financed form their own legitimate sources of income and in some way to legitimize the coup. after the first coup the mechanism used entered into a different dimension. For that reason the rights of the persons who appeared before the commission did not count because the commission mechanism itself did not adhere to a fair trial because the commission was not a trial since everybody who appeared was as a witness to help the commission to unearth its findings.
Since 1969, there was an additional consequence that if the commission made adverse findings against you, then you were disqualified from participating in the political arena. Nobody wanted to appear before the commission. However it did not change the following:
• That the commission of inquiry is not part of our judicial system, it was not a court
• It did not exercise judicial power , although for it to effectively investigate what it is expected to do, some of the powers of investigation , are extended to a commission of enquiry
• It does not make final findings and authoritative decisions
• It finds facts and makes recommendations to the appointment authority
• The appointment authority could reject the recommendations.
Historically, when it is a sole commissioner, the person has been a lawyer and if it is a panel, then the person is a judge. It is conducted as if it is a trial.
Otu v. Kwapong, the high court in this case said that in the circumstances in which they found themselves, they were right to remain silent. Facts: They were charged for publicly conniving with another to commit treason. A commission of inquiry was set up to investigate. They were askedto swear an oath and give evidence. They declined to swear the oath because they were already charged and so they were not witnesses but accused persons. They also declined to appear before the commission again although they were summoned.
The court held that since they were accused persons they were not obliged to incriminate themselves.
Fawkes v Accra Brewery: Adverse findings were made against the plaintiffs. They argued that they were commission of enquiry which was supposed to make the findings but not a committee. They argued that a commission had a judicial power but a committee had a quasi judicial power. The court however held that in substance commission of enquiry is same as committee of enquiry.
Darkwah v Republic: Police office whom adverse findings had been made against him. He argued that the commission had done their own independent investigation without giving him a hearing and so it was a breach of h the natural justice principle of fair hearing.
The court agreed and quashed the decision. According to the court, by virtue of their scope of powers they were just fact findings and they purported to exercise a judicial function. They were bound to observe the rules of natural justice.
Quayson v AG: A prison officer had been removed form a prison service based on adverse findings from a commission of enquiry. Although the findings showed that he wasn’t guilty but they went ahead to remove him from office, it was wrong. The issue was whether the government was bound by the decision. The court held that generally the government is not bound. But where the basis if their dismissal is based on the findings, then same should be clear if not the opposite is the case. The government’s decision was consequently quashed.
Ex Parte Agyekum: this case deals with the stool lands and boundary commission. It involved a dispute between two stools. The commission was called to investigate. The case was initially held in the circuit court and on appeal to the court of appeal. Once the case was in the court of appeal, it was said the best forum was the stool lands commission and so they should proceed to make their findings .The commission pronounced that the area should be given to the respondent. The respondent then appealed to the SC. The SC held that the CA erred in referring the matter to the Stool lands and boundaries commission since it had no judicial power or was not a court and so the findings were quashed by the SC.
Our constitution framers agitate overtime about how to use the mechanism without some of the acceptable consequences . our current constitutional arrangement has benefited from the provisions of 69 and 79 and can be found in article 278 , chapter 22 of 1992 constitution. Some of the matters were played our not so long ago , in the Ghana at 50 enquiry chaired by an appeal court judge to investigate the worth of the people. Ghana at 50 instrument appointed a commission of enquiry .
In the constitution there is a rule of court committee : to prepare and formulate rules for procedure before constitution of enquiry
THE PROVISIONS IN ARTICLE 278 AND 279 CAN BE SUMMARISED AS FOLLOWS
• The power to set up a committee of inquiry or commission of inquiry is vested in the president.
There are three circumstances in which the president may set up a commission of inquiry:
• When he concludes that it is in the public interest
• If the request comes from council of state or the council of state advices the president that the commission be appointed to investigate some matter
• Where parliament by resolution requires investigation into some matter.
Article 259 defines a commission of inquiry as including a committee of inquiry . this clarification is rooted in our constitutional history. After the disqualification of K A Gbedemah , the main parties PP ,and NAL (led by K A Gbedemah) . the NAL found their leader disqualified from parliament so they were also finding people in the PP to be disqualified. They found Bossman . the court of appeal which was at time performing the function of the supreme court , said that you were disqualified if there were adverse findings by a commission of inquiry and not a committee of inquiry. Read Bossman v. ….in G& G.
The commission according to the constitution can be made up of a sole commissioner or two or more persons. To be qualified to be appointed by the president,
• You must be a justice of the superior court of judicature: high court 10 years, 12 years court of appeal , supreme court 15 years. Or formal justice. you must be of good character
• Or you must have special qualification or knowledge in the subject matter. For instance if it involves an accounting issue , then a charted accountant will be right to be appointed
The commission of enquiry has powers of the high court in certain areas. it does not imply that the commission is a high court. The commissioner(s) have the same constitutional immunities as the judges have under our constitution. The obligation of the commission is to make a full and impartial report. it must be also report in writing and also it must support the conclusions that it arises at and the recommendations based on this conclusions with reasons. It must be noted that what happens to the report is what the appointing authority chooses to do. The authority or president can choose to accept it wholly, partially or even reject it. There is no finality in the report and its report does not even bind the authority . however if adverse findings are made against to the commission of inquiry, ( in the Gbedemah case that you have no right of appeal, this what influenced Azu Crabbe in his dissenting Judgment in Awoonor v. Gbedemah– Contribution of Awoonor Williams and gbedemah to the Constitution making in Ghana.)
In the constitution if adverse findings air made against you, and the constitution says the adverse finding is to be taken as a judgment of the high court, the constitution gives you a right of appeal to the court of appeal.
Functions of the commission
Article 280.
• Make a full , faithful and impartial inquiry into any matter specified in the instrument of appointment
• Report in writing the result of the inquiry and
• Furnish in the report the reasons leading to the conclusions sated in the report.
The report however is seen as a judgment of the high court and appeal lies to the court of appeal. Government is required to publish a white paper within 6 months of receiving the report and if they don’t , the president is supposed to say so and why. If it is no published within this six months ,then it means the adverse findings cannot be used against you, because you will not have the right to appeal. …if it does , there is 3 months within which you have to file your appeal. If though you appear before the commission as a witness, the constitution allows you to appear with a lawyer.
The principle that Justice Archer laid down in Otu v Kwapong has now been laid down in article 19 do our current Constitution 1992. – I will not open my mouth because when I open my mouth whatever I say will be used against me.