I have read Justice Marful Saus ruling on the Ghana @ 50 case one more time: the republic v Dr Charles Wereko Brobbey and Kwadwo Mpianim and I think he erred by saying that criminal prosecution cannot be mounted against a witness that appears before a commission of enquiry based on the findings of the Commission. in sum, whereas, Justice Marful saus ruling was founded primarily on historical import or antecedents of commissions of inquiries in previous constitutions of the republic of Ghana, he failed to avert his mind, in particular to article 283 of the 1992 constitution which provides as follows: a witness before a commission of inquiry is entitled to the same immunities and privileges as if he were a witness before the high court. one fundamental immunity and privilege of a witness before the High Court is the immunity and privilege against self incrimination. the effect of this immunity and privilege is that a witness can be prosecuted for the evidence he/she gives before the high Court if it is incriminatory. accordingly, a witness may choose to be silent or be guarded to avoid incriminating himself. the question that burdens my heart, mind and soul is, why would the framers of the 1992 constitution grant a witness before a commission of inquiry, the same immunities and privileges of the High Court, which includes, but not limited to, the immunity and privilege against self incrimination when they never intended a possible criminal prosecution of such a witness? secondly, apart from the transitional provisions of the 1992 constitution, no one is granted immunity from criminal prosecution under the constitution neither is anyone granted the power to grant such immunity. so if by appearing before a commission of inquiry as a witness, you are granted immunity from criminal prosecution, is the president not being given the power to grant immunity from criminal prosecution just by establishing a commission of inquiry? its my considered view that Justice Marful Sau erred and a witness before a Commission of inquiry can be prosecuted based on the findings of the Commissions report.
Posted on: Wed, 10 Sep 2014 11:45:58 +0000
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