Researchers from the Kwame Nkrumah University of Science and Technology (KNUST) Faculty of Law in Kumasi are challenging the constitutionality of police powers granted to Ghana’s Commissions of Inquiry. They argue these powers, introduced via subsidiary legislation, infringe upon the supremacy of the 1992 Constitution and the rule of law.
The study, recently published in the KNUST Law Journal, specifically targets provisions within the Commission of Inquiry (Practice and Procedure) Rules, 2010 (C.I. 65). These rules permit commissions to conduct searches and seize documents, sometimes without warrants, which the researchers deem an unconstitutional overreach.
Challenging the Legal Framework
According to the KNUST legal scholars, the 1992 Constitution bestows upon Commissions of Inquiry powers analogous to those of the High Court. These include the authority to summon witnesses and compel document production.
However, the constitution does not explicitly grant these bodies the typical police powers of search and seizure. The researchers contend that Rules 1(3) and 1(4)(b) of C.I. 65 unlawfully expand the constitutionally defined scope of commission powers.
The authors argue that the Rules of Court Committee, responsible for drafting these rules, exceeded its mandate. By introducing powers not envisioned by Article 279(1) of the Constitution, they have effectively attempted to amend constitutional provisions indirectly.
This process bypasses the stringent amendment procedures meticulously outlined in Articles 289, 291, and 292 of the 1992 Constitution. The researchers maintain that granting such significant powers through a legislative instrument amounts to an unconstitutional maneuver.
Purpose and Potential for Abuse
The study emphasizes the intended nature of Commissions of Inquiry as independent, fact-finding bodies. Their role is fundamentally inquisitorial, distinct from the investigative functions of criminal law enforcement agencies.
Allowing commissions to wield police powers blurs this crucial distinction. The researchers warn this could create a dangerous precedent, opening the door to arbitrary searches and potential abuses.
Such unchecked powers become particularly concerning in politically sensitive inquiries, where the risk of misuse or overreach is amplified. This could undermine public trust in the justice system.
Expert Perspectives and Recommendations
The research, authored by Mr. Kwadwo Bioh Agyei, Dr. Maame Efua Addadzi-Koom, and Mr. Ebenezer Adjei Bediako, employs constitutional analysis and relevant case law to support its arguments.
To rectify this legal anomaly, the researchers propose a clear alternative. Commissions requiring access to documents or evidence should formally apply to the courts.
The courts, in turn, can then authorize police-assisted searches if deemed necessary and legally justified. This ensures a judicial check and balance on the exercise of intrusive powers.
Implications for Ghana’s Legal System
The core contention is that the current provisions granting police powers to Commissions of Inquiry are incompatible with the Ghanaian Constitution. The study calls for either a declaration of unconstitutionality by the Supreme Court or a formal amendment process.
This legal challenge has significant implications for the balance of power between state institutions and individual rights. It underscores the importance of adhering to constitutional procedures for all legislative and administrative actions.
The debate highlights the ongoing need to safeguard constitutional supremacy and prevent the erosion of the rule of law through subsidiary legislation. The findings serve as a critical examination of administrative power and its constitutional boundaries.
The future of how Commissions of Inquiry operate in Ghana now hinges on potential judicial review or legislative action. The Supreme Court’s stance on this matter, or potential amendments to C.I. 65, will be crucial in defining the limits of investigative powers and upholding constitutional integrity.
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