Full Text: Office of the Special Prosecutor Bill, Ghana

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2^nd June, 2017                                                                                                                                                                             OFFICE OF THE SPECIAL PROSECUTOR BILL, 2017

MEMORANDUM

The purpose of the Bill is to establish the Office of the Special Prosecutor as a specialised agency to investigate specific cases of corruption involving public officers, and political office holders in the performance of their functions as well as individuals in the private sector implicated in the commission of corruption and prosecute these offences on the authority of the Attorney-General.

[ads1]The establishment of the Office of the Special Prosecutor has become necessary in view of the institutional bottlenecks that impede the fight against corruption. The monopoly of prosecutorial authority by an Attorney-General, who is hired and fired by the President, has been singled out by governance experts as one of the key factors that stand in the way of using law enforcement and prosecution as a credible tool in the fight against corruption.

To this end, Government intends to establish, by an Act of Parliament, an Office of the Special Prosecutor to investigate and prosecute certain categories of cases and allegations of corruption and other criminal wrongdoing, including those involving alleged violations of the Public Procurement Act, 2003 (Act 663) and cases implicating public officers and political office holders.

The establishment of the Office for the purpose of prosecuting corruption cases involving public officers and political office holders in the performance of their functions will undoubtedly yield positive results in the number of corruption cases prosecuted than a multi-purpose or mixed mandate agency such as the Economic and Organised Crime Office. The Bill therefore seeks to vest the Special Prosecutor with the authority and control required to effectively investigate and prosecute cases of corruption and restore public confidence in the justice delivery system and by extension Government.

Clause 1 of the Bill establishes the Office of the Special Prosecutor as a body corporate with perpetual succession. The object of the Office of the Special Prosecutor, as stated under clause 2, is to investigate and prosecute cases of corruption and corruption related offences to prevent corruption in the public sector and to recover the proceeds of corruption and corruption related offences.

The functions of the Office are provided for under clause 3. These include investigation and prosecution of cases of alleged corruption and corruption related offences under the Public Procurement Act, 2003 (Act 663) and investigate allegations of corruption and corruption related offences under the Criminal and Other Offences Act, 1960 (Act 29) implicating public officers and political office holders, prosecution of corruption and corruption related offences involving public officers and political office holders on the authority of the Attorney-General, recovery of the proceeds of corruption and corruption related offences and co-operation with law enforcement agencies, public agencies and relevant foreign or international agencies in the performance of its functions.

            Clause 4 provides for the independence of the Office by insulating the Office from the direction or control of a person or an authority in the performance of the functions of the Office.

Clause 5 deals with the governing body of the Office. The membership of the Board, duties and liabilities of members of the Board and the tenure of office of the members of the Board are provided for under clauses 5,6 and 7 respectively. The Board is required to formulate policies necessary for the achievement of the objects of the Office and to ensure the proper and effective performance of the functions of the Office.The Board is also required to meet on a quarterly basis. The chairperson is, however, obliged to convene extraordinary meetings at the request of not less than five members of the Board. Matters before the Board are to be decided by a majority of the members present and voting and in the event of equality of votes, the person presiding at the meeting of the Board is to have a casting vote.

Clause 9 is on disclosure of interest. A member of the Board who has an interest in a matter for consideration by the Board is required to disclose in writing the nature of that interest and is disqualified from participating in the deliberations of the Board in respect of that matter. The penalty for failure to disclose interest in a matter before the Board is revocation of the appointment of the member concerned in addition to recovery of the benefit derived by the member.

The standard provisions on establishment of committees of the Board and allowances for members of the Board and members of a Committee of the Board are provided for under clauses 10 and 11.

            Administrative and financial matters are provided for under clauses 12 to 24 of the Bill. The appointment of the Special Prosecutor is provided for under clause 12.The appointment is required to be done by the President in accordance with article 195 of the Constitution. Clause 12 further provides for the Special Prosecutor to enjoy thesalaries and privileges of a Justice of the Court of Appeal.

Clause 13 provides thatthe Special Prosecutor is responsible for the day to day administration and operations of the Office and is answerable to the Board in the performance of the functions under this Bill. The clause further confers power on the Special Prosecutor to delegate a function to an authorised officer. The Special Prosecutor is, however, not relieved of the ultimate responsibility for the performance of the delegated function.The removal of the Special Prosecutor from office is spelt out in clause 14 of the Bill.

       Clause 15 provides for the appointment of a Deputy Special Prosecutor. The salaries and privileges of a Justice of the High Court apply to the Deputy Special Prosecutor.Under clause 16, the Deputy Special Prosecutor is to perform functions assigned by the Special Prosecutor and act as the Special Prosecutor in the absence of the Special Prosecutor. The removal of the Deputy Special Prosecutor is dealt with in clause 17 of the Bill.

The Office is required to have three Divisions namely, the Administrative Division, the Investigations Division and the Prosecutions Division for the effective performance of its functions. The Board may however establish additional Divisions that it considers necessary to enable the Office perform its functions, clause18.

The appointment of other staff necessary for the effective performance of the functions of the Office of the Special Prosecutor is required to be done by the President in accordance with article 195 of the Constitution. The Office is also permitted to engage the services of advisers and investigators on the recommendation of the Board, clause 19.

Clause 20 outlines the sources of funds for the Office. The sources of funds for the Office include moneys approved by Parliament, donations, grants and gifts andany other moneys that are approved by the Minister responsible for Finance. Clause 21 provides for the moneys for the Office to be paid into a bank account opened for that purpose with the approval of the Controller and Accountant-Generalwhilst clause 22 provides for the expenses of the Office to be paid from the funds of the Office. The standard provisions on accounts and audit and annual report and other reports are provided for in clauses 23 and 24.

Clause 25 deals with the procedure for the lodging of a complaint with the Office of the Special Prosecutor. A person who has knowledge of the commission of corruption or a corruption related offence by a public officer or a political office holder may lodge a written or oral complaint to the Office of the Special Prosecutor for the necessary action to be taken.

Powers of the Office of the Special Prosecutor are provided for under clauses 26 to 29.Clause 26 vests the Special Prosecutor and authorised officers with powers of a police officer specified in the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) or any other law.Clause 27 deals with request for information by the Special Prosecutor or any other authorised officer. The Special Prosecutor is empowered to request the presence of a person or representative of an entity whose affairs are to be investigated or any other person the Special Prosecutor considers necessary to assist the Office with information relevant to a matter being investigated by the Office. A person who appears before the Special Prosecutor is permitted to be represented by the counsel of the person at any stage of the process.

Clause 28 confers power on the Special Prosecutor, on the authority of the Court, to issue a warrant authorising a police officer to enter the premises of a person or entity under investigation for purposes of searching and taking possession of documents relevant to investigations being conducted by the Office. The Office is permitted to take possession of documents for a period necessary for the investigation or trial and any proceedings subsequent to the trial. Furthermore, a person or entity from whom a document has been retrieved is entitled to apply to the Court within twenty-one days after the date of retrieval, for an order to set aside the search, removal or retrieval and for the restoration of the document.

Clause 29 criminalises the obstruction of an authorised officer in the performance of a function under this Bill. The penalty for the offence in the case of an individual is a fine not less than one hundred penalty units and not more than two hundred penalty units or to a term of imprisonment of not less than six months and not more than fifteen months or to both or in the case of an entity, a fine not more than one thousand penalty units.

Clauses 30 to 38 specify how the Office of the Special Prosecutor is required to deal with proceeds of corruption and corruption related offences. An authorised officer of the Office or a police officer authorised by the Special Prosecutor is empowered to seize property reasonably suspected to be tainted with corruption or a corruption related offence. The Special Prosecutor is obliged to prefer charges against the person from whom the property was seized within fourteen working days after the seizure. Furthermore, the Special Prosecutor is to apply to the Court for an order for the continued seizure of the property for a period of not more than three months at a time from the date of seizure and for a total period of not more than two years. In the absence of any charges, the Special Prosecutor is to direct the authorised officer to release the seized property to the person from whom it was seized, clauses 30 and 31.

The provisions on search by a police officer under Part Two of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) apply under this Bill where an authorised officer has reasonable grounds to suspect that there is tainted property on land or in any premises, clause 32.Clause 33 enumerates the circumstances under which an authorised officer is to exercise the powers of search and seizure under an emergency situation. Clause 34, on the other hand, provides for offences in respect of search and seizure of property.Clause 35provides for property tracking. An authorised officer is mandated to apply to the Court for an order for the production of a document or information obtained from the document where the authorised officer has reasonable grounds to suspect that the document is required to identify, locate or quantify property or identify or locate a record in the possession or control of a person that is necessary for the transfer of the property in question to another person or entity.

Record keeping of seized property and return of seized property is provided for under clauses 36 and 37. An authorised officer who seizes property is required under clause 36 to make a written record of the property and hand over the record and the property to the Special Prosecutor within seven days from the date of seizure.Clause 37on the other hand grants a person who claims an interest in property seized under this Bill, the right to apply to the Court within thirty days after the date of seizure for an order that the property be returned to that person.

The provisions of the Mutual Legal Assistance Act, 2010 (Act 807) applyto cases wherethe Special Prosecutor suspects that property obtained from the commission of corruption or a corruption related offence is situated in a foreign country ora foreign country requests assistance from this country to locate or seize property situated in this country suspected to be property obtained from the commission of corruption or a corruption related offence within the jurisdiction of the foreign country, clause 38.

