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Opinions Sun, 4 Feb 2018

Is Woyome really free?

Ghana’s criminal jurisprudence restricts corruption to active and passive bribery, extortion, willful exploitation of public office, use of public office for private gains and bribery of foreign public officials. As a result, purloining elites and politicos have used the loop hole riddled system to near-perfect, with their arms, spread in pantomimic celebration, looted the state and bolted across the cosmos leaving behind the rotten odour of yesterday’s sins. The jaded issue of corruption has become an extremely touchy and a forlorn one with the patience of the Ghanaian furtively wearing thin.

Hardly can it be gainsaid that legislation should regulate almost every aspect of a nation’s social and economic life. The modern Ghana legal system putatively begun after the Supreme Court ordinance, 1876.Ghana has inherited the British system under which supreme legislative authority is conferred on parliament. The constitution,1992,provides for the establishment of a commission on human right and Administrative Justice (CHRAJ).The commission is inter alia, authorized to investigate all instances of alleged or suspected corruption and the misappropriation of public moneys by officials and to take appropriate steps, including reports to the Attorney-General and the auditor-General, resulting from such investigations.

Pursuant to this constitutional provision, there have been several instances when Ghanaian public officers have been dragged before CHRAJ. For instance, the commission launched an enquiry into the bribery allegation levelled against Ex-President John Mahama over the receipt of a Ford Expedition vehicle as a gift while he was still serving his term as President of Ghana. He was alleged to have tendentiously put himself in situations of conflict of interest, contrary to provisions of the constitution, 1992.

Corruption in Ghana is perceived to be prevalent in locally funded contracts. Parliament has taken steps to amend the law on Public financial administration and public procurement. The public procurement law seeks to improve accountability, value for money, transparency and efficiency in the use of public resources. However, the law is defective, if not inadequate. It stands to reason that, statutes that forbid criminal conducts must provide an ascertainable standard of guilt. For example, the question arises under Article 19(11) as to whether the law on willfully causing financial lost to the state should integrate a definition of the operative word “willful” to put to rest any doubt as to what is being criminalized. The law should be sharply outlined and precise so that men of common intelligence must not necessarily guess at its meaning and differ as to its interpretation.

It therefore remains a crying shame that anti-graft agencies seized with legal authority to put the squeeze on public officers to stem the tide of corruption have been ineffective in their role. Indeed, it was a harbinger of things to come when Nana Akufu-Addo,the then flagbearer of the New Patriotic Party hinted his intention to set up the Special Prosecutor’s office to deal with the endemic challenge of corruption. The office is to extricate the executive from the coefficients of their personal biases in the fight against corruption.

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Martin Amidu’s appointment as the first special Prosecutor couldn’t have gone amiss. The Ghanaian people look worn out and irksome following the slew of corruption scandals that plagued the erstwhile Mahama administration. The average Joe has become piqued and benumbed by what appeared to be a brazen pillaging of the tax payer’s money by silver-tongued public officers who cavalierly made it their forte. The word corruption was never far from the lips of the Ghanaian during that period. It is not the act that prompts the enragement of the Ghanaian per se but rather the fact that the offenders seem to be getting away with murder.

From the the spiraling episodes of over pricing of contracts through the use of sole sourcing, the smartys Bus branding saga, the Gyeeda and and SADA scandal, tiger eye’s allegation of widespread corruption in the judiciary, Alfred Agbesi Woyome’s barefaced swindling of the state of 51.2 million Ghana cedis between 2010 and 2011, the BOST scandal under the current administration, to mention but a few.

Folks say that, time actually moves in grand tidal sweeps rather than the tick-tocks we suffocate within. There is a ray of hope in Martin Amidu’s appointment. His unyielding posture and public spiritedness in the fight against corruption makes him worth his weight in gold. Offenders would have to steel themselves for any confrontation with the law. As to the constitutionality of the establishment of the office of the special prosecutor, I would be guiding the Lilly if I attempt to profess well-reasoned and plausible justification since much ink has been expended on that subject matter by other writers.

