EC set on fire: All about the Article 146 probe - Samson Anyenini

My good friend Martin Kpebu insisted I write this article, ignoring my excuses including that I have been particularly busy recently. It is public knowledge I led prosecution of the petition by Richard Nyamah for the removal from office of the Commissioner for the Commission on Human Rights and Administrative Justice – CHRAJ, Ms. Lauretta Vivian Lamptey in 2015. Martin is right. I have turned down just too many media interview requests for public education especially on the procedure for such a probe, since Tuesday 28th November 2017 when news broke about commencement of the investigations.

In this article, I explain:

(i) that article 146 is a key safeguard of the independence required to further secure the job of a judge of the superior court,

(ii) that it was extended to commissioners of independent constitutional bodies such as CHRAJ, NCCE and EC for same purpose,

(iii) that the president’s role in receiving and transmitting a petition to the Chief Justice (CJ) is merely that of a postmaster/conveyor-belt and only ministerial in the suspension of a party pending conclusion of the probe and communicating the outcome of the probe at the end,

(iv) that the process is conducted in-camera - not open to the public, and a breach of this confidential rule exposes one to sanctions including arising from possible criminal prosecution, damages for constitutional infraction, damages from defamation suit or breach of injunction or committal for contempt. I then explain

(v) that the framers of the Constitution set out to establish an inquisitorial rather than an adversarial process, and conclude by pointing out

(vi) that the initial stages of the ongoing exercise, as widely reported in the media, involving the Electoral Commission (EC) Chair and the two deputies, is fraught with procedural challenges that may work to affect it adversely.

What is article 146 - The extensive eleven-clause single article provision is under the terms and conditions of service of a superior court judge and more specifically details the procedure for removal from office of justices of the superior courts. It is extended to commissioners of independent constitutional bodies including the CHRAJ, the NCCE and the EC because they must qualify to be a justice of the Court of Appeal or High Court and/or are made to enjoy the terms and conditions of service of judges of that class. Ghana’s executive president has a hand in the appointment of almost all heads and key public officials by virtue of article 70 and other laws creating those offices. This absurd situation that gives a president free hand even to create the avenues and fill them with as many appointees as he desires must be the major subject of the next constitutional review.

The legislative checks and necessary restraints are critical to avoid having to wish and pray that the next president might not require far more than one hundred and ten ministers to govern. This article 146 mechanism for removing officers from such vital democracy-protecting offices is therefore necessary to safeguard the independence of the holders. I have heard some suggest the Richard Nyamah petition was the first against a commissioner subject of article 146 since the 1992 Constitution. That’s incorrect. The first such invocation of article 146 against a subject other than a judge, and which was pursued to its logical conclusion, was the Justice Acquah Committee probe that led to the removal on 28th of August 1999 of Dr. Jacob Emmanuel Oppong, then Deputy Chairman of the National Commission for Civic Education (NCCE). He had been appointed to the office on the 6th of July 1993. He sought subsequently but failed miserably to impugn the outcome in the Supreme Court.

Send a petition to/through the President - Article 146 probe commences with a petition to the President, and who, acting merely as conveyor-belt or postmaster without any discretion, is required mandatorily to refer the petition to the Chief Justice for action. It is the duty of the CJ to examine the petition and determine if there is a prima facie case. The specific provision in clause 3 instructs that: “If the President receives a petition for the removal of Justice of a Superior Court other than the Chief Justice or for the removal of the Chairman of a Regional Tribunal, he shall refer the petition to the Chief Justice, who shall determine whether there is a prima facie case.”

Prima Facie - What is prima facie in Latin? Prima is primus and means first and facie refers to face. To the trained, this quasi judicial but administrative function of the CJ is that simple to do – first impressions from looking at the petition. The Oxford Law Dictionary deals with prima facie evidence as presumptive and defines it to be; (1) “evidence that is sufficient to discharge the burden of proof borne by a party and that may be sufficient to discharge the persuasive burden of proof if no evidence in rebuttal is tendered.”

