Anane wins at Supreme Court

Though both sets of lawyers claimed victory, the happiest man yesterday was the Minister who was forced to resign because of a finding of perjury and conflict of interest against him by the Commission of Human Rights and Administrative Justice on September 15, 2006.

Yesterday, a five-member Supreme Court, presided over by Chief Justice Georgina Wood left substantially undisturbed an earlier High Court decision to set aside CHRAJ's findings against former Road Transport Minister Richard Anane.

The original decision by the administrative tribunal was on March 13, 2007 quashed by the High Court. Justice Baffoe Bonnie further ruled that CHRAJ's decision to investigate Dr Anane based on allegations in the media, without any formal complaints from an identifiable person(s) was a recipe for chaos, irrespective of the good intentions of the Commission.

Following media reports of allegations of corruption, conflict of interest and abuse of power against Dr Anane, CHRAJ instituted a full-scale investigation into those allegations after conducting a preliminary one.

The Commission in its September 2006 ruling recommended to the President that Dr Anane be dismissed from office. He resigned later on that year.

While the Supreme Court yesterday refused to disturb the High Court?s quashing of CHRAJ?s findings of perjury and conflict of interest, it, however, ruled that the lower court was wrong to have assumed for itself the authority to interpret 'complaint? "in Article 218(a) of the 1992 Constitution, since that decision is in conflict with the exclusive jurisdiction? of the Supreme Court to interpret the Constitution.

The apex court has directed the Attorney-General, CHRAJ and Dr Anane to submit written legal arguments within 14 days on the meaning of ?Complaint? for the court?s interpretation.

The case has, therefore, been adjourned to November 21 for oral arguments on that interpretation issue.

Justice Baffoe Bonnie, an Appeal Court judge sitting as additional Fast Track High Court judge, held last March that since CHRAJ went beyond its powers in assuming jurisdiction in the Anane matter all the decisions and recommendations so far related to the enquiry on Dr Richard Anane should be removed from the records of the Commission and quashed.

This, according to The Statesman?s in-house lawyer, may have led CHRAJ?s counsel to claim victory. Also, the Supreme Court chose to suspend giving its full reasons for refusing to quash two of the High Court decisions on the matter. "The full reasons for our orders today will be embodied in the judgment or judgments to be delivered on the reference."

But, beyond this particular case, CHRAJ should be keenly awaiting the Supreme Court?s interpretation on ?complaint?, since a narrow interpretation may be viewed as tying CHRAJ?s hands in the necessary fight against corruption.

CHRAJ brought its application to the Supreme Court by "petitioning" the court to issue a "writ of certiorari." Only one of the writs sought was granted. Essentially, the one granted does not in any material way disturb Dr Anane, since the findings of CHRAJ in relation to the subject of complaint have been quashed by CHRAJ?s immediate supervisory court, the High Court. And, since that High Court decision remains standing, Dr Anane is in essence free of any adverse findings. An order of certiorari is given by a senior court to quash a decision of a lower court or other tribunal, such as CHRAJ.

The effect of denial of certiorari by the Supreme Court fundamentally means that the decision of the lower court before it is unaffected. However, this creates some confusion because the Supreme Court decision to refuse certiorari does not necessarily reflect agreement with the decision of the lower court. Review on writ of certiorari is not a matter of right, but a judicial discretion.

Dr Anane resigned under some considerable protest in December 2006, insisting on his innocence. He, at the time had the sympathies of the President, who considered his prot?g? as one of his best-performing Ministers.

Justice Baffoe Bonnie had held: "It is clear that there was no official complaint by an identifiable person(s) to the Commission in this matter," adding, "The Commissioner can not say that she went out of her way to pick the complaint from the newspaper."

He further held: "The Commission does not have the mandate to investigate perjury; did not set out to investigate perjury and did not inform the accused that he is being investigated for perjury." The Judge described CHRAJ?s findings and recommendations in respect of perjury against Dr Anane as "afflicted by illegality and procedural impropriety."

This view appears to be substantially shared by the Supreme Court. CHRAJ in September 2006 though cleared the Road Transport Minister on the allegation of corruption, the Commission, however, recommended his removal from office as its findings showed that the Minister had given contradictory figures concerning money remitted to his mistress, Alexandria O?Brian, under oath before the Commission and in a prior appearance before a Parliamentary Select Committee during his vetting as Minister in 2005.