11-Sep-17
Parliamentary Services
Parliament House – Accra (Ghana)
Attention:Akua Durowaa Owusu Agyekum (Mrs.)
(Clerk, Committee on Constitutional, Legal
And Parliamentary Affairs)
Dear Madam,
RE: REQUEST FOR WRITTEN MEMORANDUM AND INVITATION TO A 2-DAY STAKEHOLDERS’ CONFERENCE ON THE OFFICE OF THE SPECIAL PROSECUTOR BILL, 2017
I refer to your letters dated 18th and 28th August 2017 inviting me to submit a written memorandum on any concerns or input that I may have on the Office of the Special Prosecutor (“OSP”) Bill (“Bill.”).
Please find attached, my memorandum on the Bill. I apologise for my inability to do an oral presentation of it in person.
Yours faithfully,
Ace Anan Ankomah
MEMORANDUM
OFFICE OF THE SPECIAL PROSECUTOR BILL
After studying the Office of the Special Prosecutor Bill (“Bill”), these are my comments:
1. I note that the EOCO Act is relied upon heavily as a precedent, and several sections are repeated verbatim in the Bill. While appreciating this as a sensible attempt not to reinvent the wheel, care should be taken not to over-rely on that precedent as it leads to questions whether the OSP is just another EOCO with another name.
2. Since the term “Minister” is defined by Clause 77 to mean “the Attorney-General and Minister responsible for Justice,” the term “Minister” should be used in Clauses 3(2) , 4(2), 12(2) & (3), 15(2) & (3), 77 (definition of “competent authorities”) and 79(1).
3. Consider a provision on post-employment restrictions on officers of the OSP, so that for example:
a. for 3 years following termination of service, such officers may not represent any person in any matter if that person was the subject of an investigation or prosecution by the OSP; and
b. for 1 year after termination of service, any person associated with a firm that the Special Prosecutor (“SP”) or Deputy Special Prosecutor (“DSP”) may join or become associated with, shall not represent any person in any matter involving any investigation or prosecution by the OSP.
4. Clause 3:
a. consider adding the offences created under the Government Contracts (Protection) Act, 1979 (AFRCD 58) and the Public Property Protection Act, 1977 (SMCD 140). These are significant and far reaching anti-corruption statutes that stand ignored in our statute books. It is critical that the OSP is given the power to prosecute under those statutes as well as those mentioned in this Clause;
b. the OSP should expressly have the power to deal with other offences that may arise out of the investigation or prosecution of the matters mentioned in this Clause. I note that the definition of “corruption and corruption related offences” under Clause 77, applies also to “(c) existent offences under enactments arising out of or consequent to offences referred to in paragraphs (a) and (b).” Does the use of the word “existent” therefore mean that this will not cover offences that are subsequently created by law? I believe that it should be made very clear that for instance if persons commit “offences concerning the administration of justice” (see Chapter 4 of Act 29), related to, in the course of or arising from the OSP’s investigation or prosecution, the OSP has the power to prosecute for those as well, without waiting for the Attorney-General to institute separate prosecutions for them;
c. there ought to be an express provision that if the OSP discovers or receives information about possible violations of criminal law but under circumstances or by persons not covered by its jurisdiction, the OPS is required to submit that information to the Attorney-General; and
d. I really do not understand what Clause 3(4) is meant to achieve. But on the face of it suggests that it is only where the offence is considered as ‘grave’ that the OSP may investigate and prosecute. I can understand that the idea is to make the OSP focus on weighty matters and leave the not-so-weighty for the Attorney-General to prosecute. But I do not see anything in our legislative jurisprudence that classifies crimes on the basis of their ‘gravity’. I suggest that the OSP be allowed to prosecute all offences that fall within its domain, but with the discretion to refer some matters to police prosecutors or the Attorney-General for prosecution.
5. Clause 4 relates to the vexed question on whether the OSP can have true independence because of the provisions of Article 88 of the Constitution. My views are that:
a. and as I have opined elsewhere,
‘formal independence’ by way of a complete autonomy or separation from the Attorney-General would appear to be difficult to achieve under the provisions of the Constitution because the Attorney-General retains responsibility over all prosecutions. However, ‘substantial independence’ by way of impartiality and neutrality may yet be achieved through the firm political will, definite intention, and resolved commitment of/by the government to allow the office holder sufficient freedom in fact to carry out the mandate with little to no interference.