Or (2) “evidence of a fact that is of sufficient weight to justify a reasonable inference of its existence but does not amount to conclusive evidence of that fact.” The CJ is not under obligation to have the response of the Respondent (accused), but they (CJs) have created a precedent of first forwarding the petition to the Respondent for his/her response to the allegation(s) made by the Petitioner before determining whether it is worth inquiring into by setting up the five-member committee as dictated by article 146(4).

It has to be said that the petition ought not necessarily be written by a lawyer or some expert with all the legal or grand formalization that such professionals are accustomed to. The law’s instruction is for a petitioner or respondent’s choice to use a lawyer or an expert for hearing and not for drafting the petition. Ms. Lamptey had suggested she wanted to conduct the case by herself but the Justice Anin Yeboah Committee advised against it and actually insisted she hired counsel. The first hearing was adjourned to allow her time to secure the services of a lawyer. The petition simply must be a piece of writing or letter by an identifiable person who makes a complaint of wrongdoing, incompetence, incapacitating mental condition or ill-health of a justice of the superior court or such commissioners of such independent constitutional bodies subject to article 146. There is record that certain presidents have refused to forward petitions to the CJ, but this is wrong. The problem may be with the lack of timelines in the Constitution for the performance of this and associated roles, but holders of the high office must be guided by the general principle of law requiring that where time for a specific act has not been supplied, such an act must be done within reasonable time. It is now public knowledge that both presidents John Mills and Nana Akufo-Addo have refused to act on a petition sent to them separately against then Chief Justice Georgina Theodora Wood, regardless how frivolous that petition. President John Mahama also refused to forward a petition against Charlotte Osei over allegations especially of conflict of interest in her membership of the board of Ghana Re Insurance while serving as NCCE Chairperson and later as EC Chairperson. I can expect a suit soon or in the near future over such conduct by presidents.

I have already noted that a president has no discretion but to pass the petition on to the CJ or act on it where it involves the CJ. In 2014, there were actually several petitions for the removal of the CHRAJ boss, and the President forwarded all of them to the CJ. In fact, some, including a sitting Legislator had disclosed in the media that they had sent petitions. CJ Wood confirmed this in her twenty-four page prima facie decision. It was she and lawfully so who determined what passed the test and what was frivolous and an abuse of the process and thrashed such petitions that deserved a place only in the dust bin.

What complaint qualifies - The petition cannot be at large and about any and everything the Petitioner is aggrieved about. The defining clause (1) circumscribes the nature of complaints to be entertained thus: “A Justice of the Superior Court or a Chairman of the Regional Tribunal shall not be removed from office except for stated misbehaviour or incompetence or on ground of inability to perform the functions of his office arising from infirmity of body or mind. This is to avoid the subject justices and commissioners being unnecessarily and mischievously disturbed and vexed with petitions that are frivolous and intended to abuse the process. It is easy to contemplate how a jilted lover or bitter spouse or a political adversary would have used article 146 or be sponsored to activate same in the absence of the qualified nature of such petitions. It is equally not difficult to imagine what the attrition rate would have been for such office holders or disinterest for same.

Two of the three grounds, i.e. incompetence and inability to perform one’s functions may lend themselves to easily identifiable and verifiable facts as against the requirement in proving the ground of stated misbehaviour. What is a lot easier is to allege and proceed to prove a petition on the “ground of inability to perform the functions of his office arising from infirmity of body or mind.” These are medical conditions and therefore require, primarily, a medical certificate from a qualified physician to prove one is mentally unstable or so ill that they cannot be expected or allowed to continue in office.

If petition for removal of the CJ - It is instructive at this point to point readers to clause (6) and supply the self-explanatory provision which reads: “[w]here the petition is for the removal of the Chief Justice, the President shall, acting in consultation with the Council of State, appoint a committee consisting of two Justices of the Supreme Court, one of whom shall be appointed chairman by the President, and three other persons who are not members of the Council of State, nor members of Parliament, nor lawyers.”

