Office Of Special Prosecutor- The Missing Link

Martin Amidu, Special Prosecutor Nominee

There definitely appears to be a missing link in the fight against corruption in Ghana.

It is a commonplace but true observation that corruption is not done in the open. Apart from complacent officials, who think that there is “no tomorrow”, experienced and “smart” officials engaged in corrupt acts take meticulous steps to cover their tracks. It should therefore to be expected that one of the daunting tasks that the Special Prosecutor would face, in several cases of alleged corruption, would be to establish how a dodgy public officer has personally benefited from an obviously dodgy activity.

For example, there may be cases whereby a public official may be found to have ignored a regulation in order to give undue advantage to a favoured contractor. Whereas the non-compliance with the regulations may be easy to prove, the crucial issue is how the Special Prosecutor would be able to demonstrate that the official personally benefitted from the illegality. That is a daunting task. However, an answer must be found to resolve it. That, is the missing link.

Let’s take a few examples from the 2016 Report of the Auditor-General Report on the Ministries, Departments and Agencies (MDAs).

In 2016, a small sample of tax files showed that revenue lost to the nation as a result of, irregularities by officials of the Ghana Revenue Authority, around Accra alone, mostly through deliberate failure to collect taxes, amounted to a colossal GH¢42.9 million. In a particular case, one officer caused the loss of GH¢691,353.11 when he authorised an importer of 38 vehicles to clear those vehicles without paying the appropriate charges. In such a case, the Special Prosecutor would have to prove how this officer personally benefitted from this let-off. (To add insult to injury, information from GRA indicates that arrangements are currently afoot to reinstate the officer, although the Auditor-General’s report recommended that the defaulting officer should be sanctioned, as well as be made to refund amount.)

How can the Special Prosecutor prove that this officer personally benefited from the deal?

Although there currently appears to be no mechanism in place to detect the perennial reports of private and unauthorised arrangements between tax officers and potential taxpayers regarding the amount to be declared for tax purposes, someone has to explain why since 2015, the GRA has been unable to recover unpaid VAT balances amounting to more than GHC11 million from just a small sample of registered VAT traders in Accra alone? These exclude taxes that could have been acquired, but which unscrupulous tax officers privately arrange with traders and business entities not to declare. The GRA is also unable to detect how much revenue is lost when traders, such as in Abossey-Okai, fail to issue VAT receipts on items purchased by the public. Doubters should visit Abbosey-Okai and buy spare-parts for proof of this.

According to the 2015 tax assessment, through deliberate negligence on the part of tax officers in only 10 Domestic Tax Revenue Offices in the Greater Accra Region alone, 549 Companies, Business Entities and individuals that owed an amount of GH¢6,806,899.00 and US$61,506.00 in corporate and individual income taxes have been allowed to get away with it, to the detriment of the nation.

Again, it cannot be denied that the main reason why contracts are passed for payment, without monitoring officers or consultants undertaking any prior physical monitoring of the progress of those projects, is that in such cases, there may have been private arrangements (“kuluulu”) between the contractor and the officer/s. What could be the motivating factor for this? And yet these malfeasances may not directly fall under the ambit of the Special Prosecutor since they are described as “negligence”. However, it is through such acts of deliberate “negligence” that these officers get their share of the loot. (See paragraph 41 of the “Auditor-General’s Report on MDAs liabilities as at 31 December, 2016”.

The practice under which a Ministry, Department or Agency may have poor or no record-keeping is a sure avenue to mask any malfeasance by officers.

One finds it difficult to understand how payments of huge sums in any Ministry or Agency to outside contractors could be made without prior internal audit certification. Yet these things go on; and the Auditor-General found numerous examples of these in 21 Ministries and Agencies. Can we say that these were mere oversights or some innocent acts of maladministration? I think not. The Special Prosecutor will face a hard time proving corruption in such cases, and yet these are the ways in which the cookies crumble.

What could have made the Ministry of Energy to ask the Ministry of Finance to pay a company an amount of over GH¢6 million as debt owed, when in actual fact, the amount owed was GH¢1.1 million? Who, in the Ministry, would have benefited if the GH¢6 million had been paid?

Just look at this also in paragraphs 54 and 55 of the report on the Ministry of Energy:

“54. In response to a request made by MoF dated 21 June 2017, MoEn asserted that Government was indebted to the contractor, an amount of GH¢28,404,803.80 for items supplied.

55. To establish the validity of the liability, we reviewed all transactions processed in connection with the contract and noted that the amount of GH¢25million was paid on 16 December 2016 vide GIFMIS PV No. MoP/HQ/AS/IL/023/023/11/18 leaving an outstanding amount of GH¢3,404,803.90. Upon further discussion with Management, it was established that two cheques from ECG number 049347 and 049278 for GH¢2,500,000 and GH¢5,000,000 respectively were made in 2016 to fully discharge the liability.”

The question is: what were officials in the Ministry of Energy going to do with that GH¢28 million, if the phantom money been paid?

Let us again look at the following at the same Ministry of Energy:

“64. In response to MoF letter dated 21 June 2017, MoEn asserted that UCL Ltd executed the contract and as at 31 December, 2016, Government was indebted to UCL an amount of GH¢25,460,000.00.

