OPERATION RECOVER ALL LOOT (ORAL): IS IT RECOGNISED UNDER GHANAIAN CRIMINAL JUSTICE SYSTEM?

 OPERATION RECOVER ALL LOOT (ORAL): IS IT RECOGNISED UNDER GHANAIAN CRIMINAL JUSTICE SYSTEM?

 

By

Goodnuff Appiah Larbi[1]

Legal Researcher

Email: aappiahlarbi@gmail.com

 

&

Emmanuella A. O. Kwatia[2]

Email: ellakwatia233@gmail.com

 

 

Abstract

Corruption has been a pervasive and debilitating scourge on the Ghanaian economy. Successive governments have witnessed officials ascend to power, misappropriate public funds, and face little to no accountability. Since the early days of the Fourth Republic, Ghanaians have consistently expressed strong disapproval of corruption and a desire to see offenders prosecuted. The criminal justice system provides a robust framework for investigative and prosecutorial bodies that have the responsibility of ensuring that corrupt officials are held accountable. It also outlines laws that define these institutions’ scope, mandate and functions. The Operation Recover All Loot initiative aims to realign Ghana’s fight against corruption by prosecuting corrupt state officials and recovering misappropriated public funds. However, this initiative has sparked significant debate, particularly regarding the legitimacy of its purpose, the expectations placed on it, and the constitutionality of the Anti-Corruption Preparatory Unit established to support its operations.

  

• Introduction

Corruption has many tentacles,[3] beyond bribe-giving and bribe-taking, both the United Nations Convention Against Corruption (UNCAC)[4] and the African Union Convention on Preventing and Combating Corruption[5] Provide much broader definitions of corruption which embrace a wide range of white-collar crimes and related conduct such as embezzlement, insider trading, illicit enrichment, laundering of proceeds of crime, abuse of office, abuse of power, nepotism, conflict of interest, influence peddling, patronage, moonlighting and obstruction of justice.[6]  In the context of this article “loot” shall refer to state resources unlawfully acquired by government officials, politicians, and other individuals in violation of due process and situations of conflict of interest.

 

Corruption has become a serious threat to all countries over the world and has been stated as an “acute disease”.[7] It is well-established that corruption has a devastating impact on a nation’s economy and national development.[8] The fight against corruption and the recovery of state assets unlawfully obtained by individuals remains a fundamental objective for governments worldwide. Corruption is a global issue and a significant challenge in Ghana. In recent years, corruption has permeated every fibre of Ghanaian life; public, private, and governmental spheres, undermining the nation’s governance structure and overall performance.[9] A phenomenon that is rapidly becoming a norm in Ghana is for people to enter into politics to create, loot and share the ‘national cake’ for their parochial interest over the national good.[10] This pervasive nature of corruption reflects a troubling level of dishonesty within Ghanaian society.[11]

 

In this article, we explore the Operation Recover All Loot (ORAL) initiative in line with its recognition under the Ghanaian Criminal Justice System. The following discussion addresses the origin of the initiative; available provisions that support asset recovery;  the role of investigative institutions such as the Commission on Human Rights and Administrative Justice (CHRAJ), the Office of the Special Prosecutor (OSP), the Economic and Organized Crime Office (EOCO), and a Commission of Inquiry; the prosecuting authority of the Attorney General; the role of the judiciary; the mandate and constitutionality of the anti-corruption preparatory unit; the public expectations of the effectiveness and mandate of the anti-corruption preparatory unit and international obligations of the country to fight corruption. We also propose robust recommendations to enhance the fight against corruption.

 

2.0 Origin of Operation Recover All Loot (ORAL)

Corruption has become the enemy of mankind and even has transformed into a fearful “endemic disease”.[12] Daily or suspected acts of corruption involving some government officials are rampant and annoying. To borrow the words of Retired Supreme Court judge, Justice Dotse, those at the helm of government have ‘allied to create, loot and share the resources of this country as if a brigade had been set up for such an enterprise.’[13] Corruption has become major reason why governments are voted out of power.[14] Ghanaians cannot sit aloof for valuable state resources to be exploited to their detriment. Gearing up towards the just-ended 2024 Presidential and Parliamentary elections, and during one of its campaign rallies, the National Democratic Congress launched Operation Recover-All-Loot. The then Flagbearer of the NDC, H.E. former president John Dramani Mahama (now president-elect) stated “This corrupt [New Patriotic Party] NPP government will be held accountable for their actions.”[15] The concept of ORAL can be understood as a policy or initiative aimed at reclaiming assets misappropriated from the State by the incumbent government NPP.

 

Eradicating corruption in Ghanaian society remains one of the most herculean tasks facing the nation.[16]  President John Dramani Mahama has assured Ghanaians that his administration will utilize the ORAL initiative, emphasizing that it is not a witch-hunt but a targeted effort to fight corruption. The President-Elect explained that ORAL is designed to gather evidence to aid the prosecution of corrupt officials by designated state institutions, to ensure accountability and restore public trust, and forms part of his administration’s broader commitment to transparency and good governance.[17] As stated differently, ORAL is merely a conveying belt and operates as a fact-finding committee.

 

2.1 Why ORAL?[18]

By fostering accountability and improving governance, ORAL seeks to create a stable and trustworthy business environment, reassuring Ghanaians of restoring integrity to public administration.[19] This, it seeks to achieve through the following key objectives:

• Investigating Corruption Cases: Establishing a specialized task force to scrutinize suspected or alleged corruption cases under the incumbent administration.

 

• Recovering Misappropriated State Resources: Prioritizing the retrieval of stolen state funds, property, and other assets for national development projects.

 

• Prosecuting Offenders: Committing to prosecuting individuals or entities found guilty of embezzling public resources, including members of the incumbent NPP government and serving as a deterrent to future offenders.

