NDC Gurus Run for Cover

The mandate of the Commission on Human Rights and Administrative Justice (CHRAJ), to investigate non-public officers and ex-public officials, was yesterday challenged by counsels for Mr. Kwame Peprah and His Excellency Baba Kamara, Ghana's High Commissioner to Nigeria and Dr. Ato Quarshie, when the Commission opened investigations into the Mabey and Johnson bribery case yesterday.

Samuel Cudjoe, counsel for Mr. Kwame Peprah and Baba Kamara, and Nana Ato Dadzie, counsel for Dr. Ato Quarshie, questioned the basis under which CHRAJ was mandated to investigate their clients, since Article 218 of the 1992 Constitution clearly stipulates the mandate of CHRAJ to investigate only public officials.

"This is a case which has criminal connotations, and must be guided by the stretch of criminal jurisprudence by this country. What is not there cannot be placed there. This commission is a commission created by a constitution, and its jurisdiction must be limited to what the Constitution and what the Law says," noted Nana Ato Dadzie.

Article 218 of the 1992 Constitution states the functions of the CHRAJ as follows; (a) to investigate complaints of violations of fundamental rights and freedoms, injustice, corruption, abuse of power and unfair treatment of any person by a public officer in the exercise of his duties; (e) to investigate all instances of alleged or suspected corruption and the misappropriation of public moneys by officials and to take appropriate steps, including reports to the Attorney-General and the Auditor-General, resulting from such investigations.

H. E. Baba Kamara had earlier raised a similar objection over the same issue, when the Commission commenced its investigations into the case.

Mr. Tadeus Sorry, a private legal practitioner whose services was employed by the Commission to assist in its investigations into the said issue, also objected to the reasons raised by Mr. Samuel Codjoe and Nana Ato Dadzie.

According to him, there was nothing under Article 218 that prevents the Commission from investigating a person who is not a public officer, citing several Articles in the Constitution to buttress his argument.

"My Lord, there is nothing in the Constitution that says that the mandate of the Commission should be restricted to presently serving public officers. The mandate of the Commission was not investigating the named persons in their present capacity as public officials, but in the capacity of which they served as public officers," he noted, whilst urging the Commission to dismiss the objections raised by Mr. Ato Dadzie.

The Commission having listened carefully to the barrage of objections raised by the aforementioned counsels, and that of H. E. Baba Kamara, was of the view that where in the discharge of its constitutional mandate of investigating public officials on grounds of alleged or suspected corruption, a private individual who is alleged or suspected to be involved in the alleged acts of corruption by the public officials, cannot object to the Commission investigating him alongside the public officials, on the basis that he is not a public official.

"It is the view of the Commission that to uphold such an objection challenging the investigative mandate or powers of the Commission to investigate a private individual, is not only untenable, but is contrary to public policy," he emphasised, adding, "such objection carries with it the grave danger of frustrating and stultifying the constitutional mandate of the Commission to investigate all instances of alleged or suspected corruption."

According to him, the Commission, having listened to the plea tendered in by H. E. Baba Kamara, was of the view that there was nothing in Article 218 of the Constitution which justified his claim.

The Commission, before stating its position on the said issue, observed that "once public officials, by the very nature of their functions, are appointed to provide services, including serving private individuals and institutions, the instances would be many in which at the centre of bribery or corruption allegation private individuals would most certainly be involved.

It is common knowledge that in most corrupt transactions involving public officials, private individuals and entities are at the other end of the spectrum. Invariably, it is the private individuals or entities that pay bribes to public officials, especially in large investments contracts executed by multinational companies, like the contracts awarded to Mabey and Johnson."

The Commission was however of the view that the private person or entity cannot, and ought not to be allowed to successfully prevent the Commission from investigating his or her involvement in the alleged corruption.

Mr. Emile Short buttressed his argument with section 241 of the Criminal Offences Act 1960 (Act 29), which recognises as a criminal offence corruption of a public officer, adding, "it would, therefore, in our view, be defeating or frustrating of the mandate of the Commission, the primary Anti-Corruption Agency of the State.

If the Constitution were to be interpreted to preclude the Commission from investigating private persons who are alleged to be involved in corrupting public officials, especially, where public monies are involved."

However, in order not to prolong things on the said objections raised by the counsels and H. E. Baba Kamara, calm looking Emile Short, with his usual soft voice, referred the matter to the Supreme Court for interpretation, under Article 130 (2) which states; where an issue that relates to a matter or question referred to in clause (1) of this article in any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer the question, of law involved to the Supreme Court for determination, and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.

"With respect to the objection raised by Baba Kamara, we shall refer the matter to the Supreme Court for interpretation. Because, as we have demonstrated in the decision, it raises an issue of interpretation of certain provisions of the Constitution, and the authorities said it is quite clear that that is a matter and exclusive preserve of the Supreme Court," noted Emile Short in his ruling.

Having ruled on the said issue, Mr. Emile Short said H. E. Baba Kamara would not appear before the Commission until the Supreme Court gives its ruling on the said objection raised by him.

The CHRAJ's position to refer the matter to the Supreme Court was to seek a determination of whether or not, upon a true and proper construction of article 218(e) of the 1992 Constitution, the mandate of the Commission to investigate all instances of alleged or suspected corruption applies to private individual and entities, and also whether or not the Commission has the mandate to investigate a private individual who is alleged to be involved, or implicated, in acts of corruption allegedly committed by public officials.

Mr. Kamara was mentioned in the said matter as having served as an agent, who used his influence to corruptly secure contracts for Mabey and Johnson.

However, counsel for Dr. George Sipa Yankey, Mr. Kwame Djan, told the Commission that his client was prepared to testify before Commission at any given period.

Other members allegedly involved in the said scandal include Brigadier-General Edward Lord-Attivor (rtd) (a former PNDC Secretary for Roads and Highways), Dr. Ato Quarshie (a former Minister of Roads and Highways), Mr. Kwame Peprah (a former Minister of Finance and Economic Planning), Alhaji Amadu Seidu (a former Deputy Minister for Roads and Highways) and Alhaji Boniface Abubakar Saddique (a former Desk Officer in charge of UK, Spain and The Netherlands Economic Cooperation, including the Export Credit Guarantee Department of UK, at the Ministry of Finance and Economic Planning.)

The aforementioned persons are alleged to have operated as agents for Mabey and Johnson during its operations in the country in the 1990s, when the company was awarded numerous contracts by the Government of Ghana.

It was alleged by the UK Serious Fraud Office (SFO) that in Ghana, and very much to the knowledge of Mabey and Johnson, the agents recruited were involved in corrupt relationships with public officials with influence over Mabey and Johnson's (M&J) affairs.

M & J is alleged to have agreed with these agents to pay bribes directly to the public officials.