This situation where the CJ is not allowed to make the prima facie determination of a petition against the CJ accords with a cardinal principle of the rules of natural justice forbidding one to be a judge in their own cause. Here, the President is obviously elevated in the role he plays as he is seen to participate in the CJ’s clause (4) role. In 2005, renowned lawyer Bright Akwetey through a suit arising from a petition for the removal of the CJ, presented the Supreme Court the opportunity to clarify that the framers of the Constitution inadvertently omitted the critical requirement for prima facie determination before a clause (6) committee will be set up. The court stressed that a prima facie determination was a sine qua non (an essential precondition) to the President establishing the committee. The duty of establishing the committee, in this instance, in part, is cast upon him, therefore he, was to consult with the Council of State, and may also get the help of an experienced independent lawyer to do this job. The President and Council of State got advice to devise a method for achieving this important first step for transparency and accountability while avoiding frivolous and vexatious petitions against the CJ. Indeed, it was not difficult for the Supreme Court to fill this gap left in clause (6) by inadvertence on the part of the framers because the Committee of Experts Report (on the proposals for a draft constitution 1991) laid before the Consultative Assembly had required the President to refer the petition to the Judicial Committee of the Council of State for the prima facie determination before the establishment of the committee to conduct the probe. Though an administrative function, making prima facie is a quasi judicial duty and there is no guarantee that a president would be a trained lawyer to be able to discharge same, and it cannot be gainsaid that a politician would be tempted to abuse such power and arbitrarily engineer a petition against a CJ and proceed to suspend same to serve his/her mischievous aims.

Composition of Judicial Council – The eighteen-member Judicial Council that plays a significant role in the article 146 process especially in advising the CJ in appointing certain members of the panel and advising for suspension of a respondent is a serious constitutional body provided for in article 153 to comprise the following persons:-

(a) the Chief Justice who shall be Chairman;

(b) the Attorney-General;

(c) a Justice of the Supreme Court nominated by the Justices of the Supreme court;

(d) a Justice of the Court of Appeal nominated by the Justices of the Court of Appeal;

(e) a Justice of the High court nominated by the Justices of the High Court;

(f) two representatives of the Ghana Bar Association one of whom shall be a person of not less than twelve years' standing as a lawyer.

(g) a representative of the Chairmen of Regional Tribunals nominated by the Chairmen;

(h) a representative of the lower courts or tribunals;

(i) the Judge Advocate-General of the Ghana Armed Forces;

(j) the Head of the Legal Directorate of the Police Service;

(k) the Editor of the Ghana Law Reports;

(l) a representative of the Judicial Service Staff Association nominated by the Association;

(m) a chief nominated by the National House of Chiefs; and

(n) four other persons who are not lawyers appointed by the President

In a similar vein, the article 89 twenty-five-member Council of State which advises the CJ in the appointment of certain members of the panel, also advises the President in the appointment of the panel that probes the CJ as well as suspension of the CJ.

The ground of stated misbeaviour, what is it - Though criminal, telling a lie under oath or violating law could constitute stated misbehaviour. “By virtue of his office as a judge of the United States District Court for the Southern District of Mississippi, Judge Nixon is required to uphold the integrity of the judiciary to avoid impropriety and the appearance of impropriety and to obey the laws of the United States. Judge Nixon has raised substantial doubt as to his judicial integrity, undermined confidence in the integrity and impartiality of the judiciary, betrayed the trust of the people of the United States, disobeyed the laws of the United States and brought disrepute on the Federal courts…” This is an excerpt from the impeachment document invoking a similar process that saw the removal in 1989 of US Federal Judge Walter L. Nixon Jr. for perjury. The grounds of the Petition against Ms. Lamptey were summarized under the heads of “acts of serious misconduct, inappropriate exercise of office, serious misjudgment, breaches of laws and public trust”. One of the alleged and proved breaches of laws was in respect of Ghana’s rent laws that forbid certain amounts in rental advance payments. Section 25 sub-section 5 of the Rent Act provides that “[a]ny person who as a condition of the grant, renewal or continuance of a tenancy demands in the case of a monthly or shorter tenancy, the payment in advance of more than a month's rent or in the case of a tenancy exceeding six months, the payment in advance of more than six months rent shall be guilty of an offence and shall upon conviction by the appropriate Rent Magistrate be liable to a fine not exceeding one hundred pounds.” This section is most abused in Ghana but article 146 subjects who are mostly mandated to educate citizens on same and enforce same must be the last to be involved in such breach. The report will capture she admitted under cross examination that “I must confess that I was not aware that the limitation for rent advance was six months. I was under the impression that the legal limit was two years.”

