General Issues
Day in and day out, the media have been wasting our ears with the failure of prosecution of persons mentioned in the Ayawaso Wagoun Bye Election’s Commission of Inquiry. especially Akomeah alias Double etc. It must be noted that the Constitution of Ghana grants a Commission of Inquiry (COI) the powers of a High Court, and that when adverse findings is made against any person, the Report must be deemed to be a Judgment of a High Court that is six months after announcement of the Report to the public.
Findings of the COI are under administrative law so not binding on the Government of the Day. Hence the Government through a White Paper may review it by rejecting or accepting the findings. Based on this, Some School of thought are with the view that it is the Government White Paper or Statement together with the Report that makes it a Judgment of a High Court. And accordingly an indicted person in the report, has three months to appeal to the Court of Appeal against the adverse findings of the COI.
Also, failing to appeal to the Court of Appeal to set aside the judgment, then for the next ten years, he or she cannot occupy public Office cannot stand for election to be elected as President or MP. This implies that the indicted person cannot be prosecuted by the Attorney General (AG) from the Report of the Committee of Investigation. A scholar of thought say that the AG may do so after an independent Criminal Investigation by the Police.
Before matters on the subject are expatiated, it is proper to say the tangent or the aim of this submission, is to say that Ghana is facing serious problems including Constitutional Issues because we have allowed or accepted the wrongs like corruption to fester and thus grow up to become the norm. This is also the situation with the national evil of Small Scale Mining.
So depending on the area, effective reorientations of the citizen by our leaders are necessary as indicated by the Chinese Ambassador, this means that Ghana as part of Better Ghana Agenda must change the narrative on national issues through the Resetting Agenda of President Mahama. So Professor Ahmed Jinapor, the Director General of GETEC should be applauded and supported for the good work of instilling integrity on Academic credentials.
This implies that a mindset revolution of the Citizenry is sine qua non (imperative) in our attempt to instilling integrity In our body politics or way of life and navigate to the Promised Land (the objective of Ghana Beyond Aid). So the Citizens must be well informed so that they can rise to the occasion by speaking the truth / pointing out the wrongs to ensure our Leaders act accordingly.
It is for this reason, that, this writer in the pursuance of a Better Ghana Agenda, with the support of Modern Ghana, calls a spade, a spade especially when Clause 1 of Article 1 of the 1992 Constitution on the Supremacy of the Constitution, states that the Sovereignty of Ghana, resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in a manner and within the limits laid down in the Constitution. Hence, every citizen of Ghana is granted the right and duty to defend this Constitution as provided at Clause 4 of Article 3 of the 1992 constitution. This also implies that a Citizen has the right and duty to speak out when there is a deviation in the process spelt out in the 1992 Constitution.
So, honest Public education on issues of the 1992 Constitution on the front burner is sine qua non to ensure effective defence of the Constitution by the Citizenry. Thus, in the pursuance of the Better Ghana Agenda, this write considered it imperative to point out deviations from the provisions of the 1992 constitution.
As a Student of History and Political Science, it is hereby stated that the Constitution of Ghana was/is based on the life history of Ghana as at April 1992. That is to say, the framers of the 1992 Constitution, when they opted for the Presidential System of Government as practiced in USA, took cognizance of the state of affairs of Ghana under the 1960 Constitution which anchored the first Republic with a Constitutional Amendment in 1964, also the situations under the 1969 Constitution of the Second Republic and the 1979 Constitution of the Third Republic.
So, from a critical study of the 1992 Constitution, there is no provision in the 1992 Constitution that allowed the President of Ghana (Executive Arm of Government) to share with Parliament, the power for the initiation or taking part in the process for the amendments of any provision of the Constitution or the power to cause the amendments of any provision of the Constitution. He is only required to sign a Constitutional Bill, so passed by Parliament to make it operational. The Constitution is in English.
So, in an article by this author on the topic ‘My Perspective on Coup, why a Coup, and How to prevent it’ as published in 2021 on the website of Modern Ghana. Among others, it was stated that tampering of the Constitution by amendment of the Constitution in 1964 by President Nkrumah to declare Ghana, as One Party State, with President Dr Nkrumah made as President for life was among the reasons, the framers of the 1992 Constitution made it very clear that the President of Ghana with the exception of signing the Constitutional Provision Amendment Bill, so passed by Parliament to make it operational. He has no other role like initiating an action for the Amendment of any provision of the Constitution. Thus the President of Ghana however good or angelic that his or her intention maybe, he should never initiate an action nor talk of taking an action for the Amendment of any provision of the Constitution. The Constitution is in English.
