Contributed By Addison Bright Sloane
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 main 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:
There has been no amendment to the provisions dealing with bribery and corruption in the Criminal and other Offences Act, 1960 (Act 29) in 2019. However, the Office of Special Prosecutor Act (Act 959) which was passed in December 2017 has added to the legal and institutional architecture for fighting corruption in Ghana. The Office itself was established in 2018 and serves as an independent investigating and prosecution body to make inquiries into corruption, bribery, or other criminal cases at the national level in the public and private sectors.
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”. However, 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.
Under Section 253 of the Criminal Offences Act, 1960 (Act 29) it 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 the view to influencing the officer in the discharge of his or her official functions is treated as a crime.
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 only defines a “public officer” 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 also criminalised under Act 29.
Bribery between private parties in a commercial setting is not covered by the law in this jurisdiction.
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 (ie, influence-peddling).
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 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 the same, 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 can 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 may be extradited to Ghana for prosecution.
Recent changes to the law mean there can be civil and criminal liability by a company. 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 in the usual way of the company’s business. This means that companies whose shareholders, board of directors or managing directors commit acts of bribery and corruption may be held liable. 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), board 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 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 above 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 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.
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. 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.
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. 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 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. 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. 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.
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.
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 provide duties to prevent corruption.
However, Chapter 24 of the 1992 Constitution requires 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 to public officers and the general public. 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 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) enjoins individuals 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 whistle-blow on corrupt or improper acts of persons and institutions.
A host of enforcement bodies are clothed with 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 above 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 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, EOCO centres on the investigation of economic crimes. The courts have held 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 the same. 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.
There have been two exposés by the internationally renowned undercover investigative journalist Anas Aremeyaw Anas.
First, in September 2015, Anas carried out investigations into corrupt practices plaguing the judiciary. Several judges were caught on tape making demands for rewards in exchange for freeing criminals who had been arraigned before the courts for trial.
Second, in June 2018, the same journalist probed into the affairs of African football, particularly the Ghana Football Association, highlighting issues of bribery of officials and referees and also the embezzlement of funds. This led to the dissolution of the Football Association by the Government.
More recently, in August 2019, an investigation by the investigative journalist, Manasseh Azure Awuni implicated the Chief Executive Officer of the Public Procurement Authority (PPA) in the illegal sale of government contracts.
In September 2019, a team of investigators from the PPA uncovered procurement malfeasance at the National Youth Authority (NYA). The revelations related to the unauthorised award of a multi-million Ghana Cedi contract to a private company whereby the implicated officials had sought to cover their tracks by wrongfully procuring a backdated approval with respect to the award of the contract.
In the case of the judges and staff of the judiciary found culpable in the bribery and corruption scandal, they were dismissed by the Judicial Council of Ghana. On the GFA scandal, the FA was dissolved. Separately, the president of the Ghana Football Association was barred for life by FIFA and fined an amount equivalent to USD500,000. The Attorney General’s office has since commenced criminal investigations against implicated officials of the football association.
The CEO of the PPA has been suspended and further investigations are being carried out by the Special Prosecutor.
The Chief Executive Officer of the NYA and his two deputies were dismissed.
The Transparency International Corruption Perception Index Report on Ghana, OECD Reports, The Ghana Corruption Report of September 2016, and e-Business Anti-Corruption Portal, 2017 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.
It is expected that The Right to Information Act 2019 (Act 989) (RTI) will introduce game-changing reforms that will impact positively on 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 will introduce additional probity and accountability by public bodies by giving citizens the right to receive information from government. In so doing, corrupt acts should be exposed and the non-performance by public officials of their duties will be brought to light.
Additionally, 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.