Remarks by Special Prosecutor at ICC conference
The issues of state capture, corruption, and fraud are a collective pandemic in our part of the world. This tri-malady has every intention of staying with us unless we act. In their various manifestations, they inhibit our progress and dissipate our resources. We experience their
debilitating effects all around us in their full force and they are ingrained in our society much like rituals. In Ghana, meritorious or otherwise rightfully deserving standards for the allocation of opportunities and resources are eluding us. The abuse of entrusted power for private gain is the currency. Misrepresentation of events and facts for pecuniary gain has never been this attractive. Then again, there appears to be a sprint for the inordinate control of state institutions and the public decision-making process. State institutions are being neutralized as appendages of individuals and existing laws and the legal system are being weakened for private gain.
To further sink ourselves in our ill-progress, we are flighting away and secreting our illicitly gorged up bounties in other jurisdictions to avoid detection and to evade recovery. And it seems to me that no one can put an actual price tag on the attendant social and economic cost of state capture, corruption, and fraud.
These are endemic in several sectors in the economy. The usual suspect is the extractive industry. Offshore, we are confronted with the scourge of oil bunkering. On land, we are bedeviled with wanton destruction of protected forests and real property and the mind-numbing pollution of our water bodies – mostly springing from illegal mining. Illegal capital flight and breaches of public procurement rules are rampant.
We know the problems too well and our performance on the corruption perception index compiled by Transparency International has been marked by perennial underachievement. There have been calls for action. The calls still ring on daily. We have established several agencies designed to tackle and lessen the incidence of these occurrences. These institutions are performing creditably. The Commission on Human Rights & Administrative Justice does its immense part especially in the context of corruption, the conduct of public officials and conflict of interest.
The Economic and Organised Crime Office monitors, investigates and prosecutes economic and organised crime and the recovery of assets. The Financial Intelligence Centre receives and analyses suspicious transaction reports, especially in respect of predicate crimes. We instituted the National Anti-Corruption Action Plan in 2014. It recommended the establishment of an independent prosecution authority to effectively tackle corruption. The prevailing thinking was that the Attorney General, being a member of cabinet and the chief legal advisor to the President, was not well-suited to investigate and prosecute members of a government to which he belonged.
In December 2017, Ghana made its most decisive statement with the passage of the Office of the Special Prosecutor Act, 2017 (Act 959) which established the Office of the Special Prosecutor (OSP).
It investigates specific cases of corruption and corruption-related offences, prosecutes suspected offenders, recovers the proceeds of corruption and corruption-related offences, and it take steps to prevent corruption. The province of corruption and corruption-related activities has an intentionally wide definition to afford the OSP the mandate to tackle as many incidents of the identified problems as possible.
To achieve this, the OSP has been clothed with multifaceted policing, investigative, prosecutorial, oversight and asset recovery and management powers. And its independence has been secured by the retention in the Special Prosecutor of full authority and control over the investigation, initiation, prosecution and conduct of cases.
The OSP’s mandate does not rest only in respect of public officials. It extends also to politically exposed persons and private persons. In this context, politically exposed persons are those who have been entrusted with prominent public functions in Ghana or in a foreign country or an international organisation such as senior political party officials, government officials, judicial officials, military officials, or a person who is or has been an executive in a foreign country of a state-owned company, or a senior political party official in a foreign country, or an immediate family member or close associate of such persons. The OSP has the authority to question the lifestyle of every person – through its notice to declare property and income and seizure of tainted property 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.
The OSP system is far more reaching. It is intended 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 are automatically forfeited to the State.
The reach of the OSP goes beyond the borders of Ghana. In this sense, the OSP has 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, if it is committed by a national of Ghana or against a national of Ghana.
There has been remarkable cooperation and collaboration among these state agencies in the past fifteen (15) months, especially in the area of asset recovery and management. The Economic and Organised Crime Office, the Financial Intelligence Centre, the Ghana Police Service and the OSP have developed a standard operating procedure for tracing, seizing, and managing assets. The regime has the outlook looks of cutting down costs in our asset recovery and management regime including the disposition of assets either with the consent of the suspect or by an order of a court and putting the proceeds in an interest-bearing recovery account. This is designed to reduce loss of the value of assets over time and the exposure of the state to possible liability thereof.
I am gratified to also note that the Office of the Registrar of Companies and its partners have recently set up a beneficial ownership registration system. 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 is known to the law and 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 was downright impossible to identify the actual owners of property, if their names are not entered on the title. This initiative will immensely aid in the fight against corruption and the OSP has endorsed it.
There is much promise in Ghana in tackling these problems. We have a wonderful opportunity here to change the narrative and to get things effectively and efficiently working. However, no matter how well-intended and well-designed these agencies live up to their billing, they would not achieve much on their own in-country without the necessary cooperation from our foreign partners. No matter how one characterizes state capture, corruption, fraud and asset recovery, one has to recognize that they are stubbornly transboundary and cross-border.
The mutual legal assistance regime is very fine and fair in its intent and purposes. However, our experience has been that these attributes are not replicated in practice and in substance. We often do not obtain requested information and action timeously or if at all. The task is immensely herculean as it stands. May we render it less so by eschewing unilateralism.
KISSI AGYEBENG
Special Prosecutor
28 April 2023