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Opinions of Wednesday, 30 December 2009

Columnist: Asare, S. Kwaku

Matters Arising from the Douse Commission Report

S. Kwaku Asare

The 2007 year-long celebration of the country’s 50th year of independence, under the auspices of the then National Planning Committee (“Committee”), chaired by Kwadwo Mpiani (“Chairman”), continues to stir controversy. The Committee disbursed and approved projects through the Ghana@50 Secretariat, under the leadership of Mr. Wereko Brobbey (“CEO”). The projects included infrastructural rehabilitation, environmental initiatives, housing construction, and social activities. In addition to public funding, the activities were sponsored by various individuals and corporate bodies.

In March 2007, the Chairman appeared before the Parliamentary Select Committee on Finance to give an account of how the Committee had spent $20 million approved by Parliament for the celebrations. The opposition NDC MPs were reportedly disappointed by the answers provided by the Chairman and were unhappy that the CEO had turned down an invitation to appear before the select committee.

In August 2007, Mahama Ayariga, then a Member of Parliament, and Victor Smith addressed a press conference in which they called for a probe of the Ghana@50 activities. According to them, the NPP government was using the Ghana@50 celebrations as an occasion “to deliberately appropriate and dissipate huge sums of public money without any intention to be held accountable.” Among others, they complained that the Ghana@50 budget that Parliament had approved did not contain detailed estimates; that the Committee was made up of NPP functionaries; that the CEO had “contemptuously disregarded an invitation to appear before the Parliamentary Committee on Finance;” that the anniversary celebration itself witnessed an unprecedented pretentious display of opulence; that expensive cars had been imported for dignitaries; that mansions had been built for dignitaries while university students lacked housing; that the NPP government used its majority in parliament to push through a loan agreement of $11.8 million with Fidelity Bank; etc. At this same press conference, they also lamented the amount being spent on the Presidential complex. Both issues (Ghana@50 and Presidential Complex) were to become campaign issues in the 2008 elections, with the NDC promising to probe these activities if it won the elections.

It was against this background that President John Atta Mills, on June 1, 2009, established the Douse Commission (“Commission”), pursuant to his powers under Article 278 1(a) of the Constitution to, among others, “inquire into allegations of improper use of public and other funds for the celebration of Ghana’s 50th independence anniversary.” The three-member Commission included Judge Isaac Douse (Chairman), Mr. Osei Tutu Prempeh, former Auditor-General, and Mrs. Marietta Brew Appiah-Opong. The Commission took submission from 238 witnesses and completed its work in 145 days, although it was given 90 days to complete its work.

The Commission’s report, which was presented to the President on December 23rd, 2009, raises more questions about the Commission than it provides answers to any questions arising out of the Ghana@50 celebrations. In particular, there are serious questions about the constitutionality of the Commission and the appropriateness of its findings.

Constitutionality of the Commission: It is beyond doubt that the President has the power, under article 278 (1)(a), to appoint a commission of inquiry into any matter of public interest where the President is satisfied that such a commission should be appointed. Any such commissions are invested with judicial powers and must follow rules established by the Rules of Court Committee (Article 281 (2)). It follows that no commission can function unless the Rules of Court Committee has established the rules to regulate the commission’s practice and procedures. Moreover, neither the commission nor those appearing before the commission can usurp the powers of the Rules of Court Committee or otherwise waive the requirement that the commission follow the rules, where such rules have been established, or create its own rules, where no such rules exist. The Douse Commission appears to be mindful of Article 281 (2), although the Commission fails to grasp its full implications. Addressing the failure to comply with Article 281 (2), the Commission notes “… the Commission had studied the draft regulations put together by the Drafting Division of the Attorney General’s Department and indeed sought to follow the same. … however, Counsel for the CEO objected to this procedure mindful of the fact that no regulations had been enacted to guide the procedure for Commissions of Inquiry. In the result, the Commission announced that even though it was conducting an inquiry, it would proceed as if it were a High Court. Since no further objection was raised, the Commission proceeded as such.”

