MBOWURA JOSHUA

COMMISSIONS OF INQUIRY

Commission of enquiry is a mechanism under the 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. A
commission of inquiry can broadly be defined as a body, which being of a judicial
character and consisting of one or more persons is appointed to inquire into a matter,
which is of interest to the appointing authority.

Public interest has been defined in article 295 of the Constitution to include any right or
advantage, which enures or is intended to enure to the benefit generally of the whole
people of Ghana. Thus there exist constitutional limitations on the scope of matters,
which can be the subject matter of inquiry by a commission of inquiry appointed under
the Constitution.

The primary function of commissions of inquiry is to inform Governments. Historically,

commissions of inquiry have been classified into two groups based upon the methods
used to ascertain the facts. The first category are those charged with gathering
information which is to be used for policy formulation or review or the assessment of
the function-ability of a public entity. They are referred to as the Investigatory inquiries.
These types of commission play the same role as a researcher. Article 5(4) of the
Constitution provides for the appointment of a commission of inquiry for the purpose of
ascertaining the need and substantial demand for the creation, alteration or merger of
regions in Ghana. This can be seen in the recent case of the Supreme Court in the case
of Mayor Agbleze and Two Others V Attorney-General and Another [2019-2020] 1
SCLRG 555. This type of commission of inquiry could only be the investigatory type.

The second category of commissions of inquiry are those charged with ascertaining the
facts of a particular issue. Their role has been equated with that of an inquisitor and
they are referred to as inquisitorial inquiries. This type of inquiry usually investigates
the facts surrounding a scandal or allegations of wrongdoing. The Jiagge Assets
Commission under NLCD 72 which made adverse findings against Gbedemah is a local
example. (see Awoonor Williams v Gbedemah (1970 2 G &G 442)

Historical Antecedents

Prior to the enactment of the 1969 Constitution, Commissions of Inquiry existed in

Ghana. However, the status, powers and effect of the findings of the Commissions of
Inquiry’s existing before 1969 were different from that of the post-1969 era. It is

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interesting to note that in the pre-1969 era, Commissions of Inquiry were not a matter
of constitutional significance. Before the 1969 Constitution, Commissions of Inquiry
were appointed under the Corrupt Practices (Prevention) Act, 1963 (Act 230) and
subsequently, the Commissions of Enquiry Act, 1964 (Act 250). The findings of such
Commissions were prima facie evidence of the facts found and the persons affected
suffer no liability until the Attorney General decided to prosecute and secured a
conviction. The persons affected by the findings were only required to show cause, why
they should not be convicted and sentenced based on the evidence adduced at the
commission. It was up to the Attorney-General to decide to institute criminal
proceedings against such a person, that he stood the risk of conviction. There was no
automatic liability under pre-1969 law on Commissions of Inquiry.

In Akainyah and another v. The Republic (1968) GLR 548, adverse findings were made
against the appellants by the Ollenu Commission of Inquiry, which had been appointed
under section 1 of the Corrupt Practices (Prevention) Act, 1963 (Act 230). The Attorney-
General in exercise of his power under section 4(1) of the Act brought charges against
the appellants in the High Court. They included conspiracy to commit extortion and
corruption. These charges were preferred against the appellants as a result of the
adverse findings that were made against them by the Ollenu Commission. They were
thus found guilty and subsequently convicted and sentenced to various terms of
imprisonment. They appealed to the Court of Appeal against their convictions. Their
main grounds of appeal were that the Corrupt Practices (Prevention) Act, 1963 (Act 230)
was in contravention of article 41(a) of the 1960 Constitution which had vested all
judicial power in the courts. Their contention was that the Corrupt Practices
(Prevention) Act, 1963 (Act 230) purported to confer ‘judicial power’ of some sort on
the Commission, which was not a court. They also contended that the fact that the
Corrupt Practices (Prevention) Act, 1963 (Act 230) provided that the findings of the
Commission were prima facie evidence of the facts found was an erosion of judicial
power

The Court held that the Corrupt Practices (Prevention) Act, 1964 (Act 230), was valid
and not ultra vires the 1960 Constitution, art. 41 because: (a) An essential feature of
judicial power was not only the power to decide on claims of parties in accordance with
established principles of law, but also the power to enforce those decisions. Since all
that a commission appointed under section 1 of Act 230 was empowered to do was to
inquire into the truth of allegations of corruption and thereafter to submit a report in a
manner required by section 3 of the Act, and since although the commission might
make adverse findings against any person, no penalty was suffered by any such person
until the Attorney-General, in the exercise of his powers under section 4 (1) of the Act

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invoked the judicial power of the court and procured a conviction, such a commission
was not a court and it was wholly bereft of judicial power.

