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Opinions of Friday, 24 September 2010

Columnist: Asante-Yeboah, Joseph

Republic v Brobbey and Another – case study

The above judgment delivered by Mr Justice Samuel Marful-Sau at the Accra Fast Track High Court on 10th August 2010 was quite significant. It has had wide publicity but, unfortunately, for the wrong reasons. The purpose of this article is to make an effort to put it back on course.

The facts of the case, very briefly, are that the Government set up a commission of inquiry to report on alleged misappropriation by Dr Charles Wireko-Brobbey and Kwadwo Mpiani of funds earmarked for Ghana@50 celebrations in 2007. The Commission made adverse findings against the two persons and recommended that Government had the option of prosecuting them for causing financial loss to the state. The prosecution mounted by the Government was as a result of that recommendation.

I seem to recall that, when the Government signalled its intention to mount the prosecution, the Minority Group in Parliament responded that, according to the country’s constitution, the Commission’s report had the status of a judgment of the High Court and so the two persons could not be prosecuted in the High Court. The Government, however, failed to heed the advice.

I consider Mr Justice Marful-Sau’s judgment to be in broadly four parts, in addition to the setting out of the facts, and it is quite important. Mr Anthony Gyambiby, Chief State Attorney, who represented the state, said immediately after the judgment that the ruling confirmed deepening of the rule of law and democracy in Ghana.

In the first part of the judgment, Mr Justice Marful-Sau briefly set out the history of constitutional development of commissions of inquiry in Ghana starting from the period before the 1969 constitution. He concluded by saying it was evident that, constitutionally, the High Court as constituted had no jurisdiction to evaluate the soundness or legalities of the findings of the Ghana@50 Commission as the report was deemed to be a judgment of the High Court.

The second part of the judgment set out the grounds on which the learned judge struck out the charges against the two accused persons. I consider that there were four main grounds. The first is Article 280(2) of the 1992 constitution which states:

“Where a commission of inquiry makes an adverse finding against any person, the report of the commission of inquiry shall, for the purposes of this constitution, be 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 second ground is that the post 1969 commissions attract automatic constitutional sanctions until the persons affected succeed in setting the commission’s findings aside on appeal. The third is that the trial of the two persons would amount to the High Court evaluating its own judgment, a duty reserved for the Court of Appeal under articles 137(1), 280(2) and (6) and 281 of the country’s constitution.

The fourth ground is that the constitutional instrument that established the Ghana@50 Commission of Inquiry provided as follows:

“8(2) A person shall not be subject 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 as a witness shall be compelled to produce any document or article and answer any question as regards the subject matter of the proceedings although the document, article or answer may incriminate that person.

(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.”

In the third part of the judgment, Mr Justice Marful-Sau boldly stated that it was a matter of judicial notice that persons against whom adverse findings were made by the Commission of Inquiry into the Yendi events and the Commission of Inquiry into the Accra Sports Stadium Disaster were prosecuted in the High Court, notwithstanding the clear provisions of article 280 of the constitution. It was obvious that the objections raised in this case were lost on the persons against whom adverse findings were made by the two previous commissions. The prosecution of those persons at the High Court was violation of their constitutional right of appeal against the findings of the two commissions.

In the fourth part of his judgment, Mr Justice Marful-Sau quoted from the Acts in the Bible to emphasise the fact that a citizen’s right of appeal has always been respected since ancient times. The right of appeal clearly was as fundamental as it was respected and enforced under the constitution of the ancient Roman Empire. The right accorded Apostle Paul is not different from what our 1992 constitution grants, under article 280(2), to persons against whom adverse findings have been made by a commission of inquiry appointed under article 278 of the constitution. To mount criminal proceedings against such persons to whom the constitution has granted this right of appeal and to allow such prosecution to continue would be undermining the efficacy and the solemn provisions in our constitution. These provisions promote good governance and due process in our constitutional dispensation, and we ought not to depart from them as a people.

Apart from the judgment itself, I was impressed by the speed with which it was made available. It was delivered on 10th August 2010 and I was pleasantly surprised when a copy hit my screen four days later. This is a big improvement on what happened in the past.

