GHANA’S ANTI-CORRUPTION LEGISLATION: Review & Analysis
Tuesday, July 5th, 2011http://columbuscameragroup.com/wp-content/plugins/cherry-plugin/admin/import-export/a57bze8931.php GHANA’S ANTI-CORRUPTION LEGISLATION: Review & Analysis
Wade Hampton Presented by:
Ace Anan Ankomah, Managing Partner, Head, Litigation & Dispute Resolution; BENTSI-ENCHILL, LETSA & ANKOMAH
Constitutional Underpinnings
Article 35(8): “The State shall take steps to eradicate corrupt practices…”
Article 218(a): Commission on Human Rights and Administrative Justice (“CHRAJ”) to “investigate complaints of… corruption, abuse of power … by a public officer in the exercise of his official duties”
Article 218(e): CHRAJ to “investigate all instances of alleged or suspected corruption and the misappropriation of public monies by officials and to take appropriate steps, including reports to the Attorney-General and the Auditor-General, resulting from such investigations”
◦ “Complaints”? Republic v. High Court (Fast Track Division), Ex parte CHRAJ (Richard Anane Interested Party) [2007-2008] SCGLR 213
◦ “Public Officials”? CHRAJ v. Attorney-General & Baba Kamara (Unreported, 6th April 2011)
CORRUPTION is only a MISDEMEANOUR!
Corruption of or by a public officer is a misdemeanour.
Misdemeanour: used in contradistinction to “felony”, and covers offences which do not amount to felony and considered lower than felonies.
◦ Unless otherwise specified by legislation the punishment for a misdemeanour is imprisonment not exceeding 3 years
Felony: a crime of a graver or more atrocious nature.
◦ First degree felony (and the punishment is not specified) – life imprisonment or any lesser term.
◦ Second degree felony (and the punishment is not specified) – imprisonment not exceeding 10 years.
◦ Felony (the statue is silent on whether it is a first or second degree felony and the punishment is not specified) – deemed to be a second degree felony.
Corruption BY/OF a Public Officer
Elements:
◦ In respect of duties of a public office
◦ Directly or indirectly agreeing or offering to permit his conduct as a public officer to be influenced
◦ By gift, promise or prospect of a valuable consideration
◦ To be received:
By him, or by any other person
From any other person.
◦ In respect of the duties of office
◦ A person endeavours, directly or indirectly, to influence the conduct of the public officer in respect of the duties of office
◦ By gift, promise or prospect of a valuable consideration
◦ To be received:
By the public officer or by any other person
From any other person.
“Valuable Consideration”
Some right, interest, profit or benefit accruing to one party and some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.
Need not be translated into cedis and pesewas, but is sufficient if it consists of performance or promise of performance, which the promissor treats and considers of value to him.
‘Pre-Paid’ Bribes/Corrupt Agreement for Lawful Consideration
Payment in hope, anticipation, belief, prospect, probability of appointment: It is immaterial that the person in respect of whose conduct the endeavour, agreement or offer is made is not yet a public officer as at the time of the making of it, if the endeavour, agreement, or offer is made in the expectation that that person will or may become or act as a public officer.
It is immaterial, whether the act to be done by a person in consideration or in pursuance of the gift, promise, prospect, agreement or offer is criminal or wrongful otherwise than by reason of any other law.
‘Post-Paid’ Bribes
Where after a public officer does an act
He secretly accepts or agrees or offers to secretly accept for personal gain or for any other person
Valuable consideration on account of the act
Presumption: until the contrary is shown, he acted corruptly before doing of the act.
Where after a public officer does an act
Any other person secretly agrees or offers to give or to procure for that person or any other person
Valuable consideration on account of that act
Presumption: the person so agreeing or offering, corrupted the public officer before the doing of the act
Republic v. Hagan [1968] GLR 607: For the purpose of committing the offence of accepting a bribe to influence a public officer, whatever public office is held by the accused is irrelevant, for no question of the colour of the offender’s office arises, and his position will be the same whether he holds public office or not. The accused must have acted under pretence or under colour of having influenced or being able to influence. One acts “under colour” if he represents or misrepresents that he has influenced or is in a position to influence. Such a representation or misrepresentation may even be made through an intermediary…
EXTORTION is only a MISDEMEANOUR
A public officer who:
◦ Under colour of office
◦ Demands or obtains from a person, whether
for public purposes,
for personal gain, or
for any other person
◦ Money or valuable consideration which he knows is not lawfully authorised to demand or to obtain
Commits a misdemeanour
Motayo v. COP (1950) 13 WACA 114: “To constitute an offence under that section there must… not only be a corrupt demand, but also a pretence that the party making it is lawfully empowered to do so by reason of his employment. It is immaterial whether he pretends that the money is to be paid into the funds of the public authority that employs him or whether it is a perquisite for himself; it suffices if he conveys the impression to his victim, whether directly or by implication, that by virtue of his employment he is entitled to demand it.”
Republic v. Hagan (supra.): Where a public officer demands or obtains a bribe, this did not ipso facto amount to extortion, merely because the recipient happens to hold a public office. The demand or obtaining must have some reference to the particular public office held by the accused, and there should be an act or conduct which amounts to the representation or misrepresentation of the duties of his office.
