CORRUPTION: AN ethical

CHALLENGE?

INTRODUCTION

THE JOURNEY

The road from Accra to Takoradi

Inevitable? Are we programmed to be corrupt? Are we set up to

fail?

ETHICS?

The term ethics derives from the ancient Greek word ethikos,

which is derived from the word ethos (habit or custom).

INTRODUCTION

Ethics (or moral philosophy): Are we dealing with the

philosophy of systematizing, defending, and recommending

concepts of right and wrong conduct. Are we investigating

questions such as “What is the best way for people to live?”

and “What actions are right or wrong in particular

circumstances?” Are we seeking to resolve questions of

human morality, through defining concepts such as good and

evil, right and wrong, virtue and vice?

INTRODUCTION EFFECTS OF CORRUPTION

Politically: obstacle to democracy and the rule of law

Economically:

depletes a country's wealth by diverting it to corrupt officials' pockets

puts an imbalance in the way that business is done, enabling those who practise corruption to win.

The language of bribery also deceives, implying that what is being offered or expected is of no consequence. But corruption is not a victimless crime; it leads to decisions being made for the wrong reasons. Contracts are awarded because of kickbacks and not whether they are the best value for the community. Corruption costs people freedom, health and human rights and, in the worst cases, their lives. Harriet Kemp, head of engagement at the Institute of Business Ethics, writing the The Guardian of 30th

January 2014

INTRODUCTION Mao Zedong said "food before ethics.” In other words, survival

takes precedence over other moral considerations

If Corruption is an “Ethical Challenge”, then it is rendered

susceptible to factors such as “customary practices,” fear,

ignorance, pressure to meet targets, or pressure from a more

senior figure.

Corruption is an act that is harmful, not only to some individuals,

but also to a community, society or the state. It is a public wrong.

Thus, instead of/in addition to being a “mere” ethical challenge,

should it not simply be a violation of a law in which a term in jail

or prison, and/or a fine are possible penalties?

CONSTITUTIONAL

UNDERPINNINGS

Article 35(8): “The State shall take steps to eradicate corrupt

practices and the abuse of power.”

Article 218(a): 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.”

ENTER THE SUPREME COURT

Complaints: Republic v. High Court (Fast Track Division), Ex

parte CHRAJ (Richard Anane – Interested Party) [2007-2008]

SCGLR 213 – CJ Wood drew distinction between 218(a)

(requiring definite, formal complaints) and 218(e) (All that is

required are allegations/suspicions).

Public Officials: CHRAJ v. Attorney-General & Baba Kamara

[2011] SCGLR 750) – Court refused to draw “artificial lines

and boundaries.” A narrow interpretation would place

unjustified “functional limitations” on CHRAJ. The provision

covers private persons when necessary to expose the total

picture of corruption involving a public official.

CORRUPTION IS A CRIME

FIRST:

In respect of the duties of a public office

A Public Officer agrees or offers (directly/indirectly) to

allow his conduct to be influenced

By gift, promise or prospect of a valuable consideration

To be received:

By him/her, or by any other person

From any other person.

CORRUPTION IS A CRIME

SECOND:

In respect of the duties of a public office

A person endeavours (directly/indirectly) to influence the

conduct of a Public Officer

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.

CORRUPTION IS A CRIME CLASSIFICATION OF CRIMES

1ST DEGREE FELONY – LIFE IMPRISONMENT (MAX) EGS: ATTEMPTED MURDER, MANSLAUGHTER, RAPE, USE OF

OFFENSIVE WEAPONS & ACCEPTING ENLISTMENT INTO A FOREIGN ARMY WITHOUT THE PRESIDENT’S APPROVAL!

2ND DEGREE FELONY – 10 YEARS (MAX) EGS: CAUSING HARM, UNLAWFUL USE OF HUMAN PARTS,

STEALING, DEFRAUDING BY FALSE PRETENCE, PERJURY, FALSIFICATION OF ELECTION RETURNS, TRIAL BY ORDEAL & FRAUDULENT LAND TRANSACTIONS

MISDEMEANOUR – 3 YEARS (MAX) EGS: ASSAULT, BESTIALITY, INSULTING NATIONAL FLAG, CAUSING

FEAR & PANIC, BIGAMY, ‘PIMPING,’ KEEPING A BROTHEL, PORNOGRAPHY, HABITUAL DRUNKENESS

CORRUPTION IS A CRIME SPECIAL PROVISION

CORRUPTION ATTRACTS UP TO 25 YEARS IMPRISONMENT

ELEMENTS

PUBLIC OFFCE

INFLUENCE

RECEIVING

‘PRE-PAID’ BRIBES

Payment in hope, anticipation, belief, prospect, probability of

appointment

CORRUPTION IS A CRIME ‘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

EXTORTION EXTORTION OF PROPERTY UNDER THE COLOUR OF A

PUBLIC OFFICE – MISDEMEANOUR (SPECIAL PROVISION

APPLIES)

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

FALSE CERTIFICATION

FALSE ATTESTATION/CERTIFICATION BY PUBLIC

OFFICER

ATTESTS/CERTIFIES EVENT WITHOUT KNOWING OR

HAVING REASON TO BELIEVE THAT IT HAS OR HAS

NOT HAPPENED

MISDEMEANOUR (SPECIAL PROVISION DOES NOT

APPLY.

