The legal and political consequences of the AWW Commission findings
The humongous violence that erupted during the Ayawaso West Wuogon bye-elections is perhaps the worst instance of electoral violence experienced in our country since the creation of the 4th Republic on 7th January 1993.
Following public outcry about this regrettable incident, on 31st January 2019, H.E the President set up the Ayawaso West Wuogon Commission of Inquiry (AWW Commission), composed of eminent personalities to inquire into, among others, the events leading to the violence that marred the AWW bye-election.
In March 2019, the AWW Commission, after a rigorous and analytically robust fact-finding exercise, submitted its report to Government. On 19th September 2019, the Government caused the publication of AWW Commission Report together with the Government’s White Paper on the Report pursuant to article 280(3) of the 1992 Constitution.
Government’s Attack on the AWW Commission:
In an unprecedented blistering attack on the work of the AWW Commission, the Government has signaled, even if obliquely, its intention not to carry through some of the recommendations of the Commission. In the Government White Paper that accompanied the publication of the report of the AWW Commission, the Government has accused the Commission of failing to carry out its core mandate to faithfully and impartially inquire into the events leading to the violence that characterized the AWW bye-election. More tellingly, the Government alleges that “ the Commission’s approach to the first term of reference was prejudicial.” (Page 14 of the Government White Paper)
The Government’s claim is most bizarre considering the reputation, stature and known competence of the commissioners of the AWW Commission. Further to that, Government’s aggressive and fighting response to the work of the AWW Commission is both imprudent and misplaced. As a matter of law, the Government’s rejection of some of the findings of the Commission does not preclude the adverse findings of the Commission from becoming a judgment of the High Court six months after publication of the report.
Therefore, as the clock winds down towards the legally stipulated six-month timeframe when the adverse findings of the Ayawaso West Wuogon Commission of Inquiry will ripen into a judgment of the High Court, Bryan Acheampong, the Minister of State in charge of National Security, Ernest Akomea alias “Double”, Mohammed Sulemana, Colonel Mike Opoku and DSP Samuel Azugu could only heave a temporary sigh of relief.
But more importantly, the Government’s response to the report of the Commission creates the unfortunate impression that it had an ulterior motive in setting up the Commission – essentially to whitewash and cleanse one of the worst incidents of state-triggered electoral violence in Ghana since the inception of the 4th Republic.
Findings of the AWW Commission:
The Commission made a number of findings of fact. Firstly, the intelligence that triggered the deployment of the SWAT team to the residence of the NDC Parliamentary candidate for the AWW Constituency, Mr. Kwesi Delali, was “at best of unreliable quality”. Secondly, the “reasonable security arrangement” on election day in the AWW Constituency “was abruptly disrupted by the SWAT team.” Thirdly, the SWAT team comprising, “officers of the national security establishment” was deployed, “in complete disregard of the officially laid down electoral security arrangement.”
Fourthly, the SWAT team was commanded by DSP Samuel Azugu, under the authority of the Director of Operations of the National Security Secretariat and with the ultimate responsibility of the Minister of State for National Security.” Fifthly, the SWAT team committed acts of assault against members of the public. Similarly, the warning shots fired by the SWAT team were done “in reckless disregard for the safety of persons in the vicinity” and the “wanton show of force by the SWAT team was designed to instill fear in the voting public and the crowd gathered in front of the NDC candidate’s house. Finally, the Commission established that, “the national security establishment is a means by which party faithfuls are resettled.”
These are grave and damning conclusions of fact that call for an urgent review of our national security establishment. Clearly, a national security establishment that is populated by party faithfuls is not only an imminent and present threat to our national security, it undermines the very fundamentals of our freedoms and democracy, as was witnessed during the Ayawaso West Wuogon bye-elections in January, 2019.