So this writer in an earlier Article published in 2020, clearly stated that Chapter 25 of the Constitution which is dedicated for the Amendment of the Constitution, only granted to Parliament the authority (right, power) to initiate an action for the amendment of any provision of the Constitution as ordered at Clause 1 of Article 289 of the 1992 Constitution. The process for the amendment of entrenched provisions and or non-entrenched provisions are at Article 290 and 291 respectively. In both cases the President must sign without comment or hesitation a Bill for the Amendment of Constitutional Provision, duly passed by Parliament to make it operational.
For this reason, in 2020, this Author made it very clear that President Mills in 2010 erred or acted unconstitutionally for initiating the Constitutional Review Commission for the amendment of the Constitution of Ghana. It was also indicated by this writer that Chapter 26 of the Constitution of Ghana, on a Committee of Inquiry (COI) says at Clause 1 of Article 278 that COI, is a fact finding Constitutional Instrument on matters of public interest, As such the author stated it should not be an Instrument to be used for setting up a Constitutional Review Commission.
So President Mills in 2010, erred when he used the Constitutional Instrument of a Committee of Inquiry and established the Constitutional Review Commission and as such the vehicle of the Committee of Inquiry gave him the lucrative window to arrogate to himself the power to constitute himself into a Justice of an appellate Court and as such reviewed the work of the 2010 Constitutional Review Commission by a Government White Paper.
This was so, because a Government White Paper or Statement by the Government on no intention to issues or publish the White Paper is a requirement for effecting the report of COI as a judgment of a High Court. Also, the indicted person is granted the right to appeal at an Appeal Court, this situation speaks volume of the error made in 2010. Hence, these absurdities means the President has no right to do so.
It is therefore very unfortunate that the Parliament of Ghana, the Council of State, members of our Intelligentsias Community since 2009 have accepted the unconstitutional conduct of the President of Ghana and this has made the President of Ghana to act like an Octopus by spreading the tentacles across all spectrum. The seemingly weak or cowardly or sycophantic (bootlicking) society has motivated the current President of Ghana to initiate an action for the amendment of the Constitution, a power which is granted or limited to only the Parliament of Ghana. The Constitution is in English.
Another matter of national interest which need to be corrected is when on 24 April 2025, the citizenry were told that 30 out of 31 members of the Council of State, agreed on prima facie case against the Chief Justice. Google and read ‘30 out of 31 members of the Council of State agreed on prima facie case against the CJ by Sammy Gyamfi’. This author in May 2025 rose up to the occasion with a publication on the Website of Modern Ghana on Matters on the Process on Appointment and removal of the CJ.
It was stated the Framers of the Constitution had a good intention for making the determination of prima facie by the Chief Justice as part of the process for the removal of Justice of the Superior Court as in Clause 3 of Article 146 of the 1992 Constitution. It was also stated that for the removal of the Chief Justice, the framers of the 1992 Constitution did not say or were silent on the determination of prima facie by any system for the very good reason of to ensure a very impartial, Independent and a competent Body deal with the petition for removal of the Head of the Judiciary, one arm of the government either by throwing it into a dustbin without waste of time or investigate it and submit its recommendations and conclusion to the President for action without fail.
So, it was stated that the President on receipt of a petition for the removal of the CJ, he is only required without hesitation to consult the Council of State for the appointment of the Committee to deal with or dispose of a petition for the removal of the CJ as stated clearly in Clause 6 at Article 146 of the Constitution. And no one except a very impartial, Independent and a competent Body is authorized to determine prima facie for the process for the removal of the CJ. The Constitution is in English.
Enter Commission of Inquiry
Commission of Inquiry by Clause 1 of Article 278 of the 1992 Constitution is a fact finding instrument to be established by the President to probe a matter which is of a national or public interest. A Commission of Inquiry is granted the powers, rights and privileges of a High Court as at Article 279 of the Constitution. Article 280 of the Constitution speaks on the function of COI, with Clause 1 of Article 280 of the Constitution required that the COI is to make full, faithful, impartial inquiry into any matter specified in the instrument of appointment, report in writing the results of the inquiry and furnish in the report the reasons leading to the conclusion.
The Areas of COI include when serious allegation of corruption or misconduct against a public Officer or an issue that cannot be adequately sufficiently dealt with before a Court or a very serious incident of public interest.
