Opinions Mon, 12 Dec 2011

African Democracies Are Indeed Tragic – Corruption – XXIX

Don’t Let Corruption Kill Development, UN Secretary-General

Decadent Judiciary

Executive interference in the judiciary is another worrying issue Ghana must deal with if the country is to make any headway on the democratic trajectory. The Kufour-led administration had set a bad precedent that indicates that criminal cases brought against political opponents are determined at the whims and caprices of the president. When Tsatsu Tsikata, the former Chief Executive Officer (CEO) of the Ghana National Petroleum (GNPC), was arraigned before court for causing financial loss to the state, many had expected due process to its logical conclusion, but the president intervened many a time to change the course of an otherwise interesting court proceedings. The facts of the case were that the culprit had guaranteed a loan to Valley Farms, an agroindustry company with specialization in cocoa, using GNPC, the company he led. When the company failed to repay the loans, Tsatsu Tsikata was put before court for causing financial loss to the state, even though at the time of going to court the company’s accounts were viable.

When the culprit defeated the government on technicalities, the president, who was then attending a Commonwealth conference in Australia, intervened directly via a video conference telecast live on the state broadcaster to direct his Attorney-General and Minister of Justice to seek a judicial review. He returned home to exploit loopholes within the constitution by appointing two new judges to the panel to overturn the 5-4 decision to 5-6.

Even more worrying was the conduct of the judge in the Tsatsu Tsikata case – “you are a lawyer and you can defend yourself,” was her admonition before sentencing the culprit, when the culprit’s lawyer, with permission from the court, was not in court. It was even more unusual for the judge to point out that the culprit had become an albatross around her neck. It remains to be seen if a precedent had been set for future cases. The president again, at the end of his tenure, intervened to call off the trial and pardoned a culprit who had challenged the court decision with a concatenation of appeals.

Similarly, the killing of the overlord of a northern Ghana ethnic Chief, Yaa Na Andani Yakubu and 40 of his aides and its investigation has been marred from its very beginning. The NPP government and some of its members were suspected to have facilitated the decimation of the overload and his aides. Although the then NPP administration had set up a commission of enquiry to investigate the case, the opposition NDC believed the report of the Commission was doctored. It, therefore, promised the families of the late Chief and the nation a fresh investigation to unravel mysteries surrounding the killings and to bring culprits to book.

Interestingly, the NDC’s own grossly incompetent Attorney-General and Minister of Justice, instead of conducting fresh investigations in the face of new evidence before proceeding to court, had decided to use the reports of the commission they once doubted as the basis for prosecution. When the prosecution failed to nail the defendants, contrary to the expectations of the party’s sympathizers and those seeking justice, the chairman of the NDC recklessly decided to comment on the case summing up the anger of his party men with a caveat to the judiciary that “there are many ways to kill a cat,” a statement many interpreted as a direct threat to the judiciary. To crown it all, the president of the NDC administration also stepped into the fray making comments that only went further to deepen the political situation surrounding the case, again placing the judiciary in a bad light.

The implications of these actions are far-reaching for the development of the judiciary as an independent arm of government. Though the president has a discretionary power to intervene in these matters and to also pass comments regarding them, it poisons the judicial environment and heightens suspicions of manipulation. In this regard, one may ask what difference does the two political parties – the NDC and the NPP – bring to the table especially with regard to improving the way justice is dispensed in these high profile cases.

A corrupt judicial system is a millstone around Ghana’s neck. In fact, dishonest judges are as bad as the military dictators and civilian aristocrats. In fact, they are worse when viewed against the backdrop that it is the last hope for any ordinary citizen to seek justice against the powerful. Efforts to clean up the judicial system – training judges, computerizing records, strengthening the role of clerks – have borne little fruit because the politicians have found it more convenient to have a crooked and malleable judiciary than an independent one. As a result, although numerous judges have gone to France, Canada, and the United States for professional courses, many return to their sordid practices once they are back on the bench.

In the early days of the PNDC revolution in Ghana, cells codenamed the Committee for the Defense of the Revolution (CDRs) were set up from the community levels to district, regional and national levels. At my hometown, Anloga, the town square, or Bebli’s patio, named after an elderly respectable man (Bebli fe mango tsite) served as the tribunal for adjudication of cases of transgression. Transgressors were hauled before a panel of judges, constituted from among some elderly and presumably respectable folks or people with some leverage in the town. Many individuals, including those who stole shallot, the main produce from the farms in the locale, were brought before these self-appointed panel of judges and flogged publicly.

