Open Letter To The President On Setting Up Of A Commission Of Inquiry Into The Activities Of Custom And Preventive Services In Order To Ensure The Maximization Of Custom Revenue And For The Improvement Of The Security At The Borders Of Ghana

Dear Mr President,

Of late, there have been allegations that the operations of the Customs, Excise and Preventive Services (CEPS) are riddled with corruption, smuggling, and bribes paid to cut import duties and sometimes opaque pricing of customs clearance, collusion with importers or exporters and the option for physical search of Containers after tampering of scanners in order to prevent the usage of electronic search or inspection. Likewise the allegation of inappropriate disposal of items which were forfeited to the State and or allegation of inappropriate disposal of items especially cars through allocation or low auctioning of confiscated items by the Custom Division.

But CEPS normally put a defence that their activities including imposing of custom duties, levies or fees that were charged were based on Custom laws and policies and they normally act by discretionary powers granted to the Commissioner of CEPS. An example is a law which states that ‘’If any goods on being offered for sale cannot be sold for a sum sufficient to pay all duties, expenses, rent and charges, they may be destroyed or otherwise disposed of as the Commissioner may direct’’. So, the citizenry should be very careful not to unduly lynch the personalities of fellow citizens especially the Commissioner, who is performing his duties as per Custom laws. So, as usual of my brand (style), pardon me to deviate in order to share my experience on poor laws involving Discretionary powers granted to some Officials and the execution of which gave a wrong impression of perceived corruption.

In 1992, when I was the Commanding Officer of the defunct Ghana Armed Forces with the Headquarters at Farms Michel Camp and I was also responsible for confiscated agricultural assets including large herds of cattle and vast lands at Kasoa held in custody on behalf of the PNDC and thus worked under the Confiscated Assets Committee, then chaired by Hon Yieleh Chireh. We the affected caretakers including Customs had a directive from the PNDC not to dispose of any asset without the approval from the PNDC, hence this directive was strictly adhered too. So, I was one of the persons who received commendations for ensuring very good prices for the disposal of seized items. But some discretionary powers were granted to the caretakers to loan for at least 30days for official duties of seized vehicles or those forfeited to the State and were parked at some areas including the Agric Mechanization yard near Burma Camp.

So I used to go there for cars for temporary usage for my duties and I found that the system was abused by some persons indulging in corrupt practices by renting and loaning some cars to people and their girlfriends respectively. Some people borrowed the cars and indulged in stealing or changing parts thus reduced their market value. I also got to know that some good cars were sold out or auctioned to some persons at very low as today’s GHC500.00. Upon investigation, I got to know that some of the cars actually belonged to some of the buyers but they could not pay the very high premium as custom etc duties as much as an equivalent of about today’s GHC30,00.00, before Custom will release the cars to them. But with the connivance with some Custom Officers and may be with the auctioneers, some of the owners of some of the vehicles under Customs were told to wait for the cars to be confiscated to the State, so that arrangements were made for them to buys their cars later at very low cost by the auction system. As stated, some of persons bought auction vehicles as low as today’s GHC500.00 as against the Custom duty of about an equivalent of about GHC30,000.00. Thus deprived the state of substantial revenue if CEPS was allowed to give a discount for the clearance of the vehicles thus it may be opened to likely perceived corrupt practices by the public thus fomenting bad image for the affected personnel .

In the past, the Presidency gave directives for very good seized cars to be allocated to Chiefs and others. Some may say all these were type of corruption, but that was and is the state of affairs in Ghana, hence, corruption is in our DNA that is passed to the next generation. As stated, this made the State to lose very huge revenue by the custom valuations which made it difficult for the vehicle owner to pay a reasonable amount for the clearance of their vehicles but such vehicles were later sold at peanut prices, so there is the need for a second look by the State for maximation of revenue may through the use a Court for the disposal or a good method. Thanks to the digitization and digitalization agenda, so, I recommend electronic documentation of the seized vehicles and application online for the disposal of vehicles through auctioning online, which must be checked by a very honest and responsible persons to ensure the State gains a lot from the sales or the disposal of the confiscated goods or cars.