I see that there is an attempt to achieve this in the Bill by respecting the overarching nature of Article 88, in the opening words of sub-clauses (1) and (2);
b. however, the question that lingers is whether Parliament has the power to provide as is in sub-clause (2) that “the Office is for the purposes of this Act authorised by the Attorney-General to…” Is Parliament doing this “authorising” in the name or stead of the Attorney-General, and thereby imposing this on all subsequent Attorneys-General. What is the source of it or is it the fact that the Bill was prepared and submitted to Parliament by the Attorney-General? Could another Attorney-General simply state that (s)he doesn’t agree with the provisions of the statute and therefore remove this “authorising”?
c. this brings us back to the question whether an Act of Parliament is required for this at all, and whether the Attorney-General could not simply establish this office under a Constitutional Instrument or Executive Instrument? The weakness with proceeding under this arrangement alone would be that the Attorney-General could simply overturn all of this by revoking the Instrument passed;
d. in my opinion, this Act is required for the key reason that the OSP is not simply performing some of the prosecutorial functions that are vested in the Attorney-General under Article 88, but that the OSP would also be performing investigative functions that are NOT part of the Attorney-General’s remit but generally considered as a function of the Ministry of the Interior (see the provision on the creation of ministries under section 11 of the Civil Service Act, 1993 (PNDCL 327)). The performance of a cross-ministry function by the OSP certainly would require an Act of Parliament; and
e. It is proposed that the President should issue an Executive Instrument that specifically authorises and backs the creation of the OSP, so that its creation is backed by both executive and legislative action.
6. Clause 5: I propose that
a. since the OSP functions under the Attorney-General, the latter should have a representative on the Board; and
b. sub-clause (2) is amended to include words that excludes the SP or DSP from also serving as the chair of the Board, just so that not too much power is concentrated in the hands of a few persons at the same time. This is especially because under Clauses 7(2), 12(4) and 15(4), the terms of office of the SP and DSP are different from those of the board members.
7. Clause 6: it is my respectful view that sub-clause (3) ought to be deleted in its entirety. The lawyer in private practice, nominated by the Ghana Bar Association and who accepts to serve on the Board, wears two hats: one as a private practitioner and one as a member of the Board. Membership of the Board, certainly fits within the definition of “public officer” under Article 288. To that extent, Chapter 24 of the Constitution, “CODE OF CONDUCT FOR PUBLIC OFFICERS,” ought to apply to such a lawyer serving in that office. This will accord with the treatment of the term “Public Officials” by the Supreme Court in CHRAJ v. Attorney-General & Baba Kamara (Unreported, 6th April 2011). I also note that the “Disclosure of Interest” provisions in Clause 9 apply to all members of the board. That is why the exemption in Clause 6(3) should not exist.
8. Clause 7: sub-clause (6)(a) refers to “subsection… (4) [of section 7]” and “subsection (5) of section 8.” Those provisions contain the same words as follows:
“A member of the Board who is absent from three consecutive meetings of the Board without sufficient cause ceases to be a member [of the Board.]”
I don’t see the need in having both Clause 7(4) and Clause 8(5) in the same statute. Kindly delete one and amend Clause 7(6)(a) to reflect the deletion.
9. Clause 8: consider the following wording, borrowed largely from section 200(g) of the Companies Act, 1963 (Act 179): “If the chairperson communicates an inability to attend any meeting, or if at a meeting, the chairperson is not present within five minutes after the time appointed for holding the meeting, those members present shall elect one of their number to chair that meeting.”
10. Clause 9: this “Disclosure of Interest” provision should be read together with Clause 6, particularly Clause 6(3) because a breach of Clause 9 is a breach of Chapter 24 of the Constitution. I note that under Clause 6(4) there is an automatic termination of membership for members in breach, captured in the words “a member who contravenes this section ceases to be a member of the Board.” We are not told how a determination is to be made that the member has “contravene[d] this section.” However, under Clause 9, when a member breaches the disclosure of interest provision, the chair has to notify the Minister and then the Minister has to inform the President “to revoke the appointment.” But is the President bound to revoke the appointment of that member or must the President conduct a hearing for removal first? I propose that members accused of contravening what I think should be a combined Clause 6 and Clause 9 should be subjected to a quick disciplinary hearing and then a recommendation is made to the President to revoke their appointment, with the President being bound “to act in accordance with the recommendations” of the hearing panel.
11. Clause 17: in sub-clause (6), replace “panel” with “Committee.”
12. Clause 19: I propose that the term “Secretary” is replaced with “Executive Secretary.”
13. Clause 20: Although the side-note says “Appointment of other staff,” it is not clear whether the advisers and investigators to be engaged under sub-clause (4) are staff of the OSP or independent contractors.
14. Clause 29: Kindly define the term “disclosure notice” in sub-clause (1)(c).
15. Clause 30: Since “tainted property” is a defined term, the phrase “tainted with corruption or a corruption-related offence” should simply read “tainted property.”
16. Clause 36: I note the reference to “Regulations” in sub-clause 3 on the procedure for managing assets seized. It is critical to know if work is going on right now on those Regulations. The fact is that in Ghana, critical regulations that are needed to support parent statutes remain unpassed for long periods leading to uncertainty and sometime sheer ineffectiveness of the statutes. There should be no room for such lapses concerning the OSP.
17. Clause 37: What is the consequence if a person who, claiming to have an interest in property seized, fails to apply to the court within the 90 days for an order returning the property? Forfeiture?
