The Vice-President, Dr Mahamudu Bawumia, has, with the consent of President Nana Addo Dankwa Akufo-Addo, set up a Commission of Enquiry to investigate the violence which occurred during the by-election in the Ayawaso West Wuogon Constituency on January 31, 2019.
The four-member commission has Mr Justice Emile Short as Chairman, with Professor Henrietta Mensah-Bonsu and Mr Patrick K. Acheampong as members.
A former Dean of the Faculty of Law of the Ghana Institute of Management and Public Administration (GIMPA) and a private legal practitioner, Mr Ernest Kofi Abotsi, is the Secretary to the commission.
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Terms of reference
A statement signed and issued by the Communications Director at the Presidency, Mr Eugene Arhin, yesterday clearly spelt out the terms of reference of the commission.
They include to make a full, faithful and impartial enquiry into the circumstances of, and establish the facts leading to, the events and associated violence during the Ayawaso West Wuogon by-election; to identify any person responsible for or who has been involved in the events, the associated violence and injuries; to enquire into any matter which it considers incidental or reasonably related to the causes of the events and the associated violence and injuries; to submit within one month its report to the President, giving reasons for its findings and recommendations, including appropriate sanctions, if any.
Profile of commission members
Mr Justice Emile Short is a retired judge and academic and the first Commissioner of the Commission on Human Rights and Administrative Justice (CHRAJ).
Prior to that, he had been a lecturer at the University of Cape Coast (UCC) and also lectured at the Middlesex Polytechnic in London, the United Kingdom.
He had also been a consultant for the United Nations Development Programme (UNDP), the Commonwealth Secretariat in London and the Carter Center in the United States.
Mr Justice Emile Short was appointed the Commissioner of CHRAJ at the beginning of the Fourth Republic in 1993 by President Jerry John Rawlings. Prior to working with CHRAJ, he had been the head of a law firm.
In 2004, he took indefinite leave from his position at CHRAJ to be the Ad Litem Judge with the UN International Criminal Tribunal for Rwanda at Arusha in Tanzania after he had been elected to that position by the UN General Assembly.
That was during the prosecution of perpetrators of war crimes in Rwanda. He returned to his position at CHRAJ in August 2009 and retired in December 2010.
Prof. Henrietta Joy Abena Nyarko Mensa-Bonsu is the Director of the Legon Centre for International Affairs and Diplomacy (LECIAD).
She was employed as a lecturer at the Faculty of Law of the University of Ghana in 1985 and rose through the ranks to attain full professorship in 2002.
In 2003, she was elected Fellow of the Ghana Academy of Arts and Sciences.
Prof. Mensa-Bonsu has served on a number of high-level national and international assignments.
She served on the Legal Committee of the Ghana National Commission on Children; represented Ghana on the Inter-governmental Meeting of Experts on the Draft African Charter on the Rights of the Child; served as a member of the President’s Committee on the Review of Educational Reforms, the National Reconciliation Commission and the Ghana Police Council.
In the international arena, Prof. Mensa-Bonsu served as the ECOWAS nominee on the International Technical Advisory Committee for the Liberian Truth and Reconciliation Commission; Vice-Chairperson of the ECOWAS Working Group on the Harmonisation of Business Laws on non-OHADA States; member of the OAU’s Committee of Eminent Jurists on the Lockerbie Case and the AU’s Committee of Eminent Jurists on the Hissene Habre Case.
A high point in these positions was her appointment as the Deputy Special Representative of the UN Secretary-General for Rule of Law (DSRSG) in the UN Mission in Liberia (UNMIL) with the rank of Assistant Secretary-General in 2007.
Mr Acheampong is a barrister at law and former Inspector General of Police (IGP).
In the Ghana Police Service, he first worked as a prosecutor at the law courts in Accra from September 1976.
He was then appointed Executive Secretary to the IGP at the Ghana Police Headquarters in June 1979.
During the PNDC era, he became the Assistant Special Public Prosecutor at the Office of the Special Public Prosecutor of the National Public Tribunals of Ghana, a function he performed till June 1986.
He also worked at the National Police Headquarters as the Deputy Commissioner in charge of Administration.
In September 1998, he was appointed the Commandant of the Ghana Police College and is credited with overseeing the reorganisation and restructuring of the college.
He became the Director of the Criminal Investigations Department (CID) in February 2001. It was during his tenure that the serial murderer, Charles Quansah, was arrested.