 

3.0 Available Laws that support Assets Recovery

Several statutes in Ghana provide mechanisms for asset recovery. These are briefly discussed below;

The Ghanaian Criminal Offences Act,[20] criminalizes corruption, fraud,[21] stealing[22], extortion[23] and willfully causing financial loss to the state,[24] establishing foundations for prosecutions aimed at facilitating assets recovery. Causing financial loss to the state in Ghana involves acts by public officials or private entities that misuse or mismanage public resources, leading to financial loss to the nation. It is a criminal offence under section 179A of Act 29.[25] This section was inserted into Act 29 by section 3 of the Criminal Code (Amendment) Act, 1993,[26] As one of the “Special Offences” created by the first Parliament of the Fourth Republic. The main purpose of this legislation is to check unwarranted and/or reckless public expenditures that occasion loss to the State.

 

Under section 179A (1) of Act 29, a person who, by a wilful act or omission, causes loss, damage or injury to the property of any public body or any agency of the State commits an offence. A person who in the course of any business transaction with a public body or any agency of the State and who intentionally causes damage or loss whether economic or otherwise to the body or agency commits an offence.[27]  Under section 179A (3) of Act 29, a person also commits a criminal offence when through his wilful, malicious or fraudulent action or omission (a) the State incurs’ financial loss; or (b) the security of the State is endangered. For the offence wilfully causing financial loss to the State, the “public body” includes the State, Government of Ghana, public board or corporation, public institution and any company or other body in which the State or a public corporation or other statutory body has a proprietary interest.[28] Section 179D of Act 29 states that a person convicted of an offence under any of the offences under section 179A is liable on conviction to a fine of not less than Ghc 5 million or imprisonment not exceeding ten years or both.

 

Under section 179A (3) (a) of Act 29, the forbidden act may be an action or an omission. The accused person must have taken some action (or must have done some act) or omitted to take some action (or to do some act). For prosecution to succeed it must show that the State incurred a financial loss through the action or omission of the accused person. It must be proved that the cause of the State’s financial loss is the action or omission of the accused and the financial loss incurred by the State. It is not enough for the prosecution to show that the accused’s action or omission could have caused or contributed to the loss. The financial loss must have been caused by the State or State institution. In the case of Tsikata v Republic,[29] The Supreme Court held that in the context of section 179A of Act 29, as amended, a loss to a public corporation such as the Ghana National Petroleum Corporation (GNPC) constitutes a loss to the State of Ghana.

 

The Public Procurement Act[30] under section 2 as inserted by section 1 of Act 914[31] states that “The object of the Authority is to harmonize the processes of public procurement in the public service to secure a judicious, economic and efficient use of State resources in public procurement and ensure that public procurement is carried out in a fair, transparent and non-discriminatory environmentally and socially sustainable manner.”[32] Also, section 1 of the Anti-Money Laundering Act[33] “(1) A person commits an offence of money laundering if the person knows or ought to have known that property is or forms part of the proceeds of unlawful activity and the person (a) converts, conceals, disguises or transfers the property, (b) conceals or disguises the unlawful origin of the property, or (c) acquires, uses or takes possession of the property. (2) For this Act, unlawful activity means conduct which constitutes a serious offence, financing of a terrorist act or contravention of a law which occurs after the commencement of this Act whether the conduct occurs in this country or elsewhere.”[34] These Statutes play vital roles in ensuring that public resources are safeguarded and that assets unlawfully acquired through corruption or money laundering are traced, recovered, and returned to their rightful owners. These two laws, though distinct in their scope, complement each other in fostering transparency, accountability, and financial integrity.

 

The preamble to the Whistleblower’s Act,[35] It provides for how individuals may, in the public interest, disclose information that relates to unlawful or other illegal conduct or corrupt practices of others; protects against victimisation of persons who make these disclosures; provides for a Fund to reward individuals who make the disclosures; and provides for related matters.[36] The Act plays an essential role in uncovering hidden crimes, facilitating investigations, and ensuring that misappropriated assets are identified and reclaimed.

 

The Act encourages individuals to report corrupt practices, financial malfeasance, and other unlawful activities, including those involving misappropriation of public funds and illicit asset accumulation.[37] By creating a formal mechanism for whistleblowers to disclose information, the Act aids law enforcement and investigative agencies in detecting crimes that might otherwise remain hidden.[38] Whistleblowers often provide critical leads and evidence necessary for investigating and prosecuting crimes, particularly in cases involving complex financial schemes or hidden assets. Information disclosed under the Act can serve as the basis for tracing, freezing, and recovering assets linked to corruption or other criminal activities.

 

Timely reporting by whistleblowers helps prevent the concealment or transfer of illicitly acquired assets, enabling law enforcement agencies to act swiftly to recover such assets. The Act deters corrupt practices by fostering a culture of accountability. When individuals know that whistleblowers are protected and encouraged, they are less likely to engage in activities that could lead to asset misappropriation. Information provided by whistleblowers can strengthen prosecutions by providing direct evidence of corruption or financial crimes,[39] leading to asset forfeiture or restitution orders. The Act protects against victimization or retaliation for individuals who report unlawful activities.[40] This assurance encourages more people to come forward with information, thereby enhancing the detection of crimes and recovery of assets.

 

4.0 The Role of the Investigation Institutions

Established state institutions play a crucial role in recovering stolen assets. These investigation institutions are briefly discussed below.

