Ghana has signed up to the United Nations Convention against Corruption and the African Union Convention on Preventing and Combating Corruption: both Conventions were ratified by the Parliament of The Republic of Ghana on 18 October 2002.
The principal national legislation in this area is the Criminal Offences Act, 1960 (Act 29) as amended by the Criminal Offences (Amendment) Act, 2012 (Act 849).
The relevant offences are spread across various legislative sources, including but not limited to the following.
The Economic and Organised Crime Office Act, 2010 (Act 804) provides for the widest range of predicate offences, including bribery and corruption.
Additionally, there is a general asset-declaration provision under Article 286 of the 1992 Constitution of the Republic of Ghana. This requires a person holding any of the public office positions listed in clause 5 of that Article to submit to the Auditor General a written declaration of all property or assets owned by or liabilities owed by him or her, whether directly or indirectly.
Examples of the positions listed include the President, Vice-president, Ministers of State, Ambassadors, High Commissioners and heads of public corporations or companies in which the State has a controlling interest.
The guidelines are as follows:
Parliament recently passed the Criminal Offences (Amendment) Bill 2020 categorising the offence of corruption as a felony with a term of imprisonment of not less than 12 years and not more 25 years. The Bill has yet to receive presidential assent. The Legislative Instrument (LI) on the Office of the Special Prosecutor (OSP) has been passed. The LIs are to regulate the operations of the special prosecutor whose mandate is to prosecute corruption and other related offences.
The relevant offences are as follows:
Corruption by public officers: under Section 240 of Act 29, a public officer or juror commits corruption in respect of duties of office if he or she directly or indirectly agrees or offers to permit him or herself to be influenced by the gift, promise or prospect of a valuable consideration to be received by that person or a third party.
Extortion: this offence is committed when a public officer under the “colour of office” demands or obtains from a person, whether for public purposes or personal gain, or for another person, money or valuable consideration which the public officer knows he or she is not lawfully authorised to demand or to obtain.
Promise of bribe: the offence is committed where there is a secret agreement to offer or procure for a public officer valuable consideration for an act performed by the public officer.
Giving of bribe: the giving of valuable consideration under the pretence or colour of having duly influenced any person in respect of the functions of a public officer constitutes an offence.
Acceptance of bribe: this offence is committed where a person who has performed an act as a public officer agrees secretly to accept, for personal gain, valuable consideration on account of the act done.
Issuance of a false certificate: this crime is committed where a public officer attests or certifies a document knowing it to be false in material particular.
The Criminal Offences Act, 1960 (Act 29), which is the key legislation on bribery and corruption, does not define “bribery”.
Generally, bribery within the context of Ghanaian law encapsulates the situation where:
Section 33 of the Representation of the People Law, 1992 (PNDCL 284) provides for the offence of bribery within the context of the conduct of public elections. In this connection, the offence of bribery is committed where a person acting directly or through a third party gives money or valuable consideration or acts corruptly in order to induce a voter to vote in a particular way either before, during and or after elections.
Section 252 of the Criminal Offences Act, 1960 (Act 29) makes it an offence for a public officer or juror to accept a bribe in the discharge of his or her duties.
Section 244 of the Criminal Offences Act, 1960(Act 29) makes it an offence for a public officer secretly to accept for personal gain or for any other person, a valuable consideration after the performance of his or her public duty.
Under Section 253 of the Criminal Offences Act, 1960 (Act 29) it is an offence for a judicial officer or juror to make a corrupt promise in the discharge of his or her duties.
Any gift, payments and valuable consideration given to a public officer with a view to influencing the officer in the discharge of his or her official functions is treated as a crime.
Bribery is not limited to monetary considerations alone. It includes any other valuable consideration: thus, hospitality expenditures and facilitation payments are within the remit of the law.
In Ghana, the law does not impose criminal liability on a person for failing to prevent bribery.
There is no specific definition of the term “public official” under Ghanaian law. Ghanaian law rather employs the term “public officer”. A public officer is defined as “a person who holds a public office” – Section 3 of the Criminal Offences Act, 1960 (Act 29); Public Officers Act, 1962 (Act 114); Section 77 of the Office of Special Prosecutor Act, 2017 (Act 959).
