CHRAJ clears Mahama of bribery allegation on ford (FULL DOCUMENT)
The Commission on Human Rights and Administrative Justice (CHRAJ) has dismissed bribery allegations levelled against President John Dramani Mahama over the receipt of a Ford Expedition vehicle as a gift.
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It also exonerated him of the allegation of conflict of interest.
“At the end of the preliminary investigation, the commission has come to the conclusion, based on the extensive evidence assembled, that the allegation that the respondent has contravened Article 284 of the 1992 Constitution by putting himself in situations of conflict of interest has not been substantiated.
“Consequently, the commission holds that full or further investigations into the allegation are not warranted.
“The allegations, therefore, are hereby dismissed,” a 79-page report signed by the acting Commissioner of CHRAJ, Mr Richard Quayson, stated.
Background
Allegations of conflict of interest and bribery were levelled against the President through three separate petitions over a Ford Expedition gift donated by a Burkinabe contractor to the President.
Two of them were from the Progressive People’s Party (PPP) and the Youth Wing of the Convention People’s Party (CPP).
The petitioners had asked CHRAJ to hold that President Mahama violated Article 284 of the 1992 Constitution, which states: “A public officer shall not put himself in a position where his personal interest conflicts with or is likely to conflict with the performance of the functions of his office.”
The CHRAJ conducted field investigations, reviewed all documents related to the matter, including the defence put up on behalf of the President by his lawyer, Mr Tony Lithur, as well as interviewed individuals relevant to the determination of the case.
It then conducted an analysis of the evidence in the light of the issues and applicable laws and policies of the country before arriving at its decisions.
Issues determined
The commission considered 13 issues and the foremost was whether or not the acceptance of the Ford Expedition vehicle by the President contravened the existing Gift Policy under the Code of Conduct for Public Officers.
It said the general rule on gift under Section 3.7.1 of the guidelines was that “a public official shall not: accept gifts, tangible or intangible, that may or appear or have the potential to influence the exercise of their official functions, proper discharge of their duties or their judgement, indirectly from a person with whom they come into contact in relation to official duties”.
Based on that general rule, it expressed satisfaction that “the gift in question forms part of gifts prohibited under the Gift Policy under the Code of Conduct. Although the evidence shows that the respondent subsequently surrendered the gift to the State, the action nonetheless contravened the Gift Policy”.
On the second issue of whether or not the acceptance of the gift by the President placed him in a conflict of interest situation under the Code of Conduct for Public Officers and Conflict of Interest Rules, CHRAJ held that “in the instant case, the evidence available shows that although the gift was offered to the respondent as a personal gift, the respondent surrendered the vehicle to be added to the Presidential Pool as state property”.
It further held that per the guidelines, receiving a prohibited gift by itself did not automatically put someone in a conflict of interest situation.
“Disclosure and surrendering of the gift are some of the ways prescribed under the guidelines for dealing with conflict of interest that may arise from gifts received in violation of the Gift Policy,” it noted.
“The investigation found as a fact that the vehicle, blue-black in colour, with chassis number 1FMJU1J58AEB60748 and engine number E173A1905101, was being used as part of vehicles under the charge of the Counter-Assault Team (CAT) at the Office of the President.
“The investigation also established that the vehicle had been retrofitted with security gadgets and ammunition.
“The investigators also noticed that the vehicle used different numbers on different occasions of inspection, something the officer in charge explained was a security measure,” the report noted.
It said it was clear from the evidence available that the President surrendered the gift in question for use by the state “and the vehicle has been under the charge of the Counter Assault Team (CAT) at the Office of the President”.
It said beyond accepting the prohibited gift, the available evidence did not show that the President was partial, used his office for private profit and induced another person for his profit.
“Having reviewed the evidence on the actions and conduct of the respondent after the gift was made, the commission is satisfied that his actions and conduct sufficiently dealt with any conflict of interest that could have been occasioned.
“In the circumstances, the commission finds that the respondent did not put himself in a conflict of interest situation or contravene the conflict of interest rules under Article 284 of the 1992 Constitution,” it held.
Turning to the third issue of whether or not the vehicle, which was said to be brand new at the time it entered Ghana, was cleared at the Tema Port as a used car in order to under-value it and pay less duty, the commission said: “On the basis of the evidence, the commission is satisfied with the explanation from the GRA that the vehicle was assessed in accordance with sections 89 & 91 of Act 330 and not described as a used vehicle to under-value the duty payable. The term ‘used’, therefore, is not synonymous with the term ‘secondhand’ vehicle.”
With regard to the fourth issue — whether or not the vehicle was declared as ‘used’ when it was ‘new’ on entry into Ghana and as a result the state suffered a loss of revenue — CHRAJ noted that in the absence of direct evidence to the contrary, it accepted that the duty paid on the vehicle was the regular duty payable under the law and, therefore, the state did not lose revenue on the vehicle.
On the issue of whether or not the registration details of the vehicle could be found at the DVLA, and if so in whose name was the vehicle registered, CHRAJ said it was satisfied that the vehicle was registered and used as state property in same manner as other operational vehicles at the Presidency.
