ANALYSEN UND BERICHTE Notes on the Commission on Human Rights and Administrative Justice under the 1992 Ghanaian Constitution

Notes on the Commlsslon on Human Rlghts and Administrative Justlce under the 1992 Ghanalan Constltutlon

In other words, the concentration of the offices of the ombudsman in Accra, the national capital, and the other three cities undermined the accessibility and publicity that often characterise the work of ombudsmen systems elsewhere.Poor staffing situation also contributed to the rather negative performance of the ombudsman in Ghana during the period under review.The institution was not only short of qualified and compctent personnel to effectively actualise its operations but also its staff strength generally fell below optimum level.Available st atistics of staffing up to 1988 revealed that the personnel strength of the ombudsman was 107 in the four offices.Of this total, an average of about 45 % falls into the senior grade, while the rest are junior officers.And because the ombudsman's office operated conditions of service similar to those pertaining in the civil service, it was unable to attract the requisite personnel which were better paid in the public service.For instance, an investigator, a qualified lawyer, who worked with the office of thc ombudsman, eamcd 45,000 cedis in 1988, whereas if he were employed in the public service, like a parastatal, would have taken almost double the salary.The result of thc disparity in salaries and other conditions of service is that the institution of the ombudsman was unable to retain experienced investigators (lawyers).lt therefore had to rcly on lawyers on national service, who after completing their service of one year, left to seek greener pastures clsewhere.

IV. Handling and Dlsposal of Complalnts and Investlgatlons
One of the hallmarks of the ombudsman system in the Scandinavian countries is its ability to handle and dispose of complaints and investigations in a largely informal, inexpensive and expeditious manner.This feature seems to have been incorporated in the modus operandi of the CHRAJ.Like the 1979 Constitution ombudsman, a complaint to the CHRAJ could be made either in writing or orally to either its national office or its representatives in the regional or district branches.A written complaint is to be signed by the complainant or his agent while an oral one is reduced into writing by the person to whom the complaint is made, who appends his signature and thumbprint of the complaint.The oral complaint will benefit about 80 % of Ghana's population which is largely illiterate.Complaints to the CHRAJ could be made by any individual or a body of persons, whether corporate or unincorporated.The public may, however, be excluded from investi gations conducted by the CHRAJ.
Where the CHRAJ decides to conduct investigation into a complaint, it shall give the authority or person to whom the allegations were made against the opportunity to comrnent on them and submit them to the CHRAJ within such time as specified by it.This gives discretionary power to the CHRAJ to determine which time a reply could be sought from an offending person or institution to whom allegations were made against.As an evidence at investigations, the CHRAJ is obliged to require any person who, in its opinion, is able to give any information relating to a matter being investigated by it to (a) fmnish the informa tion to the CHRAJ; (b) produce any document, paper or thing that in the CHRAJ's opinion relates to the matter being investigated and which may be in the possession or control of that person.
The CHRAJ is however seriously limited in obtaining information in two ways.First, production of official documents before the CHRAJ is subject to Article 135 of the 1992 Constitution which states that: The Supreme Court shall have exclusive jurisdiction to determine whether an official document shall not be produced in court because its production or the disclosure of its contents will be prejudicial to the security of the State or will be injurious to the public interst.
Second, although the CHRAJ can summon before it and examine on oath or affirmation -a person required to give information or produce anything, document or paper, a complainant or any other person who the CHRAJ considers will be able to give information -, it cannot compel a person to give evidence or produce papers or documents if that person is bound by law to maintain secrecy in relation to, or not to disclose, any matter, if compliance with that requirement would be in breach of the obligation of secrecy or non-disclosure.

These are serious limitations on the powers of the CHRAJ to obtain information because
what is termed "confidential" or "official" document or maintaining "secrecy or non disclosure" are very subjective criteria which could provide a mask behind which govem ment institutions, officials and agencies and the govemment itself can hide to abuse human rights and discretionary powers.The production or non-production of official documents and obligation of "secrecy and non-disclosure" are very contentious issues in the legal history of Ghana and their resolution is left at the discretion of the courts.(e) was based on irrelevant grounds or made for an improper purpose; or (f) was made in the exercise of a discretionary power and reasons should have been given for the decision, the CHRAJ is required to report its decision and the reasons for it to the appropriate person, Minister, department or authority concerned.A copy of the report and recommendations are also sent to the complainant, unlike previously, where it was only sent to the offending person or authority.This is to inform the complainant that action has been taken on his complaints.And unlike previously, where reports and recommendations of the ombudsman gathered dust on the shelves of offending persons and institutions, under the CHRAJ if within three months after the report is made no action is taken which seems appropriate to the CHRAJ to be adequate and appropriate, the Commissioner is obliged, after considering the comments (if any) made by or on behalf of the department, authority or person against whom the complaint was made, to bring an action before any court and seek such remedy as may be appropriate for the enforcement of the recommendations of the CHRAJ.

