A former Deputy Attorney-General has criticised Justice Emile Short's ruling declining a request by some NDC politicians to cross-examine witnesses who testified before the Commission of Inquiry investigating the Ayawaso West Wuogon by-election violence.

Dr. Dominic Ayine, counsel for two witnesses who are opposition politicians, maintained the rules of court contemplates situations where any witness believing a testimony impugns his image, would want to cross-examine another.

“The right to cross-examine one’s accuser with facts that impugn the integrity of their evidence is a fundamental right recognised by not only the Evidence Act but also the Constitution of Ghana”, he pointed out on Joy FM.

The Emile Short Commission had ruled during Tuesday’s hearing, the commission is not a court.

Photo: Emile Short is chair of a three-member Commission of Inquiry

The Chairman of the Commission held the rules allow cross-examination only if the witness is a subject of the Commission of Inquiry - the lawyer’s clients, NDC MP Sam George and NDC parliamentary candidate Delali Brempong are not.

The Short Commission argued to allow cross-examination could open the floodgates for other witnesses and fundamentally disrupt its work.

If a witness has questions for another witness, it should be routed through counsel for the Commission who under the rules is allowed to re-examine the witness, Emile Short read the judgment.

But counsel for the two NDC politicians in an interview on Joy FM argued his clients qualify as subjects of the inquiry as provided in Article 282 (1) of the 1992 Constitution which states;

“Any person whose conduct is the subject of inquiry by a commission of inquiry, or who may, in any way be implicated or concerned in the matter under inquiry, is entitled to be represented by a lawyer at the inquiry…”

The counsel for the two NDC politicians argued that “by what stretch of interpretation would you say Sam George is not implicated or in someway concerned with the matters…before the Commission?”

“Or in the case of Delali Brempong, that he is not concerned with or implicated?” he wanted to know.

Photo: Delali Brempong contested the Ayawaso-West Wuogon by-election on the ticket of the opposition National Democratic Congress

Picking an example, he explained Delali Brempong who was the NDC parliamentary candidate in the Ayawaso West Wuogon by-election has been accused of keeping weapons in his house ahead of the polls held January 31, 2019.

“There is no way by which the evidence that was given… regarding the existence of arms can be impeached. The only mechanism provided by law is cross-examination”.

He said he “fundamentally” disagreed with Emile Short’s ruling which leaves the determination of the credibility of a testimony to the Commission.

Dominic Ayine rejected concerns by the Commission that allowing the cross-examination could open the floodgates.

The alternative offered to them to submit questions to counsel for the Commission for re-examination of a witness undermines the floodgate argument, he insisted.

If a witness can submit questions which lead to recalling witnesses, “other persons who have the same concern will also exercise the same right and they will be recalling witnesses ad infinitum.

The counsel for the two said like the court, there are procedures in law by which cross-examination requests are limited.

He said since the Commission is an “inferior administrative tribunal”, it is possible, his client may proceed to the High Court to challenge the ruling.