Subjects of article 146 were entitled to 20% rent allowance for self-housing and so there was also a breach of article 223(1) by her conduct. The Constitutional stipulation regarding the terms and conditions of service of a CHRAJ Commissioner is that “[t]he Commissioner and deputy Commissioners shall enjoy the terms and conditions of service of a Justice of the Court of Appeal and High Court respectively.” The provision is mandatory and non negotiable by the use of “shall”. Therefore the monthly rent of US$ 4,500.00 she was enjoying and which she admitted was paid to the landlord for the period of her stay at the plush AU Village though in the cedi equivalent was several times more than the 20% of a Court of Appeal judge’s monthly salary of about GHC 8,000.00 which she was entitled as monthly rent allowance in lieu of official accommodation.

I am painstakingly explaining this to assist readers appreciate what will properly ground an article 146 petition and pass the critical prima facie threshold towards a successful petition. Her Ladyship the Chief Justice noted, in the Ms. Lamptey case, at page three in her prima facie finding that the term “misbehaviour” within the meaning of article 146 (3) has not been judicially defined yet. Recourse therefore should be had to dictionary definition for the ordinary meaning of same to imply improper or unlawful conduct of a person or an entity. To CJ Wood, “[a]ny moral turpitude, decadence, grave lapses of judgment and the like, in performance of their functions of office for example, may be classified as misbehaviour.”

Black’s Law Dictionary, 8th edition 2004 defines the term “misbehavior” as referable to and synonymous with “misconduct” and defines same as “[a] dereliction of duty; unlawful or improper behavior.” It then proceeds to define“official misconduct [as] a public officer's corrupt violation of assigned duties by malfeasance, misfeasance, or nonfeasance. — Also termed misconduct in office; misbehavior in office; malconduct in office; misdemeanor in office; corruption in office; official corruption; political corruption.”

It is important not to lose sight of the fact that commissioner-subjects of article 146 are placed on the same level as Justices of the Court of Appeal.

That’s what the Constitution dictates with fluorescent clarity in the relevant provisions including in articles 221 and 223 which set the qualification for appointment and terms and conditions of service of commissioners of CHRAJ for example to those of Justices of the Court of Appeal; “[a] person shall not be qualified for appointment as a Commissioner or a Deputy Commissioner for Human Rights and Administrative Justice, unless he is - in the case of Commissioner, qualified for appointment as a Justice of the Court of Appeal;…The Commissioner and deputy Commissioners shall enjoy the terms and conditions of service of a Justice of the Court of Appeal and High Court respectively.” What then are the basic entry qualification criteria for a justice of the Court of Appeal? The answer is a direct one in article 136 (3) which provides that ”[a] person shall not be qualified for appointment as a Justice of the Court of Appeal unless he is of high moral character and proven integrity and is of not less than twelve years' standing as a lawyer.”

It is abundantly clear then that commissioner-subjects of article 146 while enjoying the privileges and benefits of the status and terms and conditions of service of justices of the Court of Appeal are equally legitimately expected to exhibit the character and conduct required of such officers of the state – “high moral character and proven integrity”.

