ATTORNEY-GENERAL vs. COMMISSION ON HUMAN RIGHTS AND ADMINISTRATIVE JUSTICE [1999-2000] 1 GLR 358

CASES REFERRED TO

(1) Commission on Human Rights v Attorney-General [1999-2000] 1 GLR 697, SC (post).

(2) Kwakye v The Republic [1981] GLR 944, SC.

(3) Mensah (JH) v Attorney-General [1996-97] GLR 320, SC.

NATURE OF PROCEEDINGS

ACTION by the Attorney-General against the Commission on Human Rights and Administrative Justice for, inter alia, an order of injunction restraining the commission from continuing to violate the provisions of the Constitution by assuming to investigate and dispose of cases pending before the Ombudsman before the Constitution, 1992 came into force as if they had occurred after the Constitution had come into force; and a declaration that the conduct of the commission in purporting to implement in court decisions on matters which had been concluded by the military governments before 7 January 1993, ie the date the Constitution, 1992 came into force, are inconsistent with and in contravention of article 229 and section 34 of the transitional provisions of the Constitution, 1992. The facts are sufficiently stated in the judgment of the court delivered by Charles Hayfron-Benjamin JSC.

COUNSEL

Martin A B K Amidu, Deputy Attorney General (with him Mrs Betty Mould Iddrisu, Chief State Attorney) for the plaintiff.

E K Ofosu-Quartey for the defendant.

JUDGMENT OF CHARLES HAYFRON-BENJAMIN JSC

Charles Hayfron-Benjamin JSC. delivered the judgment of the court. On 31 July 1998 we dismissed the plaintiff’s case. On even date we also dismissed the defendant’s (then the plaintiff’s) case against the Attorney-General (then the defendant) in Commission on Human Rights and Administrative Justice v Attorney General [1999-2000] 1 GLR 697, SC. The present suit was obviously in reaction to the earlier writ issued by the Commissioner for Human Rights and Administrative Justice against the Attorney General wherein, in our view, the constitutional parameters of the commission’s functions were spelled out by us. On hindsight, we should have consolidated the two writs—that is to say, writ No 3/96 and writ No 17/96—and

[p.361] of [1999-2000] 1 GLR 358 rendered a single judgment which would have covered all the issues raised by the parties. As it happened, we have furnished our reasons for dismissing the commission’s action under writ No 3/96. To the extent, therefore, that some of the issues set out for determination in this writ are covered by our reasons in writ No 3/96, those reasons are deemed to be incorporated in the present reasons and the earlier reasons, where relevant, will be considered as binding authority in the present judgment.

By his writ, the plaintiff (the Attorney-General) sought four principal reliefs and one general relief, which last relief was of no consequence and did not merit any consideration. Of the four remaining reliefs, the relief (iv) which claimed for “An order of injunction restraining the defendants from continuing to violate the provisions of the constitution, 1992 by its unconstitutional conduct”, was in our respectful opinion “too broad and a clog on the defendant’s constitutional powers.”

An injunction is an equitable relief. To grant such an equitable relief, would require the constant supervision of the exercise of the functions of the defendant commission. It is trite learning that equity will not support an order which requires the constant supervision of the courts. Besides, the Constitution, 1992 having granted the defendant a limited discretion, in the exercise of its discretion, it would be a clog on its constitutional powers if at any time it becomes necessary to grant an injunction in the exercise of its powers and functions under the Constitution, 1992. Where a constitutional body exceeds its powers, thereunder or exercises functions which it does not possess such excess or exercise is ultra vires the Constitution and void and may be so declared by a court of competent jurisdiction.

Nor would we subscribe to the submissions of the plaintiff that the defendant “has exhibited an intention to continue to engage in its illegal and unconstitutional conduct and will continue to do so unless restrained by this court.” (The emphasis is ours.) This prayer for equitable relief arises out of a presumed catalogue of “conduct” which the plaintiff contends were in purported breach of the defendant’s constitutional functions. For the sake of brevity these may be summed up thus:

(i) The defendant had acted unconstitutionally by assuming that “those cases that were pending before the Ombudsman,

[p.362] of [1999-2000] 1 GLR 358 can be investigated and disposed of by it as if they occurred after the coming into force of the Constitution, 1992.”