 

Clauses 39 to 46 provide for freezing orders. Clause 39 empowers the Special Prosecutor to issue a written directive in respect of the freezing of property in instances where the freezing is necessary to facilitate investigation or prosecution. It further provides for the Special Prosecutor to apply to the Court for a confirmation of the freezing of property within fourteen days after the issuance of the freezing order. An application for confirmation of the freezing order is to be made without notice to the respondent, clause40.

Clause 41 enumerates the conditions for the grant of a freezing order and the content of a freezing order. The contents of a freezing order include a prohibition from disposing of or dealing with the property in question or a part of the property or interest in the property that is specified in the order or a directive to a person who has possession of the property to give possession of the property to the Special Prosecutor to take custody and control of the property.

Clause42 provides that a contract or other arrangement made by a person in respect of tainted property after the issue of the freezing order is of no effect whilst clause 43 provides for the penalty for breaching a freezing order.

The duration for a freezing order is twelve months after the date the order is made or a later date determined by the Court and a freezing order remains in force until discharged, revoked or varied or a confiscation order or a pecuniary penalty order is made in respect of the property which is the subject of the order, clause 44. Under clause 45, a freezing order may be reviewed within fourteen days after its issuance. However, an application for review is to be made on notice to the Special Prosecutor. Clause 46 relates to the extension of the duration of a freezing order. A freezing order may where necessary be extended upon application by the Special Prosecutor to the Court.

Clauses 47 to 62 deal with confiscation orders.Clause 47 empowers the Special Prosecutor to serve notice on a person charged with corruption or a corruption related offence directing that person to make a declaration of his or her property and income. The declaration is to include property received or expected to be received by the accused person, the income as well as the source of the income of the accused person regardless of whether or not the person charged has actually received the income. The penalty in respect of failure to make the declaration within the period specified in the notice is a fine of not less than one thousand penalty units and not more than two thousand penalty units or to imprisonment for a term of not less than two years and not more than four years or to both in addition to confiscation of the property or income to the State.

Clause 48 requires the Auditor-General to comply with a request of the Special Prosecutor for the submission of copies of the declaration of property and income to the Special Prosecutor and the Court.

Clause 49 is on use of information contained in the declaration of property and income required under

clause 49. The Special Prosecutor is permitted to use information contained in a declaration of property and income for the implementation of the provisions of this Bill including the application for confiscation and pecuniary penalty orders and for any other lawful purpose.

Clause 50 provides for the action to be taken by the Special Prosecutor during proceedings under this Bill where the Special Prosecutor is of the opinion that a declaration of property and income provided by a declarant is inaccurate. Furthermore, the Court is mandated to make an order for the confiscation of the property or income to the State if it finds that the property or income in question was intentionally or negligentlyexcluded by the declarant.

The presumption of acquisition of property and income is provided for in clause 51. The Court in determining whether or not a confiscation or pecuniary penalty order is to be made is to presume that the property or income which is the subject of the application was acquired as a result of corruption or a corruption related offence. The burden of proof that the property or income was lawfully acquired is therefore on the person convicted of the offence. Clause 52 provides for the Special Prosecutor to apply for a confiscation or pecuniary penalty order where a person is on trial for corruption or a corruption related offence whilst clause 53 provides for notice of the application. The Special Prosecutor is required under clause 53to give the respondent not less than eight days written notice of an application for a confiscation order or pecuniary penalty order.

The Court upon hearing an application for a confiscation or a pecuniary penalty order, is required to, on an application by the Special Prosecutor, amend the application to include other property or benefit that the court is satisfied was not reasonably capable of identification when the application was made andthe necessary evidence became available only after the application was made, clause 54.

Under clause 55, the Court is to have regard to the record of proceedings against a person convicted of corruption or a corruption related offence where an application is made to the Court for a confiscation order or a pecuniary penalty order in respect of the convicted person.  Clause 56 provides the procedure for an application for a confiscation order in respect of a tainted property where a person from whom the property was seized dies or absconds. A person is considered to have absconded if reasonable attempts to arrest that person pursuant to a warrant are unsuccessful during the period of three months after the date of issue of the warrant.

Clause 57 provides for a confiscation order against property .It specifies the conditions under which the Court, before which an application for a confiscation order has been made, is required to infer that the property was realised as a result of corruption or a corruption related offence.  By virtue of clause 58, the effect of a confiscation order is that the confiscated property vests absolutely in the Statefree from any right, interest or encumbrance of any person except a right, interest or encumbrance which is held by a purchaser in good faith for valuable consideration.

The Court is required under clause 59 to set aside a transaction related to property which is the subject of a confiscation order where the transaction was made after the seizure of the property or issuance of a freezing order.Clause 60 is on protection of third parties. A person who claims an interest in confiscated property is required to apply to the court for a declaration of interest in the confiscated property.

Where the Court makes a confiscation order against the property of a person convicted of corruption or a corruption related offence and the conviction is subsequently quashed, the quashing of the conviction shall result in thedischarge of the order, clause 61. Clause 62 requires the court to make an order for the confiscation of tainted property in instances where proceedings in relation to the property have commenced but theperson charged with corruption or a corruption related offence has died or absconded.

Clauses 63 to 68 deal with pecuniary penalty orders.Clause 63 enumerates the circumstances under which the Court is to make an order for payment of property rather than a confiscation order. These include instances in which the property in question is substantially diminished in value, rendered worthless or has been co-mingled with other property in a manner that poses a challenge to the division of the property.

Clause 64 provides that where the Court makes an order under clause 63 for the payment of property instead of confiscation, the amount to be paid is to be treated as a fine imposed on the person in respect of a conviction for corruption or a corruption related offence. A default in payment of the amount attracts a term of imprisonment of not less than twelve months and not more than five years to be served consecutively to any other term of imprisonment imposed on that person or being served by the person.

Clause 65 provides that where the Special Prosecutor applies to the Court for a pecuniary penalty order against a person convicted of corruption or a corruption related offence, the court is to make an assessment based on evidence to determine the benefit derived by the convicted person from the commission of the offence. The Court is further required to order the person to pay to the Republic an amount equal to the value of the benefit obtained or a higher amount if the Court is satisfied that the person benefited from corruption and a corruption related offence.

The Court is required to treat as property of a person, property that is, in the opinion of the Court, subject to the effective control of the person to assess the value of benefits derived by aperson from the commission of a corruption offence, clause 66.

The Court is empowered under clause 67to impose a term of imprisonment on a person who defaults in complying with a pecuniary penalty order. Clause 68deals with discharge of a pecuniary penalty order. A pecuniary penalty order is dischargedif the conviction for corruption or a  corruption related offence on the basis of which the order was made is quashed and another conviction for corruption or a corruption related offence is not substituted orby payment of the amount due to satisfy the order.

Clauses 69 and 70 relate to a production order. Clause 69 requires a court to make a production order upon an application by the Special Prosecutor.Under clause 70, a production order is to be made in instances where the Court is satisfied that there is reasonable ground to suspect that the person specified in the application for the order and who is under investigation  has benefited from the commission of corruptionor is suspected of the commission of the offence.

Clauses 71 to 74 deal with realisation of property. These provisions ensure that the Special Prosecutor has full authority and control over the case in the event that the convict concerned has benefited from a corrupt act or a corruption related offence.Thus the Court is required under clause 71 to, among other things, order a person who has possession of the realisable property to give possession of the property to the Special Prosecutor and the Special Prosecutor is required to take possession and manage the property where a pecuniary penalty order is made and the pecuniary penalty is neither discharged nor subjected to an appeal. Utilisation of the proceeds of realisable property is provided for under clause 72. The Court is to provide directions for an amount out of the proceeds of realisable property to be paid to the Registrar of the Court and for part of the amount specified to be used to defray the expenses of the Office of the Special Prosecutor. Furthermore, thirty percent of the outstanding amount shall be used for the benefit of the institution of relevance to the action and the rest of the amount shall be paid into the Consolidated Fund.

Clause 73 excludes the application of the Insolvency Act, 2006 (Act 708) to property which is the subject of this Bill.Clause 74provides for the winding up of a company holding realisable property. A liquidatoris prohibited from the performance of functions in relation to realisable property which is subject to a freezing order made before the winding up or realisation of the proceeds of property by the receiver.

Miscellaneous provisions are dealt with in clauses 75 to 80. Clause 75 deals with collaboration with public agencies. The Office of the Special Prosecutor is to collaborate with security agencies and other persons in its conduct of investigations. An officer of a public agency is thus required to co-operate with authorised officers of the Office of the Special Prosecutor in the performance of its functions under this Bill.  Clause 76 mandates an authorised officer to keep information received in the performance of functions under this Bill confidential unless otherwise authorised.

The Minister responsible for Justice is empowered under clause 77 to make Regulations for the effective implementation of the Bill in consultation with the Board. The matters to be provided for in the Regulations include the manner oftracking tainted property and procedure for its seizure as well as procedure for confiscation and pecuniary penalty orders. Clauses 78 and 79 provide for the interpretation of words used in the Bill and consequential amendments respectively whilst clause 80 deals with transitional matters. The passage of this Bill will to a large extent curb corruption involving public officers and political office holders within the public sector.