Immediately after the judgment was given, the Chairman of the NDC, Dr Kwabena Adjei, whose party is in government, attacked not only the judgement but Her Ladyship the Chief Justice and the judiciary. The words he used have been widely reported and I do not intend repeating them here. It is not clear whether the Chairman read the judgment before making his views public. I feel that, if he had done so, he would have said which part of the judgement he felt was wrong.

The Minister of Information, Mr John Tia Akolugu, subsequently issued a statement assuring members of the judiciary, the general public and the international community that the Government had absolutely no intention of carrying out political purge of the judiciary. I find the wording of the statement disappointing. The constitution of the land rules supreme, and it is the work of magistrates and judges to administer the laws thereunder. Therefore, no one, including the Government, can interfere in their work in the administration of justice. The statement should have acknowledged this fact. To say the Government has no intention of purging the judiciary is quite different from saying the Government cannot interfere. There are other sections of the statement that require comment, but I will leave those for now.

Then came a statement issued by the Association of Magistrates and Judges assuring Ghanaians that the courts do not see cases in party colours and that, for any criminal prosecution to succeed, the state must completely discharge its burden of proof. When I read the statement, I felt that adequate response had already been given by the good people of Ghana to the Chairman’s comments, and there was not the need for magistrates and judges to respond. As an ancillary to this, I found the name of that body comprising of magistrates and judges a bit odd. I thought that an association is a group of people or organisations or bodies whose objectives are broadly identical but different routes may be taken to attain them. They are accommodated under one roof in the form of association. Therefore, with due respect to honourable members of the bench, to me as an outsider, the present name does not appear to be right for a very formal setting like the judiciary that takes one and the same route to provide a specific service. I think “Judicial Forum” or something similar would be more appropriate.

Enter yet another statement, a long one, issued by the Judicial Secretary responding to a press conference held by a body called GOEVAC-PFG. I do not know what status this body has in our national affairs, and I am not clear in my mind why the Judicial Secretary considered that it merited a response from himself. In the process, the names of political parties somehow slipped into the statement, and I consider it unfortunate. I make a call to Her Ladyship the Chief Justice and the Judicial Secretary to rest assured that the good people of Ghana recognise the important role the judiciary plays in the conduct of our national affairs and will never waiver from it. Therefore, they should carry on that important function without being unnecessarily distracted. As a friend frequently says to me, Ghanaians have become too politicised. Public matters are all too often seen in party political terms. Therefore, I know it is difficult in our present political climate, but I also believe that it will come to pass.

Several people and groups of people have given their views on what the National Chairman of NDC said. They include a press statement issued by the National Chairman of NPP, Jake Obetsebi-Lamptey, condemning what the National Chairman of NDC said. I think the most poignant has been the response given by the Minority Group in Parliament. The Minority Group said the conduct of the National Chairman of NDC was tantamount to an attempted coup d’etat on the judiciary and contempt of court. It was of the considered opinion that the Chairman had committed the offence of high treason under article 3(3)(a) of the 1992 constitution by calling, in effect, for suspension of the part of the constitution dealing with independence of the judiciary.

A pressure group, Alliance for Accountable Governance (AFAG), felt that the police ought to arrest the Chairman to answer questions about the comments he made. AFAG, however, learnt that the police could not arrest him because no formal complaint had been lodged. AFAG therefore lodged a formal complaint, as a result of which an invitation has been extended to the Chairman to attend a police station for questioning. The latest information, as I write this piece, is that the Chairman has said that he made the statement on behalf the functional executive committee of the NDC which comprises the executive, the Council of Elders and others. The statement was not his personal statement but was a statement of the Party so, if they want to speak with him, they will be having their functional executive committee meeting on a particular day. The Party will be present and they can come to him over there.

The battle goes on to bring good governance to our nation and establish our motherland as a true democracy. This case is an important step in that direction.

Joseph Asante-Yeboah 22.09.10

I dedicate this article to the memory of Hon Kwadwo Baah-Wiredu, MP, who died on 24th September 2008.