body-container-line-1

Baseless Allegations Of Corruption: Any Civil Or Criminal Consequences?

By Emmanuel Opoku Somuah
Opinion The Author
FEB 15, 2018 LISTEN
The Author

Life in a third world country is characterised with constant allegations of corruption. Every morning an allegation is made, sometimes founded on strong evidence, other times founded on nothing. This trend probably flows from the notion of Frank Herbert that, “Power attracts the corruptible. Suspect any who seek it.” But does vigilance warrant the muddying of the reputation of individuals, and by extension the state? Are persons who make unfounded allegations against government officials free from any civil or criminal liability? This article seeks to provide answers to these questions in the light of recent allegations of corruption, which after investigations, were held to be unfounded.

Firstly, Mr Kwame Asare Obeng, popularly known as A Plus, in a Facebook post alleged that the two Deputy Chief of Staff had engaged in certain corrupt acts. The basis of his allegation was that Mr Asenso-Boakye and Mr Abu Jinapor had interfered in the management of Korle Bu Teaching Hospital and in the opinion of A Plus that amounted to corruption. Following a directive from the Office of the President to the CID to look into the matter and an invitation to A-Plus by the CID to provide details of his claims, the musician said in a later interview that he had withdrawn his allegations of corruption against the two Deputy Chiefs of Staff. The Criminal Investigations Department (CID) of the Police Service, nevertheless, investigated the corruption allegation made by the musician and in a report stated that the allegations were “baseless”.

Reminiscing on the report, my mind was filled with the thought that, has the harm not been already done? Has the allegations not detracted and diminished the reputation of these noblemen? And by virtue of the positions they occupy in the State, can it not be said that the reputation of the nation has itself been diminished as a result? These questions arise as a result of the fact that although these noble men have been exculpated of any wrong doing, the news thereof may not have reached all persons who heard the allegations. In the political arena, the constitutional right as provided in article 19(2)(c) that persons charged with (in this case, alleged to have) committed a crime is innocent until proven otherwise bears no hold. Put simply, in the courts of politics, there is no presumption of innocence. Thus in the minds of such persons, the two deputies are guilty as alleged. Furthermore, the very fact that even the Police Service is seen by most citizens as stooges of the Government of the day, a report of a department of the Service, will be treated with contempt inspired by the mindset that it is a cover-up for the officials.

Secondly, an allegation was made by the Minority Chief Whip, Mr Muntaka Mubarak (Hon) in Parliament that the Ministry of Trade charged between $25,000 and $100,000 from expatriates to sit close to the President at the Ghana Expatriate Business Awards organised by the Millennium Excellence Foundation. The allegation was seconded by Mr Okudzeto Ablakwa (Hon). The Ministry fiercely rejected the allegation which resulted in a Parliamentary probe. The Committee exculpated the Ministry of any wrong doing albeit by a majority decision of three to two, on political lines of course. The Minister of Trade, Alan Kyerematen in a statement said that the Minority could be cited for causing financial loss to the State.

There is also the vexed issue labelled as the Bond Saga which begun after the Minority called for a Parliamentary probe into how persons they referred to as close associates of the Finance Minister purchased 95% of the $2.25 billion bond. The NDC’s Ashanti Youth Regional Organizer, Mr Brogya Genfi petitioned CHRAJ to investigate the matter. CHRAJ largely exonerated the Finance Minsiter but also held that the latter breached certain processes in the issuance of the bond which is about to be contested in court; so we are told.

Let me hasten to state that, the focus of this article is not to inflict political blindness on the quest of the citizens to ensure probity and accountability. Without political vigilance, the attraction of power to the corruptible will in fact succeed in getting the corruptible corrupt. Political vigilance may well be said to be the bar to the transition from corruptible to corrupt. In the words of John Adams, political vigilance, “nip the shoots of arbitrary power in the bud, is the only maxim which can ever preserve the liberties of any people”. Nevertheless, political vigilance authorizes no man to violate the rights of others. In fact political vigilance, which usually expresses itself through the freedom of speech and freedom to take part in demonstrations, is subject to respect of the rights of others. Article 12(2) of the 1992 Constitution provides that:

“Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest.” [Emphasis added]

As provided in article 15 of the 1992 Constitution, the dignity of all persons is inviolable. The dignity of a man is a universal set definitely containing his reputation. One cannot speak of dignity without evincing reputation. Thus article 15 secures the reputation of all persons as inviolable. No man, whether under the guise of political vigilance or otherwise, has the authority to impugn the reputation of the others with unsubstantiated allegations of corruption.

In that regard, what are the remedies available to a victim of a violation of his reputation? The only civil remedy that comes to mind is the tort of defamation. The tort of defamation protects a person from false imputations which harm his reputation with others. The purpose of the tort as noted by Professor Kumado “may be said to be the preservation of a balance between the individual's right to protect his reputation and the general right to free speech.” The tort is therefore a threat to the right of free speech and at the same time the guarantee of an individual’s reputation. Political considerations and the need not to gag the ventilation of the frustrations of citizens may well support an argument that, in the context of the political landscape, statements which may well be defamatory should be overlooked. In fact Justice Brennan in New York Times v Sullivan opined that:

“debate on public issues should be uninhibited, robust and wide-open and may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

This view is tenable and is in the interest of the avoidance of political censorship. To borrow the words of George Bernard Shaw, “the first condition of progress is the removal of censorship.” But a policy question left unanswered is whether persons who deliberately and maliciously make unwarranted and unsubstantiated allegations of corruption against public officials, should also be beneficiaries of this protection. I think not, nonetheless the jury is still out.

Mr Vitus Azeem, an anti-corruption campaigner, in the case of A Plus’ allegation, called for the prosecution of the musician, Kwame Asare Obeng for making the said allegations against the two government officials. The question thus is: are there any criminal ramifications for the comments?