Lastly, when I joined the Bogoso Mine, I initially had zero tolerance for illegal mining activities and ensured arrested suspects were sent to the Court for prosecution. But to my dismay, I found that the Judge sometimes award a fine as low as GHC200.00 for some illegal mining offences. For this and other reasons and caused Heads of Security of other Mining Companies for us to form a forum for us to find a way to address the related problems especially the very low fines by the courts for illegal mining activities. I caused through Dr Joyce Aryee, the then CEO of the Ghana Chamber of Mine for the formation of the Security Committee of the Ghana Chamber of Mines. So, in a seminar organized by the Committee which had some Judges in attendance, the issue of the very low punishments of GHC200.00 as sentences against illegal miners by judges was raised.

Participants were shocked when one of the Judges explained that the punishments awarded in a Court by judges were/are guided by discretionary power granted by law which gave both the minimum and maximum thresholds as the sentence for an offence but some penalties for some offences did not give the minimum but only gave the maximum threshold and this give room for the low sentences presumably as an empathy for a school pupil or young lad. Example section of 108 of the Minerals and Mining Act, 2006 (ACT 703) which states ‘a person found guilty of an offence under this Act for which a penalty has not been provided is on summary conviction liable, on first conviction, to a penalty of a fine not more than the cedi equivalent of US$ five thousand. This as read did not state the minimum fine like the good laws which speak of the minimum punishment and the maximum punishment for offences. So, it was explained that the affected Judges in my cases used the discretionary powers granted by a poor law and imposed the low fine as reported and that the Judge could have even fined the suspect for as low as GHC50.00 or less which is within the law since no exact minimum threshold stated.

So, the attention of the then Presidency of His Excellency JD Mahama was drawn to it but unfortunately or shockingly in 2015 the then Parliament caused a serious blunder when the Parliament amendment Section 99 of the Minerals and Mining Rights law 2006 (Act 703) and substituted it with Section 99 of Act 900 of 2015, raised the maximum amount to not exceeding three thousand penalty unit but failed to state the minimum punishment. Thus gives room for a likely perceive acts of corruption by the public when a judge happens to use this law to sentence a suspect to the sum of say GHC200.00. Hence the discretionary powers at section 12 of Act 891 of 2015 on Advance Ruling to Importers and or the 2019 Discount Policy granted to local importers were/are due to the laws by the State which granted the discretionary powers to the Commissioner of Customs may contribute to a perception of corruption as in the Labianca case or likely rot in CEPS.

It is heartwarming that the Office of the Special Prosecutor (OSP) intends to conduct investigation into the disposal of goods and cars between 2016 and 15 August 2022 by CEPS, the interesting issues may be on the auction of vehicles by CEPS. CEPS is a creature of law and so the activities of CEPS are guided by Custom laws and Policies. Per the law that established the OSP, it has two main powers namely investigatory and prosecutorial when crime is detected. But considering that the rot in CEPS has been so since 1988 and it was/is motivated by poor laws and policies such as section 12 of Act 891 of 2015 on Advance Ruling, the 2019 Discount Policy and directives/laws on disposal of items either by auctioning, crashing or destruction or and allocation through discretionary powers as granted to the Commissioner of Customs give room to abuse of these policies.

The Preventive elements of CEPS which is expected to monitor to ensure the right things are done by the Custom Division is unfortunately not properly utilized to do so. So it is sad that Preventive element which is supposed to be the powerful division of CEPS as per proper nomenclature (organization) and thus gave CEPS a paramilitary character but it is part of the fiscal services institutions that made it to be underused or at wrong place as explained below as it takes it root from the ex-Ghana Border Guards Services. So one may recommend proper risk assessment of the Operations of CEPS with the view to transforming and modernizing the institution to ensure the Preventive elements is made a division with a Commissioner as the boss and thus given proper teeth to bite.