‘REVOLUTIONARY’ FALSE

CERTIFICATION GOVERNMENT CONTRACTS (PROTECTION) ACT, 1979

(AFRCD 58)

“a contract entered into by the Government or a statutory corporation or any other agency of the Government for the performance of a work or service for [or] the supply of goods to the Government or the statutory corporation or the agency of the Government.”

KNOWLEDGE/RECKLESSLY CARELESS/GROSSLY NEGLIGENT WORK IS NOT DONE/SERVICE IS NOT PERFORMED/GOODS ARE

NOT SUPPLIED/MONEY IS OTHERWISE NOT DUE

CIVIL LIABILITY: REFUND, JOINTLY & SEVERALLY

CRIMINAL LIABILITY: 3X FINE OR 10 YRS IMPRISONMENT (MAX)

BRIBERY/CORRUPTION: 3X PENALTY, 5-15 YRS IMPRISONMENT

PUBLIC PROPERTY PROTECTION OF PUBLIC PROPERTY ACT, 1977 (SMCD

140)

INTENTIONAL DISSIPATION OF PUBLIC FUNDS – 10 YRS WITHOUT THE OPTION OF A FINE

INTENTIONAL MISSAPPLICATION, CAUSE OF LASS OR DAMAGE TO PUBLIC PROPERTY/LOSS CAUSED BY CARELESSNESS, GROSS NEGLIGENCE OR DISHONESTY/ FAILURE TO ACCOUNT FOR PUBLIC PROPERTY ENTRUSTED OR UNDER CONTROL/ USING PUBLIC PROPERTY FOR PRIVATE GAIN/ OBTAINING PUBLIC PROPERTY BY FALSE STATEMENTS – 5 YRS AND/OR GHS12,000

PENALTIES: INCLUDE SEIZURE OF ASSETS HELD DIRECTLY OR INDIRECTLY IN GHANA, FORCED TO TRANSFER TITLE TO ASSETS SITUATED OUTSIDE GHANA

CEPS OFFENCES:

TAKE A BRIBE, ETC FOR NEGLECT OR NON-PERFORMANCE OF DUTY

ON ACCOUNT OF ANYTHING RELATING TO THE OFFICE

AGREE TO DELIVER OR NOT SEIZE ANYTHING LIABLE TO FORFEITURE

CIVIL LIABILITY: SUMMARY DISMISSAL

CRIMINAL LIABILITY: CEPS OFFICER: FINE OF 200% (MAX) OF POTENTIAL/REAL LOSS

OR 300,000 PENALTY UNITS (GHS3,600,000), OR 10 YRS IMPRISONMENT (MAX)

‘BRIBOR’: FINE THE HIGHTER OF 200% (MAX) OF POTENTIAL/REAL LOSS OR GHS500,000, OR 10 YRS IMPRISONMENT (MAX)

PARLIAMENT

CONTEMPT OF PARLIAMENT

USING BRIBERY/FRAUD TO INFLUENCE AN MP

MP ACCEPTING A BENEFIT/PERSONAL GAIN IN

RETURN FOR UNDERTAKING TO PERFORM ANY OF HIS

OFFICIAL FUNCTIONS IN A PARTICULAR MANNER, OR

TO OMIT TO DO SOMETHING

LOBBYING?

“MPS TAKE BRIBES!!” – REALLY?

ADDITIONAL POINTS TO NOTE 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…”

AUDITOR-GENERAL

DUTY/MANDATE: AUDIT AND REPORT ON THE

PUBLIC ACCOUNTS OF GHANA

POLITICAL INDEPENDENCE

FINANCIAL INDEPENDENCE

POWER TO DISALLOW & SURCHARGE

POWER OF DISALLOWANCE &

SURCHARGE

SURCHARGE 1: DISALLOW “Expenditure which is contrary to law.” Surcharge the person who incurred/authorised the payment with the amount paid and disallowed. (Article 187(7)(b)(i))

SURCHARGE 2: Failure to bring a sum into account, e.g., a person fails to record a transaction or having received a sum on behalf of the government, records less than what was actually received. Surcharge that person with amount not brought into account. (Article 187(7)(b)(ii))

SURCHARGE 3: Through the negligence or misconduct of “any person,” the state incurs a loss or deficiency. Surcharge that person (whether or not a public servant) with the value of the loss or deficiency. (Article 187(7)(b)(iii))