I was only six or seven years old when I witnessed some of these proceedings which attracted large crowds of spectators – perhaps sympathizers and advocates of the tribunal. This went on every other Sunday. By twist of events, one of the members of this self-appointed panel of judges, Adongo (not real name), was caught stealing shallots himself and was brought before the group he once was a part of. The verdict was 14 lashes. I remember by the time he received the sixth lash, he emptied his bowels. But the floggers, under strict orders to finish the job, would not let go before the job was over. Broken both in spirit and physically, he died six or so months later, most likely due to psychological trauma. I have carried this image on my mind since. While this form of justice is arguably vicious, especially when the judges had no legal training whatsoever to dispense justice, many individuals thought it served as a deterrent for flouting communal diktats.

Three decades on, in July 2010, drama unfolded in a small town courtroom that brought memories of Bebli’s patio back racing through my mind vividly. At Dzodze, a town about the size of Fort Saskatchewan in Alberta province in Canada, a mob carrying dangerous weapons stormed a magistrate court in session, forcing the magistrate and others in the courtroom to flee for their dear lives. The raucous mob, forced open one of the doors of the offices where the court registrar was hiding. They carried the registrar on their shoulders and subjected him to severe beatings, while onlookers cheer them on. Observers complained the registrar was engaged in activities of extortion from families of culprits and victims who appeared before the court and also arrogated the power of a judge to himself by trying cases in his office, a practice which has brought the dispensation of justice in the town to its knees.

In the same court district, Denu to be precise, two high court judges connived to steal from an amount of US$50, 754. 94 belonging to two feuding parties, being held in trust by the court.

If justice is reduced to the highest bidder both at highest and the lowest echelons of the judiciary, and the evolution or the devolution of the historical context from a military dictatorship to civilian rule does not seem to bring the desired change, where then would the poor seek justice?

This is exactly what makes matters worse - when culprits do not get punished to deter others from threading similar paths. A small village by name Atwima provides a glimpse of what might happen in the foreseeable future with the potential to undermine the authority of the state and its leadership, especially if this culture of impunity and lack of prosecuting criminals who fleece the state is not stopped, by strengthening a value system that arrests the growing suspicion among Ghanaians for the right reasons - political manipulations. In a curious occurrence, NDC foot soldiers and NPP youth, two mostly antagonists youth wings of the two opposing parties, joined hands to seize the Atwima toll booth on the Kumasi-Sunyani highway. The reason given for the seizure was simply that both sides had observed the state being fleeced by those manning the toll booth. Authorities mandated to bring those culprits to book simply transferred them, while there are more competent and honest young men around who could perform the task with diligence and honesty. Anyone familiar with the developed countries will agree that background checks are imbued in every recruitment process. The implication is that with crimes such as pilfering the national purse as a revenue collector, you not only burn the fingers that misappropriate the money, you burn a lifetime of opportunities – there are obviously jobs that you simply cannot be recruited to perform for the rest of your life.

If supporters of two rival parties can organize and seize a toll booth as a result of inaction on the part of the state and its mandated institutions, should we not assume, now, that we are heading to a point where instant justice, and the use of the failure of the system as an excuse, is gradually shifting from simple arrest of suspected thieves and application of street justice on them? The gear is gradually shifting, progressively covering grounds in forbidden areas. Unfortunately, transfers have become means by which to appease transgressors.

If in the estimation of the irate mob that seized the toll booth a whooping equivalent of US$4 000 is realized from the sales of tickets to motorist each day, but only US$2 000 is paid to the state, it is obvious that the toll collector (s) is (are) not the only beneficiaries from this man-made hemorrhage of funds into personal pockets. Who has been supervising these individual (s) for the entire period that they have worked at this duty post? Who is the supervisor of the one with direct responsibility over the toll collector? Has any inkling of theft appeared in any of their (supervisors’) weekly, monthly or quarterly reports? If yes, what action was taken? If no, why not, especially when even ordinary citizens are aware of the thievery?

If a toll collector could pocket US$2 000 a day from monies meant to go into the state coffers towards development and the inaction of those who are to act had to force a combine effort of members of two opposing parties to restore order, then something is not right institutionally in Ghana.