Article 295 of the 1992 Constitution defines a “public office” as an office the emoluments attached to which are paid directly from the Consolidated Fund or directly out of moneys provided by Parliament and an office in a public corporation established entirely out of public funds or monies provided by Parliament.
Employees of state-controlled companies are also included in the preceding definition.
In Ghana, the bribery of foreign public officials is a criminal offence under Act 29.
The law on bribery in Ghana does not cover bribery between private parties in a commercial setting.
The explanation of the offence of corruption of and by a public officer or juror under sections 244 and 255 of the Criminal Offences Act, 1960 (Act 29) extends to offences relating to the exchange of influence on decision-making for an unfair advantage. The law also proscribes influence of foreign public officials.
Section 140 of the Criminal Offences Act, 1960 (Act 29) makes it an offence to falsify accounts.
Failure to maintain records and the making of false or misleading statements are offences under the Income Tax Act, 2015 (Act 896) as amended.
Under section 345 of the Companies Act 2019 (Act 992), it is an offence for a person to give a false statement to the Registrar of companies, in relation to any return, report, certification, account or other document. It imposes a fine of not less than 250 penalty units and not more than 500 penalty units or a term of imprisonment of not less than one year and not more than two years, or both the fine and the imprisonment.
Under Section 96(1)(f) of the Public Financial Management Act, 2016 (Act 921), it is an offence for a person acting in an office or employment connected with the procurement or control of Government stores, or the collection, management or disbursement of amounts in respect of a public fund or a public trust, wilfully to make or sign a false certificate, false return or false entry in a book, in relation to his or her duties.
Misappropriation of Public Funds
Section 179A of the Criminal Offences Act, 1960 (Act 29) as amended by the Criminal Offences (Amendment) Act, 2012 (Act 849) makes it an offence for a person wilfully by act or by omission to cause loss, damage or injury to the property of a public body or an agency of the Republic.
Under Section 96(2) of the Public Financial Management Act, 2016 (Act 921) it is an offence for an officer in charge of government stores or the collection, management and disbursement of amounts to authorise an expenditure exceeding the approved appropriation limits.
Unlawful Taking of Interest by a Public Official
The offence of accepting a bribe to influence a public officer under Section 252 of the Criminal Offences Act, 1960 (Act 29) covers the taking of interest in an operation/transaction while having a duty of ensuring its supervision/administration.
Article 284 of the 1992 Constitution of Ghana provides for a code of conduct for public officers; it prohibits a public officer from putting himself or herself in a position of conflict.
Embezzlement of Public Funds by a Public Official
Section 179(c) of the Criminal Offences Act 1960 (Act 29) proscribes the use of public office for profit or benefit. More instructively, Section 260 of Act 29 provides that, where a public officer who is duty-bound in that capacity to pay or account for money or valuable items or to produce or give up any documents or anything else fails to do so to any other officer or person lawfully demanding any of these, he or she commits a misdemeanour.
Section 96(2) of the Public Financial Management Act, 2016 (Act 921) makes it an offence for an officer in charge of government stores or the collection, management and disbursement of amounts to authorise an expenditure exceeding the approved appropriation.
Favouritism by a Public Official
There is no such specific offence directly provided for in the legislation. However, please note the following:
In the case of the Republic v Hagan (1968) GLR 607, the court ruled that the offence of accepting a bribe to influence a public officer could be committed through an intermediary.
The statute of limitation does not apply to criminal offences (bribery and corruption are criminal offences).
The legislation only applies in Ghana. However, by virtue of the Extradition Act, 1960 (Act 22), persons accused of or convicted of criminal offences, including bribery and corruption, who leave the jurisdiction of Ghana maybe extradited to Ghana for prosecution.
A company may be criminally liable and may be convicted of a crime regardless of whether its officers are also convicted. This means that both the company and the individuals responsible for the crime may be charged separately. Recent changes to the Company law in Ghana mean that a corporate body may held criminally liable. In determining whether a company is criminally liable, the corporate entity may be attributed the mental state of “its directing mind and will”.
