Empowering the Office of the Special Prosecutor or protecting the right to own property – To which direction should the pendulum swing?

Background

On 31st August, 2023, the High Court refused to grant an application by the Office of the Special Prosecutor (hereinafter ‘The OSP’) for confirmation of the administrative seizure and freezing of alleged tainted properties of Mrs. Cecilia Abena Dapaah, former Minister for Sanitation and Water Resources. The High Court ordered the OSP to return the seized cash to Miss Cecilia Abena Dapaah and unfreeze her accounts. The ruling by the High Court became the subject of wide commentary in the media. Those who agreed with the ruling opined that the ruling emphasized Mrs. Cecilia Abena Dapaah’s constitutional right to own property and enjoy same without interference whatsoever from anyone. On the other hand, those who disagreed with the ruling argued that the High Court downplayed the constitutional exception to the right to own property and enjoyment of same, which include the prevention of crime, and that the ruling will stifle the OSP in the performance of his function of preventing, investigating and prosecuting corruption and corruption related offences.

While Clause 1 of Article 18 of the 1992 Constitution guarantees the right of persons to own property either alone or jointly, Clause 2 provides instances where the enjoyment of this right can be restricted. Clause 2 explicitly provides that "no person shall be subjected to interference with the privacy of their home, property, correspondence, or communication except in accordance with the law and as may be necessary in a free and democratic society for public safety, economic well-being, the protection of health and morals, the prevention of disorder or crime, or for the protection of the rights and freedom of others."

Within this context, the judiciary assumes a pivotal role in delicately balancing the protection of individual human rights with the advancement of the public interest. This necessitates a comprehensive assessment of the particulars of each case, with a focus on rendering judgments that concurrently uphold human rights and serve the broader public interest.

The question we seek to answer in this opinion, as students of knowledge, is which one of the two imperatives, empowering the OSP to fight corruption or protecting right of persons to own property, should be given dominant consideration or should they be given equal attention? To answer this question, we shall analyse the decision of the High Court with the aid of provisions of the Office of the Special Prosecutor Act, 2017 (Act 959) and some previous decisions on such applications.

Purpose, Objects, Functions and Powers of the OSP

The OSP was established in 2017 by the Office of the Special Prosecutor Act, 2017 (Act 959). The conversation leading up to its establishment was that the existing criminal investigation bodies were not sufficiently independent to investigate and prosecute politically exposed persons for offences they had allegedly committed. The Attorney-General, being a member of government, failed, refused or neglected to investigate and prosecute members of his own government. Thus, the OSP is considered as a body that will bring sunlight to break the darkness covering the activities of the most powerful group of people in society.

It is trite law that the purpose of an Act can be gleaned from its long title. In the case of the OSP v Cecilia Abena Dapaah (SUIT NO. FT/0072/2023), unreported, the High Court in determining whether the OSP is required to satisfy all the grounds set out in Section 40(1) of Act 959 to invoke its jurisdiction, referred to the long title of Act 959 to ascertain its purpose. The Court observed as follows:

“It is clear from the Long Title of Act 959 that the intention or purpose of the legislature is to empower the Office of the Special Prosecutor to thoroughly investigate specific cases of suspected corruption and corruption-related offences involving public officials and politically- exposed persons, as well as private sector operators in the performance of their duties, prosecute these offences and apply the requisite sanctions accordingly.” (Emphasis ours).

Conducting investigations into allegations of corruption and corruption-related offences involving public officers, politically exposed persons and private sector operators and prosecuting same is the purpose for the establishment of the OSP. Section 79 of Act 959, which is the interpretation section, defines politically-exposed persons broadly to include:

a. A person who is or has been entrusted with a prominent public function in this country, a foreign country or an international and international organization including.

i. a senior political party official, government, judiciary or military official;

ii. a person who is or has been an executive in a foreign company of a state owned company;

iii. a senior political party official in a foreign country and

b. an immediate family member or close associate of a person referred to in paragraph a

This definition is expansive and the use of the word ‘includes’ means that where appropriate, the Courts may include categories of persons who have not been expressly stated in the definition.

The object of the OSP, as provided under Section 2 of Act 959, is:

a. investigate and prosecute specific cases of alleged or suspected corruption and corruption-related offences;

b. recover the proceeds of corruption and corruption-related offences and

c. take steps to prevent corruption.