I have heard some people make the salutary argument that, Martin Amidu’s new office has disaster written all over it since any criminal proceedings he institutes against Alfred Agbesi Woyome will dismantle. They argue that the court of appeal has upheld the decision by an Accra High court to exonerate Alfred Agbesi Woyome of any criminality in the award of the 51.2 million cedis judgement debt. He had been acquitted and discharged by the High court on two counts of defrauding by false pretense and causing financial loss to the state. Controverting this succinct legal position would be an act of recklessness actuated by sheer ignorance.

The criminal justice architecture forbids an accused person from being tried again on the same facts following a valid acquittal or conviction. This common law position finds space in Article 19(7) of the constitution,1992 and section 9 of The criminal and other offences Act,1960(Act 29).He is only required to enter a peremptory plea of autrefois acquit(formerly acuitted) or autrefois convict(formerly convicted) to activate this constitutional right and statutory protection. Suffice it to say therefore that Alfred Agbesi Woyome remains protected by the rule against double jeopady.This rule found its most authoritative affirmation in the case of Ababio vs The Republic[1972]1 GLR 347.

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However, Article 284 of the constitution 1992, states that, a public officer shall not put himself in a position where his personal interest conflicts or is likely to conflict with the performance of the functions of his office. Thus, when persons who wield prosecutorial powers indulge in counter intuitive acts to compromise a fair and impartial prosecution of a criminal trial,it is my considered opinion that it should be deemed to be a nullity if properly challenged in court. It behoves such persons to exercise the prosecutorial powers in good faith for the common good of society.

We still have smothered memories of how the state balefully failed to prove its case in that Woyome criminal trial. It was bathed and saturated in subterfuge to conceal the true motives of the prosecutors by elaborately feigning good intentions. This was the convoluted and messy situation which compelled the Presiding Judge, John Ajet-Nassam to describe the prosecution’s handling of the case as sloppy, shoddy and lousy. He remarked that the Attorney General’s department only succeeded in wasting the time of the court.

The erstwhile Mahama government had endeavoured in inducing a belief in the minds of Ghanaians that it was not willing to go through the throes of retrieving the 51.2 million cedis from Alfred Agbesi Woyome in the civil suit at the supreme court when the Attorney General’s (AG) office, led by the then Minister for Justice, Marietta Brew Appiah-Oppong served a notice of discontinuance in October 2016 to discontinue an oral examination of Mr. Woyome with liberty to reapply.

It was alleged that Mr. Woyome had threatened to expose officials of government and the NDC who benefited from the amount. On the strength of the foregoing, it remains to be heard, the opinion of the Supreme court on this matter given that it had held earlier in the case of Samuel Okudzeto Ablakwa & Anor v Attorney General and Jake Okanta Obetsebi Lamptey (“Jake Bungalow Case”) that, the proper forum to ventilate concerns of allegations relating to conflict of interest involving public officials is the Commission for Human Rights and Administrative Justice (CHRAJ) and not the court.

The African inherently upholds retributive justice. The esurient eyes of the avidly curious Ghanaian wants to see Alfred Agbesi Woyome handed a proportionate punishment for any wrong doing. The civil suit at the Supreme Court for the retrieval of the 51.2 million cedis from Mr Woyome will not be up to snuff to mollify the Ghanaian. Every Ghanaian everywhere on Ghanaian soil lives a life of crushing banality and desperation as they fix their gaze on Parliament on February 13, 2018 when the Appointments Committee of Parliament (ACP) will vet Mr Martin Amidu for the position of Special Prosecutor. When we look closely into the darkness we might find the presence of a light, impaired and bruised, but a little light all the same. Martin Amidu as the special prosecutor would be a jaunty step to combatting the corrosive impact of corruption on the economy. Nevertheless, the question that lingers on the minds of Ghanaians is whether Woyome is really free!!!!

Columnist: Emmanuel Amoafo Kese
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