United Nations Senior Mediation Advisor, Emmanuel Bombande has commended the Presidency for setting up a commission of inquiry to look into the shooting incident that marred last Thursday’s by-election at Ayawaso West Wuogon.
The former Deputy Minister of Foreign Affairs called the setting of the commission “a significant and bold step,” confident that persons selected to constitute the investigative body will bring their integrity and experience to bear in their work.
Justice Edem Srem Sai, a law lecturer at the Ghana Institute of Management and Public Administration (GIMPA) and a private legal practitioner, shares Mr. Bombande’s view. He is, however, worried about the constitutional powers of the commission.
“When I saw the commission of inquiry and the individuals, I was happy but when I look at the Commission of inquiry itself, as defined by the Constitution, then I get worried,” Justice Sai said on PM Express on Wednesday evening.
“The first problem,” he points out, “is that whatever recommendations the commission brings out is subject to the President’s discretion – whether to accept them, accept some of them, reject all of them or accept or reject some.”
“At the end of the day we still have to go back to the political discretion,” he said.
The Presidency announced Wednesday that the Commission will be chaired by former Commissioner for the Commission on Human Rights and Administrative Justice (CHRAJ), Francis Emile Short.
Celebrated law professor, Henrietta Mensa-Bonsu and a former Inspector-General of Police, Patrick Kwarteng Acheampong will assist Mr. Short, while private legal practitioner and former Dean of the GIMPA Law School, Dr. Ernest Kofi Abotsi, will be Secretary to the Commission.
The terms of reference of the Commission, according to a statement from the Presidency are as follows.
(a) to make a full, faithful and impartial inquiry into the circumstances of, and establish the facts leading to, the events and associated violence during the Ayawaso West Wuogon By-Election on the 31st day of January 2019;
(b) to identify any person responsible for or who have been involved in the events, associated violence and injuries;
(c) to inquire into any matter which the Commission considers incidental or reasonably related to the causes of the events and the associated violence and injuries; and
(d) to submit within one month its report to the President giving reasons for its findings and recommendations, including appropriate sanctions, if any.
Justice Sai said his understanding of the law is that persons who are brought to the Commission to testify as witnesses cannot be criminally prosecuted.
For commissions of inquiries, he stated, the jurisprudence is to look at problems and try to solve it in a more elaborate manner in order to pick individuals and prosecute them.
“Then the question is if you invite someone as a witness, and he says something how then do you use his testimony to later prosecute him? If a witness of a commission of inquiry was prosecuted based on his testimony, it would offend the idea of justice,” said Justice Sai.
He stated further, “if you look at the second term of reference of the Commission…obviously, the persons who are responsible or who may be found responsible are likely to be persons who if the Commission was not there could have been prosecuted.“
Ultimately, he said, the effect will be that persons who may be identified per the second term of reference of the Emile Short Commission, may not be punished.
Already, another private legal practitioner, John Ndebugri, has said the Commission is unnecessary.
He sees the move by the government as a waste of time, especially when the persons who perpetrated the acts are known, can be easily identified and dealt with without having to use a commission of enquiry.
“Those who committed the act are known, they should be apprehended, taken through the due process of investigation and charged before a court of competent jurisdiction and prosecuted. So, I don’t see the point in a commission of enquiry. It is a way of virtually sweeping matters under the carpet,” Mr. Ndebugri said on Joy FM’s Top Story, Wednesday.