By William
Yaw Owusu
Monday August
27, 2018
The findings made
against Finance Minister, Ken Ofori-Atta, by the Commission on Human Rights and
Administrative Justice (CHRAJ) in the $2.25 billion bond saga have been quashed
by an Accra High Court.
The court, presided
over by Justice Georgina Mensah-Datsa, upheld the Attorney General’s argument
that CHRAJ overstepped its bounds in making findings against the Finance
Minister when the NDC’s Yaw Brogya Genfi brought an allegation before the
commission that Mr. Ofori-Atta breached the financial laws of Ghana in the
issuance of the bond.
She said CHRAJ had
no jurisdiction “to make the said findings and recommendations herein as its
jurisdiction had not been invoked by a petition.
“Since the
respondent acted without jurisdiction and in excess of its jurisdiction with
respect to the stated findings and recommendations, the application for
certiorari would have to be granted to quash them.”
CHRAJ, in determining
the case filed by Brogya Genfi, made extraneous findings without giving the
minister the chance to respond to the allegations, a decision the court said
was miscarriage of justice.
Adverse Findings
CHRAJ, at the time
of making adverse findings against Mr. Ofori-Atta and the Bank of Ghana, did
not give them a hearing and the judge said she had been persuaded by the Deputy
Attorney General Godfred Yeboah Dame’s argument that CHRAJ had no jurisdiction
to make those findings against the minister.
Incensed at the
ruling, the Finance Minister, through the Attorney General, filed an
application for judicial review seeking a declaration that the commission had “no
jurisdiction to make findings and recommendations touching on the issuance of government
of Ghana bonds by the Ministry of Finance generally, alleged breaches of the
financial laws or regulations of Ghana by the Ministry and Bank of Ghana in the
issuance of securities, or an examination of compliance with the Public
Financial Management Act, 2016 (Act 921).”
The applicant further
sought a declaration that the findings by CHRAJ was in excess of its jurisdiction
under Article 284 of the 1992 Constitution and prayed for an order of certiorari
to quash the purported findings and recommendations by the commission that touch
on the issuance of the bonds by the Ministry of Finance generally, alleged
breaches of the financial laws or regulations of Ghana.
The AG, on behalf of
the Finance Minister, brought the application under Order 55 Rule 1 of the High
Court (Civil Procedure) Rules C.I. 47 and relied on Order 55 Rule 2,3 (1) of
the same C.I. 47, Articles 23, 141, 295 (8), 296 of the 1992 Constitution as
well as other legal authorities.
AG’s Argument
The AG, represented
by her deputy, Godfred Yeboah Dame, argued that CHRAJ is a public institution
which is supposed to act in the public interest, contending that the decision
to go beyond the remit of the application filed by Brogya Genfi could not have
been taken in the public interest as CHRAJ claimed.
Conflict of Interest
According to the
Deputy AG, CHRAJ had no power, apart from determining if the conduct of the
Finance Minister amounted to conflict of interest or not, to set out on a
general enquiry into compliance with the financial laws of Ghana or the
regulations regarding the issuance of bonds in Ghana.
He said CHRAJ had
power only to enquire whether any conflict of interest was manifest in the
dealings of Ken Ofori Atta and nothing more, adding that having found no
evidence whatsoever of any conduct bordering on conflict of interest or breach
of Chapter 24 of the Constitution on the part of the minister, the commission’s
mandate was discharged.
The Deputy AG said
that the decision by CHRAJ has far-reaching implications and said if the
decision was not challenged and quashed, it could potentially bring uncertainty
and chaos into the financial and securities industry.
CHRAJ Fights
CHRAJ, in its defence,
contended that its powers are clearly stated under Article 218 of the 1992
Constitution, saying it has the mandate to investigate all instances of alleged
or suspected corruption and misappropriation of public money by officials and
to take appropriate steps, including reports to the AG and the Auditor-General
resulting from such investigations.
CHRAJ insisted that
the findings they made against the Finance Minister or any other institution did
not occasion any miscarriage of justice and therefore the instant application
for judicial review was misplaced.
The commission said
the AG has not denied the findings to be inaccurate and has not demonstrated
any errors in the findings except to say the commission has no jurisdiction to
probe the general regularity of the issuance of government securities and
compliance with the laws and regulations governing the securities industry in
Ghana.
Final Ruling
The judge, in her
ruling said “one of the reliefs sought by the applicant is certiorari to quash
the said findings of the respondent. Certiorari is granted where a decision is
made in the absence of jurisdiction or in excess of jurisdiction.”
“It has been
established that at the time the respondent (CHRAJ) made adverse findings
against the Ministry of Finance and the Bank of Ghana, the respondent did not give
them a hearing,” the judge held, adding “the right to be heard or given an
opportunity to be heard is so fundamental that a breach of it is always grounds
to set aside or quash a decision.”
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