Presbyterian University, Ghana
Centre for Continuous Professional
Development [CCPD]
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GHANA LEGAL SYSTEM
GHANA LEGAL SYSTEM
SECOND SEMESTER
COMMISSIONS OF ENQUIRY
COMMISSION OF INQUIRY
¡ 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.
¡ A distinction should be made between the following types of commissions of inquiry. First, we have
purely domestic commissions of inquiry, which are set up by private entities such as companies,
schools, churches etc. to inquire into specified matters.
¡ Second are commissions of inquiry set up by administrative/governmental bodies such as ministers and
departments of state.
¡ Third are commissions of inquiry set up by the president under article 278 of the 1992 Constitution.
Finally there are the apparently permanent bodies like the Commission on Human rights and
Administrative Justice (CHRAJ) and the serious Fraud office (SFO) whose works resemble, in some
respects that of commissions of inquiry but depart from them in some significant respects.
COMMISSION OF INQUIRY
¡ It is equally important at this stage to take a look at the issue of whether there is any distinction
between a “commission of inquiry” and “a committee of inquiry” – a distinction, which assumed great
constitutional significance after the decision in Osman v Darko. In that case the Supreme Court held
that;
¡ “the meaning of the term “commission of inquiry in article 71 [of the 1969 Constitution]
could not be extended to include committee of inquiry”.
¡ This case was cited in Republic v Volta Region Chieftaincy Committee and Another, Ex
parte Asor and interpreted to mean,
¡ “a committee of inquiry is an inferior body to a commission of inquiry”.
COMMISSION OF INQUIRY
¡ None of these decisions, however, provided the essential criteria for distinguishing between the two.
Apparently in reaction to these decisions subsequent enactments have provided that “commissions
of inquiry include committee of inquiry”.
¡ That, however, still leaves unresolved the question of the essential distinction between the two, which
leads to one being roped into the other by legislative fiat.
It is suggested that there is apparently no strict difference in essence between the two. In practice it
appears, however, that the term commission of inquiry is reserved for those appointed by the
president using a constitutional instrument whilst those established by ministers, government
departments and private entities are often named committees of inquiry. This practice might have been
influenced by the distinction,
COMMISSION OF INQUIRY
¡ This lecture is on commissions of inquiry appointed by the president by a
constitutional instrument under article 278 of the 1992 Constitution. However, most
of the discussion here will also be relevant for the other types of commissions of
inquiry described above.
¡ SUBJECT MATTER OF COMMISSION OF INQUIRY
¡ Under article 278 of the 1992 Constitution, a commission of inquiry can be
appointed to inquire “into any matter of public interest”. Public interest has
been defined in article 295 of the Constitution to include any right or advantage,
which inures or is intended to inure to the benefit generally of the whole people of
Ghana
COMMISSION OF INQUIRY
¡ 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 fact, however, remains that the
decision to appoint a commission of inquiry is pre-eminently a political
decision for the government. This decision is not reviewable by the
courts unless it can be shown that some constitutional or statutory
limitation has been breached. However, once it has been determined that
a commission be established, any decision about the nature of the inquiry
might become reviewable by the court in the exercise of its powers of
judicial review.
COMMISSION OF INQUIRY
¡ In Republic v committed of Inquiry (R. T. Briscoe) (Ghana) ltd. Ex Parte R. T.
Briscoe (Ghana) Ltd. The Supreme Military Council (SMC) by Executive Instrument
No. 142 set up a committee of inquiry into the activities of R. T. Briscoe (Ghana) Ltd. in
relation to the exchange control laws of Ghana. In this application, counsel for the
applicant argued that the applicant, a limited liability company of a private not a public
character, could not be the main object of investigation of a committee of inquiry. In
rejecting this submission, it was held that although an examination of legislative policy
before 1972 would seem to limit the scope of commissions of inquiry to matters of public
interest or importance, where the acts of a private limited liability company or a private
individual impinged on the national economy or other areas of national activity to such an
extent as to be likely to adversely affect national aims and objective, that would be a
matter of public concern or importance which could properly form the subject matter of
inquiry by a committee of inquiry.
COMMISSION OF INQUIRY
¡ In Republic v PNDC Secretary, Ex Parte Oti, the validity of the appointment of a
committee of inquiry appointed to inquire into the choice of a chief was challenged on the
ground that jurisdiction in chieftaincy matters was the preserve of the House of Chiefs and
traditional councils. In rejecting this submission it was held that by the provisions of section
6(1) of the Provisional National Defense Council (Establishment) Proclamation
(Supplementary and Consequential provisions) Law 1982 PNDCL 42, the PNDC as the
legislative authority was vested with very wide powers to set up a committee of inquiry into
any matter of public interest and although the law did not specify what constituted matters of
public interest, it was obvious that the PNDC had the discretion to determine
COMMISSION OF INQUIRY
¡ what matters were of public interest and accordingly it had power to appoint a
committee of inquiry into a chieftaincy matter when satisfied that it was in the public
interest. Although this decision may have been right at the time it was given, (at that time
there was no Constitution and the executive and legislative powers were not clearly
separated,) its implications must be explored for it leaves open a window of opportunity
through which the executive may act and frustrate the work of other state institutions, in
the instant case the House of Chiefs.