Apaloo J.A. (as he then was) at page 555 delivered as follows:-

‘’No liability to suffer any penalty attaches to any person against whom the
commissioner makes adverse finding until the Attorney General, in exercise of
the power conferred on him by section 4 of the Act, invokes the judicial power of
the courts and procures a conviction.’’

A.N.E Amissah J.A. who was part of the panel that decided the Akainyah case,
discussing the topic Commissions of Inquiry at Chapter Eight, commented on the
provisions of Act 230 in his celebrated work, Criminal Procedure in Ghana, stated at
page220 as follows:-

‘’It is submitted that in showing cause, the accused may advance any reason
which may persuade the court that he should not be convicted and sentenced on
the basis of the report. In this aspect the procedure under Act 230 is similar to
the summary committal for perjury procedure in respect of which it has been
held that a judge is not entitled to prejudge the issue. The Act does not restrict
the ways in which the accused may show cause. Section 6 provides that where
the accused in showing cause states that he had no opportunity of cross
examining any of the witnesses referred to as relied upon in the report; the court
may call such witness to be cross-examined by the accused in which case both
the court and the Attorney General can put further questions to the witness.’’

It is therefore clear that under the pre-1969 law on Commissions of Inquiry, the findings
of the commission could be the basis of a criminal prosecution. There were however
safeguards though; in the sense that prosecution and/or conviction were not automatic.
The persons affected by the findings were only required to “show cause”, why they
should not be convicted and sentenced based on the evidence adduced at the
commission.

CONSTITUTIONAL DEVELOPMENT OF COMMISSIONS OF INQUIRY IN GHANA

Two important documents in our constitutional history help to explain the

constitutional development of Commissions of Inquiry in Ghana. These documents are
the Memorandum on the Proposal for a Constitution for Ghana, 1968 and the

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Proposals of the Constitutional Commission for the Establishment of a Transitional
(Interim) National Government for Ghana, 1978.

The Memorandum on the Proposal for a Constitution for Ghana, 1968

Chapter Twenty-Four (24) of the Memorandum on the Proposal for a Constitution for
Ghana, 1968 was on Commissions of Inquiry. The provisions of this chapter outlined the
reasons for making Commissions of Inquiry a matter of Constitutional import.

The effect of the memorandum on the proposal for a Constitution for Ghana, 1968 are
as follows:

1. The procedure of such an inquiry is bound to be inquisitorial rather than

accusatorial as is the case with criminal trials
2. Commissions of inquiries should not develop into criminal trials
3. The establishment of a Commission of Inquiry should be a constitutional matter
4. In order to ensure the independence and impartiality of Commissions of Inquiry,
a sole Commissioner or the Chairman of a Commission of Inquiry should always
be a Judge of the Superior Court of Judicature or a person qualified to be
appointed as such or a retired Judge of the Superior Court of Judicature.
5. The Commission should have all the powers, rights and privileges of the High
Court of Justice.
6. A person duly summoned before a Commission of Inquiry should not be
regarded as a witness of any particular party. He must be considered to be a
witness of the Commission.
7. The appointment of a Commission of Inquiry should be by a statutory instrument
issued by the President on the advice of the Prime Minister or as a result of a
resolution passed by the National Assembly for the appointment of a
Commission to inquire into a matter of public importance.

These recommendations of the Memorandum on the Proposal for a Constitution for

Ghana, 1968 found its way into the 1969 Constitution for the most part. Thus, Chapter
Eighteen of the 1969 Constitution was on Commissions of Inquiry. Specifically, articles
165 to 168 of the 1969 Constitution.

