The just released 2005 Auditor General's report has revealed that ¢4.5 trillion was drawn from government accounts without recourse to the financial regulations and ¢6.7 trillion in loans to various subvented organizations could not be accounted for.
In most countries, where accountability is taken seriously, these revelations would have been followed by identifying and prosecuting those who caused these financial crimes.
The legislators will engage in serious debate about how to prevent the recurrence of these financial crimes culminating in comprehensive legislation on prevention, detection and prosecuting these crimes.
In Ghana, however, our political parties are telling us to throw away the only effective weapon in the State's arsenal against this financial terrorism. And while the State bleeds from the financial terrorism and is now being asked to throw away its only weapon, these same politicians are feverishly working on getting the State to fund political parties.
The political parties do not provide any legal, historical, logical, or sociological reason for calling for the repeal of the law on causing financial report to the State.
Their statement released to the media contained a lame, bordering on an irrational, reason % "the parties were convinced that the continued existence of the law on the statute books was inimical to any genuine effort to promote reconciliation and goodwill among political parties and players in the country."
Over the weekend, the parties clarified that they were not calling for repeal but an amendment of the law, without ever telling us the nature and character of such an amendment. As if the belated semantic maneuver can conceal their true intentions or otherwise minimize the gravity of their call to tamper with this frequently violated but seldom enforced law!
In effect, these political parties, who are also seeking funding from the State, believe that the only way to promote national reconciliation and goodwill among political parties and players is for the State to look on helplessly and hopelessly while these politicians and their cronies loot the national treasury.
The State has already spent billion of cedis on the National Reconciliation Commission by sweeping serious crimes, including murder of many innocent people, under the rug. The jury is still out on the return on that "reconciliation investment" and we are already witnessing another call for this elusive reconciliation.
In our monograph, titled "The Public Officer As A Fiduciary And The Law On Causing Financial Loss To The Ghanaian State" (CDD Critical Perspective no 16, 2003), Professor H. Kwasi Prempeh and I analyzed the Quality Grain Case, which involved the prosecution of 5 high ranking officials of the past Rawlings administration and the conviction of three of the accused on multiple counts of willfully causing financial loss to the State, in violations of section 179A(3)(a) of the Criminal Code (Act 29), 1960 (as amended).
We provide a historical, legislative and prosecutorial overview of section 179A(3)(a), both in general and how it relates to the specific trial of the accused. We also examine the constitutional and political dimensions of the debate over the legality or otherwise of the law.
We argue that the law, which makes it a criminal offence to willfully cause financial loss to the State, is both a necessary and a constitutionally valid piece of legislation and that its vigorous enforcement is crucial to advancing and entrenching the values of responsibility, rationality, and good governance in our public administration.
We also argue that, contrary to then prevailing protestations and clamor, incidentally by interested politicians, the law as it stands is not too vague to put public officials on notice as to what would constitute a breach of it.
We conclude that calls for a repeal of the law are therefore misplaced and not in the national interest, and provide a set of proposals as a prophylactic against the risk of criminal liability under the section.
With the rampant corruption and its attendant financial loss to the State, proper implementation of laws such as section 179A(3)(a) of the Criminal Code are critical in the fight against corruption.
We suggest that regular, timely and successful prosecution of crimes covered by the law will serve as a strong deterrent against future lapses by public officials.
The revelations in the 2005 Auditor General's report only underscore our conclusions. The political parties should probably order copies of these monographs and distribute them to their members wishing to avoid prosecution under section 179A(3)(a).
When there is a public transportation deficit, our politicians simply obtain car loans to address their private transportation problem. When CHRAJ asks them to put a stop to this raid of the national treasury (see Petition of Professor S. Kwaku Asare vs. Clerk of parliament, CHRAJ report 2003), our politicians simply ignore CHRAJ, hence the law.
When financial terrorism against the State leads to underfunding of education and an increase in blue collar criminal activities, our politicians respond by asking for increased security for them and their families.