SUSPENSION OF RESPONDENT NOT AUTOMATIC - There is this wrong information and education out there that once prima facie is made against a subject of article 146, the President must suspend him/her pending the determination of the petition. In the Ms. Lamptey case, my client and I knew we were not exactly entitled as of right to demand her suspension, but we found it a good strategy to make that demand immediately the prima facie case was made against her. We wrote to the President asking that he invokes his powers under clause (10) for reasons including that we needed to procure further documents from her office to tender at the hearing and witnesses to testify in the matter. We argued that it was impossible to access those documents material to the case and secure the commitment of those witnesses if she was still at post presiding over affairs of CHRAJ. We were certainly not unaware that the President’s power here is exercisable only upon the advice of the Judicial Council. The provision is very clear thus:

(10) Where a petition has been referred to a committee under this article, the President may -

(a) in the case of the Chief Justice, acting in accordance with the advice of the Council of State, by warrant signed by him, suspend the Chief Justice;

(b) in the case of any other Justice of a Superior court or of a Chairman of a Regional Tribunal, acting in accordance with the advice of the Judicial Council, suspend that Justice or that Chairman of a Regional Tribunal.

In fact, the use of “may” here makes the President’s exercise of this power one that is at his election. It is purely at his discretion. He is not bound by an advice to suspend a Respondent or subject of article 146 upon the determination of a prima facie case. In circumstances where the President suspends a respondent, he is equally empowered, as provided in clause (11), to decide at any time to revoke the suspension, and not only after such a person has been found not guilty of the allegations against them. Again, for the avoidance of doubt, in July 2016 the Supreme Court through the Ghana Bar Association and Richard Dela Sky and Kwasi Danso-Acheampong consolidated cases affirmed effectively that the President is not bound by same where he is required to seek advice including from the Council of State and the Judicial Council in performing a constitutional function such as the appointment of a justice of the superior courts or a commissioner of an independent constitutional body like the chairperson of the Electoral Commission.

The in-camera proceedings - The entire article 146 process of investigation/inquiry is held within closed-doors (privately and confidentially - away from the public). The reproduction of the various clauses of the provision in this article is to serve purposes including, to indicate and undergird the procedure and the fact that the constitutional provision is aimed primarily at ensuring proof of misconduct or such as required for the removal from office of article 146 subjects. The panel is to inquire (clause 7) where the petition is against the CJ, and it is to investigate (clause 5) where it is against any article 146 subject. It is without a doubt that the process of an article 146 panel is largely inquisitorial rather than adversarial. I shall return to this shortly. The point to note also is that a breach of this confidential rule may be treated as a breach of an injunction. The breach could expose one to sanctions including arising from possible prosecution where there is such legislation, committal for contempt of the High Court, damages for constitutional infraction where appropriate or a defamation suit. In February 2016 the Supreme Court held in the Justice Paul Dery case that unconstitutional disclosure may trigger such sanctions where appropriate although “[t]he Constitution does not provide any penalty for unconstitutional disclosure and does not also afford any remedies that are available to a party affected by the disclosure.” The court did not have any doubts that the prohibition serves as an injunction and a violation treated as a breach of same. Its concern was that while in countries like India and the USA there is legislation prescribing penalties including award of damages for violation of this confidentiality rule, Ghana had no such legislation. I can say that during the Ms. Lamptey proceedings, the media was persistent but failed miserably to get even a whiff to report. They initially came to the premises of the Supreme Court and waited till proceedings closed for each day and accosted us but they eventually gave up. Some journalists made private contacts to Richard and I but had to abandon such pursuits until the conclusion and eventual announcement of her dismissal in November 2015.

It is more inquisitorial than adversarial – In context of the court, judges in an adversarial process often act as impartial umpires and leave especially lawyers with superior facts and legal arguments to win a case. Lord Denning, A famous English jurist whose judicial opinions have become legendary in all common law jurisdictions once said in the case of JONES VRS. NATIONAL COAL BOARD [1957]2 QB.55 inter alia as follows: “… In the system of trial which we have evolved in this country, the judge seeks to hear and to determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries… Let the advocate, one after the other put the weights into the scales… but the judge at the end decides which way the balance tilts, be it ever so lightly. So firmly is all this established in our law that the judge is not allowed in a civil dispute to call a witness whom he thinks might throw some light on the facts. He must rest content with the witnesses called by the parties. So also it is for the advocate, each in his turn, to examine the witnesses, and not for the judge to take it on himself lest by so doing he appears to favour one side or the other… And it is the advocate to state his case as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost… The judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been over looked or left obscure, to see that the advocates behave themselves seemingly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the role of an advocate, and he does not become him well.”