Some of the faults of CEPS are institutional and maybe blamable to the Presidency or the Executive Arm of Government since 1988 for poor organization of CEPS and poor composition of the Governing Board especially not including relevant experts in the Governing Board, more explanation below. Hence, my recommendations for a Commission of Inquiry. So, one may say that to be fair to the current management of the CEPS, the OSP should rather conduct a risk assessments of CEPS including the disposal of goods and vehicles, thus making the investigation to involve the collection of evidences by interview from interviewees or from Witnesses and not suspects or accused persons, so that the investigation is opened to the public to help the OSP do a very good job like the work of a Risk Analyst or a Loss Prevention Director looking for associated risks or faults and come out with Control Measures for the Risk Owner to mitigate the risks as well as the recovering of any loss resource for the nation to maximize custom revenue as well as for the enhancement of the work of the Preventive elements of CEPS through the improvement of the services of CEPS.

So, as stated the problems of CEPS are institutional since 1988, so we need to be fair to the current management, hence need to arrest the likelihood of lynching of the personalities of the current management of GRA, that I wish to advise that the OSP should do the investigation in a very professional manner by being very cautious with the findings, because as stated the errors or perceived or the seemingly alleged corrupt actions at the Ports may be due to (a) the very bad organization of CEPS by the PNDC and subsequent Presidencies in the Fourth Republic resulting in the downplaying of the security element of the Preventive component of CEPS, (b) the non-inclusion of seasoned custom officers and someone with security background as members of the Governing Board of GRA (c) the using of poor or bad laws and Policies for the operations of CEPS as elucidated below. Hence, once again, I recommend a Commission of Inquiry into the Operations of CEPS for the State to reorganize CEPS and the Governing Board of GRA, so that the State through the Governing Board will ensure the personnel of CEPS work efficiently and honestly to ensure maximization of custom revenue through reduction of corruption, check smuggling of goods through the improvement of the aspect of general security or Preventive duties to an efficient and professional Security setup at the land Borders, seaports and Airport.

Mr President, as a former Border Guard Officer but later became a Ghana Army Officer when the Border Guards was disbanded in 1988 or so which led to the establishment of CEPS, I wish to share my experience or knowledge in both Custom and Preventive Services for the State, therefore you as the Head of National Executive to take prompt appropriate actions to ensure maximization of revenue and above all an improvement on national Border Control and Management duties which CEPS shares security duties with other Agencies especially Immigration Services. Hence let me start by giving you the History of CEPS.

Customs Preventive Services was established in the Gold Coast around 1839 for collection of custom and excise duties, relevant taxes and penalties and prevention of smuggling, human trafficking etc. Then on attainment of Independence the first president of Ghana namely Dr. Kwame Nkrumah saw the lapses in the operational activities of the Customs Preventive Service which made the government experience a drastic loss of revenue so he formed the Border Guard Service (made up elements of Immigration, Customs and Preventive/Border patrols or Border Protection team) in 1963 under the security Act 202 and placed it under the Ministry of Interior akin to the United States of America Custom and Border Protection Services which is made up of Customs, Border Patrol team, elements of Immigration, as well as a section of Agric experts to check Plant and animals infested with diseases and pest through Preventive and Quarantine services, and the whole service is under Homeland Security which is equivalent to the Ministry of Interior of Ghana for the achievement of unity command and control for all sort of Border Management to ensure the payment/collection/accounting of custom duties at the seaports, Airports and land Borders especially the entry points ,to ensure immigration/Police duties at the Border to control the movement of personnel at the border and check all sorts of crime (smuggling, human trafficking, drug trafficking etc).

The Supreme Military Council (SMC) regime of the late General Acheampong re-organized the Border Guards Unit (BGU) by separating the three Divisions, namely (a) Immigration as separate Agency for dealing with documentation and control of the movement of non-citizens etc and put it under Ministry of Foreign Affairs and later to the Ministry of Interior. (b). Custom Division of the BGU was placed under Fiscal Services of the Ministry of Finance with Internal Revenue Services and (c) the Border patrol or security Guards was made to be a full military service and became the then Fourth Military Services under the Ghana Armed Forces as the Ghana Border Guards Service with the late Major General Utuka as the Service Commander or the Chief of Border Guard Staff. The other Services were or are Ghana Army, Ghana Navy, and Ghana Airforce. Hence the BGU became paramilitary Unit of the Ghana Armed Forces as a first line of defence at the land Borders, Sea ports and Airports for the prevention or management (control) of all sort of crimes.