 

4.1 Commission on Human Rights and Administrative Justice (CHRAJ)

The Commission has a broad mandate under Chapter 18 of the 1992 Constitution of Ghana and the CHRAJ Act.[41] This mandate is threefold, namely, human rights, administrative justice, and combating corruption. CHRAJ has a duty, under Chapter Twenty-Four of the Constitution of Ghana (1992), to investigate an allegation that a public officer has contravened or has not complied with a provision of the Code of Conduct for Public Officers as contained in that chapter. The relevant provisions of the chapter are Articles 284 and 286. Specifically, Article 284 provides that “a public officer shall not put himself in a position where his interest conflicts or is likely to conflict with the performance of the functions of his office.”[42] CHRAJ primarily focuses on promoting good governance, accountability, and respect for human rights. It investigates allegations of corruption, especially within public institutions.[43] It also seeks to identify illicitly acquired assets and recommend measures to recover them. It monitors compliance with Ghana’s asset declaration laws, which require public officials to declare their assets to prevent illicit wealth accumulation.[44] It also educates the public on the adverse effects of corruption and advocates for legal and policy reforms to enhance asset recovery mechanisms. CHRAJ works with other institutions like EOCO and the OSP to ensure effective investigations and recovery of unlawfully acquired assets.[45]

 

4.2 Office of the Special Prosecutor (OSP)

The OSP was established under the Office of the Special Prosecutor Act,[46] To investigate and prosecute corruption and corruption-related offences.[47] The OSP conducts thorough investigations into cases of corruption and financial crimes to identify misappropriated assets.[48] The OSP has the power to freeze and seize assets suspected to be proceeds of corruption while investigations or prosecutions are ongoing.[49] The OSP can initiate civil actions to recover assets that are determined to have been acquired through corrupt means, even without a criminal conviction.[50] The OSP prosecutes cases to secure convictions, which may result in forfeiture orders for the recovery of misappropriated assets. The OSP could collaborate with international bodies to investigate, trace, freeze, and recover assets hidden abroad.[51]

 

4.3 Economic and Organized Crime Office (EOCO)

EOCO is a specialized agency established for monitoring and investigating economic and organized crimes. EOCO operates under the Economic and Organized Crime Office Act[52] and focuses on combating financial crimes and organized criminal activities. Section 2 of Act 804 states that “The objects of the Office are to (a) prevent and detect organised crime, and (b) generally to facilitate the confiscation of the proceeds of crime.”[53] EOCO investigates offences such as money laundering,[54] tax fraud,[55] financial or economic loss to the Republic or any State entity or institution in which the State has a financial interest,[56] etc. It also, identifies, traces, and freezes assets believed to be the proceeds of crime, pending further legal action.[57] Following due process, EOCO facilitates the confiscation and forfeiture of assets proven to have been acquired through criminal activities.[58] It also plays a significant role in Ghana’s anti-money laundering framework, which often intersects with asset recovery. EOCO collaborates with institutions such as the Financial Intelligence Centre (FIC), CHRAJ, and international organizations to recover assets across jurisdictions and, with the authorization of the Attorney General, prosecute related offences.

 

4.4 Commission of Enquiry

The role of Commissions of Enquiry in assets recovery in Ghana primarily involves investigating and uncovering facts related to mismanagement, corruption, and the unlawful acquisition of assets per the instrument of the appointment.[59] These commissions are established under Article 278 of the 1992 Constitution of Ghana to investigate matters of public interest. Commissions of Enquiry gather evidence on allegations of corruption, misappropriation of public funds, or illicit acquisition of assets by individuals or institutions. Through their investigations, commissions often identify hidden or misappropriated assets, which can form the basis for recovery efforts by other agencies like EOCO or the OSP. They provide detailed recommendations on how unlawfully acquired assets can be recovered, often suggesting legal or administrative actions against culprits.

 

It is essential to acknowledge that the primary function of the commission is to inform the government of its findings. Wood CJ (as she then was) in Prof. Stephen Kwaku Asare v. Attorney General,[60] Stated categorically that, “The primary function of the commissions of inquiry is to inform Governments. Historically, commissions of inquiry have been classified into two groups based on the methods used to ascertain the facts. The first category is those charged with gathering information which is to be used for policy formulation or review or the assessment of the function-ability of a public entity. They are referred to as the Investigatory inquiries. These types of commissions play the same role as a researcher. Examples include the Davy Koech Commission, which investigated the question of the appropriateness of Kenya’s education.
System. Article 5 (4) of the Constitution provides for the appointment of a
commission of inquiry to ascertain the need and substantial
Demand for the creation, alteration or merger of regions in Ghana.[61]

 

Chief Justice Wood further stated that “This type of commission of inquiry could only be the investigatory type. The second category of commissions of inquiry are those charged with
ascertaining the facts of a particular issue. Their role has been equated with
that of an inquisitor and they are referred to as inquisitorial inquiries. This type
of inquiry usually investigates the facts surrounding a scandal or allegations of
wrongdoing. The Miller inquiry which investigated allegations of wrongdoing
against former Attorney General of Kenya Charles Njonjo is such an example.
The Jiagge Assets Commission under NLCD 72 which made adverse findings
against Gbedemah is a local example.”[62]  The importance of commissions of inquiry in the recovery of state assets through fact-finding cannot be exaggerated. The commissions of inquiry are indispensable tools in the recovery of state assets, providing both the evidence and impetus for action while ensuring transparency and accountability in governance.

 

Unlike the findings of the pre-1969 commissions, the post-1969 commissions attracted automatic constitutional sanctions until the persons affected succeeded in setting aside the findings on appeal. Accordingly, by these constitutional arrangements, the Attorney General is not required to take any legal step to secure the criminal liabilities to be suffered by persons affected by the adverse findings or reports of Commissions of Inquiry, which are deemed to be judgments of the High Court against the persons affected and not just prima facie evidence; as rightly stated by Samuel Marful-Sau JA in The Republic v. Charles Wereku Brobbey and Kwadwo Okyere Mpiani (Ghana @ 50 commission of Enquiry case).[63]

 

The Constitution itself provides in unambiguous terms in Article 283 that: “A witness before a commission of inquiry is entitled to the same immunities and privileges as if he were a witness before the High Court.” Therefore, the findings cannot be the basis of criminal prosecution nor are they admissible in court. They have no probative value.

 

Nonetheless, the Commissions may recommend changes to policies and systems to prevent future misappropriation and enhance asset recovery frameworks. By publishing their findings, commissions promote transparency and accountability, serving as a deterrent against corruption and asset misappropriation.  A locus classicus is the Justice Apau Commission of Enquiry, which was set up to investigate judgment debts, and uncovered instances of wrongful payments, leading to recommendations for the recovery of such funds.[64]

 

Commissions of Enquiry play a critical, albeit indirect, role in assets recovery by providing a factual and legal basis for further action by investigative and prosecutorial agencies. Their success depends on the implementation of their recommendations.

