Election 2016 - Might Nana Akufo Addo be disqualified?
The Ghanaian law, generally, is that a person against whom a Commission of Inquiry makes adverse findings is constitutionally disqualified to aspire to be President of Ghana.
It's such a big deal you can expect Nana Akufo Addo to use all the law he knows to fight Justice Apau's finding that he as Attorney-General failed miserably to defend Ghana's case and that "…clearly, the failure of the Attorney-General to make any appearance in the London Court after dispensing with the services of "Bindman and Partners" who were the external Lawyers of GNPC did not do the country any good. It was that failure that led to the entry of the ex-parte judgment against GNPC.
Again, it was that failure that made it possible for SG to demand more than the fourteen million dollars (US$14 million) that they had earlier on (before the entry of judgment) agreed to accept as final settlement of the suit." The Commission consequently took "the view that the payment of US$19.5 million instead of the US$14 million earlier on agreed, constituted financial loss to the Corporation and Ghana." I proceed with this academic discourse on a live matter on the premise that the above indeed represent adverse findings as contemplated by the Constitution.
The history of this debt is well-known. Societe Generale sued the Ghana National Petroleum Corporation in a London Court claiming 40m Dollars in 1999. GNPC denied the claim and counter-claimed alleging negligent advice over the transaction which involved derivatives or hedging which contract was executed in October 1996. Both parties pursued an amicable settlement while the suit was pending and this continued after the change of government in 2001.
If you were a subject of the Sole Commissioner's probe, I would not advise you to treat what is getting out in the public as "leaked" "uncertified" and so not deserving of attention. It might be in your best interest to get a copy and scrutinize same for whatever purposes. Guess what, you simply can't stop its circulation and serialization in the media, neither can you stop the aggressive live debate around the Report.
LICENCE TO LIBEL
It is no surprise that known communicators of the governing party have started, particularly on the new powerful social media, referencing portions to score maximum political gain. Communications Director of the NPP was quick to issue a statement to rebut and deny the finding of wrongdoing against Nana Akufo Addo. In fact, Nana Asante Bediatuo speaking as Lawyer for The flagbearer served notice of a legal battle on Joy fm's NewsFile last Saturday – July 4, 2015.
You will be very naive to think the NDC and NPP will not select obvious portions for their respective political point scoring courses especially in the 2016 electioneering campaign. For instance, the opposition is excited at yet another official confirmation that the payment of the controversial judgment debt of 51m Cedis to Alfred Woyome was a case of pure fraud supervised by the named government actors. The NDC is certainly overjoyed that it is now able to connect Nana Addo to possible corruption and failure to protect the public purse without fear of a libel suit. And why not, he is the major threat to their ultimate desire to retain political power in 2016.
The Report is certainly not faultless, but when read with an apolitical eye, it contains effective remedies to avoiding needless expensive judgment debts such as occurred between 1992 and the 8th day of October 2012 when the Commission was inaugurated under C.I. 79. Even the money spent on external solicitors alone over these 25 judgment debts examined (about 43m Cedis) should build how many classroom blocks to replace under-tree schools? That’s 120 six-unit classroom blocks per the current supposed over-priced unit cost of ghc 360,000.00.
About four days ago, ( Thursday July 2, 2015) I heard and read about the Commission's finding heaping blame on Nana Addo for the SG debt of 19.5m dollars paid from the 24m dollars realized from the sale of GNPC's Drillship "Discoverer 511", I immediately put a post on facebook suggesting this could mean “the end of the road” for him.
I had interesting comments from both sides of the divide including the usual personal attacks and sheer abuse particularly from NPP followers. Some would later call or send emails asking to fully understand what I meant. I declined media interviews on the back of same. But this morning I read the Daily Guide Newspaper’s editorial “Despicable Cover-Up (2)” and its quotes its legal sources referring to articles 62 and 94 to conclude that its “…a clandestine design to disqualify the presidential candidature of Nana Akufo-Addo…”. See page 4 of today’s (July 6, 2015) edition.