Although the 1969 Constitution had been explicit in suggesting that the Commission of
Inquiry shall have the powers and privileges of the High Court, it did not say anything
about the status of the findings of the Commission. For instance, it did not suggest that

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the findings of the Commission would be deemed to be a judgment of the High Court
from which an appeal could lie as of right or with leave.

Thus, the findings of Commissions of Enquiry pre-1969 (1968; proposals did not equate
the findings of the commission to the judgment of the High Court (except to say the
privilege and power are of the High Court nature); the right of appealing the decisions
was taken away by reason of the Investigation and Forfeiture of Assets Decree, 1966
(N.L.C.D. 72) and NLCD (Investigation and Forfeiture of Assets) Further Implementation
of Commission’s Findings Decree, 1969 (N.L.C.D. 354). The purposes of these decrees
were to realize in assets found by the Commission of Enquiry to have been acquired
unlawfully. This was illustrated in the case of Awoonor-Williams v. Gbedemah.

In Awoonor-Williams v. Gbedemah (1969) 2 G & G 442, the parties were both

candidates at the Keta Constituency in the General Election which took place in Ghana
on 29th August 1969. The defendant obtained more votes than the Plaintiff and was
thus declared winner; and was subsequently sworn in as a member of the National
Assembly on 5th September 1969. On 9th October 1969, the Plaintiff instituted an
action, seeking a declaration that by reason of article 71(2)(b)(ii) and (d) of the 1969
Constitution, the defendant was not qualified to be a member of the National Assembly.
The Plaintiff also sought an injunction to restrain the defendant from continuing as a
member of the National Assembly. The fact was that, the National Liberation Council
had by virtue of the Commissions of Enquiry Act, 1964 (Act 250) and the Investigation
and Forfeiture of Assets Decree, 1966 (N.L.C.D. 72) appointed a Commission of Inquiry
to investigate the assets of certain persons, including the defendant. The Commission
was headed by Mr. Justice Jiagge (a High Court Judge then). He submitted his report on
12th May 1969. The most important finding of the Commission with respect to the case
was as follows:

“The Commission finds as a fact that during his term of office as a Minister of
State, Mr. Gbedemah over-expended the sum of 17,109 pounds, 8s.2d. The
Commission holds that the over-expenditure was financed from unlawful income.
The Commission recommends that the unlawful income … be confiscated to the
State.”

There was no right of appeal against the findings of a Commission of Inquiry. The
defendant sent petitions on 2 occasions to the NLC; neither of which was successful.

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Thus, on the eve of the coming into force of the Constitution, the findings of the Jiagge
Commission stood against him, and there was nothing he could do about it legally. The
Plaintiff’s assertion was simple: that on the basis of article 71(2)(b)(ii) and (d), the
defendant was ineligible to hold office as member of the National Assembly for a period
of 5 years from the date of the publication of the report. The case then turned on the
interpretation that should be given to the words “adjudged” and “declared”

The Supreme Court was divided on the interpretation to be placed on the words
“adjudged” and “declared.” The majority of the court were of the view that in
determining what the framers of the Constitution meant in enacting the provision in
article 71(2)(b)(ii), it was necessary to determine the ordinary meaning of the two key
verbs “adjudge” and “declare.” The majority resorted to the most comprehensive
dictionary meaning of the words “adjudge” and “declare.” In doing so, the majority of
the court per Apaloo J.A. (as he then was) at pages 443-445 concluded that:

“We do not accept the argument that because the words “adjudged or otherwise
declared” can, with accuracy, be used to describe the finding of a court, they
cannot be used to describe the finding or conclusion of a body which is not a
court stricto sensu. Indeed the ordinary dictionary meaning of the words shows
that the court has no monopoly over the use of words. Looking at the matter
as a purely philosophical question, it is just as accurate to say that X has been
adjudged guilty of fraud or declared to be of unsound mind (purely court
pronouncements) as it is to say that X has been adjudged the best pupil or
declared the winner of the first prize (purely non-court pronouncements). We
think therefore that the words “adjudge or declare” have no technical
connotation, and in the context of article 71(2)(b) mean that the commission of
inquiry “found or pronounced” that a person acquired assets unlawfully, etc.
To accede to the interpretation put up on behalf of the defendant, it would be
necessary to substitute for the words “report of commission of inquiry” the words
“by a court as a result of the finding of a Commission of Inquiry.” In our
judgment, this would be an amendment, not interpretation of the article.”