Issue six was whether or not the vehicle had been added to the presidential pool, and if so ascertain when it was added.
On that issue, CHRAJ said: “Based on the overwhelming evidence before the commission, it is satisfied and finds as a fact that the vehicle was received and added to the presidential pool on November 2, 2012.”
Responding to the issue on whether or not the President had perpetrated fraud on people of Ghana by representing to Ghanaians that Ouedrago Cheik Mohammed was actually the importer of the vehicle in question when, indeed, the vehicle was transported by road with personnel from both the Ghana Embassy in Burkina Faso and the Ghana Border at Paga through to Accra, it said “the commission finds clearly stated on the face of the Customs temporary vehicle importation permission duly stamped and signed by Customs officials the name of Ouedrago Cheick Mohammed as the owner/driver and, therefore, finds the allegation of the perpetration of fraud on Ghanaians on the part of the respondent totally misconceived and unsupported by the evidence”.
Was the gift to corrupt?
Tackling the issue of whether or not the gift was given with intent to corrupt the President and whether the President knew that Kanazoe gave him the gift with intent to corrupt him, the CHRAJ said the actions of the President after the gift was made were a clear indication that his conduct was not consistent with that of a person who had been corrupted by a gift or improperly influenced by same.
The ninth issue on the table of CHRAJ was whether or not the acceptance of the gift (Ford) amounted to a bribe, CHRAJ found that the circumstances under which the gift was delivered to President Mahama and his conduct after the gift was made “sufficiently rebut the presumption of acceptance of a bribe by a public officer”.
One of the issues that came up in the allegations was that due process was not followed in the award of contract to the Burkinabe contractor but CHRAJ, in its decision, said on the strength of the evidence, it was gratified that the procurement process and procedure were regular and within the Public Procurement Act, 2003 (Act 663), in particular Section 43(1).
“In the absence of direct evidence to the contrary, the commission accepts the evidence of the public officials involved that the contracts were awarded regularly and in the normal course of their duties,” it further held.
Other issues
Touching on the allegation that the Ministry of Roads and Highways was in the process of "handpicking" Kanazoe for the award of the 28-kilometre Wa-Hamile road project valued at GH¢82,000,000 because of the gift of the vehicle to the President, the commission said under the circumstance, it found the allegation that the Ministry of Roads and Highways was in the process of awarding the contract to Kanazoe through sole sourcing speculative and not supported by the evidence.
On the 12th issue of whether or not the President influenced the award of contracts, CHRAJ submitted that in the absence of evidence to the contrary, “the commission reiterates its earlier finding that the evidence do not show that the respondent influenced the award of the two contracts won by Kanazoe or his company, Oumarou Kanazoe Construction Limited”.
The 13th and final issue was whether or not the President had conducted himself in a manner that had violated Article 284 of the 1992 Constitution by receiving the gift and the commission said it was satisfied the President’s conduct did not violate Article 284 of the 1992 Constitution.
Recommendations
Making a number of recommendations on issues that needed to be addressed as a nation, CHRAJ backed the Constitution Review Commission’s (CRC’s) call for the passage of CHRAJ’s publication on the guidelines and code of conduct for public officers to augment the 1992 Constitution.
“The commission joins the CRC and strongly recommends the early passage of the Conduct of Public Officers Bill which seeks to codify the current guidelines on conflict of interest and to make for regulations, among other things, that will govern the regime of ‘gifts’, including solicitation and acceptance of gifts; what constitutes acceptable gifts; forfeiture and disposal of prohibited gifts; the keeping of gift registers, etc., which the commission has been at the forefront of championing. The bill has been before Parliament for two terms but is yet to be passed,” the report noted.
It said the interest generated by the case among the Ghanaian public should “remind us of the urgency the Ghanaian public attaches to this issue and an early passage of the Conduct of Public Officers Bill will help improve public understanding/appreciation of the issues involved”.
“The perception of corruption among public officers by members of the public is directly or indirectly traceable to the conduct exhibited by public officers in their service delivery, which is seen to be at variance with the code of conduct expected of them under Chapter 24 of the 1992 Constitution.
“If we are to increase the trust of the public in public service delivery, serious attention must be paid to strengthening the legal framework on conflict of interest and ensuring that it is seen as a high risk activity by public officers and the public at large,” it said.
The commission also reiterated its recommendation in the Anane case, that “public officials who occupy very high positions, among them the President, Vice-President and all appointees of the Executive; the Speaker, Deputy Speakers, Members of Parliament, and senior staff of the Parliamentary Service; the Chief Justice, members of the Judiciary, and senior staff of the Judicial Service, should receive compulsory training on the code of conduct for public officers and the conflict of interest guidelines on assumption of office”.
It added that heads of ministries, departments and agencies (MDAs), as well as heads of metropolitan, municipal and district assemblies (MMDAs) should ensure that all staff in their institutions/organisations receive compulsory training on the code of conduct for public officers and the conflict of interest guidelines on assumption of office.
The commission commended the parties in the case for co-operating with it during investigations.