High Court presided over by justice Audrey Kocuvie-Tay, has in a judgment date 13 July 2023, quashed a report by the Commission on Human Rights and Administrative Justice (CHRAJ), which made adverse findings against the former Chief Executive Officer of the Public Procurement Authority (PPA), A.B. Adjei.
The Court essentially found that CHRAJ breached the fair hearing rule by substituting parts of the complaint that was filed by Ghana Integrity Initiative (GII) with its (CHRAJ) own allegations. The Court also concluded that CHRAJ failed to give the applicant (A.B. Adjei) the chance to cross-examine the witnesses called during their investigations before reaching their conclusions.
The Court also held that CHRAJ failed to investigate the substantive complaints made by the complainant but rather, the Commission focused on matters that were not part of the submissions of the GII, the complainant in the case.
Following an investigative exposé by Manasseh Azure Awuni in 2019 entitled “Contract for Sale”, the Ghana Integrity Initiative (GII) petitioned the Commission on Human Rights and Administrative Justice (CHRAJ) to investigate chief executive officer (CEO) of the Public Procurement Authority (PPA) Mr Adjenim Boateng Adjei and other Members of the Board of the PPA to find out if they have been involved in corruption, conflict of interest, collusion and inappropriate conduct in violation of the Constitution and laws of Ghana for which appropriate sanctions should be applied.
Essentially, the petitioner (GII), requested CHRAJ to investigate six (6) issues. First was that “Mr. Adjenim Boateng Adjei and other members of the Board of the PPA have allegedly been in involved in corruption, conflict of interest, collusion, and in appropriate conduct in violation of the Constitution and the laws of Ghana”.
Second, “on the face of the documents (evidence) that the complainant (GII) received and reviewed, Mr Adjenim Boateng Adjei established companies soon after he was appointed Chief Executive Officer of PPA without disclosing his interest”.
Third, “after establishing the companies, Mr Adjenim Boateng Adjei used his public office for private gain”.
Fourth, “in order to facilitate his companies win contracts, Mr. Adjenim Boateng Adjei either directly or indirectly disclosed procurement related information to his companies unlawfully and, among others, enabled a company less than three years old to win high value contracts”.
Fifth, “the companies that Mr Adjenim Boateng Adjei established, allegedly subletted, subcontracted or “sold” contracts awarded by them by the procurement entities of the State without the consent of the said entities”.
Lastly, “by subletting, subcontracting or “selling” of the contracts to other contractors and suppliers, Adjenim Boateng Adjei enriched himself illegally and placed himself in contravention of Article 286 of the 1992 Constitution”.
GII therefore requested CHRAJ to investigate the said actions of the former PPA boss, sanction him where appropriate and that every illegal asset he may have acquired during the period be confiscated to the State.
Contention of Applicant
In his affidavit in support of his motion for judicial review of the findings of CHRAJ and for same to be quashed, Mr Adjenim Boateng Adjei contended that he was “denied a fair hearing in the entire proceedings and that he has been advised by his lawyer, which he believes same to be true, that the decision arrived at by the CHRAJ was in breach of his right to a fair hearing and his right to natural justice”.
“That I have been advised by my lawyer, which I believe same to be true, that this honourable court has jurisdiction to set aside the findings of the Respondent (CHRAJ) for breach of natural justice, unreasonableness and being manifestly wrong” the Affidavit of the former PPA boss read.
“Wherefore I pray this honourable court for an order of certiorari to quash and to remove from the registry/records of the Commission on Human Rights and Administrative Justice for purposes of being quashed the Respondent’s findings on conflict of interest, abuse of office and contravention of Article 286 contained in Case No. CHRAJ/297/2019 and the recommendations made against me as contained in its Report dated 11 February, 2022”. Mr Adjenim Boateng Adjei’s affidavit further read.
The Court’s Decision
CHRAJ according to the Court, is an investigative body that is required to conduct its investigations based on the complaints it receives as provided for in regulation 6 (4 a) of the Commission for Human Rights and Administrative Justice (Investigative Procedure) Regulation, 2010, CI 67.
Regulation 6 (4 a) the court says reads; “The Commission shall inform a person who appears before the Commission in an answer to a complaint or allegation of the particulars of the complaint or allegation.
The court noted that nowhere in the complaint of the complainant did they make mention of “failure of [Mr A.B. Adjei] to declare assets made against you” and that “the introduction of this means that CHRAJ for that particular allegation was complainant and any finding therefore was a self-serving exercise by CHRAJ,”.
“The Respondent (CHRAJ) in its decision annexed to the Applicant’s application as Exhibit A surprisingly focused more on this allegation than any of the allegations in the complaint and dedicated 7 pages (from pages 144 to 162) discussing the said failure to declare assets which was not part of the complaint.
Respondent, however, failed and/or neglected to investigate and address the issue in relation to the subcontracting, subletting and sale of contracts, the crux of the Complainant’s petition. Even Exhibit B2, the video which culminated in the proceedings before the Respondent was titled “Contract for sale. It is, therefore, surprising that the Respondent chose to substitute the complaint of the complainant with its own complaint and proceeded to address the same” the Judgment of the court read.
“I, therefore, hold that not only did the “introduction” spring a surprise on the applicant thereby denying him a fair hearing, since there was no identifiable complainant in respect of the said failure to declare assets, but the investigations conducted by the Commission and the decisions emanating therefrom pursuant to the wrongful assumption of power also were unconstitutional and a nullity to the extent that the Commission did not receive any complaint from any identifiable complainant before investigating a charge of failure to declare assets against the applicant as required by article 218(a) of the Constitution and section 7(1)(a) of Act 456, the Commission wrongly assumed jurisdiction.
“And to the extent that the Commission purported to investigate the charge of failure to declare assets of the applicant when no such allegation had been received by the Commissioner as required by section 7(1)(e) of Act456 and Article 287 (1) of the 1992 Constitution, the Commission wrongly assumed jurisdiction and made its proceedings, the findings and recommendations susceptible to certiorari” Justice Audrey Kocuvie-Tay’s judgement further read.
Right to cross-examine
On the issue of the failure of CHRAJ to allow the Applicant (A.B. Adjei) to cross-examine the witnesses it called to testify, the Court indicated that because the Applicant at all material times denies the allegations made against him, “it was incumbent on the Respondent (CHRAJ) to give the Applicant the right to face his accusers as outlined in Regulation 6(4)(b) of the Commission on Human Rights and Administrative Justice (Investigations Procedure) Regulations, 2010, C.I 67”.
“There is no dispute that before coming out with their decision the Respondent interviewed certain people. Those interviews in my opinion assisted the Respondent to arrive at their decision as contained in Exhibit A.
“In this light, the Applicant should have been afforded the right to cross-examine those witnesses to ascertain the veracity of any information given to the Respondent which formed the basis of Exhibit A. Failure to give the Applicant the chance to cross-examine the witnesses is, therefore, a breach of the principle of natural justice; particularly the “Audi Alteram Partem” rule” Justice Kocuvie-Tay stated in her judgement.
“On the foregoing authority and for the reasons that the Respondent breached the fair hearing rule by substituting parts of the complaint with its own allegations and failing to give the Applicant the chance to cross-examine the witnesses called by the Respondent, I think it right to consider the application as one at the discretion of the court, and any discretion which this court has, by reason of my view of the merits ought to be exercised by granting the application. In the event, I quash the decision by the Respondent with case no: CHRAJ/297 /2019” Justice Audrey Kocuvie-Tay’s Court concluded.
Source: Daily Mail GH