There is also trade-generated corruption. The corruption generated by trade restrictions works on both grand and petty scales. On the grand scale, a government confers protection on the businesses owned by their friends and relations, or ones that pay for the privilege. At the petty level, running the system of protection day to day can be lucrative. Becoming a custom officer is about the best job you can possibly get in a country such as Ghana and possibly many poor countries. Therefore, the customs service has become a conduit by which political appointees and party bigwigs make good the promise of job provision to a select few of their teeming supporters, and both parties are culpable. “In Madagascar, for example, to become a custom officer you have to go to the training school. So getting into the school is a passport to prosperity. The bribe to get a place is fifty times the country’s per capita annual income. The vice president of Nigeria, Atiku, used to be a customs officer. He had talents and when offered promotion, he turned it down; one can imagine why,” Collier sums up in the Bottom Billion.

An investigative piece by a Ghanaian journalist, Anas-Amereyaw Anas, exposed the ghastliest form of corruption yet to be known in the history of any customs service on the African continent. Customs officers do not only receive bribes from traders, they either place unofficial impediments in their way to induce them to pay bribes in order to avoid the needless checks or facilitate the carting of goods through their own miniature checks, evading the checks instituted by the state. It is a painful sight to watch customs officers carting away, for their personal use, bags of non-traditional export goods such as cassava chips, imported rice, falsifying documents and pocketing monies from undocumented duties, and just about anything travelling through the country’s ports in order to let the importers and exporters in or out without the necessary checks.

Parallel to Atwima, instead of the axe falling on these culprits, they simply were transferred. This does not only shield criminals from punishment and embolden them to continue with their criminal activities, but it also has the tendency to undermine the administrative rational of transfers in the civil service and other public institutions. In a tantrum, the president instructed that officers in the customs service should be made to declare their assets; another 19th century approach to combating bribery and corruption among public office holders which did not wash with even ministers of state and former presidents in the 1960s and so on – an anachronistic approach to dealing with sophisticated web of criminals within the state apparatus. In the recent past, when some high ranking government officials in the PNDC were brought before the Commission for Human Rights and Administrative Justice (CHRAJ), it came to light that, in their attempt to escape public attention for arbitrary accumulation of wealth, some of these officials went as far as building mansions in the names of their young children as young as eight years old.

If precedent is important in law, historical facts are relevant in social life. The instruction by the president for officers of the service to declare their assets was simply reactionary, outdated, and at best the wrong antidote to a festering wound. In 2003, the government of Kenya included public wealth declaration requirements in its Public Officer Ethics Act, and introduced a harsher line in 2005 when it threatened to prosecute 65 members of parliament and cabinet ministers for failing to declare their wealth. Unfortunately, very little came of those threats. Today, the average urban Kenyan pays 16 bribes per month, with 99 percent of bribes directed toward employees of central government ministries, local authorities, and state corporations. In an environment of such pervasive corruption, little

is likely to change, and that is why Ghanaian leadership must show that it is interested in dealing with the situation before it consumes us all.

These cases are no different from a car snatching racket that operates at the ports in Ghana. This body is named the Confiscated Vehicle Allocation Committee, a body invested with wide ranging powers, including the power to confiscate vehicles of shippers who fail to pay duties on their cars within 60 days, and also cars suspected to have been stolen from abroad and shipped to Ghana. It had been the case under previous governments –both the NDC and the NPP – that these cars were sold to friends, relatives, and party stalwarts and apparatchiks at ridiculously knockdown prices. One would expect that these cars be sold to cover the duties that the importers could not pay, but the public auctions are just a façade. Many Ghanaians thought a change of government might mean a change of policy to infuse some measures of transparency in the auction process. If the idea is to seize stolen cars, the solution definitely is not the selling of those suspected stolen vehicles to friends and relatives. There must first of all be a proof of theft from country of origin. Once that is established, under the instruction of the victim, these cars may either be returned to their owners or sold with the proceed going back to the owners of these cars. If it is government policy to sell suspected stolen cars, sometimes even without a proof, then that government must itself be an accomplice in the act of theft.

All this are happening at a time when one could bid online from global destinations, even outside the United States, for cars and many items seized by the New York Police Department that are offered online. It does not only encouraged transparency; it ensures that the value of the items are not abysmally priced, as there is competition in the bidding process without the time and space limitations inherent in traditional marketing; competition has proved time and again to be the driver of value.

In the beginning was the Golden Age, when men of their own accord, without threat of punishment, without laws, maintained good faith and did what was right. There were no penalties to be afraid of, no bronze tablets were erected, carrying threats of legal actions, no crowds of wrong-doers, anxious of mercy, trembled before the face of their judge: indeed, there were no judges, men lived securely without them. We live in different times today. It is only a heavy handed punishment that can deter the felon and the would-be criminal and beat others into line.