 

                                                                                       GLORIA AFUA AKUFFO (MISS)

                                                                        Attorney-General and Minister  for Justice

 

Date:

 

 

 

 

 

 

 

 

 

 

OFFICE OF THE SPECIAL PROSECUTOR BILL, 2017

 

ARRANGEMENT OF SECTIONS

Office of the Special Prosecutor

Section

1. Establishment of the Office of the Special Prosecutor
2. Object of the Office
3. Functions of the Office
4. Independence of the Office
5. Governing body of the Office
6. Duties and liabilities of a member of the Board
7. Tenure of office of members of the Board
8. Meetings of the Board
9. Disclosure of interest
10. Establishment of Committees
11. Allowances

 

Administrative and Financial Provisions

 

12. Appointment of Special Prosecutor
13. Functions of Special Prosecutor
14. Removal of Special Prosecutor
15. Appointment of Deputy Special Prosecutor
16. Functions of Deputy Special Prosecutor
17. Removal of Deputy Special Prosecutor
18. Divisions of the Office
19. Appointment of other staff
20. Funds of the Office
21. Bank account
22. Expenses of the Office
23. Accounts and audit
24. Annual report and other reports

 

Complaints

 

25. Complaint procedure

 

 

 

 

Powers of the Office

 

26. Officers to exercise powers of police
27. Request for information
28. Power to search and take possession of documents
29. Obstruction of authorised officer

 

 

Proceeds of Corruption or Corruption Related Offence

30. Seizure of tainted property
31. Power to search for tainted property
32. Application of Part Two of Act 30
33. Searches in emergencies
34. Offence relating to search and seizure
35. Property tracking
36. Record of seized property
37. Return of seized property
38. Mutual legal assistance

Freezing Orders

 

39. Freezing of property
40. Application for freezing order
41. Issue of freezing order
42. Effect of freezing order
43. Breach of freezing order
44. Duration of freezing order
45. Review of freezing order
46. Extension of freezing order

Confiscation Order

 

47. Declaration of property and income
48. Duty of Auditor-General to produce copies of declaration
49. Use of Information contained in declaration
50. Inaccurate declaration of property and income
51. Presumption of acquisition of property and income
52. Application for confiscation or pecuniary penalty order
53. Notice of application
54. Amendment of application
55. Procedure on application
56. Procedure against property where a person dies or absconds
57. Confiscation order against property
58. Effect of confiscation order
59. Void transaction
60. Protection of third parties
61. Quashing of conviction on appeal not to discharge confiscation order
62. Confiscation where a person dies or absconds

 

Pecuniary Penalty Order

 

63. Payment instead of a confiscation order
64. Procedure for enforcement of order for payment
65. Pecuniary penalty orders
66. Lifting the veil
67. Enforcement of pecuniary penalty orders
68. Discharge of pecuniary penalty orders

Production Order

 

69. Production order on application
70. Requirements for making a production order

Realisation of Property

71. Realisation of property
72. Utilisation of proceeds of realisable property
73. Insolvency
74. Winding up of company holding realisable property

Miscellaneous Provisions

75. Collaboration with public agencies
76. Confidentiality
77. Regulations
78. Interpretation
79. Consequential amendments

 

 

 

80. Transitional Provisions

 

 

SCHEDULE

Oath of Secrecy

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A

 

BILL

 

ENTITLED

                                                     

 OFFICE OF THE SPECIAL PROSECUTOR ACT, 2017

 

AN ACT to establish the Office of the Special Prosecutor as a specialised agency to investigate specific cases of corruption involving public officers and political office holders in the performance of their functions as well as individuals in the private sector implicated in the commission of corruption, prosecute these offences on the authority of the Attorney-General and provide for related matters.

 

PASSED by Parliament and assented to by the President:

 

Office of the Special Prosecutor

 

Establishment of the Office of the Special Prosecutor

 

1. (1) There is established by this Act a body corporate with perpetual succession to be known as the Office of the Special Prosecutor.

 

(2)       For the performance of its functions, the Office may acquire and hold movable and immovable property, dispose of property and enter into a contract or any other transaction.

 

(3)       Where there is hindrance to the acquisition of property, the property may be acquired for the Office under the State Lands Act, 1962 (Act 125) and the cost shall be borne by the Office.

 

Object of the Office

 

2. The object of the Office is to

 

• investigate and prosecute cases of corruption and corruption related   offences to prevent corruption in the public sector; and

 

• recover the proceeds of corruption and corruption related offences.

 

Functions of the Office

 

3. (1)To achieve the object, the Office shall

(a)       investigate and prosecute casesofallegedcorruption or corruption offences under  the Public Procurement Act, 2003 (Act 663);

 

• investigate allegations of corruption and corruption offences

under the Criminal Offences Act, 1960 (Act29)implicating public

officers, politicalofficeholders and individuals in the private sector implicated in the commission of the offence;

 

• prosecute corruption and corruption offences involving public   officers and political office holders;

 

• recover the proceeds of corruption ;

 

(e)       disseminate information gathered in the course of investigation to law                         enforcement agencies, other appropriate public agencies and other               persons the Office considers appropriate in connection with the                          offences specified in paragraph (a);

 

(f)         co-operate with law enforcement agencies, other public agencies and                          relevant foreign or international agencies in furtherance of this Act;

 

• receive complaints from a person on a matter that involves or may   involve corruption; and

 

• perform any other functions connected with the object of the Office.

 

(2)       The Office shall within one monthofthe

 

• conclusion of the prosecution of eachcase; and

 

• confiscation or realisation of property under this Act

 

submit a written report on the outcome of the case to the Attorney-General.

 

Independence of the Office

 

4. Except as otherwise provided in the Constitution or by any other law not inconsistent with the Constitution, the Office is not subject to the direction or control of a person or an authority in the performance of the functions of the Office.

 

 

 

Governing body of the Office

                                                           

5. (1) The governing body of the Office is a Board consisting of

 

• a chairperson;

 

• the Special Prosecutor and Deputy Special Prosecutor;

 

• one representative of the Ghana Police Service not below the rank of Assistant Commissioner of Police;

 

• one lawyer in private practice with at least ten years experience nominated by the Ghana Bar Association;

 

• one retired Justice of the Superior Court of Justice nominated by the             Chief Justice ;

 

• one chartered accountant with at least ten years experience nominated by the Institute of Chartered Accountants;

 

• one person with background in intelligence and not below the rank of director nominated by the Minister responsible for National Security;     and

 

• three other persons, one of whom is a woman.

 

(2)        The President shall appoint the members of the Board in accordance with article 70 of the Constitution.

 

(3)         The Board shall

 

• formulate policies necessary for the achievement of the objects of the            Office; and
• ensure the proper and effective performance of the functions of the

 

 

 

 

Duties and liabilities of a member of the Board

 

6. (1) A member of the Board has the same fiduciary relationship with the Office and the same duty to act with loyalty and in good faith as a director of a company incorporated under the Companies Act, 1963 (Act 179).

 

(2)         Without limiting subsection (1), a member of the Board shall not

(a)                   engage in a conduct or an activity that may undermine the integrity,

independence and impartiality of the Office;

 

(b)                   be a party to an investigation or prosecution concerning

a matter in respect of which the member has an interest; or

 

• make improper use of any information obtained as a result of the

performance of the duties of the Office or by virtue of the position of    the member as a member of the Board.

(3)       Articles 284 to 288 of the Constitution apply to a member of the Board.

 

(4)       A member of the Board who contravenes this section ceases to be a member of the Board.

 

Tenure of office of members of the Board

 

7. (1) A member of the Board shall hold office for a period of three years and is eligible for re-appointment, but a member shall not be appointed for more than two terms.

 

(2)       Subsection (1) does not apply to the Special Prosecutor.

 

(3)       A member of the Board may at any time resign from office in writing addressed to the President through the Minister.

 

(4)        A member of the Board who is absent from three consecutive meetings of the Board without sufficient cause ceases to be a member.

 

(5)       The President may by a letter addressed to a member revoke the appointment of that member.

 

(6)       Where a member of the Board is, for a sufficient reason, unable to act as a member, the Minister shall determine whether the inability would result in the declaration of a vacancy.

 

 

(7)        Where there is a vacancy

 

• under subsection (3) or (4), 6(4) or section 8 (2);

 

• as a result of a declaration under subsection (6); or

 

• by reason of the death of a member,

 

the Minister shall notify the President of the vacancy and the President shall appoint a person to fill the vacancy.

 

Meetings of the Board

 

8. (1)       The Board shall meet at least once every three months.

 

(2)       The chairperson shall at the request in writing of not less than five of the members of the Board, convene an extraordinary meeting of the Board at the place and time determined by the chairperson.

 

(3)        The quorum at a meeting of the Board is five members of the Board or a greater number determined by the Board in respect of an important matter.

 

(4)       The chairperson shall preside at meetings of the Board.

 

(5)       A member of the Board elected by the members from among their number shall preside at a meeting of the Board in the absence of the chairperson.

 

(6)       Matters before the Board shall be decided by a majority of the members present and voting and in the event of equality of votes, the person presiding shall have a casting vote.

 

(7)       The Board may co-opt a person to attend a Board meeting but that person shall not vote on a matter for decision at the meeting.

 

(8)       The proceedings of the Board are not invalidated by reason of a vacancy among the members or a defect in the appointment or qualification of a member.

 

(9)       Subject to this section, the Board may determine the procedure for its meetings.

 

 

 

Disclosure of interest

 

9.   (1)       A member of the Board who has an interest in a matter for consideration by the Board shall disclose in writing the nature of that interest and is disqualified from participating in the deliberations of the Board in respect of that matter.

 

(2)       Where a member contravenes subsection (1), the chairperson shall notify the Minister who shall inform the President in writing to revoke the appointment of that member.

 

(3)        Without limiting any further cause of action that may be instituted against the member, the Board shall recover the benefit derived by a member who contravenes sub-section (1) in addition to the revocation of the appointment of the member.

 

Establishment of committees

 

10. (1) The Board may establish committees consisting of members of the Board or non-members or both, to perform a function of the Board.

 

(2)        A committee of the Board may be chaired by a member of the Board.