If, after investigations have been completed by the CHRAJ, the !alter is of the view that the decision, recommendation, act or ommission that was the subject matter of investigation
Although the CHRAJ can initiale investigations into complaints, it has also been empowered, unlike the 1979 Constitution ombudsman, to refuse to investigate any matter or complaints on the following grounds: (i) that under the law or existing administrative practice there is adequate remedy for the complaint, whether or not the complainant has availed himself of it; (ii) that having regard to all the circumstances of the case, any further investigation is unnecessary; (iii) if the complaint relates to a decision, recommendation, act or omission of which the complainant has had knowledge for more than twelve months before the complaint is received by the CHRAJ; (iv) the subject matter of the complaint is trivial; (v) the complaint is frivolous or vexatious or is not made in good faith; (vi) the complainant does not have suffucient personal interest in the matter of the complaint.13 However, if within six months after the CHRAJ's refusal or ceasing to investigate any complaint, fresh evidence in favour of the complainant becomes available, the CHRAJ, at the request of the complainant, is mandated to reopen the case.The CHRAJ is also mandatorily required that where it decides not to investigate or to cease to investigate a complaint, it shall within 30 days of the decision inform the complainant of its decision and reasons for so doing.This stipulation was not in the 1980 Ombud�man Act.The result wa� that a lot of complainants did not know why their complaints were rejected while those of others were accepted and investigated.
Like all ombudsmen system every where, the CHRAJ is required to submit a re po rt annually to Parliament, which shall include a summary of the matters investigated, and the action taken on them by the CHRAJ during the preceding year.Although Parliament may debate the report and pass a resolution on it, none of its resolutions can alter a decision made by a court or a matter instituted before the court by the CHRAJ.This is to guarantee the freedom and independence of the CHRAJ as weil as promote the concept of separation of po wers.

V. Finance
The With this trend the Commissioner and his two deputies seem to have no alternative than to compromise their ind epe ndence by begging for funds from the executive to enable them meet the logistics of the task they have been given.One caveat out of this seemingly financial strangulation of the CHRAJ is to amend the Act to include that a fixed percentage of funds be released to the CHRAJ on quarterly basis to cover its operational costs.In this way, the CHRAJ will not only have a more definite statutory source of funding, rather than d epe nd on the whims and caprices of the executive, but also promote and enhance its independence.

Concluslon
In theory, Ghana's Commission on Human Rights and Administrative Justice (CHRAJ) has been endowed with sufficient powers and jurisdiction necessary for it to promote human rights and check abuse of power and administrative malfeasance.In practice, however, the CHRAJ fails to get the financial autonomy and backing that will enable it perf orm its task effectively and efficiently.The success of the infant institution d epe nds on the commitment and the enthusiasm of National Democratic Congress party govemment of Flight Lieutenant J.J. Rawlings, which won both the presidential and parliamentary elections of November and December 1992 respectively.Otherwise, like its predecessor, the ombuds man, the CHRAJ may turn out to be another "toothless tiger" or a "swordless crusader".The procedure or mode of investigation should be well-delineated so that the CHRAJ does not only become an additional court in itself but also dogmatic, bureaucratic and lethargic.