Section 147 of the Companies Act 2019 (Act 992) makes a company criminally and civilly liable for the acts of its shareholders (in General Meetings), the board of directors and the managing director, while carrying on the company’s business in the usual way. The extent of criminal liability is the same as that of a natural person. Moreover, the liability of the company is not vitiated by the fact that those shareholders (in General Meetings), members of the board of directors or general manager had acted fraudulently or forged a document.
Additionally, under Section 199 of the Companies Act, 2019 (Act 992), directors of companies can be held civilly liable where they breach their fiduciary duty to the company. Moreover, fraud constitutes an exception to the corporate veil principle which otherwise operates to shield the directors and shareholders of a company from liabilities incurred by their corporate entity. Where fraud is present, both the company and any official who had knowledge or ought to have known of the defaulting situation are culpable and liable to sanctions.
Criminal liability of one company cannot be imputed or transferred by agreement. In a merger, acquisition or a take-over situation, criminal liability for acts committed by the officials of one company cannot be inherited by another company following a merger or acquisition.
Under the Criminal Offences Act, a public officer is liable for the offence of false certification if he or she knowingly makes a false attestation. Thus, where it is done inadvertently, the offence would effectively not have been committed.
There is an exception where the accused person is able to prove that he or she acted innocently or without requisite knowledge.
There are no de minimis exceptions for the aforementioned offences.
No sector or industry is granted an exemption.
There are no specific safe-harbour or amnesty programmes relating to bribery and corruption. However, the Office of Special Prosecutor Act, 2017 (Act 959) confers general powers on the Special Prosecutor to enter into plea-bargains with offenders.
The Tax Amnesty Act, 2017 (Act 955) is designed to give a limited-duration government pardon to eligible tax payers (ie, individuals and entities) who have either failed to register with the Commissioner General or who have registered but have not reported or have under-reported tax debts. The object of the amnesty is to encourage voluntary tax-compliance, increase tax revenue and facilitate the development of equitable tax reforms.
A person convicted of the offence of corruption of and by a public officer or juror under Section 239 of the Criminal Offences Act, 1960 (Act 29) is liable to a term of imprisonment not exceeding 25 years by virtue of Section 296(5) of the Criminal Procedure Code (Amendment) Act, 1965 (Act 261).
The penalty upon conviction for the offence of accepting or giving a bribe to influence a public officer or juror is imprisonment for a term not exceeding 25 years by virtue of Section 296(5) of the Criminal Procedure Code (Amendment) Act, 1965 (Act 261).
A person convicted for the offence of corrupt promise by a judicial officer or juror contrary to Section 253 of the Criminal Offences Act, 1960 (Act 29) is liable to a term of imprisonment not exceeding 25 years.
A person convicted of any of the other bribery and corruption-related offences in the Criminal Offences Act, 1960 (Act 29) – apart from the three offences listed immediately above – is liable upon conviction to imprisonment not exceeding three years.
NB: Parliament recently passed the Criminal Offences (Amendment) Bill, 2020, making a person found guilty of engaging in any form of corrupt act liable to a term of imprisonment of not less than 12 years and not more than 25 years.
Under the Customs Act, 2015 (Act 891), a person who offers bribes to induce an officer of the service to neglect his or her duty commits an offence and is liable on summary conviction to a fine of not more than 200% of the total loss that would have been occasioned by the offence or to a fine of not more than 2,500 penalty units (whichever is higher) or to a term of imprisonment of not more than five years, or to both of these. An officer who demands or takes a bribe, gratuity, recompense or reward commits an offence under this Act and shall, on proof to the satisfaction of the Commissioner-General, be dismissed from office. An officer who commits the offence stated may also be liable on summary conviction to a penalty of not more than 2,500 penalty units or to a term of imprisonment of not more than five years, or to both punishments.