 

5.0 Prosecutorial Authority[65]

5.1 The Attorney General

The legal inquiry is, who has the power or duty to prosecute criminal cases in Ghana? The answer is stated in Article 88 (3) of the Constitution which vests in the Attorney General a wide range of powers relating to the administration of criminal justice in Ghana. One of the Attorney General’s main duties as chief law officer of the State is to provide legal advice to the government. Criminal prosecution is a crucial role of the Attorney General. Article 88 (3) of the 1992 Constitution authoritatively provides that “The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences.”[66] Also, section 58 of Act 30[67] Provides that, proceedings shall not be instituted for the trial of an accused upon indictment save by or on behalf of the Attorney General. In Ghana, many other institutions are empowered to exercise investigative and prosecutorial functions. These include the OSP,[68] Custom Excise & Preventive Service, National Intelligence Bureau (NIB), and Ghana Revenue Authority (GRA), just to name a few.

 

The Attorney General exercises prosecutorial powers at its discretion and may choose not to act on the recommendations of anti-corruption institutions or undercover investigators, often without providing any reasons—particularly when the individuals implicated are members or appointees of the ruling government. The lack of clear legal standards to guide the Attorney General’s exercise of prosecutorial discretion, especially in cases of alleged political corruption or abuse of office, undermines the efforts of investigators and contravenes the spirit of Article 296(a) and (b) of the Constitution.[69]

 

6.0 The Role of the Judiciary

An important tenet of the 1992 Constitution is that justice emanates from the people and is administered in the name of the Republic by the Judiciary which is independent and subject only to the Constitution. The Judiciary comprises both the Superior Courts of Judicature and the Lower Courts.[70] It is only the judiciary that exercises judicial power. Article 125 (3) of the Constitution vests judicial power in the judiciary. It states that “The judicial power of Ghana shall be vested in the Judiciary, accordingly, neither the President nor any organ or agency of the President nor Parliament shall have or be given final judicial power.”[71] The courts play a critical role in adjudicating cases involving corruption and asset recovery, ensuring a fair trial.[72] And due process.[73] This is exemplified in The Republic v. Ibrahim Adam and Others.[74] where the court held that “the offence (causing financial loss to the state) would lie when a financial loss of whatever kind was occasioned to the State by any wilful or reckless act…Further, a civil servant acting in the normal course of his or her duties was bound to implement government policy without question and therefore performance of such duties would not make such civil servant a party to any loss that was occasioned by the policy. However, where a civil servant participated in an undertaking in a role completely different from that envisaged by the rules of the Civil Service, liability for causing financial loss would arise if acts done in the new role were done without due regard for the financial interests of the State.”

 

The Ghanaian judicial system is not immune to corruption and external pressures, such as political influence, bribery, or public opinion. Having a national interest in the heart becomes a tool to resist these pressures, ensuring that justice prevails over personal or political gain.’[75]

 

7.0 Mandate and Constitutionality of Anti-Corruption Preparatory Unit

Anti-corruption institutions in Ghana include the CHRAJ; the EOCO; the Attorney General’s Department; the Audit Service; the Auditor General’s Department; Parliament, particularly the Public Accounts Committee; the Financial Intelligence Centre (FIC), Office of Special Prosecutor, etc. Some of the high-profile cases often involve corruption or embezzlement of funds,[76] with significant legal, economic, and political implications.[77] The financial impact includes draining public resources and slowing growth, while politically, it can influence elections and public trust. Ghana combats this issue through anti-corruption measures and institutions focused on accountability and transparency.[78] Purging Ghanaian society of corruption requires ardent commitment from all the critical stakeholders in the fight against corruption, namely the Executive, Parliament, the Judiciary, and its various anti-corruption institutions such as the CHRAJ, EOCO and the Auditor General, as well as civil society organizations and the citizenry at large.[79]

 

The 1992 Constitution of Ghana establishes the foundational principles for accountability and the protection of public property. Article 35(8) mandates the state to take steps to eradicate corruption and protect public funds. It states that “the State shall take steps to eradicate corrupt practices and the abuse of power.”[80] Similarly, Article 41(f) imposes a duty on citizens to protect and preserve public property. These provisions lay the groundwork for initiatives like ORAL but require operationalization through specific laws and institutions. The Constitution of Ghana mandates that upon completing an investigation into any alleged contravention or non-compliance, anti-corruption institutions are obligated under Article 287(2) to “take such action as [they] consider appropriate in respect of the results of the investigation or the admission“[81] [Emphasis added]. Per Article 35(8), the president outlines the mandate of the anti-corruption unit as encompassing the preparatory framework towards the president’s anti-corruption drive, evidence gathering and establishing transitional arrangements for whistleblowers.[82]

 

In view of the above, the authors submit that ORAL’s work is not illegitimate. Its efforts align indirectly with the goals of our criminal justice system. Professor Asare succinctly stated that ‘Loot recovery is an essential pillar of our developmental agenda and must be pursued with unwavering determination, transparency, and a commitment to justice. It is not only a moral imperative but also a strategic necessity to rebuild public trust, enhance governance, and create a fairer society where resources are used for the benefit of all, not the enrichment of a few.’[83] Asare’s statement highlights the critical role of asset recovery in fostering national development and social equity. By recovering misappropriated assets, the governments not only reclaim resources necessary for government infrastructure but also reaffirm their commitment to justice and accountability. Transparency in these efforts ensures public confidence, while stanch determination signals a zero-tolerance approach to corruption. This exercise could rebuild trust in governance and create a society where public resources are equitably utilized for the common good, rather than serving the interests of a privileged few.[84]

 