Certainly, the CHRAJ has got more enlarged jurisdiction than any other ombudsman system practised in Ghana.However, one's fear is that, like most ombudsmen system, the CHRAJ may be greatly under-used.15This is mainly because its existence and functions are not sufficiently well known to the majority ofGhanaians.A vigorous public awareness drive of the institution is therefore crucial and appropriate.
coming into force of the Constitution, without nobody being appointed to the office.When the Busia regime was overthrown on 13 January 1972 in a coup d 'etat led by the then Colonel I.K. Acheampong, the National Redemption Council (NRC) which assumed the reins of government, established the lnvestigations Division of the S pec ial Action Unit 1mder NRC Decree 235 of 1973 to deal with abuse of power by public officials.The Investigations Division, however, tumed out to be a debt-collecting one for the government and individuals rather than a grievance redressing one.lt was under the 1979 Constitution and the Third Republic that Ghana actually had an ombudsman.Unlike the 1969 Constitution, the 1979 Constitution not only stipulated that an ombudsman office should be established but went on to mandatorily enjoin the government of the Third Republic to appoint somebody to the office one year after the coming into force of the Constitution.The Ombudsman's Act (Act 400) of 1980, which was passed by Parliament, empowered the ombudsman to investigate all acts of commission and omission by the public service, the arrned forces, the police service and the prison service.In other words, the ombudsman was to receive complaints about in justice and maladministration against government agencies and officials from aggrieved persons.He had the power to investigate, criticise and recommend corrective actions.He was to submit annual reports on the operations of his office to Parliament.The jurisdiction of the ombudsman was, however, severely limited by the 1979 Constitu tion and Act 400.He was barred from investigating into (a) cases which were sub judice; (b) matters relating to the prerogative of mercy; (c) matters involving the relations or dealings between the government of Ghana and other countries or international organisa tions.Another limitation on the powers of the ombudsn,:ian was that he cannot initiale legal proceedings in any court to enforce his recommendations.This made the ombudsman's recommendations non-biting and non-binding on erring govemment institutions and organisations.The annual ombudsman reports from 1979 to 1986 -a period of seven years -rcvcal that the ombudsman's office received 8,521 complaints from the public and only 6,345 of them were investigated, while 176 were considered as outside the jurisdiction of the ombudsman.Out of the 6,345 cases investigated and reported on by the ombudsman only a paltry 2,140 were enforced.5The non-enforcement of his recommendations made the Ombudsman, Mr. Justice G.K. Andoh, not only a "toothless bulldog" or a "watchdog in chains" but also prompted him to make a special direct appeal in his 1986 annual report to the governmcnt of the erstwhile Provisional National Defence Council (PNDC), the regime that overthrew the democratically elected civilian govemment of Hilla Limann 's People's National Party govemment on 31 December 1981, to help and cooperate with his office to enforce his recommendations.Apparently, the ombudsman feit slighted by the inability of the PNDC govemment to enforce his directives on the reinstatement of some employees of the State Fishing Corporation who were unjustifiably retrenched in 1984 without following laid down labour laws.R epe ated appeals by the ombudsman to the PNDC for three years to have them reinstated fell on deaf ears.6The ombudsman institution was also hampered by Jack of office accommodation.The national office of the ombudsman had no permanent accomodation.Within a period of eight years, his office had been relocated four times.This made it difficult for aggrieved persons to physically locate the national headquarters.Even though the 1979 Constitution and the Ombudsman Act (Act 400) of 1980 stipulated that the office of the ombudsman should be decentralised to the then nine regions and existing 65 districts, only three regional capitals, namely Sekondi-Takoradi, Cape Coast and Kumasi, actually had offices.