 

(3)        Section 8 applies to members of a committee of the Board.

 

Allowances

 

11. Members of the Board and members of a committee of the Board shall be paid allowances approved by the Minister in consultation with the Minister responsible for Finance.

 

Administrative and Financial Provisions

 

Appointmentof Special Prosecutor

 

12. 12. (1) The President shall appoint a person who is qualified for appointment as a Justice of the Court of Appeal as the Special Prosecutor, in accordance with article 195 of the Constitution.

 

(2)        The President may in accordance with Article 195 (2) of the Constitution delegate the power of appointment of the Special Prosecutor in writing to the Attorney-General and Minister for Justice.

 

(3)       The Special Prosecutor shall hold office on the terms and conditions specified in the letter of appointment  including

 

• a non-renewable tenure of seven years; and

 

• entitlement of the same salary and privileges as a Justice of the Court            of Appeal.

 

(4)       The salary of the Special Prosecutor shall not be varied to the disadvantage of the Special Prosecutor during the tenure of office.

 

(5)       The Special Prosecutor shall not while holding office, hold any other public office or engage in any commercial venture.

 

(6)       Before assuming office, the Special Prosecutor shall take and subscribe to the Oath of Secrecy specified in the Schedule.

 

Functions of Special Prosecutor

 

13. (1) TheSpecial Prosecutor is responsible for the day to day administration and operations of the Office and is answerable to the Board in the performance of the functions under this Act.

 

(2)       The Special Prosecutor shall have full authority and control over the investigation, initiation and conduct of proceedings under paragraph (a), (b) and (c) of section 3.

 

(3)        The Special Prosecutor may delegate a function to an authorised officer but shall not be relieved of the ultimate responsibility for the performance of the delegated function.

 

Removal of the Special Prosecutor

 

14. (1) The Special Prosecutor shall not be removed from office except

 

(a)         for stated misbehaviour or incompetence; or

(b)         inability to perform the functions of the office arising from infirmity of body or  mind.

 

(2)           A person who seeks to remove the Special Prosecutor from Office shall submit a petition to the President.

 

(3)      Where the President receives a petition for the removal of theSpecial Prosecutor, the President shall refer the petition to the Chief Justice who shall determine whether there is a prima facie case,

 

(4)       Where the Chief Justice determines that there is a prima facie case, the Chief Justice shall inform the President who shall set up a Committee consisting of

(a) a chairperson, who is a Justice of the Supreme Court;

(b) a lawyer of at least fifteen years standing at the Bar, and

(c)one other person with expertise in investigations.

 

(5)       The Committee shall investigate the matter and make itsrecommendation to the President through the Chief Justice.

 

(6)           The President shall act in accordance with the recommendations of the Committee.

 

Appointmentof Deputy Special Prosecutor

 

15. (1) The President shall appoint a person who is qualified for appointment as a Justice of the High Court as the Special Prosecutor, in accordance with article 195 of the Constitution.

 

(2)        The President may in accordance with article 195(2) of the Constitution delegate the power of appointment in writing to the Attorney-General and Minister for Justice.

 

(3)       The Deputy Special Prosecutor shall hold office on the terms and conditions specified in the letter of appointment, including:

• a non-renewable tenure of seven years; and

 

• entitlement of the same salary and privileges as a Justice of the High

 

(4)         The salary of the Deputy Special Prosecutor shall not be varied to the disadvantage of the Deputy Special Prosecutor during the tenure of office.

 

(5)       Before assuming office, the Deputy Special Prosecutor shall take and subscribe to the Oath of Office specified in the Schedule.

 

 

 

Functions of Deputy Special Prosecutor

 

16. (1)       TheDeputy Special Prosecutor shall perform functions that may be assigned by the Special Prosecutor.

 

(2)       The Deputy Special Prosecutor shall act in the absence of the Special Prosecutor.

 

Removal of the Deputy Special Prosecutor

 

17. (1) The Deputy Special Prosecutor shall not be removed from office except

 

(a)         for stated misbehaviour or incompetence; or

 

(b)         inability to perform the functions of the office arising from infirmity of                                         body or  mind.

 

 

(2)           A person who seeks to remove the Deputy Special Prosecutor from Office shall submit a petition to the President.

 

(3)      Where the President receives a petition for the removal of the Deputy Special Prosecutor, the President shall refer the petition to the Chief Justice who shall determine whether there is a prima facie case,

 

(4)       Where the Chief Justice determines that there is a prima facie case, the Chief Justice shall inform the President who shall set up a Committee consisting of

(a) a chairperson, who is a Justice of the Supreme Court;

(b) a lawyer of at least fifteen years standing at the Bar, and

(c) one other person with expertise in investigations.

 

(5)      The Committee shall investigate the matter and make its recommendation to the President through the Chief Justice.

 

(6)       The President shall act in accordance with the recommendation of the panel .

 

Divisionsof the Office

 

18. 18. (1) TheOffice shall have the following Divisions:

• Administrative Division;
• Investigations Division; and
• Prosecutions Division.

 

(2)       The Board may establish any other division necessary for the effective performance of the functions of the Office.

 

Appointment of other staff

 

19. (1)  The President shall in accordance with article 195 of the Constitution, appoint other staff of the Office that are necessary for the proper and effective performance of the functions of the Office.

 

(2)        Other public officers may be transferred or seconded to the Office.

 

(3)        The Office may engage the services of advisers and investigators on the recommendation of the Board.

 

 

Funds of the Office

 

20. The funds of the Office include

(a)         moneys approved by Parliament; and

 

(b)         donations, grants and gifts;

 

Bank account

 

21. 21. The moneys for the Office shall be paid into a bank account opened for that purpose with the approval of the Controller and Accountant-General.

 

Expenses of the Office

 

22. The expenses of the Office shall be paid from moneys provided for the Office under sections 20 and 72 (1).

 

Accounts and audit

 

23. (1) The Board shall keep books of account and proper records in the form approved by the Auditor-General.

 

(2)        The Board shall submit the accounts of the Office to the Auditor-General for audit within three months after the end of the financial year.

 

(3)        The Auditor-General shall, not later than three months, after the receipt of the accounts, audit the accounts and forward a copy of the audit report to the Minister.

 

(4)        The financial year of the Office is the same as the financial year of the Government.

 

Annual report and other reports

 

24. (1)      The Board shall within one month after the receipt of the audit report, submit an annual report to the Minister covering the activities and operations of the Office for the year to which the report relates.

 

(2)        The annual report shall include the report of the Auditor-General.

 

(3)        The Minister shall, within one month after the receipt of the annual report, submit the report to Parliament with a statement that the Minister considers necessary.

 

(4)        The Board shall submit to the Minister any other report which the Minister may require in writing.

Complaints

 

Complaint procedure

 

25. (1) A person may lodge a complaint under this Act if that person has knowledge of the commission of corruption or a corruption related offence.

(2)       The complaint referred to in subsection (1) shall be made in writing or orally.

 

(3)        Where the complaint is made in writing, the complaint shall be signed by the complainant or the representative of the complainant.

 

(4)         Where a complaint is made orally, the officer to whom the complaint is made, shall reduce the complaint into writing and the complainant shall sign or make a thumbprint on the complaint.

 

Powers of the Office

 

Officers to exercise powers of police

26. The Special Prosecutor and authorised officersshall exercise the powers ofapolice officer specified in the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) or any other law.

 

Request for information

 

27. (1)       The Special Prosecutor or an authorised officer may by notice in writing, require

(a)         a person or a representative of an entity whose affairs are to be                        investigated; or

(b)         a person who in the opinion of the Special Prosecutor is a proper                                                      person to assist with an investigation being conducted by the Office

 

to appear before the Special Prosecutor or an authorised officer at a specified date and place to answer questions or furnish the Office with information related to a matter relevant to the investigation.

 

(2)        Where a person required to furnish the Office with a document is unable to produce the document, the Special Prosecutor shall request the person to state where the document is or the reason for the inability to produce the document.

 

(3)         Where a document is furnished to the Office, the Special Prosecutor or an authorised officer shall make copies or extracts from the document and request the person producing the document to provide an explanation on the contents of the document where necessary.

 

(4)         A person who appears before the Special Prosecutor or an authorised officer may be represented by counsel of the choice of that person at any stage of the process.

 

(5)         Where a person refuses, conceals or otherwise fails to produce a document required by the Special Prosecutor or an authorised officer, that person commits an offence and is liable on summary conviction to a fine of not less than one hundred penalty units and not more than three hundred and fifty penalty units or to a term of imprisonment of not less than one year and not more than two years or to both.

 

Power to search and take possession of documents

 

28. (1)       The Special Prosecutor shall apply to the Court, without notice to the person or entity under investigation, to issue a warrant authorising a police officer to enter premises in the possession of or under the control of the specified person or entity to search and remove a document specified in the application if

 

• the person or entity required to produce the document to the Office fails or refuses to produce the document;

 

• the Special Prosecutor is of the opinion that the service of the notice to   produce a document shall prejudice the investigation; or

 

• it is not practicable to give a disclosure notice requiring the production   of the document.

 

(2)       An authorised officer shall

 

• accompany the police officer authorised to execute the warrant.

 

• takean inventory of the documents retrieved in duplicate and hand over a copy of the inventory to the person or entity from whom the                              document was retrieved.

 

(3)       The Office may take possession of the document for the period necessary for the investigation or trial and any proceedings subsequent to trial.

 

(4)        A person or entity from whom a document has been retrieved is entitled to apply to the Court within twenty-one days after the date of retrieval, for an order

 

(a)       to set aside the search, removal or retrieval; and

 

• for the restoration of the document.