The roles of the BGS were among other things for the protection of the State through Border Control and Management by the preventive of all sort of crimes/wrongs against the interest of Ghana by Patrolling and securing the border, investigating and dealing with cross border crimes, anti-smuggling Operations. First line of defence against any intrusion of the State, Prevention and dealing with human trafficking, Counter Terrorism, law enforcement at the Border and during national emergencies, prevention and dealing in narcotic around the Border and to some extent for the partly governance of no man lands near or adjacent to the Ghana’s side of the Border. BGS thus acted as a reserve force of the Ghana Armed Forces under Ministry of Defence during war against terrorism or enemy.

The Border Guards was disbanded in a very strange manner suffice to say unprofessional manner in 1988 by the PNDC especially the then GOC who together with the Chairman of the PNDC were supported by the Headquarters of the then BGU because it was outside Burma Camp, when they were decommissioned in 1979 or so from the Military Services by the ex-President Liman Administration, sorry for saying all this but I want you to appreciation the State of affairs to prevent similar future hasty decisions.

The announcement of the disbandment of the Border Guard Services, a whole Military Service was done unprofessional through an announcement on GBC radio, in one good afternoon in September 1985 or so around the 1300hrs news time (after lunch) by then Brigadier General Seidu Ayomah. We, the Officers and Men or the personnel then at Headquarters heard it for the first time. Hence, it brought total confusion or demoralization tendency in the BGS especially young officers at the Headquarters for postings. It was done unprofessionally because it was done in a revolutionary (coup by Ghana Army against the Border Guards Services) manner hence without the formal Military process for the disbandment of a Military services and not even a Unit. So as stated the proper Military procedures were not done to ensure proper accounting of assets especially weapons and goods in custody and to ensure the posting of required personnel into the other Services of the Ghana Armed Forces. For example some guards escorting items had to connive with the suspects or the drivers and diverted with goods from the Tema Port or from Togo or Benin allegedly for Burkina Faso, Niger and other Countries in the sub-region to some areas and sold them in Ghana etc.

The Border duties among others like the checking and prevention of the evasion of custom duties, also duties against smuggling of goods, prevention of other crimes were immediately taken over by the Ghana Army, till the time the CEPS was formed in 1986 under Customs, Excise and Preventive Service Law, P.N .D.C.L. 144 of 1986 and took over the border security duties from the Ghana Army in addition to the Custom Duties promulgated by the SMC of General Acheampong by sharing Border Control and Management Duties with the Ghana Immigration Service which was properly established in 1989 under the Ministry of Interior under PNDC Law 226 of 1989 for dealing with mainly human migration especially non-citizens matters at the Border. Hence, both CEPS and Immigration personnel were armed to perform the security roles at all points by land, Airport and Seaports to provide Preventive Services. Let me also give you the state of affairs in CEPS which is expected to be responsible for Custom, Excise and Preventive Duties with the view to suggesting a proper re-organization of CEPS.

Mr President, Customs, Excise and Preventive Services (CEPS) as the name implies is expected to be made of three divisions. Firstly, a Custom Division, secondly an Excise Division and thirdly a Preventive Division with the customs aspect deals with the examination of documents, covering both imported and exported goods, assist in the collection and accounting for custom duties or revenue and the Excise function deals with the collection of duties on both locally manufactured and imported goods. Hence, per the nature of their functions, the Custom Division and Excise Division are fiscal services elements and not armed or may not be armed as stated as part of the fiscal service of the Ministry of Finance for the checking, collection and accounting for custom/excise duties and related taxes/penalties. The Preventive element among other duties, performs general security duties for the protection of the interest of GRA, especially the staff and assets of the Custom and Excise Divisions, perform guard and escort duties, gathering of intelligence and monitoring/policing of the duties of Custom and Excise Divisions as well their clienteles to ensure the works of the Custom and Excise Divisions are per the custom laws in addition to the performance of general Border Security or Border patrols to check on contraband goods, prevent and arrest smuggling of goods, human trafficking etc. Hence, for these duties they are required to be armed. It is the character or the functions of the Preventive section of CEPS, which made CEPS to be an armed component of GRA and it is for this reason that CEPS is regarded as a paramilitary organization. Hence preventive should be seen as the senior of the three or at par with the Customs.

