ANANE WALKS ON PROCEDURE – THE EXTENT OF AN OCTOPUS’ ROAMING TENTACLES

Originally written on 31 October 2007

Dr. Richard Anane, MP and former Minister of Roads and Highways, took on the Commission on Human Rights and Administrative Justice (CHRAJ) in court and walked out of court a “free” man, with all the adverse findings made against him set aside by the court. He had been accused of corruption, and other charges, including abuse of office. CHRAJ dismissed the corruption charges but went ahead to make adverse findings against him on abuse of office and conflict of interest and even strayed into the area of perjury. Dr. Anane resigned from his ministerial position and took on CHRAJ in court. He won. CHRAJ proceeded to the Supreme Court to challenge the High Court. The rest is recent history.

According to the High Court, the Commission made grievous procedural errors, which necessitated the quashing of its findings and an order expunging those from the Commission’s records. It is my respectful view that regarding corruption and misappropriation investigations, the Constitution permits CHRAJ to virtually roam Ghana’s highways and byways, the newspapers and the airwaves, with very long, constitutionally guaranteed, investigative tentacles with or without either a formal complaint having been filed or a formal allegation having been made to the Commissioner. However, in all other matters, CHRAJ’s investigative jurisdiction is restricted and can only be invoked on the basis of a formal complaint or allegation.

Relevance of Procedure
In the celebrated 1907 English case, Re Coles and Ravenshear Collins MR said as follows:

Although I agree that a Court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case.

Collins MR's reasoning has resonated in Ghana's courts, and has found eloquent expression in Sophia Akuffo JSC's 2003 dictum in Republic v. High Court, Koforidua; Ex parte Eastern Regional Development Corporation as follows:

In its complementary character, civil procedure functions as a vehicle for the actualization of substantive law and this role has been likened to that of “a handmaid rather than a mistress” which must not be applied in such a hard and fast manner as to cause injustice in any particular case. In its protective character, rules of procedure promote order, regularity, predictability and transparency which are essential for the assurance of due process in the delivery of justice and judicial effectiveness. It is these basic characteristics of civil procedure rules that facilitate the realisation of the overall objective of the judiciary, which is to assure access to justice for all. Consequently, in the application of any procedural rule (or set of rules) it is often necessary for the court to take into account the function of that particular rule, and the objective it is intended to serve.

There are theoretical underpinnings of the rules of procedure, which, although is law, is considered by many as 'adjectival' law, a means to an end. The concept of the rule of law demands respect, not only for the substantive law, but for the procedural law as well. That is why if you have a case against another person, you don’t simply write your plaint on a sheet of paper and walk into a judge's court or chambers to demand justice. You must comply with the procedure that is laid down both for invoking the judge’s jurisdiction and for the orderly conduct of cases. In the very first reported Ghanaian case on judicial review, Ware v. Ofori-Atta, the court struck down some actions of the Nkrumah government on account of its failure to comply with the procedural law.

Therefore, it is only where a strict application of the rules of procedure would lead to injustice, that the law vests the court with the discretion to disregard certain breaches of procedure. However, where the rules of procedure are jurisdictional in themselves, and that is to say that the jurisdiction of the judicial, quasi-judicial or administrative body can only be invoked via a laid down procedure (statutory, in this case), there is no discretion to waive or overlook that procedure.

Judicial Review, Not An Appeal
We must note that the matter before the court was not an appeal. It was an application for judicial review of what CHRAJ did. The court did not therefore go into the merits of the case. The High Court has not pronounced Dr. Anane “guilty” or “not guilty”. What has happened is a review to ascertain whether CHRAJ, in the course of conducting the hearing, complied with the law, and if not, whether the non-compliance was so fatal that the entire hearing and its conclusions have to be quashed by a "writ of certiorari". In other words, what the court did, was not to determine whether or not Dr. Anane was guilty of corruption, abuse of office and/or perjury, but to conduct an examination and inspection of the CHRAJ hearing and conclusions, and to correct errors of law and to review erroneous or unwarranted acts or proceedings, if any. What the court found was that the inferior tribunal (CHRAJ) had abused or exceeded its jurisdiction or proceeded illegally. Under those circumstances, the Court was entitled, in the exercise of its discretion, to issue a writ of certiorari, quashing those proceedings and findings.

