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Wednesday, 14 December 2022 13:33

The Role of the Office of the Special Prosecutor in Fighting Corruption: Issues and Prospects for Sanitising the Natural Resource Sector Featured

The Role of the Office of the Special Prosecutor in Fighting Corruption: Issues and Prospects for Sanitising the Natural Resource Sector.

Presented at

A two-day conference and capacity-building program on using beneficial ownership disclosure to fight corruption at Fiesta Hotels & Residences in Accra on 14 & 15 December 2022

Organised by Ghana Integrity Initiative (GII), the local chapter of Transparency International (TI) in partnership with EITI International's Open Extractives Program.

 

************ The Speech *******

I am thrilled to see leaders from anti-graft agencies and civil society. Men and women who stand for good governance, accountability, and the fight against corruption. It can be a thankless task on several levels. However, the conviction that drives us is that we really have no other choice than to keep at it.

Perhaps we cannot describe the malaise of corruption better than as captured by our own Kofi Annan in his Foreword on the General Assembly Resolution adopting the United Nations Convention Against Corruption that “[C] corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life, and allows organized crime, terrorism, and other threats to human security to flourish.” To this, I will add my own footnote that we have no choice but to keep suppressing and repressing corruption, even if it cannot be totally banished. 

The extractive industry is an assured bastion of growth and progress. Properly developed and regulated, it assures us succor. However, it also presents us with considerable deleterious challenges. And it seems to me that no one can put an actual price tag on the attendant social, environmental, and economic cost of that industry.

We see it all around us. Offshore, we are confronted with the scourge of oil flaring, oil bunkering, and the ever-present scepter of possible oil spills. On land, we are bedeviled with the wanton destruction of protected forests and real property and the mind-numbing pollution of our water bodies.

We need to strike a proper balance between permitting the extractive industry to flourish while reining in its excesses of the resource curse. On this score, the fight against corruption becomes instructive, especially in the area of the issuance, monitoring, and management of concessions. State institutions that provide services to the extractive industry must commit to good practices, competency, and less of red tape. An offshoot of this consideration is the issue of beneficial ownership. 

A beneficial owner, in my reckoning, is a person whose name and Boone fields are not represented on the title to a property, company or concession, though he is the actual owner, and most often effectively in control of the person whose name appears on the title, and he enjoys the benefits of ownership. Yet we do not know him.

Our company law and practice have, hitherto, been such that it is only the person whose name and details appear on the title to a business or property, who is known to the law and who is reckoned by the law. This unnecessary practice begot the development of complex rules on lifting the veil of incorporation in the corporate world to trace the actual owner of a business. Beyond the province of corporations and companies, it is downright impossible to identify the actual owners of the property, if their names are not entered on the title. It gratifies us at the Office of the Special Prosecutor that this initiative has been commenced and we highly commend the organizers and the Office of the Registrar of Companies.

This initiative will immensely aid in the fight against corruption and we fully endorse it. On our part, the Office of the Special Prosecutor will anchor the drive with our lifestyle audit and declaration of property and income regime. 

This is not your usual declaration of assets process whereby public officials are required to declare their assets upon assumption of office and upon exiting in aid of combating corruption. Our mandate extends beyond this to politically exposed persons and private persons.

Our system is far more reaching. It is designed to arrest illicit and unexplained wealth among public officials and private persons. In this regard, a person’s declared wealth is matched against his lawful income. If the former surpasses the latter – that is to say, where a person’s lawful income cannot reasonably account for the acquisition of his property – the overpass is liable to be forfeited to the State. Then again, all undeclared property is automatically forfeited to the State. This regime and the beneficial ownership register will render it more costly and difficult for individuals to mask and hide assets.

Again, our reach goes beyond the borders of Ghana. In this sense, we have the mandate to investigate and prosecute corruption and corruption-related offences committed in Ghana or in a foreign country, so far as the act constitutes corruption or corruption-related offence in Ghana.

This is borrowed from the concept of universal jurisdiction, under which national or domestic courts are able to investigate and prosecute suspected perpetrators of certain crimes, even if they were not committed on its territory on the principle that these crimes are so harmful to the international community or international order itself that the offenders are classified as hostis humani generis – the enemy of all mankind. 

In our context, though it is of a limited extent than that of the principle of universal jurisdiction, we are able to investigate and prosecute corruption and corruption-related offences committed outside Ghana if it is committed by a national of Ghana or against a national of Ghana.

On this score, if the Special Prosecutor suspects that property obtained from the commission of a corruption or corruption-related offence is situated in a foreign country, he is required to trigger the Mutual Legal Assistance regime.

The reverse also holds, where a foreign country requests assistance from Ghana to locate or seize property situated in Ghana suspected to be property obtained from the commission of a corruption or corruption-related offence in the territory of that foreign country.  

It seems to us that no matter how well-intended and well-designed the beneficial ownership register is rendered, it will not address the practice of asset hiding. Thus, we will also bring strength to bear our property tracing and lifting the veil regime to prevent the transfer, concealment, and disposal of suspected tainted property. 

On another score, without seeking to admonish, it should seem obvious to property owners that it is perhaps in their own interest to embrace the beneficial ownership register for their own protection. We have had cases in our courts in which beneficial owners have sued those they hid behind by way of trust or other consideration to the front as the legal owners of their property because the frontiers betrayed the trust and turned against the actual owners by denying that the actual owners were the real owners of the properties in question.

Throughout history, the narrative has been that we cannot kill corruption, but with systems, technology, and intelligence-led operations, we can make corruption a risky business for criminals. When people get to know that sooner or later, they will be arrested, prosecuted and their assets seized and confiscated to the state, the incidence of corruption will be reduced. Reducing corruption restores confidence, promotes the rule of law, and brings justice. 

We have a wonderful opportunity here to change the narrative and to get things effectively and efficiently working.

 

 

KISSI AGYEBENG

Special Prosecutor

14 December 2022

 

 

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