The Proposals of the Constitutional Commission for the Establishment of a

Transitional (Interim) National Government for Ghana, 1978

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The Proposals of the Constitutional Commission for the Establishment of a Transitional
(Interim) National Government for Ghana, 1978 was a marked improvement of that of
1968 (took away the power that equated the findings of a commission of Inquiry to the
judgment of a High Court. It recommended two (2) changes/additions, to be added to
the provisions of the 1969 Constitution on Commissions of Inquiry. These changes are as
follows:

1. The report of a Commission of Inquiry was deemed to be a judgment of the High

Court of Justice from which an appeal shall lie as a right to the Court of Appeal
and if need be, to the Supreme Court. Thus, a person adversely affected by the
findings or recommendations of a Commission of Inquiry was given the right to
appeal against such findings or recommendations.
2. The second change related to the publications of the Reports of Commissions of
Inquiry. The President could either decide to publish the report of a commission
or not. The committee recommended a provision to the effect that where the
Report of a Commission of Inquiry is not to be published the President shall issue
a statement to that effect, giving reasons for the decision not to publish. The
President was thus to let the public know when he has decided not to publish a
particular report and to tell them why he has taken such a decision.

Chapter 23 of the 1979 Constitution of Ghana largely reflected the recommendations of

the 1978 proposals. Thus, articles 196 to 199 of the 1979 Constitution were on
Commissions of Inquiry.

In conclusion, the Memorandum on the Proposal for a Constitution for Ghana, 1968 and
more particularly the Proposals of the Constitutional Commission for the Establishment
of a Transitional (Interim) National Government for Ghana, 1978 formed the basis for
Chapters 23 of both the 1979 and 1992 Constitutions of Ghana with respect to
Commissions of Enquiry.

Commissions of Inquiry under the 1992 Constitution

Chapter 23 of the 1992 Constitution (Articles 278- 283) deals with Commissions of
Inquiry.

Article 278(1) of the 1992 Constitution 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 where-

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(a) the President is satisfied that a commission of inquiry should be appointed; or
(b) the Council of State advises that it is in the public interest to do so; or
(c) Parliament, by a resolution requests that a commission of inquiry be appointed
to inquire into any matter, specified in the resolution as being a matter of public
importance.

Composition of a Commission of Inquiry

Article 278(2) of the 1992 Constitution provides that a commission appointed under
clause (1) of this article may consist of a sole commissioner or two or more persons one
of whom shall be appointed the chairman of the commission.

Article 278(3) of the 1992 Constitution provides that a person shall not be appointed a
sole commissioner or the chairman of a commission of inquiry under this article unless
he is –

(a) a Justice of the Superior Court of Judicature; or

(b) a person qualified to be appointed a Justice of the Superior Court of Judicature;
or
(c) a person who has held office as a Justice of the Superior Court of Judicature; or
(d) a person who possesses special qualifications or knowledge in respect of the
matter being investigated.

Article 278(4) of the 1992 Constitution provides that subject to clause (3) of this article,
where a commission of inquiry appointed under clause (1) of this article consists of
more than two commissioners, other than the chairman, at least one of them shall be a
person who possesses special qualifications or knowledge in respect of the matter being
investigated.

Powers of a Commission of Inquiry

Article 279 of the 1992 Constitution provides that:

(1) A commission of inquiry shall have the powers, rights and privileges of the High
Court or a Justice of the High Court at a trial, in respect of –

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(a) enforcing the attendance of witnesses and examining them on oath,
affirmation or otherwise;
(b) compelling the production of documents; and
(c) the issue of a commission or request to examine witnesses abroad.
(2) A sole commissioner or a member of a commission of inquiry shall not be liable
to any action or suit in respect of any matter or thing done by him in the
performance of his function as a commissioner or member.