COMMISSION OF INQUIRY
¡ Prima facie the only limitation on subject matter of inquiry is that it should be in
the public interest. One can, however, ask whether it will be in the public interest and
hence constitutional to appoint a commission of inquiry to inquire into a matter
which is sub judice. On the ordinary meaning of the phrase the answer will be in
the affirmative. This position is further strengthened by the fact that where the
framers of the constitution wanted to limit the scope of inquiry of an investigative
body it said so expressly. The maxim is expression unius est exclusio alterius
(the express mention of things of the same class implied the exclusion of those not
expressly mentioned). Thus article 219(2) of the 1992 Constitution provides that the
Commission of Human Rights and Administrative Justice shall not investigate a
matter which is pending before a Court or judicial tribunal.
COMMISSION OF INQUIRY
¡ It can however be argued on the contrary that such a stance would amount to
interference with the work of the judiciary and in breach of article 127 of the 1992
Constitution.
¡ So far such an issue has not seriously arisen under the 1992 Constitution but it was a
similar act by the Executive, which formed the genesis of the case of Republic v
Otu Ex part Attorney General. In that case the defendants had been served with
charges under the Armed Forces Act 1962 (Act 105). Before the trial a commission
of inquiry was set up to investigate the activities of the defendants which activities
formed the subject matter of the criminal prosecution. They appeared before the
commission but refused to be sworn asserting the privilege against self-incrimination.
They were cited for contempt but subsequently discharged.
COMMISSION OF INQUIRY
¡ Be that as it may, commissions of inquiry appointed under the
Constitution seem to have adopted some self-restraint. Thus the
commission of inquiry set up to investigate the international transfer of
players declined to inquire into cases which were “pending before court
or had previously been determined by the courts having “regard to the
difficulties which the commission might encounter if it assumed
jurisdiction over [such] issues”
COMMISSION OF INQUIRY
¡ APPOINTMENT OF COMMISSION OF INQUIRY
¡ Under Article 278(1), the President shall subject to to Article 5 of the Constitution and by a
CI appoint a COI into any matter of public interest where the President is satisfied that a
COI should be appointed or
¡ the Council of State advises that it is in the public interest to do so or
¡ Parliament by a resolution requests that a COI be appointed to inquire into any matter
specified in the resolution as being a matter of public importance.
¡ A COI appointed under clause 1 above may consist of a Sole commissioner or more persons
one or whom shall be appointed the Chairman of the commission. A person appointed a sole
commissioner or a chairman shall be a Justice of the Superior Court of Judicature (JSCJ) or a
person qualified to be appointed as a Justice of the JSCJ or a person who has held office as a
JSCJ or a person who possesses special qualification or knowledge in respect of the matter
being investigated.
COMMISSION OF INQUIRY
¡ Witnesses before Commissions of Inquiry.
¡ Under article 283 of the Constitution a witness before a commission of
inquiry is entitled to the same immunities and privileges as if he were a
witness before the High Court of Justice. By this provision such a witness
is entitled to all the privileges under part VI of the Evidence Decree 1975
((NRCD 323) as may be relevant to the proceedings of the commission
and such other privileges as are evolved by the common law.
¡ Any such privilege must, however, be claimed. In Akainyah v The Republic it was
held that although a witness before a commission of inquiry may be privileged from
answering self- incriminating questions, the role of the commissioner in the
proceedings is the same as the role of a judge before whom a witness appeared at a
trial. The judge as a matter of practice should warn a witness that he was not obliged
to answer incriminating questions but there seemed to be no rigid rule of law to that
effect. It was for the witness to claim the privilege by objecting to answer. Therefore,
the fact that a witness was ignorant of his rights should not prevent the court from
utilizing his evidence in subsequent criminal proceedings bought against him.
¡ An important right of a witness recognized under the Constitution is the
right of legal [Link] 282(1) provides that,
¡ “Any person whose conduct is the subject of inquiry by a
commission of inquiry, or who may, in any way be implicated or
concerned in the matter under inquiry, is entitled to be
represented by a lawyer at the inquiry; and any other person
who may consider it desirable that he should be represented by
a lawyer shall be allowed to be so represented”.
¡ Commissions of Inquiry and Courts of Law.
¡ That a commission of inquiry is not a court of law cannot be doubted. In Inkumsah
v The Republic, it was held that to say that because a commission of inquiry
exercises certain specified powers of the High Court it is a Court is a non sequitur.
