2011
SUPREME COURT
GHANA
CORAM
AI Generated Summary
CHRAJ sought declarations from the Supreme Court interpreting Article 218(e) to confirm its power to investigate private persons implicated in corruption involving public officials. The case arose from Ghana-related allegations uncovered in the UK Serious Fraud Office’s prosecution of Mabey & Johnson, including payments funneled through agents. Mr. Baba Kamara, then a private businessman and later Ghana’s High Commissioner to Nigeria, objected that CHRAJ’s mandate covered only public officials and refused to submit. He raised a preliminary objection that the action was moot due to a High Court prohibition order against CHRAJ’s investigation, then pending appeal. The Supreme Court overruled the objection, holding that constitutional interpretation presented a live, recurring controversy with wider implications. Applying Section 10(4) of the Interpretation Act, 2009 and a purposive approach endorsed by Ghanaian and comparative jurisprudence, the Court rejected literalism and implied the authority for CHRAJ to investigate private individuals where necessary to expose corruption involving public officials. The Court unanimously granted both declaratory reliefs to CHRAJ.
SOPHIA A. B. AKUFFO, JSC
On February 8th 2011, we overruled the preliminary objections raised by the 2nd Defendant herein and stated that the reasons therefor will be incorporated in our judgment on the substantive matter. In this opinion, therefore, I will deal with our reasons for overruling the objection as well express, very briefly, my views on the substantive matter in respect of which the unanimous decision of the court is fully reflected in the judgment by our highly esteemed brother, Dr. Date-Bah, JSC.
Brief Background
The background facts of this case are set out in greater detail in Justice Date-Bah’s judgement, and here, I will only make reference to such factual details as are, in my view, necessary for giving adequate perspective to the ruling on the preliminary objection.
By a writ filed on May 26th 2010, by the Commission for Human Rights and Administrative Justice (hereinafter referred to as ‘CHRAJ’ or ‘the Plaintiff’) against the Attorney General (hereinafter referred to as the ‘AG’ or ‘the 1st Defendant) and Mr. Baba Kamara (hereinafter referred to as ‘the 2nd Defendant’) the Plaintiff prayed the Court for the following reliefs:-
‘a. A declaration that upon a true and proper construction and/or interpretation of Article 218(e) of the Constitution ... the Commission on Human Rights and Administrative Justice has the mandate to investigate a private individual, entity and/or person who is alleged to be involved or implicated in an act of bribery or corruption allegedly committed (by) a public official or officials and who is/are being investigated by the Commission.
b. A declaration that on a true and proper interpretation of Article 218(e) of the 1992 Constitution, the mandate of the Commission on Human Rights and Administrative Justice ‘to investigate all instances of alleged or suspected corruption and misappropriation of public moneys by officials’ covers situations in which an individual, entity and/or person though not a ‘public official’ is alleged to be involved or implicated in an act of alleged bribery or corruption involving public officials and which is under investigation by the Commission.’
It is not in controversy that the instant writ arose out of investigative proceedings commenced by CHRAJ into alleged acts of bribery and corruption involving certain persons who, at the material times, were public officials, and the 2nd Defendant. The 2nd Defendant, who at all times material to the matter under investigation had be