(ii) The defendant instead of making recommendations to the government in respect of those pending matters has in contravention of the Constitution, 1992 sought to enforce its decisions under article 229 as if the matters arose after the coming into force of the Constitution, 1992.

(iii) The defendant has also contrary to the prospective nature of the Constitution sought to decide and implement in court, its decisions on matters which were concluded by the government before the coming into force of the Constitution, 1992 on 7 January, 1993.

(iv) In a case involving one CY Bakah who was dismissed by the PNDC Government in 1986, the commissioner entertained a petition against his dismissal in 1995, made a decision in his favour and unconstitutionally threatened the Inspector-General of Police with commencing proceedings in court by virtue of article 229 of the Constitution, 1992. The decision of the commissioner and the notice to commence legal proceedings are annexed herewith and marked as exhibits AG 1 and AG 2.

(v) The defendant has also issued notice of intention to commence civil proceedings in the case of S A Yeboah v The Head of the Civil Service in respect of a dismissal effected by the Provisional National Defence Council Government in 1987. The decisions of the commissioner and the notice to commence legal proceedings are annexed herewith and marked exhibits AG 3 and AG 4.

(vi) The defendant has also acted unconstitutionally in giving notice of civil proceedings in the case of E Frimpong Danso v Ministry of Lands and Forestry.

(vii) The defendant in purported exercise of its powers under the Constitution, 1992 also commenced legal proceedings against the Social Security Bank in respect of its decision in reversing the acceptance by the Provisional National Defence Council of the report of a sub-committee of the National Investigations Committee published in the Government White Paper—W P No 1/91 (GPC/A45/100-11/91). A photocopy of the White Paper is annexed here

[p.363] of [1999-2000] 1 GLR 358 with and marked exhibit AG 5 and the decision of the commissioner is annexed and marked exhibit AG 6.

(viii) The defendant has also assumed jurisdiction in matters which have been statute-barred or caught by limitation of time in accordance with law.

(ix) The conduct of the defendant in purporting to implement in court its decisions in respect of matters which had been concluded by the military governments before 7 January 1993 are inconsistent with and in contravention of article 229 and section 34 of the transitional provisions scheduled to the Constitution, 1992 and (NRCD 216).

It is on account of this series of “conduct” that the plaintiff prays in aid of a restraining order directed to the defendant. Examining the grounds upon which this relief is sought, it is clear that most of the issues have been resolved in our reasons in writ No 3/96 and therefore do not need to be restated here. Such a relief will also be refused by this court on the ground that it is too broad a request, the grant of which might prevent the defendant from effectively performing its constitutional functions.

Similarly broad is the plaintiff’s claim that:

“the conduct of the defendant in investigating matters which were concluded by governments before 7 January 1993 is inconsistent with and in contravention of the provisions of chapter 18 and section 34 of the transitional provisions of the Constitution, 1992 and therefore null and void.”

The submissions in support of this relief attempt to put a slant on the ouster provisions of section 34 (3) of the transitional provisions of the Constitution, 1992. Kwakye v The Republic [1981] GLR 944, SC is the locus classicus on the principle within the parameters of our constitutional law. In the present case, however, it appears the defendant contends that not being a “court or tribunal” the commission is not bound by section 34 (3) of the transitional provisions of the Constitution, 1992 and it may therefore safely proceed to investigate “matters which were concluded before 7 January 1993.”