Under the Government Contracts (protection) Act, 1979 (AFRCD58), any person or contractor who knowingly accepts any illegal payment in respect of a government contract commits an offence liable on summary conviction to a fine not exceeding three times the extent of the improper payment in question or to a term of imprisonment not exceeding ten years, or to both of these. Further, any person who knowingly participated in the bribery or other corrupt practice in relation to a government contract or the issue of a certificate shall be guilty of an offence and liable to a term of imprisonment of not less than five years and not more than 15 years and, in addition, shall be liable to pay a penalty equal to three times the amount of the improper payment in question.
Under the Public Financial Management Act, 2016 (Act 921) a person convicted of the offence stated under Section 96(1) (e) is liable on summary conviction to a term of imprisonment of not less than six months and not more than five years or to a fine of not less than 100 penalty units and not more than 2,500 or to both of these. Under Section 96(3) of the Act, a person would be liable on summary conviction to a fine of not more than three times the amount offered or accepted or a term of imprisonment of not less than six months and not more than two years, or to both of these. A person convicted of the offence stated under Section 96 (2) of the same Act is liable on summary conviction to a term of imprisonment of not less than six months and not more than twelve months or to a fine of not more than the value of the assessed impact of the commitment or to both punishments.
Under the Audit Service Act, 2000 (Act 584) the penalty for the offence committed thereunder is a fine of not less than 500 penalty units or to imprisonment for a term not exceeding two years or to both of these.
Section 296 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) as amended by the Criminal Procedure Code (Amendment) Act, 1965 (Act 261) provides general rules for punishment of criminal offences, including bribery and corruption-related offences.
There are minimum sentences for bribery and corruption-related offences in other legislation (other than Act 29). However, there are no minimum sentences for bribery and corruption-related offences in the main national legislation, the Criminal Offences Act, 1960 (Act 29).
Under Section 300 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) a repeating offender may be punished severely. For instance, a repeating offender may be sentenced to five years’ imprisonment instead of the maximum of three years for misdemeanours.
The Criminal Offences Act, 1960 (Act 29) does not impose an obligation on the individual to prevent corruption. Flowing therefrom, failure to prevent a bribery is not an offence in Ghana. The principal law has no provisions on compliance programmes for preventing corruption.
However, Chapter 24 of the 1992 Constitution enjoins public officers to avoid unethical behaviour or conduct, such as conflict of interest, illicit enrichment and other improper conduct. Additionally, Article 35(8) of the 1992 Constitution generally mandates the State to take steps to eradicate corrupt practices and the abuse of power.
The Commission of Human Rights and Administrative Justice (CHRAJ) serves as Ghana’s anti-corruption agency and ombudsman and has a code of conduct on conflict of interest for public officials. The CHRAJ provides regular training sessions on corruption and related offences to public officers and the public at large. The Public Services Commission Code of Conduct (2014) and the Civil Service Code of Conduct respectively govern the conduct of public and civil servants. Their core functions are to promote integrity, probity and accountability among public and civil servants and generally to assist and guide them on how to handle ethical dilemmas that they may encounter through their official and private activities.
There is no legal obligation on individuals to disclose violations of anti-bribery and anti-corruption provisions which come to their attention. However, Section 1 of the Whistleblower Act, 2006 (Act 720) charges citizens to disclose information to relevant state authorities where there is reasonable cause to believe that an economic crime is about to be committed or has been committed.
Whistle-blowers are afforded protection under Section 12 of the Whistleblower Act, 2006 (Act 720) which provides protection for whistle-blowers from any form of victimisation by employers or any other person in respect of disclosures made. The Act, however, emphasises that victimisation does not include the right of the person complained against to seek redress in court because of that disclosure.
In accordance with Section 107 of the Evidence Act, 1975 (NRCD 323), the government has the privilege to refuse to disclose or to prevent any other person from disclosing the identity of the person who has supplied the government with information purporting to reveal the commission of a crime or a plan to commit a crime.
Under Section 16 of the Whistleblower Act, 2006 (Act 720) the whistle-blower is guaranteed legal assistance by the government where the need exists.
Further, a whistle-blower reward fund has been established under Section 20 of the Whistleblower Act.