Flowing from the above object, the OSP required to perform the functions outlined under Section 3 (1) of Act 959, which include:

a. Investigate and prosecute specific cases of alleged or suspected corruption or corruption-related offences under the Public Procurement Act, 2003 (Act 663);

b. Investigate and prosecute allegations of corruption and corruption-related offences under the Criminal Offences Act, 1960 (Act 29) involving public officers, politically exposed persons and persons in the private sector involved in the commission of the offence;

c. Investigate and prosecute alleged or suspected corruption and corruption-related offences involving public officers, politically exposed persons and persons in the private sector involved in the commission of the offence under any other relevant law;

d. Recover and manage the proceeds of corruption

e. Receive and investigate complaints from a person on a matter that involves or may involve corruption and corruption-related offences and

f. Receive and act on referrals of investigations of alleged corruption and corruption-related offences by Parliament, the Auditor-General’s Office, the Commission on Human Rights and Administrative Justice (CHRAJ), the Economic and Organized Crime Office (EOCO) and any other public body.

In furtherance of its purpose, object and functions, the OSP has been given certain powers. These powers are provided for under sections 28, 29, 31, 32, 33, and 38 of the Act 959 and they are, inter alia, power to request for information, search and take possession of documents, seize tainted properties and freeze suspected tainted properties as well as power of the police. These powers are not without any form of control. The framers of the OSP Act were alive to the possibility of abuse of these powers, resulting in the complete disregard of the fundamental human rights of persons that may be subject of the OSP’s investigation. In view of this recognition, the OSP Act has provisions that are aimed at preventing the abuse of the powers of the OSP and protecting the human rights of persons that appear before the OSP.

For instance, Section 32 (1) which permits an authorised officer to seize a property where he believes that the property is tainted requires that the suspicion that the property is tainted must be reasonable. An authorised officer cannot therefore exercise the power of seizure when there are no facts giving rise to a reasonable suspicion that the property is tainted (we shall return to the issue of what is reasonable suspicion). Paragraphs a and b of the same provision provide further conditions for the exercise of power of seizure by an authorised officer. They require that an authorised officer of the OSP may, after satisfying himself that there is reasonable suspicion that a property is tainted, exercise the power of seizure only if it is necessary to prevent the concealment, loss or destruction of the property or the circumstance is so urgent that the authority of a warrant or the order of a court is not required. It is to be noted that Paragraph a and b of section 32(1) are disjunctive because of the use of the word ‘or’, implying that the presence of any of the two conditions will suffice for the exercise of the power of seizure. Where an authorised officer has exercised the power of seizure, there is yet another requirement the OSP must meet. The OSP is required by section 32(2) to apply to the High Court on notice within seven (7) days for confirmation of the seizure. This will afford the Court an opportunity to assess the circumstances under which the power of seizure was exercised. The High Court may or may not grant the application depending on whether it believes the power of seizure has been exercised in a proper manner and according to law. Where a confirmation order is granted by the High Court, but the OSP fails to proffer charges within sixty (60), the OSP is enjoined by section 32(3) to release the seized property to the person from whom it was released.

Similarly, the OSP’s power to freeze suspected tainted property does not exist in a vacuum. There are conditions precedent and subsequent meant to protect the right of persons to own and use their properties. Section 38(1) provides that:

Where the Special Prosecutor considers that freezing of property is necessary to facilitate an investigation or prosecution, the Special Prosecutor shall in writing direct the freezing of (a) the property of a person or entity being investigated or (b) specified property held by a person or entity being investigated or prosecuted.

Subsection 2 of the same section instructs that:

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

Section 39 of the OSP states emphatically that:

An application for confirmation of a freezing order shall be made on notice to the respondent and shall be accompanied with an affidavit sworn to by the Special Prosecutor or an officer authorised in writing by the Special Prosecutor to swear the affidavit detailing the grounds for the confirmation.

The OSP Act goes further under Section 40 (1) to list the grounds upon which the Court shall confirm the administrative freezing of suspected tainted property by the OSP. Interestingly, the Economic and Organized Crime Office (EOCO) also has the power of seizure and freezing of suspected tainted property, but section 34(1) of the EOCO Act, 2010 (Act 804), permits the Executive Director to apply for confirmation of a freezing order without notice to the person whose property has been frozen. The provisions of the OSP Act have been couched in ways that mandate a fair balance to be drawn between empowering the OSP to carry out his functions, while at the same time ensuring the protection of the constitutional rights of persons to own properties and use of same without unjustifiable fetters.