But it bears repeating that it becomes clear and by a casual reading, that the mechanism intended to be set in motion is for the purposes of investigations or inquiry. These panels often resort to the civil procedure rules and the general rules of evidence, but the point here is that the inquisitorial process requires their active participation including in verifying or interrogating the evidence and through cross examinations of the parties.

These two key words investigate or inquire ordinarily carry the meaning the Merriam-Webster Dictionary places on them. It says to investigate means:

“to try to find out the facts about (something, such as a crime or an accident) in order to learn how it happened, who did it, etc.

: to try to get information about (someone who may have done something illegal).”

The same dictionary defines inquiry in three ways:

“a request for information

: an official effort to collect and examine information about something

: the act of asking questions in order to gather or collect information.”

In fact, the two words are often used synonymously interchangeably, and for the present purposes the second definition of investigation and the third definition of inquiry may more graphically describe the activity required to explain both words.

It becomes quite clear that the standard required to prove allegations such as misconduct or misbehaviour against a subject of article 146 may involve more than a complainant’s evidence in support of same or a respondent’s defence or rebuttal of same in examination in chief and cross examination. The Article 146 Panel certainly require more than the presentation of documentary evidence in proof of the allegations where necessary as the panel would do more than merely receiving and perusing documents presented by either or both parties in its investigations into an allegation against such senior officers of such sensitive offices of the state. The rigor required most importantly, represents a step of deeper scrutiny farther from the preliminary process to establishing a prima facie case.

It ought to be appreciated that it is for good reason that engineers of the state and democratic enterprise having guaranteed the independence of the judiciary, also carefully designed the Article 146 Panel to further ensure that justices of the Superior Courts (and such officers as commissioners of independent constitutional bodies) are not easily removed. They would lose the needed protection expected of the state to preserve the independence so fundamentally required and guaranteed. Article 145 (1) secures this independence of the judiciary most firmly in providing that this critical branch of government “shall be independent and subject only to this Constitution.”

It is further provided in Article 127(1) and (2) thus:

“(1) In the exercise of the judicial power of Ghana, the Judiciary, in both its judicial and administrative functions, including financial administration, is subject only to this Constitution and shall not be subject to the control or direction of any person or authority.”

(2) Neither the President nor Parliament nor any person acting under the authority of the President or Parliament nor any other person whatsoever shall interfere with Justices or judicial officers or other persons exercising judicial power, in the exercise of other judicial functions; and all organs and agencies of the State shall accord to the Courts such assistance as the Courts may reasonably require to protect the independence, dignity and effectiveness of the Courts, subject to this Constitution.”

Sophia Akuffo JSC, as she then was, thus emphasized in Attorney-General (No.2) v. Tsatsu Tsikata (No.2) [2001-2002] SCGLR 620 at page 664 that the independence of the Judiciary was “[a] collective principle of constitutional democracy as enshrined in the Constitution.”

The Committee of Experts Report (on the proposals for a draft constitution 1991) laid before the Consultative Assembly at paragraph 286 on the removal of judges captures this rationale even better:

“On the removal of judges of the Superior Courts, the Committee, conscious of the need to ensure that judges are not arbitrarily removed from office, proposes that the Chief Justice or a Judge of the Superior Courts may be removed from office only for inability to perform the functions of his or her office, arising from infirmity of body or mind or for stated misbehavior or incompetence…” .

Consequently and almost at the risk of sounding repetitive, the independence of the judiciary which must be jealously guarded will be in serious jeopardy and subjects of article 146 left in such a precarious situation if an Article 146 Panel is not to conduct inquisitorial but only adversarial proceedings in verifying allegations of misconduct or misbehavior against a subject of article 146.

