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30.05.2005 Feature Article

Bribery and Corruption- Evidence of Leadership Failures?

Bribery and Corruption- Evidence of Leadership Failures?
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In the hierarchy of plagues destabilising Ghana's development, bribery and corruption are still perceived as one of the most destructive canker that have troubled not only soldiers and police officers but also politicians, philosophers, social commentators as well as ordinary Ghanaians throughout ages.

What makes this blemish worrying is the rather unfortunate, but never-ending helplessness shown by successive governments in prescribing correct medication despite a well-publicised bribery and corruption practices occasioning throughout our immediate past. Around 1889, the common law offence of bribery in England which supplanted by Public Bodies Corrupt Practices Act covers the corruption of agents of public bodies. And the Prevention of Corruption Act 1906 which deals with private agents and certain public authorities were also applicable in Gold Coast, including Togoland under UK Trusteeship. So in terms of orientation Ghana has no excuse, see s. 423* title 26* chapter 9* of the revised Criminal Code 1951.

Of course this stain had been with humanity ever since Adam so it might be unfair if this article were to cry wolf or cart the speck entirely at the doorsteps of governments and leadership. In reality however, the urge is not entirely misplaced. Or wrong to think that the eroding of these legal frameworks is gradually weakening the country's democratic struggle. In theory, and probably practice, is it not the provision of effective measures to deal with conducts that threaten social security or wellbeing of state subjects, the basics that statesmen could do?

It is true; bribery and corruption are haunting not only the powerful and the rich in our time, but also most ordinary Ghanaians as the undue body of law is now mutating into something else as many articles written about this fleck illustrate. Many citizens are afraid on the grounds that specifically the mischief of our preambles- Freedom, Justice, Probity and Accountability is gradually being exploited. Should our observations, reservations and perhaps concerns- therefore, be understood or confined merely to strict liability offences, such as treason or armed-robbery? What about alleged bribery and corruption cases, which beg for thorough investigations and apprehension? We must be patience, fine and yes.

But it helps to get to the top of a mountain, if we have seen the pinnacle and know where exactly we are headed. This does not necessarily mean that we should have very clear life goals with every detail planned out because successful people, advise Taylor and Humprey, seem not to be characterised by rigid life plans, they argue (Taylor, R. & Humphrey, J. 2002). On the other hand, it is vital to have some sort of vision, a general direction in which we are threading, the kinds of life we want to lead, and the levels of investment and progress we want to achieve, you may add.

So you are on spot in saying that the responsibility must not be skirted and bloused on leaders, governments or state officials. Considering that public morality is something not quiet achievable through even international treaties and conventions. Fore, good ethics are probably concept, which those who seek its real realisation ought to labour for it. And that the change of attitude, which Dr Kwame Nkrumah once warned at the eve of independence, must be analysed and where possible, revisited? Thus, by shaping our lifestyles according to our sizes? Or sitting back and critically re-examining our over-reliance on cultures that without being glued firmly on bribery and corruption business; we could hardly afford to patronise?

Of course without an effective taxation to support the poor and the defenceless in society, whose life expectancy hinges on the few working class, it would be a myth and probably a sheer vote-hunting crusade for any incumbent government or that in waiting, to pledge zero-tolerance for corruption. Probably not even by the close of this century. As might have been clear to some of us by now, the fault of this failure, arguably, did not lie with any individual, rather largely on us all?

This battle has a lot of fronts and too long a time to win or contain. Because we either lack the strength and strategy or the tools and tactics? For example, at the dawn of 24 February 1966, did the National Liberation Council (NLC) with Chairman Lieut.-General J.A. Ankrah and his Vice, (Police) Commissioner J.W.K Harlley and others not set out to reform our society by trashing bribery and corruption? And restoring Ghana's economy? Should we not have been better of by this century? Nevertheless, we still appear to be disoriented when it comes to distancing ourselves from this 'ancient demon' in our society. Who still supervised many examination leakage and cancellations and unwarranted rejection of crucial outcomes at employment interviews? Notwithstanding all these, are also a number of bad omens enveloping such matters as bribery and corruption at elections?