ADVERSE FINDINGS – A SIN UNFORGIVABLE FOR WOULD-BE PRESIDENTS
I feel the need to explain now and for the benefit of all. This is pure legal education, as far as my knowledge of the law goes. To put yourself up to be voted for as President of Ghana, you must satisfy a number of qualification criteria set by the constitution. Starting point - you must be 40 years and Ghanaian by birth and qualified to vote. See article 62:
A person shall not be qualified for election as the President of Ghana unless –
(a) he is a citizen of Ghana by birth;
(b) he has attained the age of forty years; and
(c) he is a person who is otherwise qualified to be elected a Member of Parliament, except that the disqualifications set out in paragraphs (c), (d), and (e) of clause (2) of article 94 of this Constitution shall not be removed, in respect of any such person, by a presidential pardon or by the lapse of time as provided for in clause (5) of that article.
Then you must qualify to contest elections as an MP. By article 94, you can't seek to be MP if you fall short of any of the following:
(1) Subject to the provisions of this article, a person shall not be qualified to be a Member of Parliament unless –
(a) he is a citizen of Ghana, has attained the age of twenty-one years and is a registered voter;
(b) he is resident in the constituency for which he stands as a candidate for election to Parliament or has resided there for a total period of not less than five years out of the ten years immediately preceding the election for which he stands, or he hails from that constituency; and
(c) he has paid all his taxes or made arrangements satisfactory to the appropriate authority for the payment of his taxes.
(2) A person shall not be qualified to be a Member of Parliament if he –
(a) owes allegiance to a country other than Ghana: or
(b) has been adjudged or otherwise declared-
(i) bankrupt under any law in force in Ghana and has not been discharged or
(ii) to be of unsound mind or is detained as a criminal lunatic under any law in force in Ghana; or
(c ) has been convicted –
(i) for high crime under this Constitution or high treason or treason or for an offence involving the security of the State, fraud, dishonesty or moral turpitude; or
(ii) for any other offence punishable by death or by a sentence of not less than ten years; or
(iii) for an offence relating to, or connected with election under a law in force in Ghana at any time; or
(d) has been found by the report of a commission or a committee of inquiry to be incompetent to hold public office or is a person in respect of whom a commission or committee of inquiry has found that while being a public officer he acquired assets unlawfully or defrauded the State or misused or abused his office, or willfully acted in a manner prejudicial to the interest of the State, and the findings have not been set aside on appeal or judicial review; or
(e) is under sentence of death or other sentence of imprisonment imposed on him by any court; or
(f) is not qualified to be registered as a voter under any law relating to public elections; or
(g) is otherwise disqualified by a law in force at the time of the coming into force of this Constitution, not being inconsistent with a provision of this Constitution.
(3) A person shall not be eligible to be a Member of Parliament if he –
(a) is prohibited from standing election by a law in force in Ghana by reason of his holding or acting in an office the functions of which involve a responsibility for or are connected with the conduct of, an election or responsibility for, the compilation or revision of an electoral register; or
(b) is a member of the Police Service, the Prisons Service, the Armed Forces, the Judicial Service, the Legal Service, the Civil Service, the Audit Service, the Parliamentary Service, the Statistical Service, the Fire Service, the Customs, Excise and Preventive Service, the Immigration Service, or the Internal Revenue Service; or
(c) is a Chief.
(4) For the purposes of paragraph (d) of clause (2) of this article, in the case of ANY FINDINGS MADE BY A COMMISSION or committee of inquiry which is not a judicial or quasi-judicial commission or committee of inquiry, without prejudice to any appeal against or judicial review of that finding, the finding shall not have the effect of disqualifying a person under that paragraph unless it has been CONFIRMED BY A GOVERNMENT WHITE PAPER." Emphasis mine.