18. Clauses 39 and 40:
a. there is the need to reconcile the suggestion in Clause 39 that any property of a person being investigated could be the subject of a freezing order, with Clause 44(2), which suggests that the order is made with respect to “property related to [an] offence;” and
b. the period of 60 days between the freezing of property and applying to court for confirmation is too long. The situation is made worse when the application for confirmation is to be made ex parte even after the 60-day period. Why can’t the application for confirmation be made within 14 days of the freezing?
19. Clause 41:
a. should the last word in sub-clause (1)(e) be “or” or “and”?
b. concerning sub-clause (3), I am not too certain that the phrase “lift the veil of incorporation”, standing alone, has acquired sufficient notoriety as a term of art. I suggest adding the following words: “or otherwise disregard or ignore the corporate entity;”
c. there must be a provision for posting a copy of the order on landed property as notice to everyone, and a copy filed with the relevant Land Registry for notation against the property. If the property is owned by a company, provision should be made for filing a copy of the order on the Registrar of Companies for filing in circumstances similar to the registration of particulars of charges created by companies under section 107 of the Companies Act; and
d. concerning sub-clause (7), I repeat my previous comment on ensuring that the Regulations required are being worked upon now and would be passed almost as soon as the Bill is passed into law.
20. Clause 42: There is the need to watch out also for arrangements made in anticipation of a freezing order. I therefore propose the insertion of “or in anticipation” between the words “after the issue” and “of the freezing order.”
21. Clause 43: There is the need to provide that the penalty relating to individuals under (a) would also apply under (b) to members, directors and officers of the entity who are cognisant of the contravention, unless there is evidence that being aware of the freezing order, all reasonable and practicable steps were taken by that person to comply with the freezing order and prevent the contravention.
22. Clause 45: On sub-clause (2), I propose that the 14 days allowed the person claiming an interest to apply for a review should not only be after the order was given, but also when the person became aware of the order.
23. Clause 47: I propose that the 28-day period for lodging the signed copies of the disclosure be reduced to 14 days.
24. Clause 51:
a. I propose that under sub-clause (1)(a), there should be publication in both the Gazette “and” a daily newspaper; and
b. I also propose that a time should be stated on how many days after the publication, would the matter be determined.
25. Clause 52: Is this the only circumstances under which an amendment is permitted? This appears restrictive. It ought to be possible to apply for amendment as the need arises, and subject to the discretion of the court.
26. Clause 53: Is it anticipated that one application could be filed for both a confiscation order and pecuniary penalty order? If so, the wording in both sub-clause (1) and sub-clause (2) should be “confiscation order and/or a pecuniary order.”
27. Clause 54: In sub-clause (3)(b), same comment on publication in the Gazette “and” a newspaper.
28. Clause 55: In sub-clause (1)(b), it is important to clarify that the income being looked at is “lawful” income, if any. I propose that the provision should read as follows: “the court is satisfied that the lawful income of that person, if any, cannot reasonably account for the acquisition of that property.”
29. Clause 56:
a. in sub-clause (1), consider changing “free from a right” to “free from any right;” and
b. in sub-clause (6), consider inserting the following words “upon receiving a copy of the confiscation order, forthwith” between the words “shall” and “register.”
30. Clause 64: I propose that provision is made on the minimum and maximum terms of imprisonment for persons in default.
31. Clause 66: I propose a definition of the term “production order” in Clause 77.
32. Clause 69: Further clarity is required on what constitutes an “institution of relevance to the action” for the purpose of the payment of the 30% of the proceeds of realised property.
33. Clause 70: Consider adding to the list of inapplicable statutes, the Bodies Corporate (Official Liquidations) Act, 1963 (Act 180), the Non-Bank Financial Institutions Act, 2008 (Act 774), and the Banks And Specialised Deposit-Taking Institutions Act, 2016 (Act 930).
34. Clause 71:
a. there is the need to further clarify sub-clause (2), to state if the Bill really intends to give creditors priority over the OSP; and
b. in sub-clause (5), there is the definition of liquidator to include “provisional liquidator.” I note that there is a similar definition in section 68(5) of the EOCO Act. But I do not see any provision in the Companies Act concerning the appointment of a “provisional liquidator.” Is it possible to clarify who that is?
35. Clause 72: In sub-clause (2), I propose that the word “shall” is changed to “may” so as to give the OSP the option of deciding whether or not even consider whether the offer is reasonable.
36. Clause 73: I propose that the protections provided under Whistleblower Act, 2006 (Act 720) be mentioned as applicable in such situations.
37. Clause 76: Once again, it is hoped that all the regulations that are required to operationalise the Act will be prepared and passed in good time.
38. Clause 77:
a. “corruption and corruption related offences” – consider adding sections 179A and 249 of Act 29, and the entire provisions in AFRCD 58 and SMCD 140;
b. “politically exposed person” – replace “this country” with “Ghana;” and
c. “tainted property” – consider following new definition
“tainted property” means property reasonable suspected to be
(a)used or intended to be used in connection with the commission of a corruption or corruption related offence;
(b)benefit derived by a person from property mentioned in paragraph (a); or
(c)derived, obtained or realised directly or indirectly from the commission of a corruption or corruption related offence.
Respectfully submitted.
Ace Anan Ankomah.