It is unclear whether the degree of this type of palm-greasing campaign, though often underestimated in Ghana, constitutes inducement and dishonesty. As David Lanham, Professor of Law in the University of Melbourne, says, it is difficult to find satisfactory definition of bribery at common law. Because the offence underwent a development over centuries and is often describe in terms of a number of offences rather than a single offence (“Bribery and Corruption”, Criminal Law, Essays in Honour of Prof. J.C. Smith, 1987, p. 92). The answer to this question therefore, calls for some research work. Accordingly this phase shall draw on common law offences relying on authorities particularly in other jurisdictions such as England which our Ghanaian legal system has some if not full resemblance, see for example, the Supreme Court Decision, Tsatsu Tsikata v Attorney General (The Fast Track Court).

Now, coming back to gifts, while some stress is laid in a number of cases on the fact that the recipient of the bribe was a public officer, there is no requirement that the recipient should hold any kind of continuity position. In R v Pitt and Mead (1762) 3 Burr 1335, the bribing of electors at a Parliamentary election was held to be an offence at common law. It is also an offence to bribe Jurors, Pormfriet v Brownsal (1600) Cro Eliz 735. This offence is called embracery and appears to be obsolete, R v Owen [1976] 1 WLR 840 CA, per Lanham, it is a species of bribery and supports the view that no continuity of office is necessary for the crime to be committed.

According to Russell on Crime, “bribery is the receiving or offering of any undue regard by or to any person whatsoever. In order to influence his or her behaviour in (an official situation) and incline him or her to act contrary to known rules of honesty and integrity (A Treatise of Crimes and Misdemeanours, 1865, p. 223)”. Thus bribery is concerned with public rather than private functions.

In Article 288* of the Constitution of the Fourth Republic of Ghana, a “public officer” is a person who holds a public office. Among others, are public corporations other than those set up as commercial ventures; Art 190(1)(b), public services established by the constitution, Art 190(1)(c); and such other public services Parliament may by law prescribe, Art 190(1)(d). Article 284* provides that the public officer shall not put himself in a position where his personal interest conflicts or is likely to conflict with the performance of the function of his office.

The phrase... 'in a position where his personal interest conflicts...' appears to be construed as official impropriety or corrupt practices yet, it sounds too vague. The difficulty is that it is unclear under which circumstances the Commissioner for Human Rights and Administrative Justice, might deemed it appropriate under the Article 218 (e)* to initiate an investigation against a public officer. Where say, a Minister of State is alleged to have abused his or her power under Chapter Eighteen

Applied this to Article 286(4)*. Which provides that any property or assets acquired by a public officer after the initial declaration required by clause (1) of this article and which is not reasonably attributed to income, gift, loan, inheritance or any other reasonable source shall be deemed to have been acquired in contravention of this Constitution. The public offices to which the provisions apply are, for example, Clause (5)(a) the President of the Republic, (d) Minister of State or Deputy Minister and (i) chairman… and departmental head of... corporation or company in which the State has a controlling interest. Article 286(4) fails in explaining what constitutes “unreasonableness” as gifts and loans now serve as shield against accountability.

The auditing requirement of every four years under Art 286(1)(b) appears to be too long. It could have been two years. Also the immediate close family members such as their children who have personal incomes should have also been subjected to Art 286(1)(a-c). Of course the life of law, Holmes J said, is not logic but experience... 'The prophecies of what the courts will do ... are what I mean law in action rather than law in books.' (The Path of the Law (1897) 10 Harv LR 547.) ... But the logical method and form flatter than longing for certainty ... But certainty, Holmes says, is an illusion, and repose is not the destiny of man. Thus behind the logical form lies ... often an inarticulate and unconscious judgement ... the very root and nerve of the whole proceeding. Thus, you can give any conclusion a logical form.' (Ibid, at 461.)

That is why probably, it is said that the first task of any lawgiver, is to speak intelligibly, to lay down clear rules in words that all can understand and have the same meaning for everyone. And in this context what constitutes “unreasonable gift” and for that matter bribery or corruption under Article 286 (4)*? While Russell describe the offence as extending to anyone in an official situation. According to Coke (3 Inst 145) and Hawkins (1 PC Chp 67 s 1), it consists of the taking rather than the giving of a bribe. The exception per Lanham, it seems, to be based on the notion that for example, the King, or say the President can do no wrong or act corruptly. As there can be no question of trying the sovereign.