There are 3 fundamental errors with the Commission’s position. First, only the Rules of Court Committee, as described in article 157, can make rules and regulations to govern the practice and procedures of Commissions of Inquiry. This Committee shall consist of the Chief Justice, six members of the Judicial Council and two lawyers nominated by the Ghana Bar Association. Thus, it was highly improper for the Commission to have sought to follow the draft regulations of the Drafting Division of the Attorney General. Second, the Commission usurped the powers of the Rules of Court Committee when it decided to proceed as if it was a High Court. The Commission has no power, whatsoever, to determine its own rules. Third, the Commission erred in concluding that it could proceed in the absence of further objections. The presence or absence of objections does not and cannot negate the explicit and unwaivable requirements of Article 281 (2).

Concluding on this matter, the Commission notes that “It is the considered view of this Commission that urgent steps must be taken to ensure that regulations are enacted to govern the procedure for Commissions of Inquiry in accordance with Article 281(2). It is unfortunate that seventeen years after the promulgation of the 1992 Constitution, these regulations have not been passed.” These words would have been more meaningful if the Commission had directed them to the appointing authority as a reason for rejecting the appointment. By accepting the appointment and proceeding contrary to Article 281(2), the Commission’s words ring hollow.

Clearly, this grave Constitutional tort nullifies the work and findings of the committee. Nevertheless, for purely academic reasons, I now turn to discuss three key findings of the Commission, which are:

1. Parliament may cause the CEO (Mr. Wereko Brobbey) and the Chairman (Mr. Kwadwo Mpiani) to be tried before it for contempt of Parliament.

2. Government has the option of prosecuting the CEO and the Chairman under section 179A(3) of the Criminal Offences Act, 1960 (Act) for causing loss to the State.

3. Violation of Article 179 (1) and (2) of the Constitution.

Contempt of Parliament: According to Article 122, “An act or omission which obstructs or impedes Parliament in the performance of its functions or which obstructs or impedes a member or officer of Parliament in the discharge of his duties, or affronts the dignity of Parliament or which tends either directly or indirectly to produce that result, is contempt of Parliament.” The punishment for contempt of Parliament is entirely in the discretion of Parliament and any such punishment is no bar to criminal liability. Although Parliament has threatened to use this ammunition (e.g., the NDC MPs threatened to use it against President Kuffuor in the wake of his aborted official visit to Canada in 2007; the NPP MPs recently threatened to use it against Koku Anyidohu in light of the invectives that he hurled at them), I cannot recall it ever being used, which is good because the ammunition should be reserved for the most egregious acts, including:

• Deliberately misleading Parliament or a Parliamentary committee

• Attempting to influence a Member of Parliament, for example, by bribery or threats

• Arresting a Member of Parliament in the course of carrying out his duties

The Douse Commission presents no evidence that the CEO and Chairman engaged in acts that are obstructive of the functions of or an affront to the dignity of Parliament. Indeed, the Commission presents no evidence that they were ever in a position to obstruct or impede the work of Parliament. Rather, the Commission’s contempt recommendation hinges on its findings that “the CEO and Chairman deliberately disregarded and usurped the powers of Parliament to do the following:

• Exceeded the sum of GH¢29.31 million approved for the celebration by spending the sum of GH¢75.57 million;

• Utilized internally generated funds of GH¢19.35 million without first obtaining the consent of parliament; and

• Procured loans totaling GH¢30.44 million without first seeking Parliamentary approval.”

Even if these findings are assumed to be accurate, but, as discussed later, I have good reason to doubt their accuracy, they are by no means indicative of contempt of Parliament, as contemplated by Article 122. Clearly, neither the Chairman nor the CEO can in any meaningful way be accused of obstructing or impeding the functions of Parliament. And one has to be cunningly imaginative to make the case that these actions, somehow, were an affront on the dignity of Parliament. The Contempt of Parliament recommendation must not be taken seriously, assuming the Commission was legally constituted.