FINDINGS BECOME HIGH COURT JUDGMENT
Chapter 23 of the Constitution dictates that the findings of a commission of inquiry (one set up under this provision is quasi-judicial) become a judgment of the High Court after 6 months. But that's if and only if the report is published together with a white paper. Thereafter the person against whom adverse findings have been made has the right of appeal if aggrieved to the Court of Appeal within 3 months. Guess what, the President is not obliged to publish the report and issue a white paper. He has the option to simply issue a statement within 6 months of receipt of the Report explaining he does not intend to publish the report. He will simply justify why. In seeking to be president, however, it is instructive to note that adverse findings of non-judicial or none quasi-judicial commissions or committees do still appear to serve to disqualify when confirmed by a White Paper.
So you see, the potential implications could be 'tsunamic' for people like Nana Addo. If President John Mahama and his NDC seek a rather expensive political mischief, they will elect the option not to publish the report at all or publish it so late. Such move will put Nana Addo in a most difficult situation. It is no surprise then that his legal team seem to want to activate the courts in what would be a necessary innovative move to preempt any future adverse acts. The Commissioner was by law (C.I. 65 - Commissions of Inquiry {Practice and Procedure} Rules, 2010) required to submit his report within 60 days upon completion of work.
He submitted it on May 20, 2015 and a decision to or not to publish must be known by October 20, 2015. Since its contents are known to all now, any citizen could attempt to block Nana Addo from filing for the 2016 Presidential Elections using the report.
There is no doubt, however, that non publication and non-issue of a white paper couldn't operate to stop a possible legal challenge of the said finding especially when Nana Addo never had the opportunity to be heard by the Commission. The finding might further be weakened by the fact that Nana Addo actually officially indicated his availability and readiness to tell his side of the story to the Commission if it was minded to invite him to speak to the matters for which he had direct conduct as AG and was accused of wrongdoing by equally celebrated Lawyer and former CEO of GNPC Tsatsu Tsikata.
The Commission suggests it had enough documents to rely on. The question then would be why it needed to invite as many as eleven witnesses over this matter?
FLAGRANT BREACH OF RULES OF NATURAL JUSTICE
A cardinal rule of law is what is known as the natural justice principles. The first part of that twin principle which is at the heart of the principle for procedural fairness is rendered in Latin as "audi alteram paterm" - a man shall not be condemned unheard. The courts do not hesitate to strike down as illegal most actions that violate the rules of natural justice. I submit that key actors in particular judgment debts who were not given a chance at the commission will not struggle to convince a court to set aside the findings against them, if they are minded to consider such findings as adverse with the attendant implications.
By the unimpeachable famous judgment of Justice Samuel Marfo-Sau in the case brought by the state against Dr. Charles Wereko-Brobbey and Mr. Kwadwo Mpiani on the back of the findings of the Ghana @ 50 Commission, it is now a given that none will engage in a fruitless wasteful endeavor of mounting a prosecution (and in this case of willfully causing financial loss to the state) on the findings of a commission of inquiry.
BIG MESS
But it gets murkier as even an unimaginable white paper rejection of this finding will be rejected by Nana Addo. Accepting such reduces him to a near pardoned convict. As seen above, by article 62 (1) (c) adverse findings of a commission of inquiry do seem to serve as unforgivable sins for the purposes of seeking to be President in Ghana. So that even a PRESIDENTIAL PARDON clearance does not wipe away one’s sins as declared by a commission because such a sin made irredeemable for life.
The damaging propaganda value going into the 2016 elections is clear. So intended or not, this is mess however you look at it. Let the games begin and shall we say “fiat justitia ruat caelum”- let complete justice be done even though the heavens come down?
In my next article of my analysis of selected portions of the leaked report, I point out serious fundamental procedural and constitutional issues in the Commission's findings on the Woyome Case. I also show how the state violated laws it is very familiar with in making the payment - a core inquiry so far missed by all who have dealt with that case. I also ask and answer the question whether a Commission of Inquiry can purport to exercise appellate or supervisory jurisdiction over the High Court.
The author is an attorney at law
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