Moreover, under Section 23 of the Whistleblower Act, a whistle-blower is rewarded if information given by that whistle-blower leads to an arrest.
The Whistleblower Act, 2006 (Act 720) constitutes the comprehensive legislation in Ghana that regulates whistle-blowing. In 2010, the Ghana Anti-Corruption Coalition published a Guide to the Whistleblower Act to educate the public on the importance of the whistle-blower law and aid public comprehension of the operation of the system and in particular how to blow the whistle (whistle-blow) on corrupt or improper acts of persons and institutions.
Various enforcement bodies are clothed with the authority to enforce anti-bribery and anti-corruption laws in the country.
Article 88 of the 1992 Constitution grants the Attorney General prosecutorial powers with respect to all criminal offences, including bribery and corruption.
Separately, the Special Prosecutor is vested with authority to investigate and prosecute certain categories of bribery and corruption-related offences by the Office of Special Prosecutor’s Act.
The Economic and Organised Crime Office Act, 2010 (Act 804) sets up the investigative body EOCO, which following investigations could recommend cases to the Attorney General for prosecution. Its investigative jurisdiction is economic crimes, including bribery and corruption-related offences.
The CHRAJ has the power, inter alia, to recommend administrative sanctions for breach of bribery and corruption laws. The CHRAJ does not have the mandate to prosecute; the body is required only to carry out investigations and refer its recommendations to the Attorney General for further action.
Under the Audit Service Act 2000, the Auditor General has the power, by means of a civil action, to surcharge public officers to refund with interest monies they may have misappropriated through corruption and other means.
The enforcement bodies for the aforementioned offences are as follows:
The various anti-corruption bodies co-operate among themselves in the performance of their respective mandates, as explained below:
Attorney General: under Article 88 of the 1992 Constitution, the Attorney General is the sole authority to prosecute criminal offences, including those related to bribery and corruption. The CHRAJ and the EOCO may refer cases to this office for prosecution. The Office of the Special Prosecutor has delegated authority of the Attorney General to investigate and prosecute certain classes of offences related to bribery and corruption.
Economic and Organised Crime Office: this office is responsible for the investigation of offences that involve financial loss to the Republic, money laundering, tax fraud and the recovery of proceeds of crime, taking reasonable steps to prevent the commission of crimes and the dissemination of information gathered in the course of investigations. It derives its authority from the Attorney General, as stated in the memorandum to the Act.
In its capacity as Ghana’s anti-corruption body, the CHRAJ is responsible for the investigation of violations of complaints of fundamental human rights and freedoms, injustice, corruption, abuse of power and unfair treatment of any person by public officers. The investigation of complaints made against public institutions and its officials falls within its mandate. Instructively, it does not have prosecutorial powers. The CHRAJ may make recommendations to the Attorney General, who has the final say as to prosecutions. The CHRAJ is also empowered to initiate civil proceedings to back its recommendations. However, the CHRAJ does not have the power to investigate matters which are pending in a court of law.
The constitution grants the right of citizens and institutions alike to access information (Article 21(1) (f)).
The first step for requesting information or documents is by a written request to the relevant individual or institution. Where the production of any official information is designated as classified or confidential, the anti-corruption body may apply to the Supreme Court for clearance in order to access the information. The CHRAJ, for instance, has the power to issue subpoenas requiring the attendance of a person before the commission and the production of a document or record relevant to an investigation by the commission under Section 15(2) of the CHRAJ Act.
Under Section 71 of the Office of Special Prosecutor Act, 2017 (Act 959), a person under investigation for corruption or charged with corruption who admits to the commission of the offence and is willing to make restitution of the proceeds realised from committing the offence may benefit from a plea bargain in the form of an order for restitution instead of a term of imprisonment, provided any such offer for restitution is satisfactory to the prosecution and the court.
Similarly, the Courts Act 1993 (Act 459) grants an accused person the opportunity to admit an offence which has caused financial loss to the state or any state agency and to offer compensation or make restitution and reparation for the loss, harm or damage caused. However, the offer to compensate or make restitution and reparation must be satisfactory to the court.