It is for this reason that when Richard Nyamah submitted his Petition of 30th September 2014 to his Excellency the President of the Republic of Ghana, he did not only carefully craft the Petition to meet the requirements of law but also supplied a body of relevant material evidence. This was acknowledged by Her Ladyship the Chief Justice when she received same on the 15th of October 2014 and made the prima facie finding delivered to Petitioner’s Counsel with a letter dated 2nd December 2014 necessitating the establishment of the Committee which was also communicated to Petitioner in letter dated 5th January 2015.

I refer to a salient part of this acknowledgment in pages 6 to 8 of her said finding leading to the consideration of Richard Nyamah’s Petition and the dismissal of other petitions including one submitted by a Member of Parliament for the same purpose. She observed thus: “[a]mong other things, a formal petition would enable a petitioner to formulate specifically and distinctly – clearly and concisely – the ground(s) for removal and specific act(s) which constitute the impugned conduct; the evidence in support of same, with the necessary annexure(s) if any, clearly marked and numbered; indeed all the essential facts on which the removal is premised…The petition under consideration is in solemn form and appropriately meets the basic requirements as explained above.”

How the ec case will be conducted - Now, because our courts have by the High Court (Civil Procedure) (Amendment) Rules, 2014 (C.I. 87) introduced Witness Statement, commissioners of the EC will be required to file witness statements either simultaneously with the petitioners or a period after the petitioners have filed theirs. These witness statements will contain detailed information regarding the allegations or the responses and the parties will also attach to these statements all the material evidences they intend to rely on to prove their case. If they have any witnesses, those witnesses will also file their signed and verified statements. This is expected to shorten the hearing as it does away with Examination-In-Chief. It is expected that the panel would also make its own inquiries and cross examine the parties and their witnesses if any and not leave the process to only the lawyers or the parties to prove or disprove the allegations. I recall the chairman and certain panel members firing very critical questions at both parties in our case. I stress this point partly because Richard and I were disturbed when some objections raised by Ms. Lamptey’s lawyer were upheld and some documents Richard struggled to obtain for the process were rejected for not emanating from proper custody. Documents she had authored but not signed were also rejected. We did not have problems with the rejection of opinion evidence such as media reports of condemnation of her by civil society organizations like the CDD, and statesmen like Sam Okudzeto and Brigadier Nunoo Mensah. It was really difficult to appreciate why an objection by her lawyer to an application to subpoena two officers of CHRAJ was upheld despite the fact that she had mentioned those officers as being responsible for much of the wrongs complained about.

The petitioner thought he was being unnecessarily overburdened in the process particularly in situations where the panel was better placed to demand and obtain certain things from the Respondent including making certain inquiries on its own motion including by issuing subpoenas. The rules of practice and procedure in C.I. 65 (2010) for Commissions/Committees of Inquiry elaborate on the powers of the High Court vested in such ad hoc investigating bodies and should be relied upon to compel production of documents, treatment of witnesses (especially target witnesses) among others. We felt compelled and prepared processes to file at the Supreme Court over the largely adversarial method adopted. That suit may have required a further process to halt the hearing pending its determination. We however decided against the suit, in part, because we had assembled such mass of damning documentary/audio evidence and got much of it admitted by the panel and so we were convinced about the strength of our case even in the absence of those that were rejected on objection.

President is bound by recommendations - In the Ms. Lamptey case, lawyers for Petitioner and Respondent were directed by the panel to submit written addresses after the hearing which travelled seven months despite the fact that at least two days were dedicated to ensure speedy conclusion, and the chairman insisted on fidelity to those days. We were supplied with certified copies of the record of proceedings for the purposes of the addresses. We each analyzed the evidence and made references to the relevant laws and authorities to make a case for our clients. The panel eventually submitted its report to the CJ and she forwarded same to the President. The President then issued the letter communicating the recommendation of her dismissal in November 2015. The report is submitted to the CJ because it is the CJ who sets up the committee. President, like the CJ, is bound by the recommendations and cannot alter anything in the report or act contrary to same. The wisdom is keeping the President in the picture from commencement to completion is to afford him (the appointing authority) the opportunity of knowing what is happening to his/her appointee, and also to perform the ceremony of issuing the letter of dismissal.