On the rare occasion, when State institutions, such as the Judiciary, hold some of our politicians accountable, they respond by boycotting their work while still collecting their fat pay checks from the State. This tendency of our politicians to place themselves above the law and national suffering is an unfortunate development that threatens our democracy.
The law on causing financial loss to the State is a very sound legislation. The mens rea (state of mind) required to be proven by the prosecutor in our independent, albeit slow courts, is extremely high. Nobody will be prosecuted or convicted under this law for negligence. But those who purposefully, intentionally, or recklessly engage in actions that cause financial loss to the State should be prosecuted.
In the now celebrated Quality Grain case, the defendants were found guilty not merely because their actions and inactions caused the State to lose $22M. Rather the facts demonstrated that their actions were reckless in five important areas. The accused persons
* had failed to do any due diligence before issuing a $22M sovereign guarantee
* had consciously failed to include the Attorney General"s office as required by law;
* had failed to seek Parliamentary approval for a second loan as required by the law;
* had failed to take prophylactic measures (so called counter guarantees) in light of the unknown pedigree of Juliet Cotton; and
* recklessly failed to ensure that the conditions precedent for disbursement of loan had been met
I can only see 3 things that are wrong with the law on willfully causing financial loss to the State:
1. The law is under-applied relative to the frequency and impunity with which it is violated. We must seek ways to ensure its regular application by creating special prosecutors whose work in this area is not subject to the supervision and initiative of the Attorney General.
2. On the few occasions that the law has been applied, the judicial system has allowed its liberal adjournment and appellate policies to drown the effectiveness of the prosecutions, hence the laws. It is unconscionable that the Fast Track Courts created to administer this law, and other serious crimes, take 6 years rather than the budgeted 6 months, to complete some cases. Yet, there is still talk on creating Financial Tribunals. Why not fix the existing broken slow track and fast track courts?
3. On the even fewer occasions, when public officials have been gaoled under the law, the President has used its power of pardon rather liberally and has let loose the convicts creating the impression of a class system that favors white collar criminals (politicians).
The law is not inimical to any genuine effort to promote reconciliation and goodwill among political parties and players in the country. The constant and unproductive bickering by the political class whose members get caught by the law should not be misconstrued as the absence of reconciliation.
Nor should the law concern itself with the infantile quarrels and "badwill" among the political parties! All that the law requires is for a public officer to be diligent when handling the State's financial affairs. This is not asking too much!
We must not allow the unfortunate call for a repeal of this law to distract our attention from the revelations coming out of the Auditor General's report. Further, our emphasis should shift from whether the current government deserves "transparency credits" or "corruption debits" to asking whether the Auditor General is exercising his power to disallow expenditures under article 187 (7) of the Constitution. Under those powers, the Auditor General may disallow any item of expenditure which is contrary to law and surcharge -
(i) the amount of any expenditure disallowed upon the person responsible for incurring or authorizing the expenditure; or
(ii) any sum which has not been duly brought into account, upon the person by whom the sum ought to have been brought into account; or
(iii) the amount of any loss or deficiency, upon any person by whose negligence or misconduct the loss or deficiency has been incurred.
The report needs to be made public so that all of us can ascertain who the offending officials are and push the Auditor General to exercise his powers of disallowing and surcharge. Needless to say, such civil remedies should be followed by criminal prosecutions.
We cannot just become a talking shop when the Auditor General's report has revealed that close to ¢11.2 trillion ($1.2B) of our meager resources is exposed to financial loss. This is financial terrorism and the State must mobilize, deploy, and activate all the ammunitions in its civil and criminal arsenal!!!!
The talking must give way to real action for that is the only way to stop future financial terrorism and shenanigans. It is also time for voters to discipline politicians whose actions and utterances promote the culture of corruption and undermine our laws and institutions! Finally, the media can play a critical role in this war if it stays focus on publicizing the Auditor General's findings.
By staying focused, I mean more than the usual "hit and run" coverage that appears to be the preferred mode of operations by the media. Rather, I mean a sustained and intensive coverage that drowns all other issues and leaves the powers with no other option but to listen and act!
By Professor S Kwaku Asare