7.1 Public Expectations of the Effectiveness and Mandate of the Anti-Corruption Preparatory Unit

Since the early days of the Fourth Republic, Ghanaians have expressed strong disapproval of corruption and a desire to prosecute corrupt officials. Under former president, Jerry John Rawlings of blessed memory, corrupt individuals faced significant consequences, establishing a standard that Ghanaians expect from subsequent governments.[85] The public believes that corrupt officials should be, right away named, prosecuted, convicted, shamed; and have their assets seized to compensate for the misuse of public funds. The NDC campaign promise of O.R.A.L. has captured the attention of many Ghanaians. This initiative aims to uncover corruption by state officials and prosecute them to recover lost public funds. With Ghana reportedly losing $2.6 trillion to corruption annually, expectations for O.R.A.L. are high.[86]

 

The ordinary Ghanaian expects the anti-corruption preparatory unit to, within a short time, investigate and prosecute all corrupt officials of the outgoing government. This perception though fits an “anti-corruption unit”, does not qualify as a mandate of the unit under the ORAL initiative. President-Elect, John Mahama, has stated distinctly that the work of the anti-corruption preparatory unit is not to investigate or prosecute corrupt officials but rather to gather and accept evidence of corruption and submit them to appropriate anti-corruption investigative and prosecuting bodies.[87]

 

Essentially, the provisions under the criminal justice system on asset discovery, as discussed above, require specific laws to regulate the scope, mandate and functions of the unit for it to become a full-fledged committee recognized by law. The unit cannot act on the whims and caprices of the people. The team must operate in strict adherence to the provisions of the law.

 

The argument regarding the unconstitutionality of the anti-corruption preparatory unit is unfounded and lacks merit. It must be noted that the president-elect is in a transition period to assume office on 7^th January 2025, hence all his appointments in this period are to achieve the materialisation of his campaign policies during his administration. The unit is a ‘preparatory’ unit; therefore, it cannot be said that it is unconstitutional as President Mahama is in the transition period.

 

It is critical to point out that the unit does not oust the object of the various investigative institutions as its purpose is only to gather evidence of corruption and submit it to these institutions for the investigation and prosecution of corrupt officials. To put it succinctly, the anti-corruption preparatory unit has been established to make the work of these institutions easy.

 

8.0 International Obligations

Ghana is a signatory to the United Nations Convention Against Corruption (UNCAC),[88] Which obliges member states to implement measures for the prevention, detection, and recovery of assets acquired through corruption. This commitment reinforces domestic initiatives like ORAL within the broader international context.

 

9.0 Recommendations

The authors have outlined the following key recommendations for the government and the concerned stakeholders to consider to promote and strengthen good governance practices.

 

 

 

9.1 Building Strong Institutions[89]

There is an urgent need to strengthen institutions to promote good governance.[90] To build and sustain strong institutions, a transparent appointment process must be established—one that is free from undue political influence and ensures that the heads and leadership of independent constitutional bodies are competent, independent-minded, and possess integrity, enabling them to withstand undue pressure from any source. The current system, where the President appoints members of independent constitutional bodies such as the Judiciary, CHRAJ, the Electoral Commission, and the Auditor-General in consultation with or on the advice of the Council of State, should be reviewed to enhance its fairness and independence.[91]

 

9.2 Establish Corruption Courts[92]

The Chief Justice should create specialized courts.[93] Solely dedicated to handling corruption cases to ensure swift and efficient adjudication. Judges and court staff should be trained in anti-corruption laws and case management to build expertise. Equip these courts with adequate resources, including modern technology and forensic support, to handle complex corruption cases. Strict timelines should be established through practice directions to ensure the prompt resolution of corruption cases and prevent undue delays.

 

9.3 Empower the Regional Tribunals

Regional Tribunal is established under Article 142(2) of the Constitution and the Chief Justice has been mandated to establish them in each Region of Ghana. It is, however, worth noting that though Regional Tribunals form part of the Superior Courts of Ghana, they are currently defunct and exist only in name. The scope of “offences against the State and the Public interest” has been settled in the case of The Republic vs Yebbi & Avalifo.[94] The Supreme Court held that decisions of the Regional Tribunal were of the same status as decisions of the High Court. The fight against corruption demands that we revive the Regional Tribunals to adjudicate all corruption-related offences, particularly at the regional and local levels. Provide regular training for tribunal members on corruption laws and emerging trends in white-collar crime. Ensure that Regional Tribunals are adequately funded and staffed to handle an increased caseload effectively. Strengthen oversight mechanisms to maintain the integrity and independence of tribunal decisions.

 

9.4 All anti−corruption investigative institutions, including EOCO and OSP, should be granted absolute independence, akin to CHRAJ, during the review of the 1992 Constitution. These institutions must be fully insulated from the control or any form of influence by the Attorney General’s Department.

 

10.0 Conclusion  

ORAL finds recognition within the Ghanaian criminal justice system through existing constitutional, statutory, and institutional frameworks aimed at combating corruption and recovering state assets. The institutions briefly discussed above often collaborate to enhance the effectiveness of asset recovery in Ghana. For instance, EOCO might provide financial intelligence and technical support to the OSP, while CHRAJ’s investigative reports may form the basis for prosecutions or civil actions by the OSP. The Commission of Enquiry can conduct fact-finding investigations, with its findings enforceable through the courts. Joint operations and information sharing improve efficiency in tracing, freezing, and recovering assets, both domestically and internationally.

 

Just as bullets do not discriminate, the prosecution of corrupt officials should also be impartial. Anyone implicated in corruption should be named, face prosecution and, if culpable, be compelled to refund misappropriated state assets. The incorporation of plea bargaining into our criminal justice system could further expedite the recovery of assets for the state. However, the effective implementation of ORAL requires addressing challenges related to due process, institutional capacity, and public perception. To ensure the success of such initiatives, there must be a concerted effort to strengthen legal and institutional mechanisms, foster public trust, and enhance international collaboration. By doing so, Ghana can achieve the dual goals of accountability and justice in its fight against corruption.