Charlotte Osei is right and wrong – My comments on the ongoing process will be brief. Little has been heard of what is happening in respect of the petition against EC deputy commissioners Georgina Opoku Amankwaah and Amadu Sulley especially after their reported first appearance before the Justice A. A. Benin Committee on 11th December 2017. There is talk about that of the Chairperson of the EC, Charlotte Osei, because the press particularly the Daily Guide newspaper has consistently made publications about it. The paper has been a good source of exclusive information on the ongoing process and was the first to inform the public that a prima facie determination had been made and the committee set up to commence hearing. Again, letters she has written to the President and the CJ’s office are in the media. In fact, the presidency has granted media interviews particularly on Joy 99.7 fm stating rightly that it was wrong on her part to demand a copy of the Petition from it instead of from the office of the CJ. She was within her right to demand a copy of the Petition. In the Ms. Lamptey case, the media was completely denied the contents of the petition or anything that transpired at the hearing. But it is understood that these petitions and responses are out in the media because a parallel track was opened with what is said to be the “cloned” petition to the Economic and Organized Crimes Office – EOCO.

In fact, the petition and responses or documents with such contents are reported to have been lodged with the Council of State long before the article 146 route was resorted to. It was expected that she would have been served a copy of the Petition and not a transcript for her responses. This becomes even critical as it has also emerged that petitioners that were said to be over a dozen or even more are now only two (drivers at the EC). It is not difficult to presume that she wants to be double sure that the petition confirmed by the presidency to the media to have been delivered at the presidency is the same as the one dealt with by the CJ and before the panel. She might want to raise legitimate issues of procedure and law if her presumed suspicions are confirmed by the production of the original copy(ies). She and her lawyers may be asking whether what the prima facie was made on is different from the original, and also the fact that an accused must know her accuser. Her request to know the composition of the panel could also be informed by the Ms. Lamptey case where the CJ’s office wrote formally to announce members of the committee.

It is said that this might not only provide the record for any future purposes but also offer her the chance in advance to decide if there is/are objections to raise if any member is in actual/potential conflict of interest situation or likelihood of bias. I have already explained that this process is confidential and note that it not open to the public – note not open to the public, and not the parties and their lawyers. I doubt the CJ’s office will hesitate in supplying her the original petition along with the record of the prima facie determination and the list of members of the committee. These appear harmless requests for the most basic but fundamental records of the process and an unexpected refusal may trigger a suit that might delay the process. It must be said, however, that her request to know the terms of reference of the panel is wrong and cannot be sustained because the terms of reference of an article 146 panel is set in clause (5) or (7) – to “investigate the complaint” and make “recommendations” or “inquire into the petition and recommend” whether a respondent should be removed from office. Justice Benin may be doing this the second time because he, it is public knowledge, was a member of the 2014 Justice Anin Yeboah Committee and that helps a great deal in improving the practice and procedure. His committee would need the fullest cooperation of all especially the public in respecting the confidentiality of the process. It certainly would be aware of the critical need to expedite the process, as MPs have demanded, because of the particularly sensitive yet public interest nature of it. Again, the EC Chairperson and her two deputy commissioners have critical roles in the enormous work ahead of the EC even before the 2020 elections. It shall be the EC’s job to superintend processes to create new regions and districts, and it has clear instructions to table a Constitutional Instrument (C.I) in parliament by December 2018 towards enabling overseas voting (operationalization of ROPAA) as ordered by His Lordship Justice Anthony K. Yeboah of the High Court - Human Rights Division on Monday the 18th day of December 2017.

The author, Samson Lardy ANYENINI, is a barrister @ law and host of NewsFile