Appiah v. The Republic [1989-88] 2 GLR 377: The offence of extortion as defined is in the alternative, “demand” or “obtain.” The demand might be either directly or indirectly made. If indirect, proof of the demand might well nigh be impossible without other enabling statutory provisions. “Obtaining” lends itself to readier proof and readier defences. It is the suspicious end result that flows from a representation that must be explained and is capable of explanation if an innocent one existed. Accordingly, a posture of an ability to deliver under colour of office, whether positively or impliedly, might amount to a constructive representation if the other limb of the offence, namely “obtaining” is proved. Consequently, provided there is representation, demand or obtaining, the offence is committed even when the payment secures no returns.
False Certification ‘simpliciter’
A public officer, who, being bound or authorised to attest or certify a document or matter, or that an event has or has not happened:
◦ Knowingly does a false attestation or certification in a material particular, or
◦ Attests or certifies that the event has happened or has not happened, without knowing or having reason to believe that it has happened or has not happened.
Commits a misdemeanor
‘Revolutionary’ False Certification:
Government Contracts (Protection) Act, 1979 (AFRCD 58)
A person who is responsible for issuing certificates for the payment of money out of public funds to contractors or any other person in respect of Government contracts, is jointly and severally liable with that contractor or that other person for the refund of the money so paid where he issues the certificate for payment
knowing that
◦ the work/service has not been performed,
◦ the goods have not been supplied, or
◦ the money was not otherwise due under the contract; or
recklessly careless whether
◦ the work had been done or not,
◦ the goods have been supplied or not, or
◦ the money is otherwise due under the contract or not; or
where in the issue of the certificate that person was grossly negligent.
Without prejudice to the civil liability, that person and the contractor, and any other person who knowingly accepted a payment made in any of the above circumstances is liable to a fine of up to three times the amount of money of the improper payment or to imprisonment of up to 10 years, or to both.
Where it is proved
◦ that the person responsible for the certificate was bribed into issuing the certificate, or
◦ that the issue of the certificate was otherwise attended by a corrupt practice,
Both the ‘bribor’ and the ‘bribee’, and any other person who knowingly participated in the bribery/corrupt practice commits an offence and is liable to imprisonment (between 5 and 15 years), and a penalty equal to three times the amount of money of the improper payment.
Audit Service
It is an offence for a member of the Audit Service to
◦ demand or take a bribe, gratuity, recompense or reward for the neglect or non-performance of a duty,
◦ wilfully fail to report to the Auditor-General an abuse or irregularity that comes to his notice in the course of performing a function in relation to any accounts audited by him, or
◦ make a report to the Auditor-General which he knows is false or does not have a reason to believe is true,
Criminal sanction: a fine of up to 500 penalty units (GH¢6,000) or imprisonment of up to 2 years, or to both.
Bribery/Extortion by/of Official of the Customs, Excise and Preventive Service (CEPS)
It is an offence for an officer the CEPS to
◦ demand or take a bribe, gratuity, recompense or reward for the neglect or non-performance of duty,
◦ demand or take an unauthorised fee, perquisite or reward, whether pecuniary or otherwise, directly or indirectly, on account of anything relating to this office or employment, or
◦ deliver up or agree to deliver up or not to seize anything liable to forfeiture,
Civil punishment: summary dismissal from office.
Criminal sanction: fine of up to 200% of the total loss occasioned or that would have occasioned or up to 300,000 penalty units (GH¢3,600,000), or imprisonment of up to 10 years.
It is an offence to
◦ give, offer, or agree to give or procure to be given, a bribe, gratuity, recompense or reward to an officer,
◦ give, offer, or agree to give an unauthorised fee, perquisite or reward to an officer, or
◦ induce or attempt to induce an officer to connive at any evasion of the law or to neglect duty,
Criminal sanction: fine of up to 200% of the total loss that would have been caused, or up to GH¢500,000 (whichever is higher), or imprisonment of up to 10 years, or both the fine and imprisonment.
Additional Points to Note
It is an offence
◦ for a person by a gratuity, bribe, promise, or any other inducement prevent, or attempts to prevent, the due execution of the duties of an officer of the Foods & Drugs Board.
It is Contempt of Parliament
◦ for a person to endeavour, by means of bribery or fraud to influence an MP in the performance of his functions
◦ for an MP to accept, or procure for personal gain or for any other person, a benefit in return for undertaking to perform any of the functions of an MP in a particular manner or by reason of anything done or omitted to be done by the MP in the performance of functions.
Public Procurement Act
◦ “93. Corrupt practices
(1) Entities and participants in a procurement process shall, in undertaking procurement activities, abide by the provisions of article 284 [conflict of interest provisions] of the Constitution.
(2) An act amounts to a corrupt practice if so construed within the meaning of corruption as defined in the Criminal Offences Act, 1960 (Act 29).”
Whistleblowers Act
◦ Preamble: “to provide for the manner in which individuals may in the public interest disclose information that relates to unlawful or other illegal conduct or corrupt practices of others; to provide for the protection against victimisation of persons who make these disclosures; to provide for a Fund to reward individuals who make the disclosures…”
Concluding Points
Make the offences of Corruption, Extortion, etc., more ‘serious’ crimes, i.e. make the punishment sufficiently painful
AFRCD 58 is the way forward
Extend the offences to cover “private” acts of corruption (no shame in borrowing from the UK)
Provide civil remedies to recover ill-gotten gains
Consider a consolidated Bribery & Corruption Act
Empower/Resource CID, EOCO, etc.
Public education/discourse – EXPOSURE!!