Mr Kwadwo Okyere Mpiani, the former Chief of Staff and Chairman of the National Planning Committee (NPC) of the Ghana@50 celebrations, and Dr Charles Wereko-Brobby, the former Chief Executive Officer of the Ghana@50 Secretariat, who were being tried for causing financial loss to the State were yesterday discharged from the charges by the Accra Fast Track High Court.
According to the court, the findings of a commission of inquiry set up under the Constitution constituted a judgement of the court, for which it had no jurisdiction to entertain and disturb.
It said the findings of a commission of inquiry ought to be recognised and respected by the Judiciary because of its constitutional backing.
It was only the Court of Appeal, it said, that had the jurisdiction to determine the appeals from the judgements of the High Court, as provided for under Article 280, adding, “This High Court has no jurisdiction to disturb the findings of the commission of inquiry, which are its own judgement.”
The court’s ruling was after it had struck out the charges and set aside the prosecution as unconstitutional and violating the defendants’ right of appeal under the 1992 Constitution.
The two were charged following the release of the government’s White Paper on the report of the Ghana@50 Commission of Inquiry into the activities of the Ghana@50 Secretariat and the entire celebration, which recommended their prosecution.
They pleaded not guilty to four counts of wilfully causing financial loss to the State and were each admitted to a GH¢35 million self-recognisance bail.
The commission recommended the prosecution of the two because although Parliament had approved GH¢29.31 million for the celebration, GH¢97,776,338.44 had been spent on it, out of which GH¢75,569,563.34 had directly been spent by the secretariat and the NPC.
The secretariat and the NPC, therefore, spent GH¢46,999,563 in excess of the amount of money approved by Parliament for the celebration, the commission said.
The prosecution further stated that the commission also found that, contrary to articles 176 and 178 of the 1992 Constitution, the NPC and the secretariat used all the internally generated funds, totalling GH¢19,352,498, without any approval from Parliament.
After the arraignment of the two public officials, their lawyers prayed the court, in a motion, for an order to strike out the criminal proceedings brought against them because it was unconstitutional, while the court also lacked jurisdiction over the matter.
Defence counsel argued, among others, that by Article 280 (2) of the 1992 Constitution, when a commission of enquiry had made adverse findings against a person, the report of the commission shall be deemed to be a judgement of the High Court and, accordingly, an appeal shall lie as of right to the Court of Appeal in respect of the commission’s findings.
“The election of the Republic to mount this prosecution offends the letter and spirit of Article 278 and other relevant provisions of the 1992 Constitution,” Mr Yonny Kulendi, lead counsel for Mr Mpiani, argued, adding that the functions and powers of the Ghana@50 Commission of Enquiry ran equally with those of the court.
On the other hand, the State argued that the powers of the Attorney-General to prosecute under Article 88 of the 1992 Constitution could not be restrained by any court.
Mr Anthony Gyambiby, a Chief State Attorney, argued that the arraignment of the accused persons did not amount to incarceration without offering them the opportunity to a fair hearing, as provided for under the Constitution.
He said the accused persons would be afforded the opportunity to a fair hearing so that at the end of the prosecution's case if the court realised that no case had been made against them, it would so decide.
"They are not going through a kangaroo trial and be sentenced," he said, adding that the provision in Article 280 (5) destroyed the arguments of the defence.
According to Mr Gyambiby, that provision had a proviso that before the finding of a commission of inquiry became a judgement of the court, six months must elapse after the finding had been released and announced to the public.
He said within that period, the Attorney-General was mandated to take the action she had taken to prosecute the accused persons.
However, at its sitting yesterday, the court, presided over by Mr Samuel Marful-Sau, a Court of Appeal judge with additional responsibility as a High Court judge in the matter, upheld the motion by the defence and ruled that the Constitutional Instrument (C.I.) 61 that set up the Ghana@50 Commission of Inquiry made the prosecution of the two unlawful and contrary to its terms of reference.
It said the way to go about punishing public officials for any wrong against the State was not the setting up of a commission of inquiry under the Constitution.
Rather, the State must make use of its traditional investigative machinery, such as the police and the SFO, before embarking on any criminal trial.
The Attorney-General, the court said, was not required by the provisions of articles 94, 62, among others, of the 1992 Constitution to take criminal action against persons against whom adverse findings had been made by a commission of inquiry because such findings constituted a judgement of the High Court.
It said the nature, effect and scope of the Ghana@50 Commission of Inquiry were deemed to be a judgement of the court in view of the fact that the government had issued a White Paper on the commission’s findings and also published those findings.
The government, it ruled, had elected to make the findings of the commission a judgement of the court, adding that since the report was published on April 21, 2010, the six-month period required to elapse to enable the accused persons to appeal had not expired.
It said Article 278 of the 1992 Constitution did not allow the A-G to institute criminal action in that regard and that doing that would lead to judicial absurdity if the two former public officials decided to exercise their right of appeal to the Court of Appeal, which they were guaranteed by the Constitution.
The court gave a chronology of some past commissions of inquiry, including the Yendi Events Commission, the Accra Sports Stadium Disaster Commission and others which erroneously made recommendations that persons who appeared before them be prosecuted and were followed.
“The Ghana@50 Commission erred when it recommended that applicants be prosecuted,” it ruled, and added that C.I. 61 which set up the commission raised issues that persons who appeared before it shall not be prosecuted under any enactment after being compelled to appear and testify,” it said.
The court said the requirements of appearance before the commission were such that anybody who appeared was compelled to testify and be in contempt of court for failing to appear, unlike in a criminal trial in which an accused could not be compelled to testify against himself.
It said a witness who appeared before a commission of inquiry was entitled to some immunity and privileges as the one who appeared before the High Court and, therefore, the provisions in C.I. 61 were contradictory to the Constitution.
It, however, disagreed with defence counsel that the applicants were the subject matter of the Ghana@50 Commission of Inquiry but only appeared as witnesses, since its terms were to investigate the Ghana@50 Secretariat.
The facts of the case are that Parliament approved $31.80 million, equivalent to GH¢29.31 million, for the celebration of Ghana@50 from January to December 2007 and the holding of the African Union (AU) Summit.
According to the prosecution, the amount was made up of a first tranche of GH¢18.29 million, which was approved by Parliament on July 20, 2006, and a second tranche, which was a loan of $11.80 million, equivalent to GH¢11.02 million, contracted from Fidelity Bank and approved by Parliament.
It said aside from those sums approved by Parliament, “huge sums of money appeared to have been spent on the celebrations”, adding that more than a year after the celebrations, many projects remained uncompleted and the government was saddled with huge debts.
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