CHRAJ’s Investigative Jurisdiction
It would appear that CHRAJ put itself into a fatal procedural quagmire by not paying regard to the relevant, applicable laws relating to its jurisdiction and procedure. Section 12 of the CHRAJ Act appears to lay down a “complaint” process for invoking CHRAJ’s jurisdiction. It provides as follows:

Section 12 - Provisions Relating to Complaints.
(1) A complaint to the Commission shall be made in writing or orally to the national offices of the Commission or to a representative of the Commission in the Regional or District branch.
(2) Where a complaint is made in writing it shall be signed by the complainant or his agent.
(3) Where a complaint is made orally, the person to whom the complaint is made shall reduce the complaint into writing and shall append his signature and the signature or thumbprint of the complainant.
(4) Notwithstanding any law to the contrary, where a letter written by-
(a) a person in custody; or
(b) a patient in a hospital, is addressed to the Commission, it shall be immediately forwarded, unopened and unaltered to the Commission by the person for the time being in charge of the place or institution where the writer of the letter is detained or of which he is a patient.
(5) A complaint under this Act may be made by any individual or a body of persons whether corporate or unincorporated.
(6) Where a person by whom a complaint might have been made under this Act has died or is for any sufficient reason unable to act for himself, the complaint may be made by his personal representative or by a member of his family or other individual suitable to represent him.

Having provided for the above, the Act, in section 26 empowered CHRAJ to regulate its proceedings by way of a constitutional instrument. The section provides as follows:

(1) Subject to the provisions of the Constitution and to any Act of Parliament made under the Constitution, the Commission shall make, by constitutional instrument, regulations regarding the manner and procedure for bringing complaints before it and the investigation of such complaints.
(2) The exercise of the power to make regulations may be signified under the hand of the Commissioner or in his absence, a Deputy Commissioner.

CHRAJ's problem appears compounded when one considers Article 218 of the Constitution. The Article states clearly as follows:

The functions of the Commission shall be defined and prescribed by Act of Parliament and shall include the duty-
(a) to investigate complaints of violations of fundamental rights and freedoms, injustice, corruption, abuse of power and unfair treatment of any person by a public officer in the exercise of his official duties;
(b) to investigate complaints concerning the functioning of the Public Services Commission, the administrative organs of the State, the Armed Forces, the Police Service and the Prisons Service in so far as the complaints relate to the failure to achieve a balanced structuring of those services or equal access by all to the recruitment of those services or fair administration in relation to those services;
(c) to investigate complaints concerning practices and actions by persons, private enterprises and other institutions where those complaints allege violations of fundamental rights and freedoms under this Constitution;
...
(e) to investigate all instances of alleged or suspected corruption and the misappropriation of public moneys by officials and to take appropriate steps, including reports to the Attorney-General and the Auditor-General, resulting from such investigations.

A close reading of the Article suggests that in all instances CHRAJ’s investigative jurisdiction is only invoked by complaint, except in corruption and misappropriation matters (under Article 218(e)) where CHRAJ can arguably act without a complaint. Indeed, in Article 218(e) matters, CHRAJ can act on mere allegations and suspicion. However, the word “corruption” also appears in respect of a complaint in Article 218(a). It might be argued that that was the result of confusion in the drafting of the Article. I respectfully disagree with that school of thought. My humble view it that that the framers of the Constitution deliberately provided for investigation of corruption or misappropriation matters by either complaint (under Article 218(a)) or on CHRAJ’s own motion (under Article 218(e)).

CHRAJ is given further investigative powers under Chapter 24 of the Constitution. That chapter commences with Article 284, which states as follows:

A public officer shall not put himself in a position where his personal interest conflicts or is likely to conflict with the performance of the functions of his office.

Article 286(2) then provides as follows:

Failure to declare or knowingly making false declaration shall be a contravention of this Constitution and shall be dealt with in accordance with article 287 of this Constitution.

Then, in Article 287, which bears the rather notable side note “Complaints of Contravention”, the Constitution says:

(1) An allegation that a public officer has contravened or has not complied with a provision of this Chapter shall be made to the Commissioner for Human Rights and Administrative Justice… who shall, unless the person concerned makes a written admission of the contravention or non-compliance, cause the matter to be investigated.
(2) The Commissioner for Human Rights and Administrative Justice…, may take such action as he considers appropriate in respect of the results of the investigation or the admission.

Article 287 clearly appears to lay down a procedure for the enforcement of Chapter 24 issues as follows:

1. An allegation made to the Commissioner,
2a. Opportunity for the alleged contravener to make a written admission of culpability, and if he fails to do so,
2b. The Commissioner’s investigation.
3 The Commissioner taking action

The first two steps appear to be conditions precedent to the Commissioners’ investigative jurisdiction under Article 287(1). The requirement for there to be “an allegation… made to the Commissioner” appears to me to be mandatory, by the use of the word “shall”. Section 27 of the Interpretation Act provides that “”shall” shall be construed as imperative”. A matter that is imperative is an obligation, and its direct antonym is the word “option.” It means that with respect to Article 287(1), there are no alternatives or choices. There MUST be an allegation made to the Commissioner. I submit that “made to,” means to formulate, compose, put together, present, produce, create, bring about or generate, all to or directed at the Commissioner. These suggest a deliberate process of addressing an allegation to the Commissioner.