Let’s commence an excursion into the Criminal and Other Offences Act, (Act 29). Firstly, the statements would have been caught squarely within the remit of the repealed criminal libel provisions. It provided in section 112(1 - 2) and 113 that:

112 (1) - Whoever is guilty of negligent libel shall be liable to a fine not exceeding ¢400,000.

112 (2) - “Whoever is guilty of intentional libel shall be guilty of misdemeanour.”

113 - A person is guilty of libel, by print, writing, painting, effigy, or by any means otherwise than solely by gestures, spoken words, or other grounds, unlawfully publishes any defamatory matter concerning another person, either negligently or with intent to defame that other person.

Without a shred of doubt, the provisions relating to the absolute and conditional privilege which operated as defences would not have availed to the benefit of Mr Asare Obeng. The second relevant provision, which has suffered the same fate as the criminal libel provisions, is section 185 which criminalized false reports intentionally made to injure the reputation of Ghana. The said section provided as follows:

185 (1) - A person who communicates to any other person, whether by word of mouth or in writing or by any other means, a false statement or report which is likely to injure the credit or reputation of Ghana or the Government and which that person knows or has reason to believe is false, commits a second degree felony.

This section is relevant because, and as stated above, allegation impugning the integrity of government officials affect the reputation of the State. This is buttressed by the fact that the human face of every State is its officials. That is why the acts and inactions of officials which cause damage may be attributed to the State under international law. Thus the reputation of the State is controlled by its officials and therefore the reputation of the officials is linked to that of the State. But as has been said, the provision has been repealed and is of no relevance now except for academic discourse.

The next relevant provision is section 208 of the Act 29 which provides that:

“A person who publishes or reproduces a statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace knowing or having reason to believe that the statement, rumour or report is false commits a misdemeanour.”

This provision is still in force and Mr Asare Obeng can be charged under this section provided the prosecution can prove that the statements of the musician on Facebook “is likely to cause fear and alarm to the public or to disturb the public peace”.

The last relevant provision is section 251 which provides thus:

“A person commits a misdemeanour who, with intent to defeat, obstruct, or prevent the course of justice, or the due execution of the law, or evade the requirements of the law, or to defraud or injure a person, or to obtain or assist in or facilitate the obtaining of any passport, instrument, concession, appointment, permission or any other privilege or advantage, endeavours to deceive or to overreach a public officer acting in the execution of a public office or duty,

(a) by personation, or by a false instrument, document, seal, signature, or

(b) by a false statement, declaration or assurance, whether written or verbal or by a written or verbal statement, declaration or assurance which the person making the statement, declaration or assurance did not have good reason to believe to be true.” (Emphasis added]

Injury to the reputation of a person constitutes injury to a person and therefore A Plus can be charged under this section. However, the provision is founded on some contact with a public officer acting in the execution of a public office. In this context, A Plus did not make a report to the Police about his “baseless” allegations. He merely uttered the words on Facebook with no particular direct contact with a public officer acting in the execution of a public office. Thus, in my opinion, a charge founded on the said section will fail.

Focusing on the statement by Mr Alan Kyerematen that the minority or perhaps, Mr Muntaka Mubarak (Hon) in particular should be charged for causing financial loss to the State for peddling falsehood which resulted in the recall of Parliament, the question is, is that tenable in the light of Parliamentary immunity? The relevant provision in the Criminal and Other Offences Act is section 179A(3) which provides that:

A person commits a criminal offence through whose wilful, malicious or fraudulent action or omission

(a) the Republic incurs a financial loss, or

(b) the security of the Republic is endangered.

Maybe Mr Muntaka Mubarak’s statement on the floor of Parliament may have been wilful, malicious or perhaps even fraudulent which resulted in a financial loss to the Republic because Parliament had to be reconvened on the public purse to deliberate on the allegation and of course the consequent expenses incurred by establishing the Committee to investigate the allegation and its work. But, in the first place, Parliament was recalled by the minority and it is their right, in fact the right of any fifteen percent of Parliamentarians, to recall Parliament as is provided in article 112(3) of the Constitution. That being the case, it is unacceptable that the exercise of the right can be tagged as causing financial loss to the State. Furthermore, statements made in Parliament are privileged and cannot “be impeached or questioned in any court or place out of Parliament” as stipulated in article 115 of the Constitution. In fact article 116 provides that, “civil or criminal proceedings shall not be instituted against a member of Parliament in any court or place out of Parliament for any matter or thing brought by him in or before Parliament by petition, bill, motion or otherwise.” Thus a call cannot be made for the prosecution of Mr Muntaka Mubarak because in the eyes of the law, his statement is shielded and protected by an impenetrable defence. The only call that can be made is for the Speaker to demand an apology from the Parliamentarian in question if he considers the statement made by the Member of Parliament to be defamatory in which case if the Member refuses to so apologize, the consequences shall flow accordingly.

The crime of corruption is one which questions the moral values and integrity of the people at large and I there agree with President that “we should be careful about the new trend that appears to be emerging, whereby any allegation, no matter how spurious, quickly gains the character of a ‘scandal’ or ‘an act of corruption’, even when it is shot down.”. As such, it is my contention that the State must take positive steps to control malicious and unsubstantiated allegations of corruption directed at its officials and calculated to injure the reputation of its officials. In conclusion, it is true as noted by E.A. Bucchianeri that, “It’s not unpatriotic to denounce an injustice committed …, perhaps it’s the most patriotic thing we can do”. But patriotism requires us to respect the rights of other people.

Emmanuel Opoku Somuah is a student of the University of Ghana.

You may reach him on [email protected]

body-container-line