The more practical result of the exception would seem to be that a person attempting to bribe the Sovereign would be guilty as there can be no intention to corrupt a person who is legally incorruptible. Apart from the monarch and in our case probably His Excellency, there is no official too high, according to Lenham, to be criminally liable for receiving a bribe. Bribery proceedings have been brought against Lord Chancellor, R v Bacon (1620) 2 State Tr 1087, R v Earl of Macclesfield (1775) 16 State Tr 767 a Chief Justice (Thorpe's Case, Coke 3 Inst 145). And a First Lord of the Treasury, R v Vaughan (1769) 4 Burr 2494, see also R v Pollman (1809) 2 Camp 229. While originally bribery was considered to be the taking of rewards by judicial and ministerial offices (see Coke Inst 145), in R v White (1875) 13 SCR (NSW) 322, this covers all public offices.

In R v Whitaker [1914] 3 KB 1283, a regimental colonel accepted money from a firm of caterers to induce him to accept a tenant of regimental canteen. His counsel conceded that bribery extended to judicial and ministerial officers but argued that the colonel of a regiment was not a ministerial officer. The Court of Appeal held that every public officer who was not a judicial officer was ministerial officer and dismissed the colonel's appeal against conviction. Lawrence J defined a public officer as one 'who discharges any duty in the discharge of which the public are interested, (Ibid at 1296). This suggests that government finance or control is important but not a necessary factor in determining who is a public officer.

A West Indian case raises the issues directly applicable to us. In Stewart v R (1960) 2 WIR 450, the defendant was an unpaid liaison offices whose duty it was to recommend to the Minister of Labour the names of agricultural workers for farm work in the United States. He received £7 for showing favour to an applicant. The Jamaican Court of Appeal held that he was guilty of bribery and that it made no difference that he was not appointed under any regulation.

In HM Advocate v Dick 1901 3 F (Ct of Sess) at 64, Lord Young recognised that a person might be guilty of taking a bribe in anticipation of his appointment as a magistrate for services to be performed after the appointment. In Ex parte Winters 140 P 164 (1914) (Criminal CA Oklahoma), the defendant held himself out as a police officer and took a bribe. His defence was that if he was officer enough to accept a bribe, he was officer enough to go the penitentiary for doing so.

Reward is something most us in Ghana could hardly perceived as bribe. Russell defines bribe in terms of 'regard'- in that anything which is regarded or intended to be regarded as of value to the person bribed. While money or tangible objects are the most obvious form of bribe, per Lenham, there is no reason why bribe should not take the form of intangibles like services. Nor, where the bribe takes the form of a promise. By now, probably, you may be asking that what about sexual favour?

In Scott v State 141 NE 19 (1923), defendant told a woman that he would assist her father to get a licence to sell soft drink if she went riding with him and showed him a good time. The Supreme Court of Ohio held that sexual favours constituted a 'valuable thing' within the meaning of the local bribery statute. Russell places no qualitative or quantitative limit on the notion of regard except that it should be an “undue”. Coke (3 Inst 145) on the other hand, refers to a limitation on the notion of regard in these terms, unless it be meat and drink and that of small values. This was recognised by Willes J in the Bodmin Case (1869) 1 Q'M & H 117 election cases.

The distinction between a bribe an a treat has arisen in more modern times in a South African case, S v Deal Enterprises Pty Ltd. (1978) 3 SA 302. Here the defendant gave a state employee substantial sums of money and on a charge of bribery contended that they were a Christmas gift. Nicholas J rejected this defence and observers that it would be unfortunate if the season of goodwill were to be regarded a cloak for the giving of bribes. The learned judge, however, recognised that in some circumstances entertainment could be treated on the same basis (Ibid). It seems that Christmas presents from NPP to NDC might be narrowly construed.

In Ghana today, loans and gifts are not only on the lips of the poor. But also, and more so on that of the rich and the powerful. So let us consider this point carefully. In Woodward v Maltby (1959) VR 794, a gift of a book of matches containing an exhortation to vote for a candidate was held to be neither treating (it was not meat, drink, entertainment or provisions) nor bribery. Because the value was so small that it could not be inferred that it was given in order, as a gift, to influence the recipient vote. It appears that the pettiness of the gift is not a shield in its own right but a factor in deciding whether it was given as regard.

As bribery involves two parties it is difficult, as Lanham submits, to define the mens rea in brief terms. According to Russell, bribery included the phrase 'in order to influence his behaviour' and to incline him to act contrary to the known rules of honesty and integrity. Another way of describing this mental element is in terms of corrupt purpose or corrupt intention, S v Deal Enterprise (Pty) Ltd. (1978) (3) SA 302, 308. Thus, per Nicholas J, the mens rea is an intention to seduce the recipient of the bribe into taking a price for action in official capacity (Ibid).