 

Obstruction of authorised officer

 

29. A person who obstructs an authorised officer from performing a function under this Act commits an offence and is liable on summary conviction,

 

• in the case of an individual, to a fine of not less than one hundred   penalty units and not more than two hundred penalty units or to a term                                   of imprisonment of not less than  six months and not more than fifteen                              months or to both; or

 

• in the case of an entity, to a fine of not less than five hundred penalty   units and not more than one thousand penalty units.

 

Proceeds of Corruption and Corruption Related Offences

 

Seizure of tainted property

 

30. (1)        An authorised officer or a police officer authorised by the Special Prosecutor, shall seize property if that authorised officer or police officer has reasonable grounds to suspect that the property is tainted with corruption or a corruption related offence.

 

(2)         The Special Prosecutor shall direct the authorised officer to release the seized property to the person from whom it was seized if no charges are preferred against the person within fourteen working days after the seizure.

 

(3)        Where the authorised officer returns the seized property to the person from whom the property was seized in accordance with subsection (2), the authorised officer is immune from prosecution if the authorised officer acted in good faith and seized the property on reasonable goods that the property was tainted with corruption or a corruption-related offence

 

(4)         Where the Special Prosecutor prefers charges, the Special Prosecutor shall request the Court to make an order for the continued seizure of the property for a period of not more than three months at a time from the date of seizure and for a total period of not more than two years.

 

Power to search for tainted property

31. (1)       An authorised officer shall

 

(a)       search a person in respect of tainted property; or

 

(b)       enter any land or premises and conduct a search in respect of tainted                          property and seize in the course of the search, the property which the                          authorised officer believes on reasonable grounds to be tainted                                    property.

 

(2)      A search in respect of tainted property includes search of the

 

• body and clothing worn by the person being searched;

 

• property in or apparently under the control of the person being   searched; and

 

(c)        property of the owner or occupier of the land or premises.

 

(3)        For purposes of paragraph (a) of subsection (2), a female authorised officer shall   search a female and a male authorised officer shall search a male.

 

(4)        An authorised officer may gather forensic evidence in the course of a search.

 

(5)       An authorised officer shall conduct a search or make a seizure

 

• under a search warrant; or

 

(b)       as an emergency search or seizure.

 

(6)        The Court shall consider an application without notice which claims that communication in any medium including an article sent by post or through a courier service is likely to contain information that may be relevant to an investigation or prosecution under paragraph (b) of section 3 and the Court shall, where appropriate, order an authorised officer  to

 

(a)       intercept, detain and open the article in the course of transmission by                           postal or courier service;

(b)       intercept a message transmitted or received by any means of                            communication;

 

(c)        intercept or listen to any conversation by any means of                                                         communication; or

 

(d)       enter premises and install on the premises a device for the interception                      and retention of communications of specified description and remove                                  and retain the device.

 

Application of Part Two of Act 30

32. (1)  The provisions on search by a police officer under Part Two of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) apply for the purpose of this Act where an authorised officer  has reasonable grounds to suspect that there may be tainted property on land or in any premises.

(2)        If during the course of the search the authorised officer finds

 

(a)       property that the authorised officer believes on reasonable grounds to                         be tainted property of a type not specified in the warrant, or tainted                              property related to another offence; or

 

(b)         any article the authorised officer believes on reasonable grounds will                afford evidence as to the commission of the offence or commission of                                    an offence,

the authorised officer shall seize that property and the warrant shall be considered to authorise that seizure.

 

Searches in emergencies

 

33. (1)        Where an authorised officer suspects on reasonable grounds that,

(a)       a particular property

 

• is tainted property; or

 

(ii)        will provide evidence as to the commission of an offence under                       paragraph (b) of section 3,

 

• it is necessary to exercise the power of search and seizure in order to prevent the concealment, loss or destruction of property; and

 

• the circumstances are so urgent that immediate exercise of the power without the authority of a warrant or the order of a Court is required,

 

the authorised officer shall search a person, enter premises and search for the property and if the property is found, seize the property.

 

(2)        If during the course of the search, the authorised officer finds

 

(a)      property that the authorised officer believes on reasonable grounds to                         be tainted property; or

 

(b)       anything the authorised officer believes on reasonable grounds will                                  afford evidence as to the commission of another offence,

the authorised officer shall seize that property.

 

Offence relating to search and seizure

 

34. A person who

(a)       refuses an authorised officer access to premises or refuses to submit                           to a search;

 

(b)       assaults,  hinders or delays an authorised officer in the performance                                of a function under this Act;

 

(c)        fails to comply with a lawful demand of an authorised officer in the                                           performance of functions under this Act;

 

(d)       fails to produce property declared to be seized under this Act;

 

(e)       conceals or attempts to conceal property liable to seizure under this                           Act; or

 

(f)         furnishes information to an authorised officer which the person knows                                                to be false

 

commits an offence and is liable on summary conviction to a fine of not less than two hundred and fifty penalty units and not more than five hundred penalty units or to a term of imprisonment of not less than two years and not more than four years or to both.

 

Property tracking

 

35. Where an authorised officer has reasonable grounds to suspect that a document which is required toidentify, locate or quantify property; oridentify or locate a recordis in the possession or under the control of a person or an entity and is necessary for the transfer of the property, to another person or entity, the authorised officer shall apply to the Court for an order for

 

• the document to be delivered by the person or entity to the authorised officer; or

 

• the production to the authorised officer by the person or entity of information obtained from the document.

 

Record of seized property

 

36. (1)        An authorised officer  who seizes property with or without a search warrant or in an emergency shall make a written record of the property and hand over the record and the property to the Special Prosecutor within seven days from the date of seizure.

 

(2)        The Special Prosecutor shall apply to Court for an order

 

(a)       for the sale of perishable items where the property seized is                               perishable; and

 

(b)       for payment of the proceeds into Court until the final determination of                          the trial.

 

Return of seized property

 

37. (1)       A person who claims an interest in property seized under this Act shall apply to the Court within thirty days after the date of seizure for an order that the property be returned to that person.

 

(2)        If the Court is satisfied that,

(a)       the person is entitled to possession of the property;

 

• the property is not tainted property; and

 

• the person in respect of whose charge, proposed charge or conviction the seizure of the property was made has no interest in the property,

 

the Court shall order the return of the property to the applicant.

 

Mutual legal assistance

 

38. The provisions of the Mutual Legal Assistance Act, 2010 (Act 807) shall apply where

 

(a)       the Special Prosecutor suspects that property obtained from the                        commission of corruption or a corruption related offence is situated in                                     a foreign country; or

 

• a foreign country requests assistance from this country to locate or   seize property situated in this country suspected to be property                                     obtained from the commission of corruption or a corruption related                              offence within the jurisdiction of the foreign country.

 

Freezing Orders

Freezing of property

 

39. (1)       Where the Special Prosecutor considers that freezing of property is necessary to facilitate an investigation or prosecution, the Special Prosecutor may in writing direct the freezing of

 

• the property of a person or entity being investigated; or

 

(b)       specified property held by a person or entity other than the person or                           entity being investigated or prosecuted.

 

(2)       The Special Prosecutor shall, within fourteen days after the freezing of the property, apply to the Court for a confirmation of the freezing.

 

Application for freezing order

 

40. 40.  An application for confirmation of a freezing order may be made without notice to the respondent and shall be accompanied with an affidavit.

 

Issue of freezing order

 

41. 41. (1)       Where an application is made for a freezing order, the court shall issue the order if it is satisfied that

 

(a)       the respondent is being investigated for corruption or a corruption                     related offence;

 

(b)       the respondent is charged with corruption or a corruption related                       offence;

 

(c)        there are reasonable grounds to believe that the property is tainted                  property;

 

(d)       the respondent derived benefit directly or indirectly from corruption or a            corruption related offence;

 

(e)       the application seeks a freezing order against the  property of a person           other than the respondent because there are reasonable grounds to                           believe that the property is tainted property and that the property is                             subject to the effective control of the respondent; or

 

(f)          there are reasonable grounds to believe that a confiscation order shall                         be made under this Act in respect of the property.

 

(2)         The Special Prosecutor shall inform a person against whom a freezing order has been made within seven days after the order has been made.

 

(3)        The court shall in the case of an entity, lift the veil of incorporation to determine if property is subject to the effective control of the respondent.

 

(4)       A freezing order shall

(a)       prohibit the respondent or another person from disposing of or dealing                         with the property or a part of the property or interest in the property                             that is specified in the order, except in a manner specified in the order;

 

• direct the Special Prosecutor to take custody and control of the   property or a part of the property  specified in the order and manage                          or deal with the property as directed by the Court; or

 

(c)        require a person who has possession of the property to give                              possession to the Special Prosecutor to take custody and                                            control of the property.

 

(5)         An order under this section may be made, subject to the conditions that the Court considers appropriate and, without limiting the scope of the order, provide for

 

(a)       the reasonable living expenses of a person affected by the order,                     including the reasonable living expenses of the dependants of the                              person, and reasonable business expenses of the person; and

 

(b)       a specified public debt incurred in good faith by the person affected by                         the order.

 

(6)        When the application is made for the protection of third parties on the basis that a person is about to be charged, an order made by the Court shall lapse if the person is not charged within twelve months after the issue of the order.

 

Effect of freezing order

 

42. 42. A contract or other arrangement made by a person in respect of the tainted property after the issue of the freezing order is of no effect.

 

 

 

Breach of freezing order

 

43. 43. A person who contravenes a freezing order commits an offence and is liable on summary conviction

 

(a)         in the case of an individual, to a fine of not less than one thousand                    penalty units and not more than two thousand penalty units or to a                              term of imprisonment of not less than two years and not more than                                four years or to both; or

 

(b)         in the case of an entity, to a fine equivalent to the value of the tainted                property.