 

 

GOODNUFF APPIAH LARBI

[BL Candidate & Legal Researcher]

[aappiahlarbi@gmail.com]

&

EMMANUELLA A. O. KWATIA

[LLB student, University of Professional Studies Accra]

[Email: ellakwatia233@gmail.com]

 

 

 

 

 

REFERENCES

Constitutions

1. Constitution of Ghana, 1992

 

Table of Statutes

2. Anti-Money Laundering Act, 2008 [Act 749]
3. Criminal and Other Offences Act, 1960 [Act 29]
4. Criminal Procedure Act, 1960 [Act 30]
5. Commission of Human Rights and Administrative Justice Act, 1993 [Act 456]
6. Economic and Organized Crime Office Act, 2010 [Act 804]
7. Office of the Special Prosecutors, 2017 [Act 959]
8. Public Procurement Act 663, Public Procurements (Amendment) Act, 2016 [Act 914]
9. Whistleblowers 2006, [Act 720]

 

Cases

1. Martin Alamisi Amidu v The Attorney General & 2 Ors. Writ No. J1/15/12.
2. Republic vs Eugene Baffoe Bonnie & 4Ors, Suit No. CR/904/2017
3. Republic vs Sedina Christine Tamakloe Attionu & Another, Suit No. CR/241/2019
4. Tsikata v The Republic [2006] 1 M. L. R. G. 120
5. Tsatsu Tsikata v. Chief Justice & Attorney-General [2001-2002] SCGLR 437 (Fast Track Court Issue)
6. The Special Prosecutor vs Cecilia Abena Dapaah, Suit No. FT/0072/2023
7. The Republic vs Yebbi & Avalifo [2000] SCGLR 149
8. The Republic vs Philip Assibit and Abuga Pele[2018] DHLC 16331
9. The Republic vs Stephen Opuni and 2 Ors

 

Books/Journals/Papers

1. Afrobarometer’s report 2024 https://afrobarometer.org/wp-content/uploads/migrated/files/media-briefing/ghana/gha_r6_presentation3_trust_corruption.pdf
2. Appiah A. L. ‘Comparative and Theoretical Analysis of Judicial Review in Constitutional Interpretation, Administrative Action and Human Rights Disputes: Ghana in perspective.’ (2024). Doctor of Philosophy Thesis submitted to Africa Research University. Unpublished. Pages 568 – 570
3. Antiedu, B. T. ‘Reading the Law’. (2019). Page 230
4. African Union, ‘Convention on Preventing and Combating Corruption’. (2003). (Maputo: Africa Union).
5. Attafuah, A. Ken, “Corruption and the Challenges of National Development.” (1999). The IEA Governance Newsletter, Vol. 099 No. 5
6. Daily Guide, ‘Create, Loot and Share’. (2013). Published by Modern Ghana. See https://www.modernghana.com/news/470760/create-loot-and-share.html
7. Former President of the USA Barack Obama in his visit to Ghana. He said ‘Africa doesn’t need strongmen; it needs strong institutions.’ See also, https://obamawhitehouse.archives.gov/the-press-office/remarks-president-ghanaian-parliament
8. Joyce Danso, ‘$2.6 trillion is lost to corruption annually’, Commission on Human Rights and Administrative Justice (December 11, 2012) <https://chraj.gov.gh/news/2-6-trillion-is-lost-to-corruption-annually-un-resident-coordinator/
9. Justice Dorinda Smith Arthur, ‘The Kiss of Integrity & Justice’. (2024). Eagles Online. Page 87
10. Justice Emile Francis Short, ‘Empowering Ghana’s Anti-Corruption Institutions In The Fight Against Corruption’. (2015). The Institute of Economic Affairs (IEA), Ghana.
11. Kester Aburam Korankye, ‘Operation Recover All Loot’ not a witch−hunt – President elect Mahama. Daily Graphic Online
12. Kwatia, E. ‘Operation Recover All Loot: Expectations v. The Criminal Justice System’ (December 19, 2024), Modern Ghana
13. Maskun, M. & Latif, B. ‘Standard Mechanism of Stolen Asset Recovery in the Framework of Eradication Corruption’. Academia.edu
14. Mohammed, A. K. ‘Developing world policy process, the Case of Ghana’. (2018). Global Encyclopaedia of Public Administration, Public Policy and Governance.
15. ORAL ‘Operation Recover All Loot’ National Democratic Congress Handbook
16. ORAL is not going to investigate anybody – Maham clarifies < https://3news.com/news/oral-is-not-going-to-investigate-anybody-mahama-clarifies/
17. Osae-Kwapong, J. ‘The Paradox of Corruption as an Election Issue’. (2024). CDD Ghana. See https://cddgh.org/2024/06/the-paradox-of-corruption-as-an-election-issue/
18. Prempeh, H. Kwasi, “Reforming the Constitution of Ghana for a New Era: Averting the Peril of a Constitution without Constitutionalism”. (2010). Constitutional Review Series No. 3, Pages 58 – 62 (Accra: CDD-Ghana Publication).
19. Report of Investigation into Alleged Bribery of Ghanaian Officials by Airbus SE. Dated 8/8/2024.
20. Saeed, I.B.N and Et al. ‘Corruption Under a Microscope, A Ghana Perspective’. (2023). Africa Journal Online.
21. United Nations Office on Drugs and Crime, ‘United Nations Convention against Corruption’. (2004). (Vienna: United Nations).
22. White Paper on the Report of the Commission of Inquiry into Payments from Public Funds Arising from Judgment Debts & Akin Matters (C.I. 79/2012)

 

[1] BL Candidate (Ghana), PhD (Lusaka), MPhil (Lusaka), LLB (Cape Coast), BSc (Tamale)

[2] LLB student, University of Professional Studies Accra.