Then, by the further use of the word “shall,” there must be an opportunity given to the alleged contravener, after the formal allegation, to make a written admission. The Commissioner may only conduct investigations if the contravener fails to make the written admission. The Commissioner then has the power to exercise the Article 287(2) powers after either the admission or the investigation.

Further, the word “allegation” should be interpreted by a “convenience of reference” to the side note to Article 287, namely “Complaints of contravention.” I concede that section 4 of the Interpretation Act, As amended by section 1 of the Interpretation (Amendment) Act, 1961 (Act 92), says that “notes and references placed at the side of any provision are intended for convenience of reference only and do not form part of the enactment.” But if we consider that marginal note even for “convenience of reference only,” it would suggest that the allegation mentioned in Article 287(1) requires much more than stories in the press. Please note that when Article 218(e) spoke of the Commissioner’s power to “investigate all instances of alleged or suspected corruption and the misappropriation of public moneys by officials…” it left it bare, without any qualification as to how the allegation is made. However, the use of the word “allegation” in Article 287 is qualified by the words “shall me made to the Commissioner.” Thus, whereas the Commissioner’s investigative powers might extend to bare allegations under Article 218(e), allegations under 287(1) require a formal complaint. In other words, the allegation under Article 287(1) must be framed as a formal complaint “made to the Commissioner.” I doubt if allegations made in the media can rightfully constitute “an allegation… made to the Commissioner.”

The effect of the above Articles is that even in respect of conflict of interest issues involving public officers and the failure of public officers to declare their assets, there must be a COMPLAINT or ALLEGATION made directly to Commissioner himself/herself.

It is arguable that it is pursuant to these powers, particularly the power to make rules that regulate its own procedure under section 26 of the CHRAJ Act, that CHRAJ itself enacted the CHRAJ (Complaints Procedure) Regulations in 1994, and set out an elaborate complaint procedure for its work. CHRAJ is bound by its own rules on procedure.

CHRAJ’s “Octopus Jurisdiction”
Simply, where there are no COMPLAINTS made to CHRAJ, it cannot investigate, except under Article 218(e), i.e. in matters of corruption and misappropriation. Thus whilst there ought to be a formal complaint in respect of non-corruption charges to invoke CHRAJ’s jurisdiction, no complaint will be required on the corruption and misappropriation charges.

What it then means is that in respect of the corruption allegations made against Dr. Anane, CHRAJ did not err as it had the jurisdiction to proceed WITHOUT a complaint under Article 218(e), what we may now call CHRAJ’s “octopus jurisdiction”. In other words, under Article 218(e) CHRAJ has the power to “roam the highways and byways or behave like the proverbial octopus stretching its tentacles to look for complaints to investigate.” However in all the other matters, including abuse of office under Article 218(a), conflict of interest under Article 284 and failure to declare assets or making a false declaration of assets under Article 286(2), CHRAJ can only proceed on the strength of a formally lodged complaint. The effect is that when CHRAJ decided that it could not make any findings against Dr. Anane on the corruption allegations, it should have ended the investigation right there, because it had no jurisdiction to investigate any other charge outside Article 218(e) in the absence of a complaint.

Conclusion
In conclusion, CHRAJ's investigative jurisdiction, in respect of all matters (except corruption and misappropriation of public moneys by officials), is only invoked by a Complaint filed under CHRAJ’s own rules of procedure. If there is no Complaint lodged (which might mean that there is no complainant), CHRAJ cannot choose and pick, and hunt for and peck at stories from the newspapers and elsewhere to investigate; except, of course, where the matters relate to corruption and misappropriation of public money by officials. Further, I note the possible suggestion that the use of the word “corruption” in Article 218(a) and in Article 218(e) might have resulted from some confusion in the drafting of that Article. It is however my respectful view that what the Article actually does is to give CHRAJ the right to investigate corruption and misappropriation of public moneys by officials, whether it is presented via a formal complaint (under Article 218(a)) or based on allegations or suspicion under CHRAJ’s “octopus jurisdiction” (under Article 218(e)). But as things stand now, the procedural rules with respect to complaints cannot be wished away and considered as matters of mere procedure. They are jurisdictional in nature.