A commission of inquiry is not a court of law. The existence of institution with
trappings of a court of law, which are not courts of law, abound. A long line of
authorities also exists for the proposition that a commission of inquiry do not
exercise final judicial power.
¡ Notwithstanding the above a commission of inquiry under article 279 of the
1992 Constitution has the powers of the High Court or a justice of the High
Court at trial in respect of enforcing the attendance of witnesses and
examining them on oath, affirmation or otherwise; compelling the production
of documents and the issue of a commission or request to examine witnesses
abroad. This provision raises a number of interesting issues. Does it for
example give the commission power to punish for contempt as the High
Court can do? The judges developed the law of contempt as a means by
which the courts may prevent or punish conduct that tends to obstruct,
prejudice or abuse the administration of justice.
¡ Great care is needed, however, in the application of this branch
of the law since it restricts freedom of expression. The law is
that a commission of inquiry if not given specifically the power
to punish for contempt cannot do so. This is a reflection of a
broader proposition that at common law a commission of
inquiry possesses no coercive powers. It must transmit any
allegation of contempt to the High Court.
¡ Another issue relates to the enforcement of the power of a commission of inquiry to
compel the production of document. Specifically it relates to the proper forum to be
used to enforce this power in the light of the provisions of article 135(1) of the 1992
Constitution which provides that
¡ “the supreme court shall have exclusive jurisdiction to determine whether
an official document shall not be produced in court because its production
or disclosure of its contents will be prejudicial to the security of the state
or will be injurious to the public interest”.
¡ This provision imposes two restrictions on its invocation namely:
¡ The document must be an “official document”
¡ The issue of its production must have arisen “in court”
¡ EFFECTS OF FINDINGS OF COMMISSIONS OF ENQUIRY
¡ Adverse Findings, Deemed to be Judgment of High Court
¡ Before the enactment of the 1979 Constitution, the true scope and effect of a finding
by a commission of inquiry was not precisely defined. The practice was for specific
enactments to be made to implement the findings of specific commissions of inquiry.
The Commission of Inquiry (Implementation of findings) Decree 1974 (NRCD 261),
attempted to provide a universal scheme for the implementation of findings of
commissions of inquiry. This consideration coupled with appreciation of the serious
legal consequences that emanated from findings of such commission exercised the
minds of the framers of the Constitution [Link] reasoned that;
¡ “having regard to the fact that the findings and recommendations of a
commission of inquiry can have serious legal consequences for persons
affected thereby, not to mention the possible adverse impact on the
reputation and image of such persons in the society we consider it
necessary that a person adversely affected by such findings or
recommendations should be able to challenge the soundness or legality of
such findings or recommendations in the court”.
¡ It was accordingly proposed and enacted that where a
commission of inquiry makes adverse findings against any
person, the report of the commission of inquiry shall for the
purpose of this Constitution be deemed to be a judgment of
the High Court of Justice and accordingly an appeal shall lie as
of right from the Commission to the Court of Appeal. This
provision has been repeated in article 280 of the 1992
Constitution.
¡ What are the incidents of “deeming” the report to be a judgment of the High
Court? It has been suggested for example that the phrase “deemed to be
judgment of High Court” is only for the purpose of conferring a right of
appeal. This interpretation, it is suggested, is too narrow for other provisions
do exist in the constitution, which confers a right of appeal without deeming
the decision being an appeal from a judgment of the High Court. Indeed a
right of appeal is only by statute. Thus a broader interpretation must be put
on the phrase “deemed to be a judgment of the High Court”, with all
the incidents attached thereto such as enforcement, appeal, and
estoppels.
¡ The application of the concept of estoppels to the findings of
commissions of inquiry needs, however, to be further explored
especially in the light of the limited application of the concept in
administrative law. Estoppels have many facets one of which is
estoppel per rem judicatam. This is a doctrine, which prevents
parties to a judicial determination from litigating the same question
over again except in proceedings by way of appeal or judicial review.
The rationale for this rule is founded on two principles: first, that it is
in the public interest that there be finality to litigation; and second,
that no one should be harassed twice for the same cause.
¡ Adverse Findings as a Ground of Disqualification for
Position of Member of Parliament and President.
¡ Grave consequences may flow from findings of a commission of
inquiry. Adverse findings serve as a ground for disqualifying a
person from standing for the position of Member of Parliament
or [Link] 94(2)(d) specifically provides that;
¡ “a person shall not be qualified to be a member of
parliament if he has been found by the report of a
commission or a committee of inquiry to be incompetent
to hold public office or is a person in respect of whom a
commission or committee of inquiry has found that while
being a public officer he acquired assets unlawfully or
defrauded the state or misused or abused his office or
willfully acted in a manner prejudicial to the interest of the
state and the findings have not been set aside on appeal or
judicial review”.
