The OSP's Latest Move On Madam Cecilia Dapaah Is Likely To Hit A Rock

The Special Prosecutor we are told has filed two applications before the High Court for the confirmation of a freezing Order and an application for confiscation in a matter involving Madam Cecilia Abena Dapaa, former Minister for sanitation.

The application for confirmation of the freezing Order and its brother as stated above reminds me of the remarkable days of Hon. Alexander Kwamena Afenyo-Markin's battle with EOCO on such matters.

Particularly in respect of the action taken by the OSP, one popular decision that comes to mind is the decision of the High Court in *Economic and Organized Crime Office…Applicant /Respondent v Investments Strategies Enterprise [ Daniel Addo… 2nd Respondent*] …

The above case was handled by the Deputy Majority Leader and Member of Parliament for Effutu Constituency, Hon. Alexander Kwamena Afenyo-Markin.

In that case, EOCO had made an application for the confirmation of a freezing Oder on allegation that, the 2nd Respondent was being investigated for money laundering

The contention of the 2nd Respondent/Applicant was that, they were not informed of the basis for the freezing neither were they invited to volunteer any statement. However, upon receipt of that letter(herein referred to as Exhibit DA1), the 2nd Respondent/Applicant went to the Office of the Applicant/Respondent and provided all the necessary documentation/information to facilitate and assist in any investigation by the Respondent/Applicant as to the source of the funds.

It is worth noting that, the application for the de-freezing order was hinged on Article 296(a)&(b) of the 1992 Constitution; section 38(1)(a)(i) of Act 804 and Order 19 r 1(1) of CI 47.

Counsel for the 2nd Respondent/ Applicant in In moving the application, relied on all the averments set out in the affidavit.

He next referred to the affidavit in support of the ex parte application filed by the Applicant/Respondent for the confirmation of the freezing and argued that, E.O.C.O was holding on to the Respondents/ Applicants’ bank accounts on a mere suspicion that, they are engaged in some offences.

Counsel for the Respondent /Applicant however, argued that, the suspicion ought to be reasonable and not a mere one.

In support, counsel for the Respondent/ Applicant referred the court to The State v Ali Kassena (1962) 1 GLR 144 @ 149 wherein the then Supreme Court adopted and applied the principle established by Lord Wright set out here below in the English case of Caswell v Powell Duffryn Associated Collieries Ltd (1940) AC 152: where the court applied a text for what constitutes reasonable suspicion.

The court held that," There can be no inference unless there are objective facts from

which to infer the other facts which it is sought to establish.

learned Counsel for the Respondent /Applicant, Hon. Alexander Kwamena Afenyo -Markin also referred to the famous decision of the court in Tagor v Republic (2009) 23 MLRG 1 – 199 p.78 and underscored the principle that the, duty to prove charges against another beyond reasonable doubt was a standard one; it does not change according to the status or disposition of either the Accused or a suspect or the complainant involved; neither do they change according to the charges proffered nor public perception, concern or reaction in respect of the offence or the accused person in question.

Counsel for the Respondent/ Application in cementing his arguement added that, it was not about the reaction of or what the E.O.C.O have said but that the burden still remained that, he who was suspecting money laundering ought to prove it.

According to counsel for the Respondent /Applicant contended that, EOCO had refer charges against the Respondents/Applicants or confront them with any substantial evidence in any offence, and that, the the continued denial of the Respondents/Applicants of the use of the funds in their accounts amounts to an infringement of their right as enshrined in Article 18 of the 1992 Constitution.

After the eloquent submission by counsel for the Respondent /Applicant, he urged on the court to defreeze the account and to grant the Applicants unhindered access to the funds in their accounts..

The High Court after careful consideration of the submissions by the parties took notice of Interpretation section of the Anti-Money Laundering Act, 2008 (Act 749).

It defines any transaction being “suspicious” as a matter which is beyond mere speculations and based on some foundation.

In other words, there must be a basis for suspicion that the offence of money laundering has been or is being committed.

According to the court because the banks (relevant institutions) do not have to subject the suspicious transaction to any scientific analysis or any detailed investigations before filing the S.T.Rs , the test applied is subjective and not an objective test.

It is important to understand that, once suspicion has been aroused, the institution must make a report and pass on the investigative process to the Financial Intelligence Centre (F.I.C) and E.O.C.O.

The court held the view that, from a compliance perspective ,the best way to explain a suspicious transaction is “a behaviour which to the eye of the observer appears to be unusual or out of context in the circumstances within which it is observed”. See: Money Laundering – A Practical Guide to the New Legislation by Rowan Bosworth Davies & Graham Saltmarsh, (Chapman & Hall, London 1994) p. 174.

The court further held that, Indeed ,a reasonable suspicion must be based on specific and obvious facts when all taken together, there could be rational inferences from the facts.

It is Instructive to note that, the United States, like all other common law jurisdictions, reasonable suspicion is a legal standard of proof.

*In TERRY v OHIO, 392 U.S. 1, 29 (1968)* the U.S. Supreme Court held that reasonable suspicion is evaluated using the “reasonable person” or “reasonable officer” standard in which said person in the same circumstances could reasonably believe a person has been, is, or is about to be engaged in criminal activity; it depends upon the totality of particular facts, even if each is individually innocuous."

Because, EOCO could not establish the reasonable basis for the suspicion, the court upheld the argument of Learned counsel for the Respondent/Applicant and lifted the freezing Order.

A life style Audit of a Public office Holder is not a justifiable ground for freezing of the person's bank Account neither can same also lead to the confiscation of any form of asset of that person.

The freezing of the Bank Account of the person and confiscation thereof must follow an adverse findings of the life style Audit of the person,

I hold the humble view that, since Madam Cecilia Dapaa is not being investigated for having committed an offence which falls under the mandate and purview of the OSP, the application for the confirmation of a freezing Order and confiscation is misconceived.

We are told that, the OSP is conducting a lifestyle Audit of the Former Minister for Sanitation having regard to the large volumes of" cash" suspected to have been stolen from her house as a Public Office Holder.

The latest steps taken by the OSP could only follow after an adverse findings of the life style Audit. As we speak, the former sanitation Minister has not formally been charged for any offence so what is the basis for confiscation?

In *Nii Nueh Odonkor v Executive Director ( EOCO), & Another* which was also handled by Hon.Alexander Kwamena Afenyo-Markin, it was held that, where the court proceeds to make a confiscation order it must be satisfied that, the person against whom the order is being made is either a convict of a serious crime or is on trial for a serious crime.

As it stands now, Madam Cecilia Dapaa is not a convict neither is she standing trial for a serious crime. Therefore the absence of any of the above makes the application for confiscation an abuse of the powers of the OSP.

Something seriously doesn't add up concerning the latest steps taken by the OSP.

Dawda Eric
15th August, 2023