Causing Financial Loss to the State: Section 179A of the Criminal Code, 1960 (Act 29), as amended by the Criminal Code (Amendment) Act, 1993 (Act 248), provides as follows:

“Any person who by a willful act or omission causes loss, damage or injury to the property of any public body or any agency of the State commits an offence.” Culpability under section 179A(3)(a) is limited to those instances where the prohibited consequence (i.e., a financial loss to the State) is caused willfully (or maliciously or fraudulently) by the act or omission of the accused. As the late Justice Afreh explained in the Quality Grain Case, “it is not enough for the prosecution to show that the accused did a deliberate or voluntary act which caused a prohibited consequence. They must also prove that the accused person foresaw the consequence and desired it or took an unreasonable risk of it occurring.”

In the Ghana@50 inquiry, the Douse Commission found that “the decision to exceed the approved budget was willful. By this willful conduct Government has incurred serious loss.” And based on these dual-findings, the Commission recommended prosecution under section 179A(3)(a). The Commission seriously misunderstands both the consequence (financial loss) and the mens rea (willful intent) contemplated by the law.

First, it is trite that a budget deficit is not a loss! A deficit is simply the amount by which expenditures exceeds revenues. Second, the finding that the decision to exceed the approved budget was willful is a bald one (not supported by any facts). Nevertheless, that finding, if believed, simply shows that the action was deliberate but it hardly speaks to whether the CEO and Chairman foresaw the financial loss, if it indeed occurred, and desired it or took an unreasonable risk of it occurring. That is, there is absolutely nothing in the findings that show a fraudulent, malicious, or a reckless intent in incurring a loss, assuming indeed such a loss did occur.

If the distinction between a willful act and a willful intent, as brilliantly espoused by Justice Afreh, is difficult to grapple, consider the following example. Suppose I intentionally strike Attah Okoe with the intent to intimidate him into accepting my views on the Douse Commission. As a result of the strike, Okoe passes out and dies in the process. Did I intentionally strike Okoe? Yes! But have I committed murder where murder requires a willful intent? The answer is in the negative because even though I intentionally struck Okoe, I had no intent to kill him. I may be prosecuted for assault or even manslaughter but not intent-to-kill murder. It is in that sense that the Douse Commission completely misunderstands the law on willfully causing financial loss to the state (for an excellent discussion of this law, the reader should consult CDD Critical Perspective Number 16). Willfully exceeding a budget does not translate into a willful intent to cause a loss, which is the relevant mens rea. Finally, if exceeding a budget is criminal then just about every minister, DCE, etc. have committed a crime. In fact, by exceeding its 90-day budget, the Douse Commission has committed a crime under the Douse logic!

Violation of Article 179 (1) and (2): Under these articles, (1) The President shall cause to be prepared and laid before Parliament at least one month before the end of the financial year, estimates of the revenues and expenditure of the Government of Ghana for the following financial year; and (2) The estimates of the expenditure of all public offices and public corporations, other than those set up as commercial ventures (a) shall be classified under programmes or activities which shall be included in a bill to be known as an Appropriation Bill and which shall be introduced into Parliament to provide for the issue from the Consolidated Fund or such other appropriate fund, of the sums of money necessary to meet that expenditure and the appropriation of those sums for the purposes specified in that bill; and (b) shall, in respect of payments charged on the Consolidated Fund, be laid before Parliament for the information of members of Parliament.

The Commission found that “no budgetary estimates were laid before Parliament for the approval of the first grant of GH¢18.29 million made in July 2006. This constituted a violation of Article 179 (1) and (2). Evidence gleaned from the Parliamentary debate, Official Report of 20th July 2006 shows that even though some of the Members of Parliament protested at the manner in which the request for the approval of the funds was made, Parliament, despite these protests, approved this sum for the celebration without seeing the budget estimates or the expenditure items to be covered by this first tranche.”

It is hard to make any sense out of this finding. Initially, who is it that is violating the said articles? Is it the President, Parliament, some Members of Parliament, the Speaker, the Chairman or the CEO? Second, if Parliament approved this item of expenditure, as found by the Commission, where is the so called violation? Under Article 110 (1) “Subject to the provisions of this Constitution, Parliament may, by standing orders, regulate its own procedure.” This is exactly what Parliament did. Third, what really is the significance or uniqueness of protests by some Members of Parliament? Such protests are par for the course. Fourth, the activities of the National Planning Commission featured extensively in the 2007 budget at paragraphs 897 to 903.