¡ It must be noted that in this case the right of appeal against the findings of the
Commission had been denied the defendant. The decision must therefore be
read in the light of article 280 of the 1992 Constitution, which provides for a
right of appeal.
¡ One issue which immediately comes to mind on a reading of Article 94(2)(d)
is the question as to why the provision seems to be restricted to acts done
“while being a public officer”. It had been proposed by the Committee of
Experts that the provision should be made to apply to everybody. They
reasoned that,
¡ “the Committee saw no reason why the sanction
should not be equally applicable to transgressors who
are not public officers. Any person who is quilt of the
above acts should be unfit to hold public office or enter
parliament” .
¡ Appeal against Adverse Findings.
¡ To protect the rights of individuals against whom adverse
findings have been made it is provided that an appeal shall lie as
of right from the findings of the commission to the Court of
appeal. An appeal is the right of entering a superior court and
invoking its aid and interposition to redress the error of the
court below.
¡ The right of appeal is only by statute. Historically the right to
appeal against the findings of commission of inquiry had been
denied in some enactments. It might therefore have been in
reaction to such enactments that a right of appeal has been
expressly provided for under article 280(2). Under article
281(2) the Rules of Court committee was expected to make
rules regulating appeals from findings of commissions of inquiry.
¡ At present no such rules exist and consequently the existing rules on
appeal to the court of Appeal apply. The right of appeal must however be
exercised within a defined time except that the period may be extended
with special leave of the High Court or Court of Appeal. Under article
280(6) the right of appeal must be exercised within three months after
(a) the finding is made and announced to the public or (b) after 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.
¡ Publication of Report and the White paper.
¡ A commission of inquiry is obliged to report in writing the results of its
inquiry. As the Commission is appointed by the President its report is
sent to the President who must cause it to be published together with
the White Paper on it within six months after the date of the submission
of the report or where the report is not to be published issue a
statement to that effect giving reasons why the report is not to be
published. This requirement of publication represents an attempt to
satisfy the public’s right to know. A commission of inquiry is the guardian
of the public interest since they are appointed to inquire into matters of
“public interest”.
¡ The White Paper is a statement of the government’s position on
particular issues addressed in the commission’s report. It represents the
governments view on the issue. The mandatory requirement for a White
Paper to accompany the publication of the report of commissions of
inquiry was introduced in the 1979 Constitution but no specific reason
was assigned for its introduction. It could however be seen as an attempt
by the Executive to maintain some degree of control over the findings of
the commission whilst at the same time allowing the public to know the
policy measures the government is taking on the report.
¡ The contents of the White Papers have been many and varied.
They range from statements of appreciation and commendation
for good work done to those rejecting or accepting specific
findings and the policy initiatives to be taken thereon. Whatever
be the case, however, the content of the White Paper as well as
the actions that could be taken on it are not at large. The White
Paper cannot be used as a tool for arbitrary action.
¡ In Quayson v Attorney General, 1981 GLR 295-300 the appellant
was a prison officer who appeared before a commission of inquiry
appointed by the government to investigate a prison escape. The
commission submitted its report and the government released a White
Paper on the report. The Commission made no recommendation as to
the punishment to be meted out to the appellant; but the government
purporting to be acting on the basis of the commission report directed
in the White Paper that the services of the appellant be dispensed with.
¡ The government reasoned, contrary to the report of the
commission, that the failure of the Commission to recommend
punitive sanctions was an oversight. In granting his application
for certiorari it was held that the commission’s failure to
recommend sanctions was deliberate and the statements in the
White paper were diametrically opposed to the clear
unambiguous and plain language of the Commission’s report.
¡ Even though the government was not bound by the findings and
recommendations of the inquiry it was equally not permissible
in law for government to purport to act on a finding or
recommendation where none existed. This decision imposes
limitations on what can be done on the basis of the reports of a
commission of inquiry. This is a legitimate restraint for were
that not the case there would actually have been no need to set
up the Commission.
¡ In Kwapong v GCMB (Consolidated), [1984-86] 1 GLR
74 it was held that the White Paper contained policy directives
of the government, consequently where a person misapplied the
directions contained therein and thereby injure the legally
protected rights of a person the latter could bring an action to
vindicate his rights.
¡ Indeed the courts have been cautious in their treatment of executive
actions purportedly based on the findings of commissions of inquiry. In
Darkwa v The Republic 1981 GLR 241the appellant had had adverse
findings made against her by a committee of inquiry. She was
subsequently retired from the police service by a letter based on the
recommendations of the committee of inquiry. In the instant proceedings
the court set aside the report of the committee for breach of natural
justice and consequently held that her purported dismissal based on the
recommendations of the committee could not stand.