A
further problem that affected the operations of the ombudsman was the appointment of one person as the ombudsman.The 1979 Constitution and the Ombudsman Act of 1980 stipulated that the office of ombudsman be occupied by a judge of the High Court.He was to be appointed by the President on the advice of the Council of State with the approval of Parliament.The People's National Party govemment of Limann appointed Mr. Justicc Andoh, a High Court judge to the position.The workload of being a sole ombudsman is exacting particularly when one has to work with a highly understaffed officc.This was what happened when Justice Andoh was the sole ombudsman.Nobody was appointed to be his deputy.When he died in December 1989, although it was difficult to link the exacting nature of his work with his death, the erstwhile PNOC never appointed anybody to fill the position until July 1993 when the CHRAJ was established The inability of the PNOC to appoint a new ombudsman after the demise of the imcumbent clearly shows the disdainful attitude of successive goverrunents towards the institution.lt also shows the dark cloud of adverse publicity and neglect which the institution of ombudsman was forced to work with.This brief review has shown the tortuous path and the "ugly scars" left behind by the ombudsman institution in Ghana.Perhaps it is these tortuous path and "ugly scars" that may have contributed to the reshaping and establishment of the successor institution, the Commission on Human Rights and Administrative Justice (CHRAJ) to which we now turn.II.The CHRAJ: Powers and Jurlsdlctlon The CHRAJ is enshrined in Chapter 18 of the 1992 Ghanaian Constitution.lt was, however, established by Act 456 (The Commission on Human Rights and Administrative Justice Act) of 19 93, six month after the coming into force of the Constitution.The Constitution and the Act, unlike the 1979 Constitution and the 1980 Ombudsman Act.confer wide functions on the CHRAJ.The CHRAJ is not only responsible for checking and redressing incidents of maladministration and malfeasance but also to promote human rights: to investigate complaints of violations of fundamental human rights and freedoms, injustice and corruption; abuse of power and unfair treatment of persons by public officers in the exercise of their duties, with power to seek remedy in respect of such acts or omissions and to provide for other related purposes.7 Specifically, the CHRAJ is: (a) to investigate complaints conceming the functioning of the Public Services Com mission, the administrative organs of the State, the offices of the Regional Co ordinating Council and the District Assembly, the Armed Forces, the Police Service and the Prisons Service in so far as the complaints relate to the failure to achieve a balanced structuring of those services or equal access by all to the recruitment of those services or fair administration in relation to those services; (b) to investigate complaints conceming practices and actions by persons, private enter prises and other institutions where those complaints allege violations of fundamental human righL� and freedoms under the Constitution; (c) to investigate allegations that a public officer has contravened or has not complied with a provision of Ch ap ter 24 (Code of Conduct of Public Officers) of the Constitution; (d) to investigate all instances of alleged or suspected corruption and the misappropriation of public monies by officials and to take appropriate steps, including reports to the Attomey General and the Auditor-General, resulting from such investigation; (e) unlike in the 1979 Constitution and the Ombudsman Act of 1980, to educate the public as to human rights and freedoms by such means as the Commissioner on Human Rights and Administrative Justice may decide, including publications, lectures and symposia; (f) like under the 1979 Constitution and the 1980 Act, to report annually to Parliament on the performance of its functions.8To perform its functions effectively and efficiently, the CHRAJ, unlike under the 1979 Constitution and the 1980 Act, has been given the power to initiale legal proceedings to back its recommendations.In this connection, the CHRAJ has the power to take ap propriate action to call for the remedying, correction and reversal of instances of abuse of power and human rights through such means as are fair, proper and effective, including: (i) bringing proceedings in a competent court for a remedy to secure the termination of the offending action or conduct, or the abandonment or alteration of the offending pro cedures; and (ii) bringing proceedings to restrain the enforcement of such legislation or regulation by challenging its validity of the offending action or conduct is sought to be justified by subordinate legislation or regulation which is unreasonable or otherwise ultra vires; (iii)the Commissioner of Human Rights and Administrative Justice may bring any action before any court in Ghana and may seek any remedy which may be available from that court.9 This power to prosecute 1s an important innovation m the historical evolution of the ombudsman institution in Ghana because no ombudsman system properly so describcd is anywhere authorised to make orders, reverse administrative action or enforce remedies.lt will be very interesting to see how this will work considering the long delays in the Ghanaian courts.If the CHRAJ's initiation of legal proceedings will be delayed by the courts, then it will defeat the expeditious manner that often characterises the work of the ombudsman system elsewhere.Unlike previously, special powers of investigation have also been given the CHRAJ.These are the power to: 8 Republic of Ghana, Constitulion of the Republic of Ghana, 1992; Republic of Ghana, Thc Commission on Human Righls and Adminislrative Justice Act (Act 456), 1993.9 Republic of Ghana, Tue Commission on Human Rights and Administrative Justice Act (Act 456), 1993, Article 3. (a) issue subpoenas requiring the attendance of any person before the Commission and the production