We think that the parties misapprehend the context in which that subsection is couched. In our respectful opinion, one of the important clauses in that subsection which we consider relevant to the present

[p.364] of [1999-2000] 1 GLR 358 case is “shall be questioned in any proceedings whatsoever.” In our opinion, this clause immediately referred to is predicated on the existence of some proceeding in which “a question” which refers to the existence of an indemnity is raised. It is not open to a party to commence proceedings on the basis of an indemnity clause. Clearly, the defendant cannot commence an investigation on the basis of what it conceives as past conduct which contravenes the provisions of chapter 18 of the Constitution, 1992. Nor can the plaintiff be right. The matters raised in this submission are hypothetical. The plaintiff contends and submits as follows:

“For instance, can it be said that the proceedings of a commission of enquiry appointed under article 278 (1) of the Constitution which purports to question the acts prohibited by section 34(3) of the transitional provisions will be constitutional? Adverse findings made by such a commission are deemed to be the judgment of the High Court which is subject to appeal to the Court of Appeal. It’s other findings and recommendations do not have the same status. But can it be said that the proceedings of the commission as a whole do not fall within the words ‘any proceedings whatsoever’ as contemplated by section 34(3)? Our humble answer is in the negative.”

A court of law must decline to pronounce on hypothetical issues. The issue is said to be moot. In JH Mensah v Attorney-General [1996-97] SCGLR 320 at 359 Acquah JSC discussed the principle of mootness and concluded that:

“The principle guiding the court in refusing to decide moot questions is quite settled. If the question, though moot, is certainly not likely to re-occur, the courts will not waste their time to determine questions and issues which are dead and buried for ever. But where it is not so established, the courts would go into the questions to forestall a multiplicity of suits. Thus for a court to decline deciding a moot question, it must be established or shown that:

‘subsequent events make it absolutely clear that the allegedly wrong behaviour could not reasonably be expected to recur.’”

[p.365] of [1999-2000] 1 GLR 358

Clearly matters which were concluded by governments before 7 January 1993 cannot be reinvestigated by the defendant. This view does not, however, enure to the benefit of the plaintiff. In our respectful opinion, public policy once again must prevent litigants from what Acquah JSC has described as “waste . . . time to determine questions and issues which are dead and buried for ever.” Of interest is the issue that: “The conduct of the defendant in seeking to implement its decisions in respect of matters that were pending before the Ombudsman before or on the January 1993 under article 229 is inconsistent with and in contravention of the letter and spirit of the Constitution, 1992.”

In our respectful opinion, the plaintiff misconceives the purport of article 229 of the Constitution, 1992. The plaintiff himself submits that “it is after its investigatory proceedings and a refusal to comply with its directives, orders and recommendations that it may apply to the court for the enforcement of its directives.” (The emphasis is ours.) Surely the enforcement powers of the defendant are granted by article 229 of the Constitution, 1992. It is therefore a serious misconception on the part of the plaintiff to submit that any conduct of the defendant which is aimed at enforcing or implementing its decisions in a court of law as being in contravention of and inconsistent with the letter and spirit of the Constitution, 1992.

Implicit in the plaintiff’s submission is a presentation that there were certain matters pending before the Ombudsman which were taken over by the defendant commission. The defendant buttresses its view by claiming to be the successor of the Ombudsman. While we do not agree that the defendant is the successor of the Ombudsman, we acknowledge the power of the defendant in terms of section 28 of Act 456 to investigate complaints which were pending before the Ombudsman before 6 July 1993. The defendant defines clearly the functions of its office when it submits:

“The main function of the commission therefore is to receive complaints from members of the public, investigate such complaints and recommend corrective action. It has no enforcement mechanism of its own. It is not an adjudication body that is vested with jurisdiction to determine conclusively

[p.366] of [1999-2000] 1 GLR 358 the rights of parties. Most importantly, it operates on principles of justice and fairness and may recommend remedies which the law courts do not grant.”

This submission concludes the plaintiff in his submissions and offers a complete answer to all his claims against the defendant.

The parties have made other presentations which have no merit but rather reflect on underlying test of strength of each others powers. We cannot in this case presume to be judges over each others apprehensions of their constitutional functions. For our part, the transitional provisions are by article 299 of the Constitution, 1992 “impositions” on this supreme law and must be adhered to. It is for these reasons that we dismiss the plaintiff’s writ.

DECISION Action dismissed.

LSNA.

Endnotes

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