“65. To ascertain the veracity of the claim, we reviewed all the underlying documents including invoices and payment documents and noted that:

a) Two Invoices of GH¢15,563,625 and GH¢2,166,375 were issued totalling GH¢17,730,000 as certified supplies.

b) A payment of GH¢10million was released vide MoF Warrant No. 1631209 GIFMIS PV No. MOP/HQ/AS/IL/16/006 and dated 16 December 2016

c) Two ECG cheques No. 049580 and 049250 for the balance of GH¢7,730,000 and GH¢2,101,383.75 in 2016.

“66. We therefore rejected the claim of GH¢25,460,000 and recommended for a recovery of GH¢2,101,383.75.

“Management’s Response
“67. Management agreed to the audit conclusion”.

If this is not a typical example of “create, loot share”, then I do not know what is. Aba!!! One can go on and on.

However, the following was classic:
“89. The MoEn engaged Reroy Cable for the supply of Cables and Conductors under the National Electrification Scheme (NES). MoEn in response to the request of MoF submitted a claim of GH¢12,466,247.20 as Government indebtedness to Reroy Cable as at 31 December, 2016.

“90. To ascertain the genuineness of the assertion, we reviewed the relevant documentation and noted that Reory Cable submitted an invoice at a total cost of GH¢10,405, 525.00 (US$3,256,000.00) AND NOT GH¢12,466,247.20

“91. We therefore certified a liability of GH¢10,405,525.20.

“Management’s Response
“92. Management agreed with our position.”

This means that somebody at the Ministry of Energy wanted a cool GH¢2.5 million for their pockets.

What could have been the reason behind the Accountant-General’s Department’s procuring store items to the tune of GH¢2,339,980.00 in excess of their immediate requirement? These stores were likely to be consumed between 3 and 15 years.

Over the years in Ghana, there are countless cases whereby officers commit the state to monetary liabilities without following the required rules. Surely, it should be unacceptable to classify or wave such acts as mere acts of maladministration or incompetence. The reality is that, more often than not, such failures are deliberately engineered in order to win advantage for the officers concerned.

A clear example is when, contrary to the Public Procurement Act (Amendment Act 2016) Act 914, goods worth GH¢803,758.00 were supplied to the Accountant-General’s Department before a contract was even signed. All these happen year-in, year-out and yet none of those responsible for these are sanctioned or made to pay deterrent penalties. What happens is that they quietly walk under the cover of darkness to share the loot with the contractor without any trace of evidence that they have been part of the loot.

Then there was the case at TOR, when between January and September 2015, a total of GH¢1,5 billion was debited to the Petroleum Revenue Account No. 101813131461585 at the Bank of Ghana. When asked, the Accountant of TOR could not provide explanation for the withdrawals from the account. So while the ordinary man in the street continues to pay the never-ending TOR debts, accountants at TOR would withdraw huge monies from the TOR account without even thinking that they should have to provide explanations for such acts.

The question is: if our public officers are so dumb that they are always making these “mistakes” that cause the nation to continuously suffer such massive haemorrhage on the nation’s meagre financial resources, then what the hell are they doing in those positions in the public sector? But you and I know that they are not dumb. They only act dumb and pretend to be ignorant of the rules so that they can siphon off monies from the state.

The overall import of this article is to draw attention to the fact that neither the Office of the Special Prosecutor Act 2017 nor the Criminal Offences Act 1960 adequately deals with a situation whereby someone deliberately disburses state funds without approval, or does not account for revenue collected, or looks the other way to enable people evade customs duties, or makes alleged payments without accompanying vouchers or invoices, or undertakes transfer of funds without authority or wilfully circumvents the procurement processes, or misapplies funds, etc, etc.

What Ghana needs to do is to amend the Criminal Offences Act 1960 to make it possible for the state to demand of officials to show how the assets they might have acquired could be justified by their known income.

I can hear the guilty ones crying that it would be up to the state (and not them) to prove, “without reasonable doubt”, that they acquired their assets through unjustified means. But there are examples of how such ill-gotten gains are recovered in other parts of the world.

In April 2017, the United Kingdom (from which Ghana has inherited most of its jurisprudence), passed the Criminal Finances Act which has introduced the concept of “unexplained wealth orders”. Under this Law, authorised U.K. agencies are able to apply to the high court for an order to force a dodgy public official to explain how they obtained the funds to purchase assets which are obviously way above their known sources of income.

As long as there are “reasonable grounds for suspecting that the known sources of the respondent’s lawfully obtained income would have been insufficient for the purposes of enabling the respondent to obtain the property” the high court would be able to make an order.

The crucial issue is that, once the order has been made, the onus would be on the accused person to explain how they got the funding to acquire the asset/s in question. Furthermore, the Criminal Finances Act stipulates that such an order would also apply to a family member and known close associates of a person who is under such an investigation.

In the event that the person under investigation “fails, without reasonable excuse, to comply with the requirements imposed by an unexplained wealth order, in respect of any property,”, the property would be liable to confiscation by the state.

It is my considered view that the loopholes in our current laws must be closed and powers given to the Special Prosecutor to pursue people known to have been deliberately “negligent” to cause the state to lose funding. The missing link must be found and reinstated.

We either go all out to fight corruption or we “pack our bags and go home”