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.
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.
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, 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.
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.”