 

Duration of freezing order

 

44. (1)      A freezing order remains in force until

 

(a)       the order is discharged, revokedorvaried;

 

(b)       twelve months after the date the order is made or a later date                             determined by the court; or

 

• a confiscation order or a pecuniary penalty order is made in respect of   the property which is the subject of the order.

 

(2)         Where an investigation has commenced against a person for corruption or a corruption related offence and the property related to that offence is frozen or restrained, the Court shall order the release of the frozen or restrained property if

 

• the person is not charged with corruption or a corruption related   offence within twelve months after the date of commencement of the                investigation; or

 

(b)       the person is acquitted of corruption or a corruption related offence.

 

Review of freezing order

 

45. (1)       A person who claims an interest in property which is the subject of a freezing order shall apply to the Court for a review of the order on notice to the Special Prosecutor, within fourteen days after the issue of  the  freezing order.

 

(2)        The Court shall revoke or vary the order or subject the order to conditions directed by the Court on hearing the interested party.

 

Extension of freezing order

 

46. (1)       The Special Prosecutor shall apply to the Court which made a freezing order for an extension of the period of the operation of the order where necessary.

 

(2)         The Court shall extend the operation of the order for a specified period if it is satisfied that a confiscation order ought to be made in respect of the property or a part of it or that a pecuniary penalty order ought to be made against the person on application by the Special Prosecutor.

 

Confiscation Order

 

Declaration of property and income

 

47. (1)      Where a person has been charged with corruption or a corruption related offence, the Special Prosecutor may serve on that person a notice to make a declaration of the property and income of that person.

 

(2)        On receipt of a notice under subsection (1), the person shall lodge two signed copies of the declaration with the Auditor-General within twenty-eight days after receipt of the notice.

 

(3)         The Auditor-General shall not reveal the content of the declaration except in accordance with this Act or on the order of a Court.

 

(4)         The declaration of property and income shall contain the following information:

 

• property received or expected to be received by the accused person;

 

• property held or disposed of by the accused person including property   held by any other person or in the name of any other person on behalf                                  of the accused person; and

 

(c)        the income and the source of the income whether the person charged                         has actually received it or not.

 

(5)        Where a person charged and given notice to make a declaration fails to make a declaration of property and income within the period specified

 

• that person commits an offence and is liable on summary conviction to a fine of not less than one thousand penalty units and not more than                               two thousand penalty units or to imprisonment for a term of not less                         than two years and not more than four years or to both; and

 

(b)         the property or income which has not been declared is liable to                                      confiscation to the Republic.

 

(6)         A person who intentionally or negligently fails to disclose any information required to be disclosed in a declaration of property and income, commits an offence and is liable on summary conviction to a fine of not less than one thousand penalty units and not more than two thousand penalty units or to a term of  imprisonment of not less than two years and not  more than four years or to both.

 

Duty of Auditor-General to produce copies of declaration

 

48. (1)        Where the person charged is convicted of corruption or a corruption related offence, the Special Prosecutor may require the Auditor-General to give the Special Prosecutor and the Court a copy each of the declaration of property and income.

 

(2)         The Auditor-General shall comply with a request made under subsection (1) within seven days after receipt of the request.

 

Use of information contained in declaration

 

49. (1)        The Special Prosecutor may use information contained in a declaration of property and income for the implementation of the provisions of this Act, including the application for confiscation and pecuniary penalty orders and for any other lawful purpose.

 

(2)         The Court shall take into account information contained in a declaration of property and income of the convicted person when making a confiscation or pecuniary order.

 

Inaccurate declaration of property and income

 

50. (1)       Where the Special Prosecutor at any time during proceedings under this Act is of the opinion that a declaration of property and income is inaccurate, the Special Prosecutor may

 

• serve notice on the accused or convicted person; and

 

• notify the Court of the circumstances

 

and indicate in the notice, the property or income in question and evidence in support of the opinion.

 

(2)        The Court shall decide whether the property or income should have been included in the declaration and if necessary direct that it be added within a given period after

 

• receipt of the notice; and

 

(b)       hearing the declarant.

 

(3)         Where the Court finds that any property or income was intentionally or negligently excluded by the declarant, the Court shall make an order for the confiscation of the property or income to the Republic.

 

Presumption of acquisition of property and income

 

51. (1)       In determining whether or not a confiscation or pecuniary penalty order should be made, the Court shall presume that the property or income which is the subject of the application, including the property and income indicated in the declaration was acquired as a result of corruption or a corruption related offence.

 

(2)         The burden of proof that the property or income which is the subject of the application or the declaration of property and income is lawfully acquired property is on the person convicted for the offence in relation to which the application is made.

 

Application for confiscation or pecuniary penalty order

 

52. (1)        Where a person is on trial for corruption or a corruption related offence, the Special Prosecutor shall apply to the court for the following orders:

 

• a confiscation order against property that is deemed to be tainted   property; or

 

(b)       a pecuniary penalty order against the person in respect of benefit                     derived by that person from corruption or a corruption related offence.

 

(2)         Where a person is convicted of corruption or a corruption related offence, the Special Prosecutor shall apply to the court within one month after the conviction, for any of the orders specified under subsection (1).

 

(3)         The application may be made in respect of more than one offence.

 

(4)         Where the application is determined, a further application for a confiscation order or a pecuniary penalty order shall not be made unless the Court is satisfied that,

 

• the property or benefit to which the new application relates was   identified after the previous application was determined;

 

(b)       the necessary evidence became available after the previous                             application was determined, or

 

(c)        it is in the interest of justice that a new application be made.

 

Notice of application

 

53. (1) Where the Special Prosecutor applies for a confiscation order

 

(a)       the Court shall direct the Special Prosecutor to publish in the Gazette                         or a newspaper of national circulation, a notice of the application     before the determination of the application;

 

• the Special Prosecutor shall give not less than eight days   written notice of the application to the respondent; and

 

(c)        the respondent and any other person who claims an interest in the                   property shall appear and adduce evidence at the hearing of the                      application.

 

(2)         Where the Special Prosecutor applies for a pecuniary penalty order

 

(a)       the Special Prosecutor shall give the respondent not less than eight                 days written notice of the application; and

 

• the respondent shall appear and adduce evidence at the hearing of the application.

 

Amendment of application

 

54. (1) The Court hearing an application for a confiscation or a pecuniary penalty order, shall before the determination of the application and on the application of the Special Prosecutor, amend the application to include other property or benefit if the court is satisfied that

(a)       that other property or benefit was not reasonably capable of                             identification when the application was made; and

 

(b)       the necessary evidence became available only after the application                           was made.

 

(2)        The provisions on notice of application apply to this section with the necessary modification or as directed by the Court.

 

Procedure on application

 

55. (1)        Where an application is made to the Court for a confiscation order or a pecuniary penalty order in respect of a person convicted of corruption or a corruption related offence, the Court shall have regard to the record of proceedings against the person.

 

(2)         Where an application is made for a confiscation order or a pecuniary penalty order to the Court before which the person was convicted, and the Court has not passed sentence on the person for corruption or a corruption related offence, the Court shall defer the determination of the application for the order until the Court passes sentence if, the Court is satisfied that it is reasonable to do so.

 

Procedure against property where a person dies or absconds

 

56. (1)  The Special Prosecutor shall apply to the Court for a confiscation order in respect of tainted property if the person from whom the property was seized

 

(a)       dies and there is information alleging commission of corruption or a                                        corruption related offence by that person anda warrant for the arrest                                       of that person has been issued in furtherance of that information; or

 

(b)       absconds andthere is information alleging commission of corruption or                       a corruption related offence by that person anda warrant for the arrest                       of that person is issued in furtherance of that information.

 

(2)       For purposes of  paragraph (b) of subsection(1) a person is considered to have absconded if reasonable attempts to arrest that person pursuant to the warrant are unsuccessful during the period of three months after the date of issue of the warrant.

 

(3)        Where the Special Prosecutor applies for a confiscation order against tainted property under this section, the Court shall, before hearing the application for the confiscation order,

(a)         require notice of the application to be given to the person who appears                      in the opinion of the Court to have an interest in the property; or

 

(b)         direct notice of the application to be published in the Gazette or a                      newspaper of national circulation containing the particulars in three                   publications within three months.

 

(4)        The provision on protection of third party interest provided under section 60 applies in relation to confiscation of tainted property of a deceased accused person.

 

Confiscation order against property

 

57. (1)       The Court hearing an application for confiscation of tainted property may infer from the record of proceedings of the trial that the property was derived, obtained or realised as a result of corruption or a corruption related offence if

 

• the property was acquired by the person before, during or within a reasonable time after the period of the commission of the corruption or            corruption related offence of which the person is on trial or convicted;           or

 

• the Court is satisfied that the income of that person cannot reasonably account for the acquisition of that property.

 

(2)         Where the Court orders that property, other than money be confiscated, the Court shall specify in the order the amount that is considered to be the value of the property at the time the order is made.

 

(3)         The Court shall have regard to the gravity of the offence in considering whether a confiscation order should be made.

 

(4)         Where the Court makes a confiscation order, the Court shall give directions to give effect to the order.

 

Effect of confiscation order

 

58. (1)  Where the Court makes a confiscation order against property, the property vests absolutely in the Republic by virtue of the order.

