There is talk of amending the Criminal Offences Act, 1960 (Act 29) to make corruption a felony, criminalise private corrupt acts and domesticate international anti-corruption conventions that Ghana has signed.
But I think Ghana should simply enforce our existing anti-corruption laws, for instance the detailed anti-corruption compendium in Part Four, Chapter Five of Act 29.
If we cannot enforce these, then any new law will simply go the way of the current – beautifully ignored adornments in our statute books.
In this article, I highlight just three offences - Corruption, Fraud by Agents and ‘revolutionary’ False Certification - which may be enforced without any amendment.
Amendments, if required, will be to other laws that provide lesser punishments for corruption.
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Corruption of public officers, jurors and voters
Under Act 29, it is a misdemeanour for a public officer, juror or voter to engage in corruption or for a person to corrupt any of them.
The key ingredient is that the recipient agrees to have their conduct influenced by a bribe.
Fraud by agents
I have been part (or probably the source) of a wrong narrative that Ghana law punishes corruption only where it involves public officers.
My mistake was that I was looking for the word ‘corruption’ in relation to private persons, and didn’t find it. Until recently, I had completely overlooked Section 145 of Act 29, ‘Fraud by Agents’.
It says an agent (including ‘a person employed by or acting for another’) who dishonestly obtains from another person a bribe for doing or not doing an act regarding a principal’s affairs commits a misdemeanour; and so does that other person.
This offence does not appear to apply if a non-agent (such as the principal) directly engages in that conduct. And this is not part of the offences covered by the Office of the Special Prosecutor Act, 2017 (Act 959).
‘Revolutionary’ false certification
Under the Government Contracts (Protection) Act, 1979 (AFRCD 58), the issuer of payment certificates for government contracts and the recipient are liable to refund monies paid where the certificate was issued knowing that the monies were not due, including non-performance of the work or service, and non-supply of goods.
They could also pay a fine of up to three times the monies paid and/or go to jail for up to 10 years.
Where there is corruption, the prescribed jail term is between five and 15 years.
The relevant offences under Act 29 are generally misdemeanours, the lowest category of offences (ranking behind felonies, first or second degree) and with a maximum punishment of three years imprisonment.
However, Section 296(5) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) imposes a maximum of 25 years imprisonment for specified corruption offences, including Fraud by Agents (section 145), Corruption, Wilful Oppression and Extortion (Section 239), Accepting/Paying Bribes (Section 252) and Corrupt Promises by Judicial Officers/Jurors (Section 253).
It would serve no practical purpose to change the classification ‘misdemeanours’ to ‘second degree felonies’.
What we may need is clarification on why the Justice Crabbe Amendments omitted Section 160 of Act 29 (forging hallmark on gold or silver plate or bullion) from the Section 296(5) list of offences.
We may require some other minor amendments.
First, although Section 146 of Act 30 says a court may restore to a victim, property lost from an offence involving fraud, and Section 147B provides for recovery of property lost through ‘offences involving dishonesty’, Section 147C’s definition of this term omits key corruption offences.
We should amend Section 147C to address this.
Second, there are lesser punishments for corrupt acts in Section 27(2) of the Parliament Act, 1965 (Act 300), Section 33(3) of the Audit Service Act, 2000 (Act 584), Section 25(3) of the Internal Audit Agency Act, 2003 (Act 658), Section 135(4) of the Public Health Act, 2012 (Act 851) and Section 139 of Customs Act, 2015 (Act 891).
The same applies to bribing voters under Section 12 of the Referendum Act, 1977 (SMCD 143) (five years maximum) and Section 41 of the Representation of the People Act, 1992 (PNDCL 284) (two years maximum). We should amend these to bring them in line with Act 30.
And, third, we should amend Section 23 of the Police Service Act, 1970 (Act 350) and Section 29 of the Immigration Service Act, 2016 (Act 908) so that results of internal investigations into corruption complaints against officers are mandatorily sent to the Attorney-General for prosecution, if necessary.
Enforce the existing law even if some other amendments are required. Justify an expensive, complex amendment process by first embarking on the less expensive, simpler enforcement of what we have.
It is said that ‘As now – So then’.
If we will not enforce now, we will not enforce then.