Functions of a Commission of Inquiry

Article 280 of the 1992 Constitution provides that:

(1) A commission of inquiry shall-

(a) make a full, faithful and impartial inquiry into any matter specified in the
instrument of appointment;
(b) report in writing the result of the inquiry; and
(c) furnish in the report the reasons leading to the conclusions stated in the
report.
(2) 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 the 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.
(3) The President shall, subject to clause (4) of this article cause to be published
the report of a commission of inquiry together with the White Paper on it
within six months after the date of the submission of the report by the
commission.
(4) Where the report of a commission of inquiry is not to be published, the
President shall issue a statement to that effect giving reasons why the report is
not to be published.
(5) A finding of a commission of inquiry shall not have the effect of a judgment of
the High Court as provided under clause (2) of this article; unless
(a) six months have passed after the finding is made and announced to the
public; or
(b) 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 whichever is the earlier.
(6) The right of appeal conferred by clause (2) of this article on a person against
whom a finding has been made, shall be exercisable within three months after

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the occurrence of either of the events described in clause (5) of this article or
such other time as the High Court or the Court of Appeal may, by special leave
and on such conditions as it may consider just, allow.

The rationale is not farfetched; it is what was stated in paragraph 301 of the
Constitutional Commission for the Establishment of a Transitional (Interim) National
Government for Ghana, 1978. In sum 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 finding 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.

The Republic v. Wereko-Brobbey & Mpiani (Ghana @ 50 commission of Enquiry case)1

Background to the Case

On the 5th day of June 2009, the President of the Republic of Ghana by constitutional
instrument appointed a Commission of Inquiry, the Ghana @ 50 Commission of Inquiry,
2009 (C.I. 61).

Terms of Reference of the Commission

The terms of reference of the Commission were stated at section 5 of CI 61 and it

provides as follows: -

(a) to inquire into and report on allegations of improper use of public and of any
other funds;
(b) to inquire into the use by the Secretariat of any property, movable and
unmovable;
(c) 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
(d) to make recommendations in respect of the findings of fact by the Commission’’.

1
Unreported decision of the High Court delivered on 10th August 2010, Case No. ACC39/2010

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Section 8(2) of CI 61 provided that “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.’’

Section 10 of CI 61 provided that:

(1) Subject to paragraph (2), in any proceedings before the Commission a person
called 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.’’

Facts of the Case

The first accused person namely Charles Wereko-Brobbey, was the Chief Executive
Officer of the Ghana @ 50 Secretariat. The second accused Kwadwo Okyere Mpiani was
the Chairman of the National Planning Committee of the Ghana @ 50 Celebration. The
two accused persons were charged with four (4) counts of willfully Causing Financial
Loss to the State contrary to Section 179A (3) (a) of the Criminal Offences Act, 1960 (Act
29). They pleaded not guilty to all the four counts. Before the beginning of the trial,
they filed a preliminary objection, challenging the jurisdiction of the High Court to try
them. The application filed by the first accused on the 24th May 2010, prayed as
follows:

‘’ (a) an order striking out the instant criminal action and charges against the
first accused person and dismissing same as being premature and a gross
violation of the right of appeal of first accused person against adverse findings of
a Commission of Inquiry under Article 280 (1), (2), (3), (4), (5) and (6) of the 1992
Constitution or in the alternative;

‘’(b) an order staying proceedings of this criminal action until such time as the
period allowed under the Constitution for first accused to challenge any adverse
findings made against him by the Commission of Inquiry into the activities of
Ghana @ 50 Secretariat has elapsed.

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The second accused in his application to this court prayed that the charges against him
be struck out and the criminal action dismissed as being unlawful and a gross violation
of his constitutional right. The second accused also exhibited the Charge Sheet and the
White Paper on the Report of the Commission of Inquiry on the Ghana @ 50
celebrations. For purposes of easy reference the two accused persons will be referred to
simply as applicants in this ruling.

ISSUE

i. whether or not the adverse findings or 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 circumstance of this case having regard to the
provisions of Article 278 and 280 of the 1992 Constitution?
ii. Whether the charges preferred against the applicants in the charge sheet filed in
this case is derived from the adverse findings of the Ghana @ 50 Commission?