POWER OF DISALLOWANCE &

SURCHARGE Where the Auditor-General determines that it is proper to

issue a Disallowance and Surcharge, he will issue a Specification/Certification of Disallowance & Surcharge which must: Be addressed to the head of the appropriate MDA, Copied to the person surcharged, Parliament and the Attorney-

General, State the exact amount disallowed and surcharged, and the reasons Require that the person surcharged should pay the amount or appeal

to the High Court within sixty (60) days, State that the Head of the MDA/Attorney-General may take civil

proceedings to recover the amount surcharged and may attach the remuneration of the person, if that person receives remuneration from public sources, and

State that the surcharge may only be revoked with the prior approval of Parliament.

POWER OF DISALLOWANCE &

SURCHARGE

POWER OF DISALLOWANCE &

SURCHARGE

POWER OF DISALLOWANCE &

SURCHARGE

POWER OF DISALLOWANCE &

SURCHARGE

POWER OF DISALLOWANCE &

SURCHARGE

POWER OF DISALLOWANCE &

SURCHARGE

POWER OF DISALLOWANCE &

SURCHARGE Recurring words in the Auditor-General’s yearly reports (eg. 2013)

Paragraph 34: “The cataloguing of financial irregularities in my Report on MDAs and Other Agencies has become an annual ritual that seems to have no effect…”

Paragraph 35: “The 2013 audit results indicated continued infractions and financial indiscipline on the part of MDAs… We noted… failure to account for monies given out for implementation of programmed activities, travels and settlement of claims or other recurrent expenditures and the absence of pertinent records to support claims paid, stores purchased or fuel utilised.”

Paragraph 36: “We also observed lack of probity and propriety on the part of public officials in the performance of their management and supervisory functions, leading to various forms of losses and potential loss of public.”

RIGHT OF

INFORMATION ACT? DO WE NEED AN ACT? DOESN’T THE CONSTITUTION ASSURE

US OF A RIGHT TO INFORMATION ANYWAY?

“General fundamental freedoms

All persons shall have the right to information, subject to such qualifications and laws as are necessary in a democratic society” Article 21(1)(f)

THE VIRTUAL ASSURANCE OF ‘PUBLIC INTEREST PRIVILEGE’ IS THE BIGGEST HURDLE TO A PROPER FREEDOM OF INFORMATION ACT. SEE ARTICLE 135 & SECTION 8 OF THE COURTS ACT & STATE SECRETS ACT.

WILL THE GOVERNMENT TAKE THE LEAD AND PASS AN ACT TO EXPRESSLY STATE WHEN IT WOULD OR WOULD NOT ASSERT THE PRIVILEGE?

NOLLE PROSEQUI? CONSTITUTION, Article 88(3)

“The Attorney-General shall be responsible for the initiation and conduct of all

prosecutions of criminal offences.”

“The expression nolle prosequi means to be unwilling to prosecute.” Republic v.

Abrokwah [1989-90] 1 GLR 385 at 389, per Abakah J. See also, section

54 of the Criminal & Other Offences (Procedure) Act.

“the power of the A-G to enter a nolle prosequi at any stage of a trial

before judgment or verdict cannot be questioned upon any basis other

than political… whether the A-G exercises this power after having

had regard to the circumstances of a case or not, or whether the A-G

exercises this power properly or improperly, is not a matter for judicial

inquiry or review. It is a matter for the political powers that be...”

Abakah J.

NOLLE PROSEQUI? CONSTITUTION, Article 296.

Exercise of discretionary power

Where in this Constitution or in any other law discretionary power is vested in any person or authority,

(a) that discretionary power shall be deemed to imply a duty to be fairand candid;

(b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law; and

(c) where the person or authority is not a Justice or other judicial officer, there shall be published by constitutional instrument or statutory instrument, Regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power.

CONCLUDING POINTS WAKE THE AUDITOR-GENERAL UP!!

CONSOLIDATED BRIBERY & CORRUPTION ACT

MAKE CORRUPTION & EXTORTION A MORE ‘SERIOUS’ OFFENCE, EVEN IF THE PUNISHMENT IS SUFFICIENTLY PAINFUL

AFRCD 58 IS THE WAY TO GO

EXTEND THE DEFINITION OF CORRUPTION TO COVER PRIVATE ACTS OF CORRUPTION (SEE UK BRIBERY ACE)

PROVIDE REMEDIES TO RECOVER ILL-GOTTEN GAINS IN ALL INSTANCES

FOI ACT?

NOLLE PROSEQUI? Congratulations, Attorney-General.

EMPOWER (i.e. FUND & TRAIN) CHRAJ, EOCO, CID, ETC.

PUBLIC EDUCATION/DISCOURSE – EXPOSURE, SOLI?