Researchers at Kwame Nkrumah University of Science and Technology (KNUST) Faculty of Law in Kumasi assert that police powers assigned to Commissions of Inquiry in Ghana are unconstitutional. These powers were introduced through subsidiary legislation, not the Constitution itself. This grants commissions the ability to search and seize documents without a warrant. The study highlights this practice undermines constitutional supremacy, a core principle of governance. It also challenges the fundamental concept of constitutionalism.
The 1992 Constitution gives Commissions of Inquiry powers similar to a High Court. These include summoning witnesses and demanding documents. However, the Constitution does not explicitly grant police-like powers such as search and seizure. The research paper points to specific rules within the Commission of Inquiry (Practice and Procedure) Rules, 2010 (C.I. 65). These rules allegedly allow commissions to enter properties and seize items without warrants. This expansion of powers may be unlawful, going beyond what Article 279(1) of the Constitution permits.
This move by the Rules of Court Committee may have exceeded its authority. The researchers argue that introducing such significant powers through a constitutional instrument is a backdoor attempt to amend the Constitution. Proper constitutional amendment procedures, detailed in Articles 289, 291, and 292, were bypassed. The study emphasizes that Commissions of Inquiry are meant for fact-finding. They are not intended to act as criminal investigative bodies. Their work is inquisitorial, differing from criminal trials by law enforcement agencies.
Allowing commissions to wield police powers creates a significant risk. It opens the door for arbitrary searches and potential abuse. This is particularly concerning in politically sensitive inquiries. The researchers suggest a better approach. Commissions needing evidence should apply to the courts. The courts can then authorise police-assisted searches if necessary. The authors of the study are Mr. Kwadwo Bioh Agyei, Dr. Maame Efua Addadzi-Koom, and Mr. Ebenezer Adjei Bediako. They conclude that these provisions are inconsistent with the Constitution. They recommend either Supreme Court invalidation or constitutional amendment.