of any document or record relevant to any investigation to be carried out by theCHRAJ; (b) cause any person contemptuous of any such subpoena to be prosecuted before a competent court; (c) question any person in respect of any subject matter under investigation before the Commission; (d) require any person to disclose truthfully and frankly any information within his knowledge relevant to any investigation by the Commission.10 Like previously, however, the jurisdiction of the CHRAJ has been limited.lt is barred from investigating the following: (a) a matter which is pending before a court of judicial tribunal; (b) a matter involving the relations or dealings between the government of Ghana and any other government or an international organisation; and (c) a matter relating to the exercise of the prerogative of mercy.These limitations were to ensure that the CHRAJ does not engage in unnecessary litigations and confrontations with the government of the day.m.Composltlon of the CHRAJ The composition of the CHRAJ differs significantly from that under the 1979 Constitution and the 1980 Act, where one man was appointed to the office of ombudsman.The CHRAJ is a collective body which consists of three persons: a Commissioner and two deputy Commissioners.This is meant to ensure that, in the absence of the Commissioner, any of his two deputies could effectively perform his functions, unlike previously where no provision was made for a deputy ombudsman to act during the absence of the incumbent.Like previously, however, the President appoints the Commissioner and his two dcpulics, acling in consultation with the Council of State and with the approval of Parliament.This is lo ensure that the Commissioner and his deputies are independent of the executive arm of govemment.Unlike previously, where the ombudsman was qualified to hold the appointment ifhe was a High Court judge, the Commissioner under the 1992 Constitution and the 1993 Act is qualified for the appointment unless he is qualified for appointment as a Justice of the Appeal Court, while his two deputies are qualified to hold the position of only they are qualified for appointment as Justice of the High Court.The Commissioners and the two deputies enjoy terms and conditions of service as Justices of the A ppe al Court and High Court respectively.They are, however, barred from holding any other public office while holding office as Commissioner and deputy Commissioners.The ind epe ndence of the Commissioner and his deputies is also ensured by the provision that the conditions of their removal shall be the same as those provided for the removal of a Justice of the Court of A ppe al and a Justice of the High Court respectively under Article 146 of the 1992 Constitution which states that: A Justice of the Superior Court shall not be removed from office except for stated misbehaviour or incompetence or on ground of inability to perform the functions of his office arising from infinnity of body or mind.11 Also like the 1979 Constitution ombudsman, the independence ofthe Commission and the Commissioners is guaranteed in theory by the 1992 Constitution: Except as provided by this Constitution or by any other law not inconsistent with this Constitution, the Commission and the Commissioners shall, in the performance of their functions, not be subject to the direction or control of any person or authority.12 unreasonable, unjust, oppressive, discriminatory or was in accordance with a rule of law or a provision of any Act or a practice that is unreasonable, unjust, oppressive, or discriminatory; or (d) was based wholly or partly on a mistake of law or fact; or ind epe ndence of any institution in most developing countries most often than not depends on its financial po sition and capacity.The ind epe ndence of the 1979 Ombudsman was essentially eroded because he lacked the funds and logistics necessary to perform his functions.To clothe the CHRAJ with the garb of independence, the 1992 Constitution and the 1993 Act stipulate that its administrative expenses, including all salaries, allowances and pensions payable to or in respect of persons serving with it, are charged on the Con solidated Fund.While this is vague, it is not also new for it was provided under the 1979 Constitution and the 1980 Ombudsman Act.The financial task that faces the CHRAJ is daunting.First, it will have to pay all costs and expenses related to its investigations.For instance, the CHRAJ is to pay to a person by whom a complaint is made and to any other person who attends and furnishes information for the purposes of an investigation: (a) sums of money in respect of expenses properly incurred by them; and (b) allowances by way of compensation for the loss of their time, in accordance with such scales having regard to the rates for the time being applicable to the courts.14Second, the CHRAJ is enjoined to open regional and district branches in the 10 regions and 110 districts of the country.A pa rt from these, the CHRAJ is also required to decentralise its operations to such other lower structures like towns, villages and units.These stipulations seem over-ambitious because both the Constitution and the Act do not say much on the finances of the CHRAJ.The release of funds from the Consolidated Fund in the history of Ghana is subject to the whims and caprices of the executive in particular and Parliament in general.Ghana's history is replete with cases where the executive branch of govemment refused to release funds to institutions either on the pretext that the institution were con sidered "hostile" to it or there was no money in the national purse to cover their operations.This fear is further grounded by the centralized nature of the release of funds in Ghana.The Ministry of Finance and Economic Planning has not only the monopoly to authorise the voting and release of funds but also approval of recruitment of staff in most public service organisations.
(ed.), International Handbook of the Ombudsman: Evolution and Present Function, London 1983.