[3] Under section 239 of the Criminal and Other Offenses Act, 1960 (Act 29) the scope of corruption encompasses only the following: (a) bribery of a public officer or a voter, (b) bribery by a public officer, (c) receiving a bribe before doing an act, and (d) the promise of a bribe. Specifically, the section provides as follows: “Section 239—Corruption, etc. of and by public officer, or Juror. (1) Every public officer or juror who commits corruption, or wilful oppression, or extortion, in respect of the duties of his office, shall be guilty of a misdemeanour. (2) Whoever corrupts any person in respect of any duties as a public officer or juror shall be guilty of a misdemeanour”. Section 240 of Act 29 explains corruption by public officer in the following terms: “A public officer, juror, or voter is guilty of corruption in respect of the duties of his office or vote, if he directly or indirectly agrees or offers to permit his conduct as such officer, juror, or voter to be influenced by the gift, promise, or prospect of any valuable consideration to be received by him, or by any other person, from any person whomsoever”.

[4] United Nations Office on Drugs and Crime, ‘United Nations Convention against Corruption’. (2004). (Vienna: United Nations).

[5] African Union, ‘Convention on Preventing and Combating Corruption’. (2003). (Maputo: Africa Union).

[6] Cited also by Justice Emile Francis Short, ‘Empowering Ghana’s Anti-Corruption Institutions In The Fight Against Corruption’. (2015). The Institute of Economic Affairs (IEA), Ghana.

[7] Maskun, M. & Latif, B. ‘Standard Mechanism of Stolen Asset Recovery in the Framework of Eradication Corruption’. Academia.edu

[8] Attafuah, A. Ken, “Corruption and the Challenges of National Development.” (1999). The IEA Governance Newsletter, Vol. 099 No. 5

[9] According to Afrobarometer’s report 2024, “Most Ghanaians have “little” or “no” trust in public institutions/officials such as the tax department, local government body, police, Parliament, ruling party, Electoral Commission, president, courts of law, and opposition. The only public institution that is trusted “a lot” or “somewhat,” alongside religious and traditional leaders, is the military.” See https://afrobarometer.org/wp-content/uploads/migrated/files/media-briefing/ghana/gha_r6_presentation3_trust_corruption.pdf  Retrieved on the 10/01/2025 at 16:49pm

[10] Daily Guide, ‘Create, Loot and Share’. (2013). Published by Modern Ghana. See https://www.modernghana.com/news/470760/create-loot-and-share.html retrieved on the 10/01/2025 at 16:55 pm.

[11] Mohammed, A. K. ‘Developing world policy process, the Case of Ghana’. (2018). Global Encyclopaedia of Public Administration, Public Policy and Governance.

[12] Ibid

[13] See the Opinion of Dotse JSC (as he then was) in the case of Martin Alamisi Amidu v The Attorney General & 2 Ors. Writ No. J1/15/12. Dated 14/6/2013 SC at page 54 of the judgment.

[14] Osae-Kwapong, J. ‘The Paradox of Corruption as an Election Issue’. (2024). CDD Ghana. See https://cddgh.org/2024/06/the-paradox-of-corruption-as-an-election-issue/ Retrieved on the 10/01/2025 at 17:10 pm.

[15] Posted on his Facebook Wall dated 27/11/2024 at 1:12am.

[16] Justice Emile Francis Short, ‘Empowering Ghana’s Anti-Corruption Institutions In The Fight Against Corruption’. (2015). The Institute of Economic Affairs (IEA), Ghana.

[17] Kester Aburam Korankye, ‘Operation Recover All Loot’ not a witch−hunt – President elect Mahama. Daily Graphic Online. Dated 19/12/2024. Retrieved on the 20/12/2024 at 7:53pm See https://www.graphic.com.gh/news/politics/operation-recover-all-loot-not-a-witch-hunt-president-elect-mahama.html

[18] ORAL ‘Operation Recover All Loot’ National Democratic Congress Handbook

[19] Ibid

[20] Criminal Offences Act, 1960 (Act 29)

[21] Criminal Offences Act 29, section 16 states that “For the purposes of a provision of this Act, where a forgery, falsification, or any other unlawful act is punishable if used or done with intent to defraud, an intent to defraud means an intent to cause, by means of the forgery, falsification, or the other unlawful act, a gain capable of being measured in money, or the possibility of that gain to a person at the expense or to the loss of any other person.”

[22] Criminal Offences Act 29, section 124 makes stealing a second-degree felony. Under section 125 of Act 29, a person steals if he dishonestly appropriates a thing of which he is not the owner.

[23] Act 29, section 151. Under section 151, extortion is a second-degree felony and it involves obtaining property from a person by resort to threat.

[24] Act 29, Section 179A

[25] Ghana’s Criminal Offences Act, 1960, Section 179A

[26] Act 458

[27] Act 29, section 179A (1); Republic vs Eugene Baffoe Bonnie & 4Ors, Suit No. CR/904/2017, Dated 12/5/2020, SC

[28] Act 29, section 179A (3)

[29] [2006] 1 M. L. R. G. 120

[30] Act 663 as inserted by section 1 of the Public Procurements (Amendment) Act, 2016 (Act 914)

[31] Public Procurements (Amendment) Act, 2016 (Act 914)

[32] Act 663, section 2

[33] Act 749.

[34] Act 749, section 1

[35] Act 720

[36] See the Preamble of Act 720

[37] Act 720, section 1

[38] Act 720, section 3

[39] Act 720, Section 11

[40] Act 720, Section 15

[41] CHRAJ Act, 1993 [Act 456]

[42] Constitution of Ghana 1992, Article 284

[43] Constitution of Ghana 1992, Article 218(a) & CHRAJ Act 456, section 7 (1) (a), (d) & (f)

[44] Constitution of Ghana 1992, Article 286 requires certain specified public officers to declare their assets and liabilities under the following prescribed terms: (a) within three months after the coming into force of the Constitution or before taking office, as the case may be, (b) at the end of every four years; and (c) at the end of their tenure of office. See also, https://chraj.gov.gh/news/chraj-investigating-428-cases-of-non-declared-assets/

[45] Act 959, section 3 (1) (a)

[46] Special Prosecutor Act, 2017 (Act 959)

[47] Act 959, section 2(a)

[48] Act 959, section 3

[49] Act 959, section 38

[50] Example of a civil case instituted by the OSP is The Special Prosecutor vs Cecilia Abena Dapaah, Suit No. FT/0072/2023, August 31, 2023.