Clause 2 of Article 280 of the Constitution provides that the report of commission is deemed to be a judgment of the High court and accordingly an appeal to the Court of Appeal by an indicted person shall be allowed as of a right from the findings of the Commission. Clause 3 of Article 280 of the Constitution required that the President subject to clause 4 shall cause to be published the report of the COI within six months after the date of receipt of the Report of the Commission of Inquiry together with the White Paper or a statement from the Government on it that it does not intends to issue a white paper. Thus the conversion it to a Judgment of a High Court is required in Clause 5 of Article 280 of the Constitution, which among others stipulated that the Government Issue a statement in the Gazette and Media that it does not intends to issue a white paper
Clause 5 of Article 280 of the Constitution, is therefore clear that a Findings of a Commission of Inquiry shall not have the effect of a judgment of the High Court unless the following conditions are met, namely (a) Unless six months have passed after the findings is made and announced to the public. (b) The Government issues a White Paper on it within the six months from the date of submission of the report to the President or issue a Statement in the Gazette and in the national media that it does not intend to issue a white Paper on the report, whichever is the earlier.
Clause 6 of Article 280 of the Constitution with reference to clause 2 of Article 280 of the Constitution grants the right of appeal by anyone who adverse findings have been found against to appeal to the Court of Appeal, to do so within three months, after the six months when the findings of the Committee have been made and announced to the Public or when the white paper is issued by the Government or a Statement from the Government indicating does not intend to issue a white Paper on the report or by Special Leave for such other time subject to the discretion of the High Court or the Court of Appeal.
A case study of a classic case on Commission of Inquiry in Ghana’s Fourth Republic is the Republic verse Mr Charles Wereko Brobbey and Kwadwo Mpiani, the court case was ACC 39/2010, which involved the case of Commission of Inquiry appointed by the President of Ghana in 2009, as the Ghana at 50th Celebration’s Commission of Inquiry. That probed and reported on (a). Allegation of corruption on the use of public and any other funds, (b). Probed into use by the secretariat of any property movable and immovable (c). Probed into any matter which appear to the Commission as incidental to or reasonably related to the Ghana at 50th Celebration which in the opinion of the COI ought to be inquired into (d) to make recommendations in respect of the findings of fact by the commission.
The Commission of Inquiry made adverse findings against Mr Charles Wereko Brobbey and Kwadwo Mpiani based on that they were charged before a High Court, among others for wilfully causing financial loss to the State, the two pleaded not guilty. Before prosecution could start it work, the two accused person challenged the jurisdiction of the High Court with their lawyers putting a defense that the action of the Attorney General breaches Article 278 and 280 of the 1992 Constitution.
The lawyers argued that the charged preferred against them which emanated from the adverse findings of the Report of the Commission of Inquiry was unconstitutional and that they have the right to appeal against the findings of the Commission of Inquiry within three months after the six months have passed after the findings is made and announced to the public. Their Counsels made very brilliant submission that the framers of the Constitution based on issues with the 1969, 1979, and 1992 Constitutions, accepted a proposal that findings of COI should only be based on Administrative law, hence no longer form the basis of criminal trial
Justice Marful Sau J.A also made a landmark ruling after setting down the issues for determination. As follows, (a. Whether the findings of the report constitute a judgment of a High Court as defined by Clause 2 of Article 280 of the Constitution and (b). If so whether the Attorney General can mount prosecution in the circumstance of this case with regards to the provision of Article 278 and 280 of the 1992 Constitution
Justice Marful Sau J.A therefore described the rationale behind the establishment of COI. As stated in 280 of the 1992 Constitution, among others, the framers indicated the findings of the COI should have legal implications and hence should be deemed to be a judgment of a High Court, from which an appeal for the indicted persons shall be as the right to the Court of Appeal. Hence the Court has no jurisdiction to entertain the case.
Since the Government through the President as the Convener Authority for COI as required at Clause 1 of article 278 of the 1992 Constitution and is required to publish the White Paper together with the Findings Commission of Inquiry as required at Clause 3 of Article 280, so one may be right to say it is the combined effect that makes the report as Judgment of a High Court when there is adverse findings. What is yet to be tested at the Supreme Court is whether the Government of the Day can accept or reject the findings of a COI, since this will that makes the Executive Arm of Government constituting itself into appellate Court to review the Findings of the COI. Until this is done a person who adverse findings have been made against in the Findings by the COI, but due to the rejection by the President meant he or she is absolved of any liability. This may be accepted or true since the Report falls under Administrative Law.
So by the Judgment of Justice Marful Sau J.A, the recommendation of prosecution of Akomeah allegedly made by the Ayawaso Wagoun Bye Election’s Commission of Inquiry which was required to make full inquiry into the circumstances of and establish the facts leading to the event of the associated violence during the bye election was Unconstitutional, since the case was to deal with an Administrative issue for facts and corrective measures and not Criminal matter to be dealt by the Police. Hence the application of Article 85 of the 1992 Constitution t for the disbandment of the Ministry of National Security Troops with arms hence Standing Army otherwise the dismissal or retraining of Akomeah should have been recommended under Administrative law.