 

(2)         Where the Court makes a confiscation order against property and a notice of appeal has been filed,

 

• the property shall not, except with the leave of the court and in   accordance with the directions of the court, be disposed of or                                      otherwise dealt with, before the determination of the appeal; and

 

(b)       if the confiscation order is not discharged on determination of the                      appeal, the property shall be disposed of and the proceeds applied or                         otherwise dealt with in accordance with the direction of the Attorney-                           General.

 

(3)       Where property is confiscated, the property shall vest in the Republic free from a right, interest or encumbrance of any person except a right, interest or encumbrance which is held by a purchaser in good faith for valuable consideration.

 

(4)        Where a person who holds an encumbrance to which property is subject claims that the encumbrance is held by a purchaser in good faith for valuable consideration and that the encumbrance is not contrary to a provision in this Act, which claim is disputed by the Republic, the Special Prosecutor shall apply to the court to determine the matter.

 

(5)         The court shall determine the matter after hearing the person holding the encumbrance and the reply of the Special Prosecutor.

 

(6)         Where the movable property is vested in the Republic, the vesting shall take effect without a transfer, conveyance, deed or other instrument.

 

(7)         Where registration of the vesting of the property is required by law, the authority responsible for registration shall register the property in the name of the Republic.

 

(8)         Where the property which has vested in the Republic is immovable property, the vesting shall be registered in the name of the Republic on production of the order of the Court forfeiting the immovable property to the Registrar of Lands and on the production of a certificate of the Special Prosecutor certifying that the property is confiscated.

 

Void transaction

 

59. The court shall set aside a transaction related to property which is the subject of a confiscation order where the transaction was made after the seizure of the property or issue of a freezing order.

 

Protection of third parties

 

60. (1)        Where an application is made to the court for a confiscation order against property, a person who claims an interest in the property shall apply to the court for an order declaring the interest of the person.

 

(2)       If the Court is satisfied on a balance of probabilities that the person

 

(a)       was not involved in the commission of the corruption or the corruption                          related offence; and

 

• acquired the interest before or after the commission of the   corruption or the corruption related offence

 

(i)         for sufficient consideration, and

 

(ii)        without knowing and in circumstances which did not arouse a              reasonable suspicion that the property was tainted property at                                     the time the person acquired the property,

 

the Court shall make an order declaring the nature, extent and value of the interest of that person at the time the order is made.

 

(3)         An application for a declaration of interest in confiscated property shall be made within six months after the order for confiscation.

 

(4)        A person who

 

• had knowledge of the application for the confiscation order before the   order was made; or

 

• appeared at the hearing of that application,

 

shall not make an application without leave of the Court.

 

(5)        The Special Prosecutor shall be a party to the proceedings.

 

Effect of quashing of conviction

 

61. (1)       Where the Court makes a confiscation order against property of a person convicted of corruption or a corruption related offence and the conviction is subsequently quashed, the quashing of the conviction shallresult in the discharge of the order.

 

(2)        Where a confiscation order against property is not discharged, a person who had an interest in the property immediately before the confiscation order was made, may apply to the Court for an order for the transfer of the interest to that person.

 

(3)        The court may

(a)       give directions that the property or part of the property to which the                 interest of the applicant relates, be transferred to the applicant if the                      interest is vested in the Republic; or

 

(b)         in any other case, direct that the applicant be paid an amount equal to                         the value of the interest at the time the order was made.

 

Confiscation where a person dies or absconds

 

62. The court shall order property to be confiscated ifthe property is tainted and a person charged with corruption or a corruption related offence dies or absconds when proceedings in relation to that property have commenced.

 

Pecuniary Penalty Order

 

Payment instead of a confiscation order

 

63. Where the court is satisfied that a confiscation order should be made in respect of the property of a person convicted of corruption or a corruption related offence but the property or a part of the property or interest in the property cannot be made subject to that order and, in particular, the property

 

(a)       is transferred to a third party in circumstances that do not give rise to a             reasonable inference that the title or interest was transferred to                        avoid   the confiscation of the property;

 

(b)       is substantially diminished in value or rendered worthless; or

 

(c)    has been co-mingled with other property that cannot be divided without              difficulty,

 

thecourt shall order the person to pay to the Republic an amount assessed by an accredited valuation officer to be equal to the value of  the property instead of the confiscation.

 

Procedure for enforcement of order for payment

 

64. (1)        Where the Court orders a person to pay an amount instead of confiscation of property as provided in section 63 that amount shall be treated as a fine imposed on the person in respect of a conviction for corruption or a corruption related offence, and the Court shall,

 

• impose in default of the payment of that amount, a term ofimprisonment of not less than twelve months and not more than

five years despite any provision contained in any other

                                    enactment;

 

• direct that the term of imprisonment imposed be served

consecutivelyto any other term of imprisonment imposed on that person, or being served by the person; and

 

• direct that the provision in the Prisons Service Act, 1972   (NRCD 46) and regulation 61 of the Prisons Regulations 1958 (LN.                             412) relating to the remission of sentence of a prisoner serving a

term of imprisonment shall not apply to a term of imprisonment imposed under paragraph (a) on the person.

 

(2)         Sections 56 and 62 apply with the necessary modification to give effect to this section where a person accused of corruption or corruption related offence dies or absconds.

 

Pecuniary penalty orders

 

65. (1)       Where the Special Prosecutor applies to the Court for a pecuniary penalty order against a person convicted of corruption or a corruption related offence, the court shall make an assessment based on evidence to determine the benefit derived by the convicted person from corruption or a corruption related offence.

 

(2)         The Court shall order the person to pay to the Republic an amount equal to the value of the benefit obtained from the commission of corruption and a corruption related offence or a higher amount if the Court is satisfied that the person benefited from the corruption and the corruption related offence.

 

(3)        The Court shall consider

(a)       property that appears to the Court to be held by the convicted person                          on the day on which the application is made; and

 

(b)       property that appears to the Court to be held by the convicted person                          at any time, to be property derived, obtained or realised as a result of                                     the corruption and corruption related offence if it was acquired by the                                  convicted person before, during or within a reasonable time after the                                  period of corruption and corruption related offence of which the person                was convicted.

 

(4)        Where the Court determines and assesses the benefit to a convicted person from corruption or a corruption related offence and the Court is satisfied that the income of that person from sources unrelated to that corruption or corruption related offence cannot reasonably account for the acquisition of that property, the Court shall presume that the property came into the possession or under the control of the person as a result of the corruption or corruption related offence unless the contrary is proved.

 

Lifting the veil

66. (1) The Court shall treat as property of a person, property that in the opinion of the Court, is subject to the effective control of the person, to

 

• assess the value of benefits derived by a person from corruption or a corruption related offence; and

 

• make a confiscation order

 

(2)        Without limiting subsection (1), the Court shall haveregard to

 

• shareholdings in, debentures over or directorships in a company that   has an interest, whether direct or indirect, in the property, and for this                          purpose, the court shall order an investigation and inspection of the                                 books of a named company;

 

• a trust that has a relationship to the property; or

 

(c)        a relationship between the persons who have an interest in the                         property or in companies of the kind referred to in paragraph(a), or                             trust of the kind referred to in paragraph(b), and with any other                                              persons.

 

(3)         Where the court treats a particular property as the person’s property for the purposes of making a pecuniary penalty order against that person, the court shall make an order declaring that the property is subject to the effective control of that person and is available to satisfy the order.

 

(4)         The Special Prosecutor shall give notice of the application to

(a)       the person and to any other person who the Special Prosecutor has                 reason to believe has an interest in the property; and

 

(b)       the person and any other person who claims an interest in the property

and the person shall appear and adduce evidence at the hearing of                                       the application.

 

Enforcement of pecuniary penalty orders

67. 67. Where the Court orders a person to pay an amount under a pecuniary penalty order, the provisions of section 65 apply to empower the Court to impose a term of imprisonment on that person in default of compliance with the order.

 

 

 

Discharge of pecuniary penalty orders

 

68. A pecuniary penalty order is discharged

 

(a)       if the conviction for corruption or corruption related offence on the                     basis of which the order was made is quashed and another conviction                                   for corruption or corruption related offence is not substituted; or

 

(b)       by payment of the amount due to satisfy the order.

 

Production Order

 

Production order on application

 

69. (1)        A court shall make a production order on an application made by the Special Prosecutor.

 

(2)        The period stated in a production order is a period of seven days after the day on which the order is made, unless it appears to the court by which the order is made that a longer or shorter period would be appropriate in the particular circumstances.

 

Requirements for making a production order

 

70. A production order is made, where there is reasonable ground to suspect that        

the person specified in the application for the order as being subject to the investigation

 

• has benefited from the commission of corruption or corruption related offence, in the case of an investigation pending confiscation; or

 

• is suspected of having committed or committing corruption or a           corruption related offence.

 

Realisation of Property

Realisation of property

 

71. (1)       Where a pecuniary penalty order is made, not discharged and not subject to an appeal, the Court shall

 

• direct the Special Prosecutor to manage the property;

 

• empower the Special Prosecutor to take possession of the realisable   property subject to the conditions specified by the court;

 

• order a person who has possession of the realisable property to give   possession of  the property to the Special Prosecutor;

 

• empower the Special Prosecutor to dispose of the   realisable property in a manner as directed by the Court; and

 

• order a person who holds an interest in the property to make payment   to the Special Prosecutor in respect of a beneficial interest held by the                          respondent or the recipient of a gift specified in this Act as the Court                            shall direct

 

on an application by the Special Prosecutor.

 

(2)        The Court shall transfer, grant or extinguish the interest in the property on payment being made under paragraph (e) of subsection (1).