In yet another bizarre reasoning, the well-respected think-tank, IMANI institute, a Ghanaian policy think-tank, offered that the rampant corruption at the country’s ports was as a result of high taxes, which predispose shippers to opt to bribe to avoid the taxes. Interesting! What about the police officers involved in drug trafficking and robbing prostitutes? What about university administrators and professors selling leaked examination papers? What about doctors extorting money from patients before they could issue a hospital report, etc.? We all must indeed be just after the good life, what will make life bearable in the face of harsh economic times. It is by reason of this that societies have approved means to the goal or wealth, if you like. And this is where the law is paramount in restoring confidence. If people cut corners, it kills the human spirit to strive in the face of others not playing by the rules. If taxes are too high, bribery cannot be the solution and transfer cannot be a punishment. The solution must be within the confines of what is permissible, a return to the drawing board with proposals and suggestions for lowering the tax, dealing with the criminals within the confines of the law.

As ratings have become the common yardsticks for evaluating performance these days, it may be tempting to rate the customs and the police, not for the right reasons, but to see which is the most corrupt. While the underlings within the police service receive “daily bread” bribes on the roads or anywhere they come into contact with the public, their senior officers, in the comfort of their air conditioners, at the police headquarters and other offices, facilitate the big hauls. The most infamous being the hauling away of about 2 tons of cocaine from Ghana’s police headquarters. The shipment, monitored by the US navy on the high seas, was communicated to the Ghanaian security services. The ship carrying the consignments was surreptitiously followed until it docked at the country’s main port. Arrests were made and the drug seized, placed under lock and key at the police headquarters. As a precautionary measure against burglary by even the men mandated to protect the exhibit room, where the drugs were kept, there were several keys to the exhibit room to make it difficult for one or two policemen to connive to steal from the room. This is in addition to CCTV cameras installed within the premises to monitor activities within its precincts. But at the next inspection to facilitate a handover to another officer, most of the drugs were carted away and the remaining turned into cassava flour.

Bringing change can take an awful long time. It may be slow and difficult. Beneficiaries of these corrupt activities may obviously become obstacles to change, as they profit from the tangled mess over which they preside. It is even dangerous when those who are supposed to make these changes are themselves connected in one way or the other to the underworld of sleaze and manipulation. The arrest and extradition of Christopher “Dudus” Coke in Jamaica, and the confessions of Ousmane Conte, the son of Guinea’s late president Lasante Conte, are but a few examples. While the former, heir to the father’s corporate drug world and lord of the Trivoli gardens in Jamaica, is reputed to have sponsored even the Prime Minister of his country and, therefore, had him under his thumb, the latter’s case depicts official complicity to the extent that drug deals were conducted in the president’s VIP salon with diplomatic passports providing a safe passage for the couriers to European and American destinations.

It must be noted that it is not for the beauty of it that the British use surveillance cameras in their own country, shadowing their own citizens as much as possible. Britain has 4.2 million surveillance cameras (popularly known as CCTV camera) which accounted for 20 per cent of cameras globally and by 2006 each person in that country is caught on camera 300 times on the average each day.

What stops a government willing to confront some of these pilfering of state coffers by installing an automatic revenue reconciliation system for motorists using roads and parks fitted with toll booths in addition to CCTV monitoring systems?

I am inclined to believe that we are innately corrupt as human, including the so-called developed societies who hold the lopsided view that Africans are more corrupt than all others. The point is that, knowing human frailty and its tendencies to corrupt and be corrupted, developed countries, especially those in the Western hemisphere have built tracking mechanisms within their systems to monitor and expose crime. They did not stop at that. The price for being corrupt is so high that ingenuousness is imposed on the individual by the system. It is even more so for those who consider public life. But because of the weak institutional structures in African societies, if one is even found corrupt, one’s punishment is measured according to one’s social status, cultural capital or political affiliation.

The above-title is serialized into 30 articles covering issues of politics, corruption, education, migration, the economy (Ghanaian economy), unemployment, land tenure, dearth of policy innovation, and stories from the frontlines - Cote d’Ivoire, Kenya, ECOWAS and the AU. The series are syndicated and media houses/outlets interested in enriching the national debates in Ghana for the 2012 are free to publish all the series.

Prosper Yao Tsikata

Email: pytsikata@yahoo.com

Columnist: Tsikata, Prosper Yao