In August 2002, he became the Deputy IGP (Operations) and was also the acting Chairman of the National Election Task Force which supervised the security arrangements for the 2004 presidential and parliamentary elections in Ghana in December 2004.
On March 25, 2005, his 54th birthday, he was appointed by then President John Agyekum Kufuor as the IGP.
Mr Acheampong retired from the Ghana Police Service in January 2009.
Mr Ernest Kofi Abotsi
Mr Abotsi holds a master’s degree in Law and has rich experience in corporate and commercial law, which includes legal asset management, securities and equity restructuring, oil & gas, among other issues.
He is a partner of Axis Legal and a former Dean of the Faculty of Law, GIMPA.
There has been a huge public outcry over the violence that characterised the elections at Ayawaso West Wuogon.
At least 18 people were injured, some seriously, when masked men believed to be with the National Security opened gunfire on some supporters of the National Democratic Congress ( NDC) candidate, Mr Delali Kwasi Brempong, at his residence at Bawaleshie.
The NDC MP for Ningo-Prampram, Mr Samuel Nartey George, was also allegedly assaulted by some security men.
Since the incident, organisations, including the Ghana Bar Association (GBA), the Coalition of Domestic Election Observers (CODEO), CHRAJ, as well as many individuals, have condemned it, describing it as a dent on the image of Ghana’s democracy.
They, therefore, called on the President to institute investigations into the brutalities and bring the perpetrators to book.
What the Constitution says
Per Article 278 (1) of the 1992 Constitution, the President, subject to a constitutional instrument, can appoint a commission of inquiry into any matter of public interest where:
(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 interest.
Clause (3) of Article 278 stipulates that the chairman of a commission of inquiry shall be a justice of the superior court or a person qualified to be appointed a justice of a superior court, or a person who has held the office as a justice of the superior court or a person who possesses special qualification or knowledge in respect of the matter being investigated.
Article 279 states that a commission of inquiry shall have the powers, rights and privileges of a High Court. This means it can enforce attendance of witnesses and examine them. It can also compel the production of documents.
Again, Article 280 (1) enjoins a commission of inquiry to make a full, faithful and impartial inquiry into any matter that it has been entrusted with. Its report on the result of the inquiry must be in writing and it must include the reasons leading to the conclusions stated in the report.
Clause 2 of Article 280 states that any findings, including adverse findings, shall be deemed a judgement of the High Court which can only be challenged by an appeal at the Court of Appeal and ultimately the Supreme Court.
Article 280 (3) directs the President to ensure that the report of a Commission of Inquiry, together with a White Paper, is published within six months.
Clause 4 of Article 280 says that the President shall give reasons, in the event where the report of the Commission of Inquiry is not to be published.
Views from lawyers
Commenting on the appointment of the commission, the President of the GBA, Mr Tony Forson, described it as a good move .
He was particularly happy with the calibre of the members of the commission.
“It shows that the government has listened to people’s concerns, but we still mourn the blight on Ghana’s democratic credentials,’’ he said.
A private legal practitioner, Mr Martin Kpebu, said the Commission of Inquiry was a step in the right direction because the violence at Ayawaso West Wuogon shocked the conscience of the nation.
He, however, called on Ghanaians to put pressure on the government to implement the recommendations of the commission.
“If the commission says there should be prosecutions, then the prosecutions should be done,’’ he said.
A private legal practitioner in Zebilla in the Upper East Region, Mr John Akparobo Ndebugre, on his part said commissions of enquiries are not useful tools to deal with wrongdoings in the society.
At best, he said they can be described as red herrings.
He said the people who perpetrated the violence were known personalities as a Minister of State responsible for National Security had admitted sending the people on the operations.
He said such people should be arrested and prosecuted.
The Commission of Enquiry that has been set up, he said, was made up of reputable and respectable people in the society who would do a good work but wondered whether their report will not be swept under the carpet by the President.
He said according to Article 278 of the Constitution which empowers the President to appoint a Commission of Enquiry, people who appear before the commission are witnesses and not suspects saying such witnesses are deemed to be assisting the commission with information and in the ordinary course of events, such witnesses are immune from prosecution.
He explained that it also provides that when the commission makes adverse findings against an individual, that person was adjudged guilty by a High Court making it difficult for recommendations of commissions of enquiries to form the basis for prosecution because it will be deemed to be double jeopardy.
He asked “do you see why there have not been any successful prosecutions of witnesses who appeared before the Wuaku, Judgement Debt and Golden Jubilee commissions of enquiry?”