But strangely or unfortunately CEPS as a paramilitary organization was not placed under any of the Ministries for State Security matters namely the Ministry of Interior or Ministry of Defence or Ministry of National Security but placed under Ghana Revenue Authority (GRA). As you are very aware, Ghana Revenue Authority as the name implies, deals with collection and accounting of Revenue for the State, hence provision of Fiscal Services for the Country therefore it is under the Ministry of Finance.

Furthermore, Ghana Revenue Authority has a Governing Board with a chairman, then GRA Headquarters or Secretariat with the boss of GRA as the Commissioner General in location. Currently, under the Commissioner General are his or her three immediate subordinates or three Lieutenants namely (a) Officer-in-charge for Domestic Tax Revenue Division, (b). Commissioner for Customs Division and lastly Commissioner for Support Services Division (for Logistics, HR & Admin duties). Hence, the Organization of GRA under the Commissioner General is divided into three Divisions namely Domestic Tax Revenue Division, Customs Division and the Support Services Division but it is very silence or it has underplayed the very important element of Preventive (the elements of the Ghana Border Guards Services or the parent institution) which gives the whole CEPS a paramilitary character and hence a teething arm thus equipped thoroughly with weapons therefore can bite.

Another very serious issue is that the Governing Board of the GRA since its inception was and is currently made of the Chairman and Members of the Board who are wholly civilians with no member of the Board with Preventive operations or security background despite the fact that CEPS, as a paramilitary sub-organization which emerged from the ex-Ghana Border Guards Service which was one of the Military Service of the Ghana Armed Forces or the Military, hence need for someone with military or security background on the Board.

This gives an indication of a gross failure by all Heads of National Executive (Head of States or the Presidencies) since 1988 to appreciate that the inclusion of the Preventive Division (Border Patrol) as part of CEPS, demanded a member of the Board with security background and the Preventive Division must be made independent of the Custom Division so that it can effectively and freely checks or monitor the operational duties of the Custom Division. Please permit me to say thanks to the Executive Secretary of the importers and exporters of Ghana in the person of Mr Samson Asaki Awingobit for also recommending for the addition of a seasoned Custom Officer on the Board, since lack of which has led to some poor policies and decisions by the GRA respectively, which according to him do not match with the operations and procedures of the GRA and thus create gray (dark) areas and loopholes in the administration and operations at the Ports leading to loss of revenue and the festering of corruption (you may please wish to read more or authenticate this assertion, so please Google for ‘’appoint Custom Officer to GRA Board of Directors’’. Hence per his statement you can guess the loss of huge revenue since the formation of CEPS.

Mr President, the Preventive elements will thus require to be placed under a command and Control of a Seasoned Security Officer as the Commissioner for Preventive Service that is at the same rank as the Commissioner of Custom. The Preventive Division, if accepted among others, it should be partitioned into (a) Operation Department or Section for anti-smuggling operations, for guard/escort duties especially escorting of vehicles carrying goods from the Seaport or Bounded warehouse or through land borders with Togo etc to and from other Border Countries Like Burkina Faso or beyond to Niger. (b). Act as a check to or monitoring of the work of the Custom operations, (c) intelligence Section for gathering intelligence etc.

