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Coming On November 6, 2014 At The Supreme Court Of Ghana   
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Why is it Unconstitutional for the President to use a Commission of Inquiry to initiate Amendments to the Constitution?

1. Because according to the Constitution, its provisions can be amended only by a Parliamentary initiative. Although constitution review commissions are an option for initiatiating constitutional amendments, this option has not been sanctioned by the Constitution. In the same vein, constitutional amendments of the 1992 Constitution cannot be initiated by popular initiatives or constitutional conventions. A Constitution must state ex ante the type of initiatives that are permissible for its amendments.

2. Although amending the Constitution may be of public interest, it falls outside the scope of Article 278(1) which allows the President to appoint a commission of inquiry into any matter of public interest where the President is satisfied that a commission of inquiry should be appointed.

3. The Commissions of Inquiry contemplated by Article 278(1) have nothing to do with amending the Constitution! Those Commissions are to serve as an independent inquiry to investigate and establish the truth relating to a specific occurrence, affair or the activities of an entity. All you have to do to understand what these Commissions are is to evaluate their inquiry procedures, nature, powers, functions, the effect of their findings as well as the immunities and privileges of witnesses appearing before them (see Chapter 23 of the Constitution).

4. These Article 278 Commissions are regulated by the Rules of Court Committee. The Commissions of Inquiry (Practice and Procedure) Rules, 2010 C.I. 65 drawn by the Rules of Court Committee have nothing to do with Constitutional Reform and Amendments. In C.I. 65, a commission is characterized as having the powers of the police for the purposes of entry, search, seizure and removal of a document or an article relevant to the inquiry of the Commission (section 3). The rules discuss the establishment of investigation units (section 7(1)(a)), notice of hearing to a person whose conduct is the subject of the inquiry (section (8)(c)), compellable witnesses, admission of incriminating evidence (section 14), etc.

5. None of the rules in C.I. 65 will apply to the Constitutional Review Commission. In fact, this is why the 10 people handpicked by the President to review the Constitution claim to have developed their “own values, principles, strategies and modus operandi” to review the Constitution ostensibly on behalf of all the other 25 million or so citizens. The CRC has no such power and cannot make up its own rules. All Article 278 Commissions must operate under the rules set up by C.I. 65. If C.I. 65 rules do not fit the CRC then the CRC does not fit under Article 278.

6. To understand what Commissions are and what they are to be used for, the interested reader should read the Memorandum on the Proposal for a Constitution of Ghana, 1968 and the Proposals for the Establishment of a Transitional (Interim) National Government for Ghana, 1978. Article 278(1) Commissions are not and cannot be used to initiate constitutional reforms!

More later!
Source: Kwaku Azar/ email: [email protected]

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