The ruling in the case of Office of the Special v Cecelia Dapaah in Perspective

On the 31st August, 2023, the Accra High Court, Financial and Economic Crime Division 2, delivered a ruling on an application on notice filed by the Special Prosecutor pursuant to sections 32, 38, 39 and 40 of the OSP Act (Act 959), Regulation 19 of the OSP (Operations) Regulations, 2018 (L.I. 2374) and Order 19 of the High Court (Civil Procedure) Rules, 2004 (C.1.47.) praying for an order to confirm the administrative seizure and freezing of suspected tainted properties belonging to Miss Cecilia Abena Dapaah.

The OSP’s interest in Miss Cecilia Abena Dapaah arose following media reports of an ongoing criminal case, Republic vrs. Patience Botwe and Three Others (04/ 155/2023), wherein Miss. Cecelia Abena Dapaah, as a complainant, alleged that some valuable items were stolen from her residence. The valuables that were allegedly stolen included cash of One Million United States Dollars (US$1,000,000.00) and Three Hundred Thousand Euros (€300,000.00).

Suspecting that the stolen money could be proceeds of crime, the OSP decided to investigate Cecelia Dapaah for corruption and corruption related offences. Miss. Ceceilia Abena Dapaah was therefore arrested by the OSP and her 3 residences were searched, At her Abelempke residence, cash amounts of Five Hundred and Ninety Thousand US Dollars (US$590,000.00) and Two Million Seven Hundred and Thirty Thousand Ghana Cedis (GHC2,730,000.00) were discovered.

To facilitate investigations, the OSP in the exercise of his powers administratively seized the cash discovered in Miss. Cecilia Abena Dapaah’s Ablemkpe residence and froze her bank accounts and investments with Prudential Bank Limited and Societe Generale Ghana. Subsequently, the OSP, as required by its establishing Act (Act 959), filed an application for an order for confirmation of the administrative seizure and freezing of the suspected tainted properties.

The ruling addressed four main issues, three of which (b, c and d) directly dealt with the propriety of the manner the OSP exercised his powers of seizure of the cash discovered in Miss. Cecilia Abena Dapaah’s Abelempke residence and freezing of her bank account and investment with the Prudential Bank Limited and Societe Generale Ghana. The three issues are:

b) Whether or not the conditions precedent to seizing the suspected tainted property by the Applicant from the matrimonial home of the Respondent were met by the Applicant to invoke the jurisdiction of this court to confirm same.

c) Whether or not the Applicant brought the instant application with regards to the confirmation of seizure of alleged suspected tainted property out of time per the provisions of Act 959.

d) Whether or not the condition or conditions precedent to the freezing of suspected tainted property were met by the Applicant to invoke the jurisdiction of this court to confirm the freezing.

The court dealt with the issues b and c together. In stating its ruling on these issues, the Court observed that “Section 32(2) of Act 959 clothed this court with jurisdiction to hear applications for confirmation of seizures of suspected tainted properties if such applications are brought timeously, i.e. within seven days of the seizure. After the expiration of the mandatory seven days, the jurisdiction of this court to hear any application for confirmation of any such seizure by the Applicant is ousted. By bringing the instant application when the mandatory seven days had lapsed, the Applicant sought to invoke a jurisdiction this court is not seized with, and by extension, this court cannot purport to perform a task it lacks jurisdiction to do.”

The Court further stated that “the Applicant has failed to justify the reasonableness of his suspicions. It is reasonable to expect the Applicant to first determine the ownership of the alleged tainted property and verify its legitimate sources before arnv1ng at the conclusion that the seized properly may be tainted.”

In respect of issue d, whether or not the conditions precedent to the freezing of the suspected tainted property were met by the OSP to warrant the confirmation of the administrative freezing, the court referred to article 18 of the 1992 constitution, which guarantees the right of every person to own property either alone or jointly, and cautioned that “the legislature did .not intend the Special Prosecutor to act in a vacuum or arbitrary in respect of freezing of assets of individuals and entities to facilitate investigations.

Reasonable grounds must be ·established by the Special Prosecutor before considering the freezing of property, especially when the Applicant has indicated to this court that the Respondent is being investigated for corruption and corruptionrelated offences as defined by Act 959. These reasonable grounds, with respect, must be based on actual acts of infractions and not on speculations and guesses.”