The most obvious case of corruption is one in which a regard is given or received to induce the recipient to act in breach of duty, e.g. to exercise a discretion in a way he would not have otherwise exercise it. For example, in Williams v R (1979) 23 ALR 369, a charge of attempted bribery was brought under the Australian Commonwealth Crimes Act 1914, s. 73. Blackburn J (At 373) took the view that the requirement of corruption at common law implied an intention to procure a breach of duty on the part of the official bribed but no such limitation applied to the statutory offence. This, per Lanham, was too narrow a view of the common law.

In R v Gurney (1867) 10 Cox CC 550, defendant was charged with attempting to bribe and corrupt a JP. The Common Serjeant told the jury that if defendant sent the money with the intention of producing any effect on the JP's decision that was an attempt to corrupt. There is no suggestion that the intent must be to induce the JP to come to wrong decision. In this kind of case it can be either there is no requirement, according to Lanham, that the gift is intended to cause a breach of duty or that taking the gift into consideration is itself a breach of duty. And that whichever way the law is stated it is not necessary to show that the discretion would have been properly exercised differently in absence of the gift.

However, in HM Advocate v Dick 1901 3 F (Ct of Sess) 59, and R v Bomle 1960 (1) SA 862, a councillor who obtained £600 as a bribe for undertaking to procure the granting of licensing certificate by a Magistrate was held not to be guilty of bribery. Because the regard did not relate to the exercise of the councillor's official functions but was merely an inducement to the defendant to use his influence as a councillor to procure the granting of the certificate.

In R v David [1931] QWN 2, defendant gave a constable a travelling rug to destroy evidence found on the defendant's premises. The court held that defendant was not guilty of corruption under s. 87 of the Queensland Code because it was not part of the constable's duty to destroy evidence. And that the charge should have been brought under s. 121 of the Code, (interference with the administration of justice.)

In our society where the state lacks the economic might to reach out to every citizen, could “zero tolerance for bribery and corruption” not mean a life-long battle, which no individual leader, government or a political party might not be able to overcome within two administrative terms? Why then, some leaders and governments in their failure to institute programmes and strategies amid boxed-up and broken down social structures still exploit the weaknesses of the law to their benefit, you may ask.

In answering the question whether the powerful should have any incentive to obey the law, what James Madison, an American Constitutional drafter said in a Federalist Papers, was that the incentive lies in an assessment of future circumstances. In the unnerving possibility that the strong may one day become weak and then need the protection of the law, it is the “uncertainty” of their condition, he said. But if the future were certain, or if the strong believed it to be certain. And if that future forecast a continue rein of power, then in the words of Professor Michael J. Glennon of Fletcher School of Law and Diplomacy, Tufts University, US, then the incentive to obey the law would fall away.

From these analyses and the cases cited, it could be argued that if zero tolerance for corruption, is to be construed to its logical conclusion, then governments would be preoccupied with building prisons at every district capital or community. Instead of putting up employment centres, factories or vocational training centres to control rural /urban migration and its socio-economic problems such as street hawkers. At this point, one may not be disturbing landmarks if, for example, with all respect and humility, we were to ask whether it is still not ripe for Okyeman to have [Dr J.B. Danquah] a University on its own soil. Even if that were be located at Akyem Adubiase, in the Birim North District in Ayirebi /Ofoase Constituency, where dusty roads and red potholes and mass unemployment are commonplace? Equally true could be said of Kumasi Zoo. For example, if the ancient architectural settings hinder its expansion to meeet modern standards why couldn't we relocate it to Kumawu or better so, Ejisu to bestow on Nana Yaa Asantewaa a universal picture?

Implying that fighting bribery and corruption calls also for an effective rural and public sector engagements. As well as leaders who are not looking at 21st century complex problems through 19th century spectacles. True leadership, they say, must develop the vision and estude a realistic confidence in their vision. And they must also communicate it well to others, ensuring that everybody can see the benefits of achieving that goal. In this context, zero tolerance for bribery and corruption, must be more of a project or teamwork, rather than personal goals. Good leadership, says Herkens, will ensure that the vision is kept in view, and does not become lost amongst a forest of targets, deadlines, and problems (Herkens, G.R. (edn) (2002). Asante Fordjour Student Department of Law, Governance and International Relations London Metropolitan University London UK Views expressed by the author(s) do not necessarily reflect those of GhanaHomePage.

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