HOLDING (per Justice Marfu-Sau, JA)

“In the circumstance of this case the Government has issued a White Paper on
the report of the Commission. From article 285(5) it is evidently clear that in as
much as the Government has issued a White Paper on the report of the
Commission the findings had become a judgment of the High Court. The reason
is that under article 280(5), the findings became judgment when either of the
two conditions stated therein first occurred. By issuing the White Paper the
Government had elected to make the findings a judgment of the High Court,
making the six months condition nothing to count. I am of the considered
opinion that at the time this prosecution was mounted by the Attorney-
General, the findings of the Commission which formed the basis of the charges
against the applicants herein, was already a judgment of the High Court, by the
issuance of the White Paper.

Assuming however that the six months condition is still to be counted,

notwithstanding the issuance of the White Paper, then we have up to the 20th
October, 2010 for the findings to mature into judgment. This is because pursuant

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to article 280(3), the report of the commission was published together with the
White Paper on the 21st April, 2010. Clearly, counting from the 21st of April,
2010 the six months will elapse on 20th October, 2010, about seventy-one (71)
days from today the 10th of August, 2010. The significance of this date therefore
is that the adverse findings made by the commission shall be deemed a judgment
of the High Court by that date, if my finding above that the Commission’s report
is already a judgment is disputed. What then would be the current position of
the applicants herein if the findings should be deemed a judgment in October,
2010?

Is it the case that before the adverse finding is deemed to be a judgment of the
High Court, the affected persons could be prosecuted, because there is no
judgment yet? No, as I have demonstrated in this ruling the intention of the
framers of Chapter Twenty-Three of the 1992 constitution derived from the
1969 and 1979 constitutions is that public inquiries should not develop into
criminal trials. The constitutional arrangements under article 280 of the 1992
constitution therefore does not allow the Attorney General to initiate prosecution
against persons affected adversely by the findings of a Commission of Inquiry
established under article 278 of the constitution. The initiation of this criminal
trial against the applicants herein should it be allowed, will only lead to judicial
absurdity, if the affected persons decide to exercise their right of appeal to the
Court of Appeal.

The reason is that engaging in this prosecution will not change the constitutional
provision that six months after the publication of the Ghana @ 50 Commission of
Inquiry report, the findings shall be deemed a judgment of the High Court. In the
circumstance, I hold that the prosecution mounted against the applicants
herein by the Attorney General violates the democratic right of appeal offered
the applicants against the findings of the Commission of Inquiry into the Ghana
@ 50 celebrations, since the constitution deems the findings a judgment
against the applicants, subject only to an appeal under article 280 of the
constitution. ”

On the issue of immunity from prosecution

Justice Marfu-Sau, JA held as follows:

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“It is therefore, my opinion that the combined effect of sections 8 (2) and 10 of CI
61 is that when a person or a witness attends the Commission in compliance with
its requirements then no civil or criminal proceedings shall be brought against
such a person under any enactment, in this case for example the Criminal
Offences Act of 1960, the enactment under which the applicants herein have
been charged. It is a matter of judicial interest to observe that section 10 of CI
61 makes persons attending the Commission compellable witnesses with
regards to the production of documents and answers to any question, even
though such documents or answers may be incriminating. The legal effect to be
noted here is that unlike criminal trials where the accused cannot be
compelled to give evidence that may incriminate such accused; the situation
was the opposite with proceedings before the Commission. It therefore made
sense for the provision in section 10 (2) that such incriminating evidence in the
form of answers to questions and the production of documents was not to be
used in any criminal or civil proceedings against the persons who appeared
before the Commission.

In this case it is settled that the prosecution of applicants herein is derived

from the evidence and findings of the Ghana @ 50 Commission created under
CI 61, so how is one to reconcile the clear provisions of sections 8 (2) and 10 of
CI 61, with the Attorney General’s decision to use the evidence adduced
through the attendance of the applicants herein before the Commission to
prosecute them. I find the instant proceedings very contradictory to the very
Constitutional Instrument which gave birth to the Commission and empowered
it.”