Adverse Findings against Individuals:
The AWW Commission made adverse findings against certain individuals. It established that Ernest Akomea alias “Double” was in possession of firearms and recommended that he should be prosecuted for unlawful possession of firearms. It further recommended that Mohammed Sulemana should be prosecuted for criminal assault. Further to that, Mr. Bryan Acheampong, the Minister of State in charge of National Security bore ultimate responsibility for the SWAT operation and should be “reprimanded” for authorizing the operation of the SWAT team “in a built up area.”
The Commission also recommended that Colonel Mike Opoku should be “reprimanded” because he was ultimately responsible for the outcome of the SWAT operation and failed to ensure that the team complied with its “defined mission.” In addition, he failed to identify the culprits whose “operational lapses” resulted in “violations of human rights.”
Government’s Rejection of Findings and Recommendations of AWW Commission
In its White Paper the Government has rejected some of the findings and recommendations of the AWW Commission. This has surprised many legal minds and analysts because the response of the Government contains palpable legal blunders. For example, the White Paper claims that the defence of provocation should avail Ernest Akomea alias “Double” on a charge of criminal assault. This is erroneous because provocation is not defence on a charge of criminal assault. Furthermore, it appears the apparent overreaction of the Government to the AWW Commission report stems from a misappreciation of the legal character and consequences of the work of the AWW Commission.
As a matter of law, the Government, for good reason, could reject the recommendations of the AWW Commission. But the Government lacks the legal authority to set aside or reject findings of a quasi-judicial body such as the AWW Commission. Therefore, Government erred grossly when it rejected or essentially sought to set aside some of the findings of the AWW Commission. For emphasis, the Executive overstretched its powers and acted without any justifiable legal basis when it sought to alter or cast doubts on the findings of the AWW Commission.
Commissions of Inquiry Do Not Sit As Criminal Courts:
Unlike commissions of inquiry constituted under the repealed Corrupt Practices (Prevention) Act, 1964 (Act 230), those set up under article 278 of the Constitution do not function like criminal courts. Their proceedings are not criminal in nature nor do they render verdicts of guilt or innocence. Therefore, when the AWW Commission recommended the prosecution of Ernest Akomea alias “Double” and Mohammed Sulemana for unlawful possession of firearms and criminal assault, respectively, it only meant that in the view of the Commission there were reasonable and probable grounds to justify their prosecution for these offences. But as the AWW Commission is not a criminal court it has no business examining any possible defences that may be available to them.
Two Types of Commissions of Inquiry: Judicial or Quasi-judicial and Non-judicial or Non- quasi-judicial:
Government’s erroneous rejection of some of the adverse findings of AWW Commission does not affect the legal validity or the legal consequences that flow from the findings. This is because the AWW Commission was a judicial or quasi-judicial commission of inquiry and it does not require the seal of approval of the Executive to validate its findings. A combined reading of articles 94 and 278 of the Constitution suggests that the Constitution anticipates the creation of two types of commissions of inquiry with different legal effects: (1) commissions that are judicial or quasi-judicial in nature; and (2) those that are neither judicial nor quasi-judicial in nature.
Under article 94 of the Constitution the adverse findings of a commission that is neither judicial nor non-quasi-judicial commission do not have the intended legal effect of disqualifying a person from being elected a Member of Parliament unless the findings have “been confirmed by a Government White Paper”. Put simply, for commissions of inquiry that are neither judicial nor quasi-judicial in nature it is the Government’s confirmation of the findings of such commissions through the issuance of a Government White Paper that provides legal validity and effect to the findings. But this is not the case for judicial or quasi-judicial commissions of inquiry, such as the AWW Commission, established pursuant to article 278 of the Constitution. Therefore, the findings of the AWW Commission are valid even without Government’s seal of approval.
Adverse findings constituting a judgment of the High Court:
For judicial or quasi-judicial commissions of inquiry, the Constitution provides two mechanisms by which their adverse findings would become a judgment of the High Court: “(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 [stating] that it does not intend to issue a White Paper on the report of the Commission, whichever is earlier.”