Additional evidence that the amount approved by parliament was not a cap on spending is given in paragraph 903 of the 2007 budget as follows: “Mr. Speaker, assistance in cash and in kind will be accepted from individuals, businesses and the international community at large. This includes: Ghanaians at home and abroad, visitors, tourists and friends of Ghana and corporate bodies.” Also, it is clear from the 2007 budget that the Committee was one of many agencies whose estimates were consolidated in the budget under the Office of Government Machinery (OGM). The appendix to the budget revealed that OGM was allocated an amount of ¢572,394 million. The Cabinet had ample discretion to reallocate this total to the various agencies under OGM. Thus, the finding that Articles 179 (1) and (2) were violated is a perplexing one indeed.

Other Matters: Turning now to other aspects of the report, the Commission seems to have glossed over some elementary matters. For instance, it would have been useful to discuss the legal status of the Committee and the Secretariat. Did they operate as a public corporation, a commercial venture, or simply a sub-committee of the cabinet? This is a threshold matter whose discussions would have shed light on the circumstances under which the Committee needed to seek Parliamentary approval for loans, which it did in the case of the Fidelity Loan, and which it allegedly failed to do in the case of the Prudential loan. As discussed earlier, the Committee came under the Office of Government Machinery, which provided Cabinet and the President considerable discretion in its spending.

Akin to the above, the Commission seems to be confused by the financing status of the Secretariat. For instance, even though the Commission acknowledges that financing from the project came from various sources, including direct finance approved by Parliament from the Ministry of Finance, loans from financial institutions, direct sponsorship from corporate bodies, and funds from the sale of land, vehicles, furnishing, souvenirs, and mansions, the Commission inexplicably and persistently caps the spending of the secretariat at the amount approved by Parliament. But it seems more reasonable that Parliament expected the Secretariat activities to be financed with the direct parliamentary finance and other funds raised by the Secretariat. Stated more succinctly, the GH¢29.31 million approved by Parliament was not a cap on spending. It was the amount to be appropriated by Government as its direct contribution to the Secretariat. The Secretariat could, and did, raise additional funds from private sources and other activities. It is this elementary mistake that, sadly and regrettably, led to the finding that the secretariat exceeded the approved budget, which is the sole basis of the contempt of Parliament and criminal prosecution recommendations. Third, the Commission seems to have taken a very narrow view of executive decision making. Both the Chairman and the CEO, to the best of my knowledge, exercised delegated powers and to the extent that they acted intra vires, it is their principal who is culpable for their lapses, if any. In this case, the principal is the President or the Cabinet. The Chairman was the chairman of a Cabinet sub-committee and we are not provided any evidence that the Chairman acted ultra-vires. If, indeed, the Chairman and the CEO committed a tort within the scope of their employment, it is unclear why they are culpable but not their principals.

Fourth, it is important to note that the Commission did not receive any information on allegations of improper use of public funds or any other funds (see section 3.1). The Commission somehow found this sad, which may have led it to torture the law and the facts to arrive at its adverse findings. Caveats: There are two caveats for the reader. First, I have not touched on all the Commission’s recommendations, mainly because I find most of them pedestrian, trivial, and a rehash of prior political arguments. For instance, I have nothing to add to recommendations such as “Government is urged to as quickly as possible pay all creditors; Government should pursue defaulting purchasers of land; Government is encouraged to complete the Jubilee toilets within the shortest possible time; etc. Second, my comments are based only on the executive summary released by the Government on December 23rd, 2009. I reserve the right to revisit this matter when or if the full report is made public.

In conclusion, accountability is an important ingredient of development. It requires continuous audits and monitoring of the fiscal activities of elected and public officials. But such auditing and monitoring must be done by competent and independent persons, working within the proper legal and regulatory framework. It is also extremely important that the search for accountability is not allowed to become a vehicle for settling political debates. The Douse Commission is certainly illegal and its work lacks analytical seriousness.