No presidential amnesty over an adverse finding by a commission of inquiry

Act No. 12 of 2023 assented to by His Excellency the President of the Republic purports to “amend the Commission of Inquiry Act 1903 (the Act) to incorporate a provision allowing for a presidential review of Commission’s finding and for connected matters”. Under section 19 of the Act – 1. Where a Commission of Inquiry submits a report to the government and the government has published a whitepaper in respect of the report and has in the whitepaper – a. accepted the recommendation that a person should be banned from holding public office, or b. accepted the recommendation that a person should be dismissed or removed from a public office. The Minister shall within seven days publish the names of such persons in the Gazette by way of an Order. 2. In respect of paragraph 1(b) the president shall act in accordance with section 167 of the Constitution and subject to the relevant enactment or rule of law, declare that person summarily dismissed or removed from the post with effect from the date specified in the notice. 3. A person removed under this section, may subject to the enactment relating to that person, be entitled or eligible to emoluments, emnsion, gratuity, or any other accrued rights. In pertinent part, a new section 20 of the Act states: 4. A person who is serving a ban from holding public office pursuant to a finding by a Commission of Inquiry issued under this Act may apply for a commutation of the ban in writing to the Minister. 5. Upon receiving such application, the Minister shall, within fourteen days present it to the President for consideration. 6. The President may upon consultation with Cabinet commute the whole or any part of the ban imposed on such person. 7. Where the President in consultation with Cabinet commutes the whole or part of the ban imposed on the person, the Minister shall within one week from the date of such decision publish the decision in the Gazette, by way of an Order. 8. The Minister shall maintain a register of persons banned from holding public office and may, from time to time, publish the names on the register in the Gazette. Per a new section 21, “persons qualified to apply for Amnesty” 1. A person may make an application under section 19 if he or she – a. is serving a ban pursuant to a finding by a Commission of Inquiry established under this Act; b. has served at least three years of his or her ban; c. has not been convicted for an offence during the period of the ban. 2. A commutation under this section shall not expunge the findings pursuant to which the ban was made. Contrary to section 21, the delineated application process for amnesty is under section 20, not 19. By any yardstick this was inexcusable carelessness by the National Assembly (NA). On the substance, this Act was in excess of legislative authority and therefore null, void and of no effect. The NA is duty bound to run the Act through a compatibility test with the Constitution which is the controlling legal instrument on Commissions of Inquiry. Wholly subsumed in the Constitution at sections 200 through 205, the 1903 Act is of no material significance given the object of this Act. The proper instrument to amend is the Constitution, specifically section 204 (b) on the import of adverse findings: “A person against whom any such adverse finding has been made may appeal against such adverse finding to the Court of Appeal as of right as if the finding were a judgment of the High Court; and on hearing of the appeal the report shall be treated as if it were such a judgment”. Further elaborating the exclusively judicial route to a conclusive settlement of matters arising from a Commission of Inquiry, “an appeal under this section shall be made within three months of the appellant being informed of the adverse finding as provided by subsection (1) or such later time as the Court of Appeal may allow. To cement the exclusive judicial route crafted around an adverse finding by a Commission of Inquiry, section 90(e) of the Constitution excludes from the NA anyone “… found by the report of a commission or committee of inquiry (the proceedings of which have been held and published in accordance with the relevant law) to be incompetent to hold public office by reason of having acquired assets unlawfully or defrauded the State or misused or abused his or her office, or willfully acted in a manner pre-judicial to the interests of the State, and the findings have not been set aside on appeal or judicial review”. Similar provisions are stipulated at section 62 c of the Constitution. As the trigger, an adverse finding conclusively excludes the President from playing any role on the findings of a Commission of Inquiry. On the law therefore, Act number 12 of 2023 contravenes the Constitution and to the extent of the contravention, is null, void and of no effect. The Court of Appeal, and ultimately the Supreme Court, decides the issue of the validity of an adverse finding. It is a wholly Judicial solution with no role whatsoever for the President. If it is intended to act as a pardon under the prerogative of mercy that is not a tenable route as there must first be a criminal conviction before a pardon is legally triggered. The Constitutional regime around an adverse finding never envisaged a presidential role akin to an amnesty as enumerated in these unlawful amendments. Rather than amend a moribund and largely inconsequential Act, the sections needing amendment are 200 through 206 of the Constitution, in particular section 204 generally. I accord the highest reverence commensurate with the elevated status of the Presidential office but I revered the Republic more.