Section 179A(3)(a) of the Criminal Code of Ghana (Act 458) states: "Any person through whose willful, malicious or fraudulent action or omission the state incurs a financial loss” is guilty of the offence.
The Supreme Court in the Mallam Issa case ruled on the constitutionality of Act 458, so that point is settled.
Yet, with the judge conceding that the three convicts in the Quality Grain case were not on trial for making personal financial gains on the deal it has sent an understandable trepidation through the public service.
From the President, Ministers, Chief Directors, District Assembly members, all the way down to ordinary pen pushers in the Civil Service, have cause to know how they can secure themselves against falling foul of this law.
The Statesman believes that while it is unfortunate, especially for the families of the three convicts that their case had to be used to set the standards, once judicial life has been breathed into the law there is a duty on the State to educate all public workers on its parameters.
This paper will, therefore, appeal to the Government to set up a team to decipher the ratio, as laid down by Justice Afreh and the Supreme Court, and begin an extensive, concise programme in the Public Service. Below is a sample of the areas that this paper suggests ought to be the focus:
Justice Afreh put it rhetorically: “Why hold any of the accused persons liable for a loss caused by Mrs Cotton's dishonesty? The answer is... these officers of state who were responsible for ensuring that a loan guaranteed by the government was properly used for the purpose for which it was intended, failed to discharge their responsibilities and through that failure or omission enabled Mrs Cotton to misappropriate or misapply the funds.”
He also said that while we should do everything to encourage investors “this does not mean that we should not do due diligence checks on them or get Ghana Government to be committed to them financially and materially without ensuring that there are adequate safeguards for the protection of the interests of the nation.”
On conspiracy to cause financial loss to the state, the judge said: “In my opinion if two or more persons agree or act together for the common purpose of doing something, such as proposing a cause of action which on the facts known to them if done will necessarily cause or is likely to cause financial loss to the state… I must say parenthetically that conspiracy in law is not necessarily some sinister plot… In fact the agreement to do the unlawful act might have been motivated by good intentions or by a desire to achieve a result which the accused persons think will be beneficial…
So in this case all that the prosecution had to prove was that two or more of the accused persons agreed or acted together with a common purpose for or in committing or abetting a crime, that is for doing something such as recommending a course of action which on the facts known to them, constituted the offence of causing financial loss to the state.”
He ended his judgment “with a humble submission. Section 179A(3)(a) is so wide and elastic that it is possible to punish under it Civil Servants or other career public servants who, in compliance with the Code of Conduct for Civil Servants or similar regulations, obey ostensibly lawful orders.
I am of the opinion that a career or public servant bound by the Code of Civil Service or similar regulations may only be punished under S. 179A(3)(a) if he knows the superior orders to be unlawful, such as an order to forge documents, to steal or fiddle with accounts; or he goes beyond his position or functions as a civil or public servant and then does an act or acts which cause or contribute to cause financial loss to the state; or he is grossly negligent or reckless in the performance of his duties and thereby causes financial loss to the state.
“Ministers are in a different position. A Minister is not a mere advisor or assistant of the President, as the defence would have us believe… He has a lot of discretion and powers of decision.
He is not a robot, a rubber stamp, an amanuensis, a messenger, or a parrot of the President. He is entitled to send memos to advise against a policy which he thinks is not in the best interest of his Ministry and the country. Above all, he has the power of resignation if he disagrees with the President or the Government.”