On the issue that the accused persons were not ‘mere’ witnesses, but the subject
matter of the inquiry

The Attorney-General also argued that the accused persons were not ordinary
witnesses within the meaning of sections 8(2) and 10 of C.I. 61.This argument was also
rejected.

Justice Marfu-Sau, JA held as follows:

“The applicants are not named in the terms of reference of the Commission.
Indeed the applicants are not named personally in the entire CI 61. It will

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therefore be wrong to hold that the applicants were the subject of inquiry by the
Commission. The preamble of CI 61, the instrument that established the
Commission clearly provided that the Commission was to inquire into the
activities of the Ghana@ 50 Secretariat. The Secretariat was therefore the
subject of the inquiry and not the applicants herein. Now what was the legal
status of the applicants before the Commission? A careful reading of CI 61
creates no doubts at all that those persons who appeared before the Commission
were witnesses.

Now from the Commission’s own report the applicants were invited to attend the
proceedings and they did so in compliance with section 7 of CI 61. In the
circumstance, I am satisfied that the applicants did appear before the
Commission only as witnesses and not as the subject of the inquiry. The
important question then is this, having invited the applicants to attend the
Commission’s proceedings in compliance with the requirements of section 7 of CI
61, could the Republic turn round to institute this criminal proceedings against
the applicants, notwithstanding the clear provision of section 8(2) of CI 61; which
gives the applicants immunity from any civil or criminal proceedings? It is my
considered opinion, as I have found earlier that section 8(2) of CI 61 makes the
prosecution of the applicants in this case unlawful as being contrary to CI 61, the
very legal framework that created and empowered the Commission.”

Conclusions from the case

The effect and consequence of the report or findings of Commissions of Inquiry under
the 1969, 1979 and 1992 constitutions are quite different. Under the said constitutions
the effect of a report with adverse finding was to be deemed a judgment of the High
Court and appealable to the Court of Appeal. Unlike the findings of the pre-1969
commissions, the post 1969 commissions attracted automatic constitutional sanctions
until the persons affected succeed in setting aside the findings on appeal. By these
constitutional arrangements the Attorney General is not required to take any legal step
to secure the criminal liabilities to be suffered by persons affected by the adverse
findings or reports of Commissions of Inquiry, which are deemed to be judgments of the
High Court against the persons affected and not just prima facie evidence.

The conclusions that may be drawn from the Wereko-Brobbey & Mpiani (Ghana @ 50
commission of Enquiry) case may be summarized as follows:

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 MBOWURA JOSHUA
(i) The Attorney-General cannot initiate criminal proceedings in respect of persons
against whom adverse findings have been made by a commission of inquiry
(ii) The High Court, by virtue of Article 33(5) of the 1992 Constitution has the
mandate to exercise its supervisory jurisdiction over the actions and decisions of
Commissions of Inquiry
(iii) In view of this Constitutional right of appeal, the High Court does not have the
mandate to investigate or evaluate the adverse findings of a Commissions of
Inquiry
(iv) The findings of Commissions of Inquiry cannot form the basis of criminal trials.
(v) The period before 1969 when adverse findings of Commissions of Inquiry were
deemed prima facie evidence against persons adversely affected is no longer the
law in view of Article 280(1) of the 1992 Constitution.
(vi) Persons appearing before a Commission of Inquiry as witnesses should not be
subjected to any civil or criminal proceedings.
(vii) If the Attorney-General wishes to prosecute public officers who are
alleged to have conducted themselves in a manner prejudicial to the interest of
the state, in their public duties, the way to go is to not use the Commissions of
Inquiry, under Article 278 of the 1992 Constitution. The Attorney-General
should rather resort to the powers granted under Article 88 of the 1992
Constitution to mount the appropriate criminal proceedings.
(viii) Article 282 of the 1992 Constitution allows persons whose conduct is
under investigation or persons who may be implicated or concerned in the
matter under inquiry by a commission, to be presented by a lawyer. Such
persons have the right the right to also call witnesses as may be reasonably
necessary for protecting his interest at the inquiry.

COMMISSIONS OF INQUIRY AND THE CONSTITUTIONAL REVIEW COMMISSIONS

➢ Asare (NO.2) V Attorney-General (NO.2) [2015-2016] 2 SCGLR 899

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