 

(3)        The Court shall give a person who holds interest in the property reasonable opportunity to make representations to the Court before making an order under paragraphs (b), (c), (d) or (e)of subsection (1) and also under subsection (2).

 

Utilisation of proceeds of realisable property

 

72. (1) The Court shall direct that an amount be paid to the Registrar of the Court out of the proceeds of the realisable property and that part of  the amount be applied to defray the expenses of the Office.

 

(2)        The Court shall direct the Special Prosecutor to pay thirty percent of the outstanding amount for the benefit of an institution of relevance to the action after full satisfaction of payment required under these provisions.

 

(3)         The Special Prosecutor shall, until payment is made under subsection (2), retain the thirty percent of the outstanding amount specified for the benefit of the institution of relevance and pay the rest into the Consolidated Fund.

 

Insolvency

 

73. The Insolvency Act, 2006 (Act 708) does not apply to property which is subject to this Act.

 

Winding up of company holding realisable property

 

74. (1)       Were realisable property is held by a company and an order for the winding up of the company is made or a resolution is passed by the company for its voluntary winding up, the functions of the liquidator shall not be performed in relation to

 

• the property if the property is subject to a freezing order made before   the order or resolution for winding up was made or passed; or

 

(b)       the proceeds of the property realised and in the hands of a receiver.

 

(2)        Where, in the case of a company, an order is made or a resolution is passed, the powers conferred on the Court to grant a freezing order shall not be exercised in relation to realisable property held by the company in relation to which the functions of the liquidator may be performed to

 

• inhibit the liquidator from performing those functions to distribute the   property held by the company to the company’s creditors; or

 

(b)       prevent the payment out of the property of expenses, including                                   the remuneration of the liquidator properly incurred in the    winding up in             respect of the property.

 

(3)         Subsection (2) does not affect the enforcement of a charging order

 

        (a)       made before the order or resolution for winding up was made or                        passed; or

 

        (b)       on property which was subject to a freezing order at the relevant time.

 

(4)        Nothing in the Companies Act, 1963 (Act 179) shall restrict or enable the restriction of the exercise of the powers conferred on the court by this Act in relation to companies.

 

 

 

(5)        In this section, “liquidator” includes a provisional liquidator under the Companies Act, 1963 (Act 179).

 

Collaboration with public agencies

 

75. (1) The Office may conduct investigations in collaborationwith public agencies.

 

(2)        An officer of a public agency shall co-operate with officers of the Office in the performance of functions under this Act.

 

(3)        A public officer who refuses or fails without reasonable cause to co-operate with an authorised officer commits an offence and is liable on summary conviction to a fine of not less than fifty penalty units and not more than one hundred penalty units or to a term of imprisonment of not less than three months and not more than six months or to both.

 

Confidentiality

 

76. (1) An authorised officer who receives information in the performance of functions under this Act shall not

 

• communicate the information to an unauthorised person; or

 

(b)       disclose the personal details of a person who has given information to                         a third person without authority.

 

(2)        An authorised officer who contravenes subsection (1) commits an offence and is liable on summary conviction to a fine of not less two hundred and fifty penalty units and not more than five hundred penalty units or to a term of imprisonment of not less one year and not more than two years or to both.

 

Regulations

 

77. The Minister may, in consultation with the Board, by legislative instrument, make Regulations to

 

• prescribethemanner fortracking tainted property;

 

• prescribe the procedure for the seizure of tainted property;

 

• prescribethe procedure for confiscation and pecuniary penalty orders;

 

 

 

• prescribe the procedure for the submission of complaints;

 

• regulatethe management of seized, restrained or confiscated assets;

 

• regulatethe disposal of assets under this Act; and

 

(f)         generally for the effective implementation of this Act.

 

Interpretation

 

78. In this Act unless the context otherwise requires,

“accountant” means a person registered under the Chartered Accountants Act, 1963 (Act 176);

 

“accredited valuation officer” means a person licensed by the Ghana Institution of Surveyors;

 

“authorised officer” means an officer of the Office or any public officer authorised by law to exercise police powers;

 

“communication” means any transmission, emission or reception of signs, signals, writing, images, sounds or intelligence of any nature through any communication or computer system;

 

“confiscation” means the permanent deprivation of funds or other assets by order of a competent authority or Court;

 

“corruption offences” includes offences under

 

• sections 146, 51, 179C, 239, 252, 253, 254, 256, 258 and 260 of the Criminal and Other Offences Act, 1960 (Act 29); and

 

• section 92 (2) of the Public Procurement Act, 2003 (Act 663);

 

“Court” means High Court or Circuit Court;

 

“ courier service” means a service for the receipt and delivery of correspondence, items of value or both, such as parcels and packets, for which a postage stamp is not required;

 

“deriving benefit” means benefit derived or obtained by a person or otherwise accruing to another person at the request or direction of the first person;

 

“gift” includes a transfer of property by a person to another person directly or indirectly before or after the commission of corruption or corruption related offence by the first person for a consideration the value of which is significantly less than the value of the consideration provided by the first person, and to the extent of the difference between the market value of the property transferred and the consideration provided by the transferee;

 

“institution of relevance” means a party or parties relevant to the action;

 

“interest” in relation to property, means

(a)    a legal or equitable estate or interest in the property, or

(b)    a right, power or privilege in connection with the property;

 

“living expenses” include provision for food, clothing, utilities, school fees and medical expenses;

 

“Minister” means the Attorney-General and Minister responsible for Justice;

 

“Office” means the Office of the Special Prosecutor established under section 1;

 

“police officer” means a policeman who is not below the rank of Assistant Superintendent of Police;

 

“political office holders” include

 

• persons holding office under the Presidential Office Act, 1993 (Act 463);
• Ministers and Deputy Ministers of State;
• Regional and Deputy Regional Deputy Ministers of State;
• Special Assistants, Special Aides to the President, Vice-President, Ministers of State, Deputy Ministers, Regional Ministers and Deputy Regional Ministers;
• non-Career Ambassordors and High Commisioners;
• persons appointed by the President; and
• the national chairman, the leader, the general secretary or equivalent designation, the national treasurer and the other members of the national executive committee of a political party;

 

“post” means a system for the collection, despatch or conveyance of postal articles;

 

“postal articles” include letters, postcards, reply postcards, lettercards, newspapers, books, packets, printed paper, pattern or sample packet, small packet or parcel and every other packet article when in course of conveyance by post and includes a telegram when conveyed by post;

 

“postal service” means any service licensed to be rendered under the Postal and Courier Services Regulatory Commission Act, 2003 (Act 649);

 

“premises” includes any house, building, structure, tent, caravan, ship, boat, aircraft and mechanically propelled vehicle;

 

“property” means assets of any kind situated in the country or elsewhere whether movable or immovable, tangible or intangible, legal documents and instruments evidencing title of interest in the assets;

 

“property of or in the possession or control of a person” includes a gift made by that person;

 

“public agency” means a body set up by the Government in the public interest with or without an Act of Parliament;

 

“public debt”  means expenditure incurred from the Consolidated Fund, Contingency Fund and other funds established by or under an Act of Parliament;

 

“public officer” means a person who holds a public office;

 

“realisable property” includes

(a)    property held by a defendant who has directly or indirectly made a gift caught by this Act,

(b)    property held by a person to whom a defendant has directly or indirectly made a gift caught by this Act, and

(c)    currency;

 

“record” means recorded information regardless of form or medium created, received and maintained by any institution or individual in the pursuance of the legal obligations or transactions of the institution or individual;

 

“Republic” means the Republic of Ghana;

 

“respondent” means the person who is the subject of an application for a confiscation order or pecuniary penalty order;

“security agency” includes the police, Customs Division of the Ghana Revenue Authority, the Immigration Service and the Bureau of National Investigations;

 

“seizure” means the temporary prohibition of the transfer, conversion, disposition or movement of property or the temporary assumption of the custody or control of property on the basis of a Court order;

 

“Special Prosecutor” means the person appointed as the Special Prosecutor under section 11;

 

“tainted property” means property derived, obtained or realised as a result of the commission of corruption or corruption related offence; and

 

“trust” includes an executorship, administratorship, guardianship, of children or the office, committee or receiver of the estate of a person with mental disorder or a person incapable of managing that person’s own affairs, a charitable trust, family trust and an organisation.

 

Consequential amendments

 

79. (1) The Economic and Organised Crime Office Act, 2010 (Act 804) is amended in section 74.        by the deletion of the words “corruption and bribery” in paragraph (a) of the definition of serious offence.

(2) Section 54 and 55 of the Criminal and Other Offences Procedure Act, 1960 (Act 30) is amended by the insertion after “Attorney-General” of “or Special Prosecutor”  where ever it appears.

 

Transitional provision

 

80. 80. (1) The Attorney-General may authorise the Office of the Special Prosecutor to handle any investigation or prosecution in relation to corruption or a corruption related offence being handled by the

• Economic and Organised Crime Office established  by the Economic             and Organised Crime Office Act, 2010 (Act 804); or
• Prosecutions Division of the Attorney-General’s Office

 

on the coming into force of this Act.

 

(2)       Any seed money that may accrue to the Office on the coming into force of this Act, shall be transferred into the account of the Office.

 

 

 

Schedule

(section 12 (6) and 15 (5))

THE OATH OF SECRECY

I,………………………………………………………………………………………………holding the office of…………………………………………..do (in the name of the Almighty God swear) (solemnly affirm) that I will not directly or indirectly communicate or reveal to any person any matter which shall be brought under my consideration or shall come to my knowledge in the discharge of my official duties except as may be required for the discharge of my official duties or as may be specially permitted by law. (So help me God).

To be sworn before the President,or such other person as the President may designate.