[51] See the Report of Investigation into Alleged Bribery of Ghanaian Officials by Airbus SE. Dated 8/8/2024.

[52] Economic and Organized Crime Office Act, 2010 (Act 804)

[53] Act 804, section 2

[54] Act 804, section 3 (a) (ii)

[55] Act 804, section 3 (a) (v)

[56] Act 804, section 3 (a) (i)

[57] Act 804, section 3(b)

[58] Act 804, section 46

[59] Constitution of Ghana 1992, Article 280 (1) (a).

[60] [2015-2016] 2 SCGLR 902, at pages 94-95 of the judgment

[61] Ibid

[62] Ibid

[63] [2010] DLHC4858

[64] See White Paper on the Report of the Commission of Inquiry into Payments from Public Funds Arising from Judgment Debts & Akin Matters (C.I. 79/2012)

[65] Antiedu, B. T. ‘Reading the Law’. (2019). Page 230

[66] Constitution of Ghana 1992, Article 88(3)

[67] Criminal Procedure Act, 1960 (Act 30)

[68] Act 959

[69] Prempeh, H. Kwasi, “Reforming the Constitution of Ghana for a New Era: Averting the Peril of a Constitution without Constitutionalism”. (2010). Constitutional Review Series No. 3, Pages 58 – 62 (Accra: CDD-Ghana Publication).

[70] Constitution of Ghana, 1992, Article 126

[71] Constitution of Ghana 1992, Article 125(3)

[72] Constitution of Ghana 1992, Article 19(1)

[73] Constitution of Ghana 1992, Article 19

[74] Suit No. FT/MISC 2/2000 decided on 28′” April 2003 (Unreported).

[75] Justice Dorinda Smith Arthur, ‘The Kiss of Integrity & Justice’. (2024). Eagles Online. Page 87

[76] Example of some of the High-Profile cases are; Republic vs Sedina Christine Tamakloe Attionu & Another, Suit No. CR/241/2019, Dated 16/4/2024, Republic vs Eugene Baffoe Bonnie and Others, The Republic vs Philip Assibit and Abuga Pele [2018] DHLC 16331; Republic vs Stephen Opuni and 2 Others [Pending at the time this article was written], etc.

[77] See the study by Saeed, I.B.N and Et al. ‘Corruption Under a Microscope, A Ghana Perspective’. (2023). Africa Journal Online. See file:///C:/Users/user/Downloads/ajol-file-journals_404_articles_257369_652e7c9fa4225%20(3).pdf

[78] According to the 2024 Half Year Report of the OSP dated 31^st December, 2024, the following people are being prosecuted about corruption related offences; The Republic v. Adjenim Boateng Adjei (Accra): The former CEO of the Public Procurement Authority is on trial for eight counts of corruption, including exploiting his position for personal gain. The case resumes on January 16, 2025; The Republic v. Sumaila Abdul Rahman & Others (Tamale): Former officials of the Northern Development Authority and A&QS Consortium Limited are facing 11 charges of procurement-related corruption. Defence proceedings continue in January 2025; The Republic v. Alexander Kwabena Sarfo Kantanka (Kumasi): The accused, linked to electoral corruption, awaits judgment following delays caused by judicial reassignments. See https://dennislawnews.com/article/2024-half-year-report-of-osp-released-

[79] Ibid

[80] Constitution of Ghana 1992, Article 35(8).

[81] Constitution of Ghana 1992, Article 287(2)

[82] ORAL ‘Operation Recover All Loot’ National Democratic Congress Handbook

[83] Professor Stephen Kwaku Asare also known as Kwaku Azar. See Kwaku Azar’s Facebook post, dated 24/12/2024

[84] Ibid Corruption Under a Microscope, A Ghana Perspective’ supra

[85] Kwatia, E. ‘Operation Recover All Loot: Expectations v. The Criminal Justice System’ (December 19, 2024), Modern Ghana <https://www.modernghana.com/news/1366823/oral-expectations-v-the-criminal-justice-syst.html > Retrieved on 24/12/2024

[86] Joyce Danso, ‘$2.6 trillion is lost to corruption annually’, Commission on Human Rights and Administrative Justice (December 11, 2012) <https://chraj.gov.gh/news/2-6-trillion-is-lost-to-corruption-annually-un-resident-coordinator/ > Retrieved on 24/12/2024

[87] ORAL is not going to investigate anybody – Maham clarifies < https://3news.com/news/oral-is-not-going-to-investigate-anybody-mahama-clarifies/ > Retrieved on 24/12/2024

[88] Ghana signed the Convention on 9 December 2004 and ratified it on 16 December 2005. It deposited the instrument of ratification on 24 June 2007. The country was reviewed in the third year of the first review cycle, and the executive summary was published on 2 February 2015 (CAC/COSP/IRG/I/3/1/Add).

[89] See also, Appiah A. L. ‘Comparative and Theoretical Analysis of Judicial Review in Constitutional Interpretation, Administrative Action and Human Rights Disputes: Ghana in perspective.’ (2024). Doctor of Philosophy Thesis submitted to Africa Research University. Unpublished. Pages 568 − 570

[90] This was an advice given by Former President of USA Barack Obama in his visit to Ghana. He said ‘Africa doesn’t need strongmen; it needs strong institutions.’ See also, https://obamawhitehouse.archives.gov/the-press-office/remarks-president-ghanaian-parliament Retrieved on the 22/12/2024 at 09:38am

[91] Ibid

[92] This has recently been proposed by Professor Stephen Kwaku Asare a.k.a Kwaku Azar on his Facebook Wall on the 21/12/2024 captioned “GOGO calls for 10 key Steps in Combating Corruption”

[93] See Tsatsu Tsikata v. Chief Justice & Attorney-General [2001-2002] SCGLR 437 (Fast Track Court Issue)

[94] [2000] SCGLR 149