The general prosecutorial power to investigate and prosecute any corruption or bribery-related case resides with the Attorney General’s Office. The other bodies have been granted limited or specialised jurisdictional ambits. Thus, the EOCO centres on the investigation of economic crimes. The courts have held that the CHRAJ cannot originate an investigation suo motuo. A complainant is needed to trigger its intervention. The Auditor General is mandated to conduct periodic audits of state institutions, which could lead to surcharges or prosecutorial recommendations where financial malfeasances are identified. The Financial Intelligence Centre focuses on identifying monies generated from unlawful sources and recommending state action on them. The Office of the Special Prosecutor investigates and prosecutes incidents of corruption by public officials. Typically, the specific legislation or constitutional provision setting up the institution would also demarcate jurisdictional purview. Notwithstanding this, however, inevitable jurisdictional overlaps have occurred in practice.
The Ghana Education Trust Fund (GETFund) Scholarship scandal occurred in February 2020, involving some Ministers of State and Members of Parliament. These persons used their offices to obtain scholarships from the GETFund Scholarship scheme for themselves and their relatives, contrary to the provisions of the GETFund Act, 2000 (Act 581). According to the GETFund’s Annual Reports from 2012 to 2018, the secretariat spent over GHS400 million on scholarships for 3,112 beneficiaries, out of which 2,217 persons were unlawfully granted scholarships to study abroad.
Recent investigations by international investigative journalist Anas Aremeyaw Anas revealed that some staff at the Greater Accra Regional Hospital have been selling critical Personal Protective Equipment for personal profit during the COVID 19 pandemic this year.
In 2019, a freelance journalist, Manasseh Azure Awuni, in his investigative piece exposed several instances of conflict of interest and corruption against Mr Adjenim Boateng Adjei, the Chief Executive Officer of the Public Procurement Authority (PPA).
No sanctions have been imposed in the GETFund scandal. The findings of the Auditor General have been challenged by the GETFund.
The staff involved in the sale of PPE scandal have been suspended, pending investigation by the hospital authorities.
On 30 October 2020, the President of the Republic dismissed Mr Adjenim Boateng Adjei as the CEO of the PPA, following formal investigations conducted by the CHRAJ. Mr Adjei was found to have been involved in a conflict-of-interest situation in the procurement of various government contracts. He has also been disqualified from holding public office for the next five years.
The Transparency International Corruption Perception Index Report, 2019 on Ghana, the OECD Reports, the e-Business Anti-Corruption Portal, 2017, and the Ghana Corruption Report of September 2016 are some of the latest published works assessing corruption trends in Ghana.
The following strength and weakness have been identified.
Strength: there are several enactments in Ghana that tackle the issue of corruption – indeed, Ghana’s whistle-blower protection law is, on paper, generally considered among the strongest in Africa.
Weakness: to date there has been a general lack of political will in prosecuting serious corruption cases. Bribery and corruption-related offences and sanctions are not presently located under a comprehensive statute, as the offences are spread across different enactments.
The Right to Information Act 2019 (Act 989) (RTI) has introduced game-changing reforms that will influence positively the fight against bribery and corruption. Among other things, the RTI Act will give effect to Article 21 (1) (f) of the 1992 constitution which stipulates: “All persons shall have the right to information subject to such qualifications and laws as are necessary in a democratic society.” The Act has introduced additional probity and accountability by public bodies by giving citizens the right to receive information from government. The Act became operational in January 2020 and the Government is in the process of setting up the RTI secretariat to co-ordinate and support the functionality of the RTI. It is the expectation that the RTI secretariat will facilitate the setting up of a robust record management system to support the effective storage and retrieval of public information. The Ministry of Information has commenced the process of appointing and training of information officers in the various Ministries, Departments and Agencies of government to support the full implementation of the law.
The Conduct of Public Officers Bill is currently undergoing Parliamentary deliberations. The bill, when passed into law, will introduce robust administrative measures that will tackle corrupt practices at all institutional levels.
Officials found guilty of administrative malpractices could face a lifetime ban from public office, among other sanctions.