Mr President, so I am with a very strong view that a re-organization of CEPS into two divisions namely Custom/Excise Division and Preventive Division will help increase or maximize custom revenue and help mitigate the risk of smuggling, wrong activities or thievery by Custom Officers, check issues of some staff of Customs Division operating as commercial importers and freight forwarders at the Tema Port and thus competing with their clienteles or the related stakeholders at the Tema Seaport which is serious issue of conflict of interest which the Governing Board/the management of GRA presumably due to poor intelligence, so they are not aware of the issue of conflict of interest and likely of not paying the correct revenue to the state by their Companies. Hence the Board must put measures to check issues of Conflict of interest including provision of a Security Checklist or signing of undertaking of not to act as such. .

It is for the above reasons, I reiterate for the need for a second look into the organization and functions of CEPS by a Commission of inquiry into issues of CEPS with the view for reformation and restructuring (transformation and modernization of GRA/CEPS matter with view to maximizing the revenue envelope of the state and improving the border patrol or security of Ghana to check especially smuggling. So, the following recommendation made for consideration if the COI not possible now;

Establishment of Custom and Border Security Services

The USA established Customs and Border Protection which is the largest federal law enforcement agency of the United States Department of Homeland Security (same as Ministry of Interior). USA Customs and Border Protection and is the USA’s primary border control organization. Customs work is primarily about arresting the flow of restricted and prohibited items, in USA the custom do collect import duties but in some Countries, the work is primarily role of Customs is about arresting the flow of restricted and prohibited items and less about taxation. USA Customs and Border Protection is charged with regulating and facilitating international trade across the border, collecting import duties, and enforcing customs and aspect of immigration services, preventive in all aspect thus Some elements of Plant and Animal Preventive and Quarantine are placed under the Custom and Border Security Services. Hence Ghana should study this set up of the USA and act appropriately. This will imply placing Custom and Border Protection Services under a Commissioner with a Deputy Commissioner and Chief Operation Officer and placement under the Ministry of Interior to perform the duties of the defunct Border Guards and custom duties and immigration services whilst the Excise aspect is retained under Fiscal Services of within GRA with internal revenue services or domestic tax division, hence it should be under the Ministry of Finance. Affords total Unity of Command for good cooperation or better relationship and prevent a turf war by the establishment of Authority, responsibility and accountability, reduces duplication of work and afford execution of prompt or quick decisions

Or the Modification of CEPS and the Governing Board of GRA

It is recommended that CEPS should be divided into two (a) Customs/Excise Division under a Commissioner and Deputy Commissioner for Operations with or without security and with or without finance background and (b) Preventive Division under Commissioner with security background. The Membership of the Governing Board should include persons with Custom background and one with security background since the Board is for formulating of Policies to guide the operations of GRA. This would afford GRA among others, security services type preventive including Plant and Animal Preventive and Quarantine at the Seaport, Airport, land Borders, for effective monitoring of Custom/Excise duties, guard/escort duties, the scanners can only scan cargos that contain homogeneous goods. This implies that cargos containing different categories of goods will not fall under the purview of the scanners and need to be examine physically hence presence of personnel from Preventive Section to provide security cover.

Or decoupling of Preventive Service from CEPS & make a separate Service for Port & Border Security Decoupling of the Preventive Service or Section from CEPS hence GRA or Ministry of Finance and make it as an independent Services like Police or Immigration but under the Ministry of Interior and not Ministry of Finance. A detached Preventive Service or division to work closely with Customs at the Ports and land Borders to monitor activities of Customs, provide direct or close security cover for Custom duties including escort, anti-smuggling operations, gathering of intelligence etc,

Or Merging of the Preventive Service with Immigration Service

Since Immigration Services also performs border security duties, it may be appropriate to decouple the Preventive Service from CEPS and merge it with the Immigration Services so that it will be termed as Preventive and Immigration Services under unit Command and control but with two divisions or Departments as Immigration Department and Preventive Department with a Deputy each. This afford good cooperation and may prevent a turf war. A Unity of Command is afforded for good cooperation or better relationship and prevent a turf war establishment of Authority, responsibility and accountability, reduces duplication of work and afford execution of prompt or quick decisions

MAJOR MOHAMMED BOGOBIRI (RTD)

0501387764

KUMASI