Posted: Daily Guide | Tuesday, 16 March 2010
By Charles Takyi-Boadu
Yesterday’s open hearing of the infamous Mabey and Johnson bribery scandal involving some high-profile members of the National Democratic Congress (NDC) was characterised by legal gymnastics and acrobatics when several lawyers appeared before the three-member Commission on Human Rights and Administrative Justice (CHRAJ) panel investigating the scandal on behalf of their clients.
The lawyers, representing members of the erstwhile Rawlings-led NDC administration who had been named as recipients of huge bribes from the United Kingdom-based construction company, engaged in a variety of ‘legal assaults’, using a host of technicalities to salvage their clients from the jaws of the Commission.
Just as the three-member panel, chaired by CHRAJ Commissioner Francis Emile Short, was about to commence hearing, lawyers representing Baba Kamara, currently Ghana’s High Commissioner to Nigeria, and those for former Minister for Roads and Highways, Dr Ato Quashie, raised technical issues on behalf of their clients.
Present at the hearing were only two of the named recipients, Dr George Sipa-Yankey, former Minister of Health, and Brigadier General (rtd) George Lord Attivor, Managing Director of Intercity STC, while Dr Ato Quarshie, Alhaji Amadu Seidu, Kwame Peprah, Abubabar Saddique Boniface and Baba Kamara were absent upon the advice of their lawyers.
Sipa Yankey and Attivor were both dressed in immaculate black and brown suits respectively, with shoes to match.
The venue for the hearing was jam-packed with NDC activists who stormed the place to give moral support to their distressed members. Alhaji Amadu Seidu, who was not there, had some activists wearing his T-shirts.
Counsel for Baba Kamara, Samuel Cudjoe’s objection was that at the time of the alleged bribery, his client was not a public official and therefore could not be probed by CHRAJ, whilst Dr Ato Quarshie’s lawyer, Nana Ato Dadzie, who was most often on his feet, objected to the legal basis of CHRAJ investigating the subject matter since, according to him, the Commission lacked the jurisdiction.
CHRAJ however dismissed the objection raised by Dr Ato Quarshie and his lawyers, since, according to Commissioner Short, their claims were untenable.
A heated argument ensued between counsel for CHRAJ, Thadeus Sory and Nana Ato Dadzie when the latter and his colleague counsel for Baba Kamara, Samuel Cudjoe, sought to question the legal basis on which Mr Sory, who is a private legal practitioner, was made counsel for the Commission.
But Mr Sory ridiculed their objections since, according to him, as an independent Commission, CHRAJ regulates its proceedings and could engage the services of any lawyer to help discharge its constitutionally mandated duties.
He quoted portions of the Constitution to support his argument but the two lawyers were still not satisfied since they appeared not convinced.
At a point, Mr Short had to intervene when tempers were flaring between Mr Sory and Nana Ato Dadzie, to explain that counsel was not a member of the investigative panel which has himself, Anna Bossman and Richard Quayson, both Deputy Commissioners, as members respectively.
He described the objection as not only premature but also untenable and therefore cited numerous instances in which CHRAJ had to engage the services of private lawyers to discharge its duties, with the most recent being Dr Phillip Ebow Bondzie-Simpson who was counsel for the Commission when it was investigating the Road Transport Minister, Dr Richard Anane, to buttress his point.
Though the Commission rubbished the basis of the preliminary objection raised by lawyers for Baba Kamara, it however referred it to the Supreme Court for determination because of the constitutional issues involved.
Thus the Supreme Court is to determine whether or not upon a true and proper construction of Article 218 (e) of the 1992 Constitution, the mandate of the Commission to investigate on all instances of alleged or suspected corruption, applies to private individuals or entities.
It is also expected to determine whether or not the Commission has the mandate to investigate a private individual who is alleged to be involved or implicated in acts of corruption allegedly committed by public officials.
It is however the view of Mr Emile Short and the Commission that “in circumstances such as the case under investigation by the Commission, where a private individual who is alleged or suspected to be involved in alleged acts of corruption by public officials, (the individual) cannot object to the Commission investigating him alongside the public officials, on the basis that he is not a public official”.
The Commissioner was of the view that to uphold such an objection challenging the investigative mandate or powers of the Commission to investigate a private individual is not only untenable but is contrary to public policy.
He therefore noted that “such an objection carries with it the grave danger of frustrating and stultifying the constitutional mandate of the Commission to investigate all instances of alleged or suspected corruption”.
In any case, CHRAJ as a Commission believes that there was nothing in Article 218 of the Constitution which justifies the conclusion reached by Baba Kamara to the effect that its mandate is ousted in such circumstances.
The Commission’s position was that by the very nature of their functions, public officials are appointed to provide public services including serving private individuals and institutions.
Considering the fact that in most transactions involving public officials, private individuals and entities are at the other end of the spectrum, Mr Short emphasised that “invariably, it is the private individuals or entities that pay bribes to public officials, especially in large investment contracts executed by multi-national companies like the contracts awarded to Mabey and Johnson”.
For this reason, he noted that “the private person or entity cannot and ought not to be allowed to successfully prevent the Commission from investigating his or her involvement in the alleged corruption”.
Since Section 241 of the country’s Criminal Offences Act, 1960 (Act 29) recognizes corruption of a public officer as a criminal offence, CHRAJ said “it would be defeating of the mandate of the Commission, the primary anti corruption agency of the state, if the Constitution were to be interpreted to preclude the Commission from investigating private persons who are alleged to be involved in corrupting public officials especially where monies are involved”.
Mr Short cited several cases of law including the most recent case of Ex-parte Commission on Human Rights and Administrative Justice (Dr Richard Anane case) to buttress his point.
Earlier on, Commissioner Short had questioned the absence of Dr Ato Quarshie, Alhaji Amadu Seidu, Kwame Peprah, Boniface Abubabar Saddique and Baba Kamara at the hearing, threatening to issue a bench warrant for them.
The answer given by Nana Ato Dadzie that “if the panel were to decide today after our submission that the panel does not have jurisdiction, we will not be expecting my client to be here the next day”, somewhat provoked the Commissioner.
His submission compelled Mr Short to say that “the way you stated your case, I think the Commissioner would issue a witness summons for the next hearing irrespective of the outcome of our ruling”.
Meanwhile, hearing has been adjourned until March 29, 2010 when the Supreme Court is expected to have made its ruling on the issues raised.