It is obvious from the reading of the ruling that at all material times the Court sought to strike a balance between empowering the OSP to pursue its object and protecting the constitutional right of Mrs. Cecelia Abena Dapaah to own property and use same without any unjustifiable fetters.

The rejection of the prayer of the OSP to confirm the administrative seizure of cash and freezing order on the basis that the application was made out of time demonstrated the Court’s fidelity to the balance drawn by the OSP Act (Act 959). The Act in section 32(2) clearly states the duration within which the OSP must apply for confirmation of seizure. The said section provides that “the Special Prosecutor shall apply to the Court on notice within seven days to confirm the seizure”.

This duration is for the purposes of ensuring that the right of a person to own and enjoy his property is not unduly held in abeyance by a mere administrative action without giving the court the opportunity to make judicial pronouncement on the propriety of the administrative seizure. To afford protection to citizens, the section allows the court to, within seven days of the administrative seizure, examine the circumstances of the seizure and determine if the seizure was appropriate or not. Where the court determines that the seizure is not appropriate, the court will order the return of the seized property to the person from whom it was seized. On this occasion, the High Court upheld the balance drawn by the OSP Act.

The other reason the court gave for refusing to grant an order of confirmation of the administrative seizure and freezing order is that there was no reasonable suspicion that the properties were tainted. The term “reasonable suspicion” has been the subject of judicial pronouncements. In the case of Adjeinim Boateng Adjei, Frances Arhin and Talent Discovery Limited vrs. The Special Prosecutor ( Suit No.: MFST/077/2019), unreported, the Court adopted the definition of the term as provided in the case of Hughes vs Dempsey (1915) 17 WALR 186, quoted in the case of Gough vs Braden (1993) 1 Qd 100 at 104. “ “Reasonable suspicion” means that there must be something more than imagination or conjecture. It must be the suspicion of a reasonable man, warranted by facts which inferences can be drawn but is something which falls short of proof.”

A careful reading of this definition would reveal that “reasonable suspicion” does not require proof that an offence has been committed. It is enough that there are facts from which a reasonable man can deduce the likelihood of the commission of an offence. Given this understanding, it means “reasonable suspicion” provides the basis for investigation to ascertain whether an offence has been committed and to gather the requisite evidence to prove same.

Section 32 of the OSP Act does not subject the exercise of the power of seizure to the necessity of facilitating investigations. But section 38 makes the necessity of facilitating investigation an essential condition for the exercise of the power of freezing suspected tainted properties. Despite the absence of reference to the necessity of facilitating investigations in section 32, the purpose of the OSP as could be gleaned from the long title of Act 959 include “investigate specific cases of alleged or suspected corruption and corruption-related offence“.

Respectfully, it appears that some of the pronouncements of the court in explaining its decision amounted to the extension of the definition of “reasonable suspicion” to include a requirement to prove acts of infraction. Further, some of the reasons the court gave to buttress its decision did not give recognition to the fact that the administrative seizure and freezing order were done for the purposes of facilitating investigations to ascertain actual infractions.

The Court in further explaining its decision noted that “these reasonable grounds, with respect, must be based on actual acts of infractions and not on speculations and guesses.” While it is admitted that “reasonable suspicion”, as explained above, must not be based on mere speculations and guesses, it must also not be based on actual acts of infractions as investigation would be required to establish the infraction. In its application of the elements of “reasonable suspicion”, the Court swung the pendulum to the direction of the protection of the right of Mrs. Cecilia Abena Dapaah to own property and use same to the detriment of empowering the OSP to undertake its purpose of investigating specific cases of alleged or suspected corruption and corruption-related offence.

Conclusion

Our answer to the question posed by the title is that the pendulum should not swing to the direction of either empowering the OSP in investigating specific cases of alleged or suspected corruption and corruption-related offence or protecting the rights of persons to own property and use of same. The pendulum must always remain in the middle, giving equal recognition to the two imperatives. In the instant ruling, the Court, with respect, swung the pendulum in favour of the protection of Mrs. Cecilia Abena Dapaah’s right to own property and use of same when it came to the matter of applying the elements of “reasonable suspicion”.

Students of Knowledge:

Abdul-Latif Mohammed Iddris

Rita Adjoa Blaba