Since the AWW Commission report was published on 19th September 2019 any adverse finding against persons made in the report will crystallize into a judgment of the High Court six months from 19th September, 2019 (i.e. 18th March 2020). So clearly, while the Government should be granted the political liberty or convenience to reject any adverse findings contained in the AWW Commission report, such rejection is of no practical or legal significance since it will not, by any measure, prevent the findings from becoming a judgment of the High Court from 18th March 2020.
Legal Consequences of the Adverse Findings of a Commission of Inquiry:
By the provisions of the Constitution, not all adverse findings of a commission of inquiry have legal or constitutional consequences. A careful reading of the Constitution shows that the “adverse findings” with legal or constitutional consequences relate to findings of wrongdoing, fault or legal (dis)liability made against specific individuals. It is for these in-personam adverse findings that the Constitution provides a right of appeal when the findings mature into a judgment of the High Court.
Significantly, the Constitution appears to have limited the effects of in-personam adverse findings of a commission of inquiry to disqualification from occupying or non-suitability to hold, certain public offices. To have the intended legal effect of disqualifying the affected persons from holding certain public offices the adverse findings should relate to the affected person having: (1) been found to be incompetent to hold public office, (2) acquired assets unlawfully while being a public officer, (3) committed fraud against the State, (4) misused or abused public office, or (5) willfully acted in a manner prejudicial to the interest of the State. (Article 94(2) (d) of the Constitution)
Legal Consequences of the adverse findings against Ernest Akomea alias “Double”, Mohammed Sulemana, Bryan Acheampong and Colonel Mike Opoku
Under article 94(2) (d) of the Constitution, a person is disqualified from being a Member of Parliament if adverse findings of the kind stated above have been made against them and the findings have not been set aside on appeal or judicial review; or ten (10) years have not elapsed since the findings were made.
Although the circumscribed categories of adverse findings of a commission of inquiry that have constitutional or legal liabilities relate specifically to Members of Parliament or persons who aspire to be Members of Parliament they seem to apply to other public offices or public officers as well.
By the provisions of the Constitution the qualifications for Members of Parliament equally apply to a founding member, leader or a member of the executives of a political party (article 55(8)); Ministers and Deputy Minister of State (articles 78(1) and 79(2)); the President(article 62(e)), the Speaker and Deputy Speakers of Parliament( article 95(1) and 96(3)) and members of independent constitutional bodies such as the Electoral Commission ( article 44(1)) and National Commission for Civic Education (article 232(3)).
In effect, persons occupying or aspiring to occupy these public offices would be disqualified from holding such positions or be unsuitable for such positions if adverse findings are made against them within the context of article 94(2)(d) of the Constitution, by a judicial or quasi-judicial commission of inquiry such as the AWW Commission.
From the totality of the facts established by the AWW Commission, it would appear that Ernest Akomea alias “Double”, Mohammed Sulemana, Bryan Acheampong, DSP Samuel Azugu and Colonel Mike Opoku, who at all material times, were acting as public officers misused or abused their public office or willfully acted in a manner prejudicial to the interest of the State, either directly or through command or ultimate responsibility for the conduct of their subordinates. If this view is correct then there are plausible grounds for their removal from office as public officers.
It is unfortunate that a bye-election that was to provide another testimony to our steady efforts towards the consolidation of our democracy was marred and stained by State-triggered violence in a manner that surely undermines the credibility, integrity, legal and political legitimacy of the results of the AWW bye-election. The surest way to prevent the recurrence of such acts of electoral violence in the future is for the Government to faithfully and boldly implement all the recommendations of the AWW Commission.
Additionally, the wanton show of force which led to injuries of varying degrees to members of the public not only deserves condemnation but also has the potential to trigger attacks and counter attacks from political parties in future elections if adequate measures are not put in place to forestall recurrence.
Last but not least, let us commend the members and staff of the AWW Commission for their boldness, hard work and the sense of integrity they have exhibited in carrying out their work in the national interest.