Researchers at the Faculty of Law of the Kwame Nkrumah University of Science and Technology, Kumasi (KNUST) have argued that police powers granted to Commissions of Inquiry in Ghana are unconstitutional because they were introduced through subsidiary legislation rather than the Constitution itself.

The study, published in the KNUST Law Journal, contends that provisions in the Commission of Inquiry (Practice and Procedure) Rules, 2010 (C.I. 65), which allow commissions to search and seize documents without a warrant, undermine constitutional supremacy, constitutionalism and the rule of law.

According to the researchers, the 1992 Constitution grants Commissions of Inquiry limited powers similar to those of the High Court, including summoning witnesses and compelling the production of documents, but does not expressly confer police powers such as search and seizure.

The paper argues that Rules 1(3) and 1(4)(b) of C.I. 65 unlawfully expand the constitutional powers of commissions by allowing them to enter premises, search and seize documents, in some instances without obtaining a warrant.

Using constitutional analysis and case law, the authors maintained that the Rules of Court Committee exceeded its mandate by introducing powers not contemplated by Article 279(1) of the Constitution.

The researchers further argued that granting such powers through a constitutional instrument amounts to an indirect amendment of the Constitution without following the amendment procedures outlined under Articles 289, 291 and 292 of the 1992 Constitution.

The study highlighted that Commissions of Inquiry are intended to function as independent fact-finding bodies rather than criminal investigative agencies. It noted that their work is inquisitorial and not equivalent to criminal trials conducted by law enforcement agencies.

The authors warned that allowing commissions to exercise police powers could create room for arbitrary searches and possible abuse, particularly in politically sensitive inquiries.

As part of their recommendations, the researchers proposed that commissions seeking documents or evidence should instead apply to the courts, which may authorise police-assisted searches where necessary.

The paper concluded that the current provisions granting police powers to Commissions of Inquiry are inconsistent with the Constitution and should either be struck down by the Supreme Court or amended through proper constitutional procedures.

The study was authored by Mr. Kwadwo Bioh Agyei, Dr. Maame Efua Addadzi-Koom and Mr. Ebenezer Adjei Bediako of the KNUST Faculty of Law.