EXTENDING THE CURRENT LAWS ON ELECTION OFFENCES TO COVER PARTY PRIMARIES AND INTRA-PARTY ELECTIONS

Our ref: OG/2023/026
 
9 October 2023
 
Godfred Dame, Esq
Hon Attorney-General & Minister of Justice
Office of the Attorney General & Ministry of Justice
Accra
 
Osei Kyei Mensah Bonsu, MP
Hon Majority Leader
Parliament House
Accra
 
Dr Cassiel Ato Forson, MP
Hon Minority Leader
Parliament House
Accra
 
Gentlemen:
 
EXTENDING THE CURRENT LAWS ON ELECTION OFFENCES TO COVER PARTY PRIMARIES AND INTRA-PARTY ELECTIONS
 
We write to invite you to co-sponsor and introduce a bill in Parliament that will specifically extend the current laws that provide and punish for public election offences, to cover party primaries and intra-party elections. We believe that this will be the first step to stemming the now rampant vote-buying, intimidation, violence etc that have become associated with such elections.
 
OccupyGhana has been very concerned about the phenomena where persons use money and gifts to bribe voters and/or use intimidation, violence, personation, insults, tribalism, falsehoods, etc, against opponents in all elections. These have grown to shockingly brazen levels, especially in party primaries to elect presidential and parliamentary candidates and intra-party elections to elect party officials.
 
Both the Criminal Offences Act, 1960 (Act 29) and the Representation of the People Act, 1992 (PNDCL 284) contain elaborate provisions that criminalise all of these acts. Persons convicted of such offences are liable to a range of fines, terms of imprisonment, and even disqualification from voting. 
 
However, apart from the fact that these provisions are hardly seen to be enforced, these statutes refer only to ‘public elections,’ which, as seen under article 49 of the Constitution, may not cover party primaries and intra-party elections. This might explain why we see no prosecutions when these happen.
 
We therefore invite you, as the Attorney-General and as the parliamentary leadership of the parties with representation in the current Parliament, to co-sponsor and introduce a bill in Parliament that specifically extends the application of these existing offences to party primaries and intra-party elections. The proposed amendment should also remove the requirement for the Attorney-General’s fiat before prosecutions may be commenced. 
 
These, we believe, will indicate to Ghanaians that the government and the two leading parties want to banish this phenomenon from all of our elections, whether public or not, and to every extent possible and permitted by law. When passed, strict enforcement should breathe new anti-corruption life into our body-politic. 
 
Gentlemen, your refusal, failure, or neglect to take this step will finally provide basis for the suspicion that the government and the two leading parties actively support, or are complicit in perpetrating, this wrongful conduct.
 
Yours in the service of God and Country,
 
 
OccupyGhana
 
cc        Rt Hon Alban Bagbin
Speaker
Parliament
Accra
 
Joseph Osei-Owusu, MP
Hon First Deputy Speaker
Parliament
Accra
 
Andrew Asiamah Amoako, MP
Hon Second Deputy Speaker
Parliament
Accra
 
Alfred Tuah-Yeboah, MP
Hon Deputy Attorney-General
Accra
 
Diana Asonaba Dapaah
Hon Deputy Attorney-General
Accra
 
Alexander Afenyo-Markin, MP
Hon Deputy Majority Leader
Parliament
Accra
 
Emmanuel Armah-Kofi Buah, MP
Hon Deputy Minority Leader
Parliament
Accra
 
Frank Annoh-Dompreh, MP
Hon Majority Chief Whip
Parliament
Accra
 
Lydia Seyram Alhassan, MP
Hon First Deputy Majority Whip
Parliament 
Accra
 
Habib Iddrisu, MP
Hon Second Deputy Majority Whip
Parliament 
Accra
 
Kwame Agbodza, MP
Hon Minority Chief Whip
Parliament
Accra
 
Ahmed Ibrahim, MP
Hon First Deputy Minority Whip
Parliament
Accra
 
Comfort Doyoe Cudjoe, MP
Hon Second Deputy Minority Whip
Parliament
Accra
 
Mrs Jean Mensah
Chairperson
Electoral Commission
Accra
 
All Media Houses

UNEXPLAINED WEALTH OF PUBLIC OFFICERS AND THE DEMAND FOR THE PASSAGE OF THE DRAFT CONDUCT OF PUBLIC OFFICERS BILL, 2022 INTO LAW

Our ref: OG/2023/019

OCCUPYGHANA PRESS STATEMENT

Accra, 24 July 2023

UNEXPLAINED WEALTH OF PUBLIC OFFICERS AND THE DEMAND FOR THE PASSAGE OF THE DRAFT CONDUCT OF PUBLIC OFFICERS BILL, 2022 INTO LAW

For the umpteenth time, Ghanaians are confronted with another scenario of the suspected, unexplained wealth of a public officer, and staring at the apparent impotence of the law in dealing with this, outside article 286(4) of the Constitution. That article simply provides that an asset declared to have been acquired while in public office, ‘which is not reasonably attributable to income, gift, loan, inheritance or any other reasonable source shall be deemed to have been acquired in contravention of this Constitution.’

From 2017, OccupyGhana has consistently expressed concern about the necessity of reinforcing this assets declaration regime. This measure is vital in curbing the trend where public officers acquire unexplained wealth, especially where their known economic means cannot justify such acquisitions or wealth.

To compound matters, although the Constitution demands in article 286(1) that public officers shall declare their assets and liabilities ‘BEFORE TAKING OFFICE,’ ‘AT THE END OF EVERY FOUR YEARS,’ and ‘AT THE END OF [A]… TERM OF OFFICE,’ Ghana’s political class conspired to unconstitutionally extend the period of filing by six months, under section 1(4) of the Public Office Holders (Declaration of Assets and Disqualification) Act, 1998 (Act 550). The effect of this grave unconstitutionality is that once public officers get appointed without declaring assets and liabilities ‘BEFORE TAKING OFFICE’ as the Constitution demands, they, for the most part, either do not declare at all or may engage in shenanigans such as ‘presumptive’ declarations of non-existent assets in the hope of being able to acquire them.

Our public campaign to remove this offensive unconstitutionality yielded no discernible results, until we wrote to the Attorney-General on 1 December 2019 to demand steps to amend the law. Thankfully, on 8 January 2020, the then Attorney-General wrote to OccupyGhana to agree to amend the law by deleting the unconstitutional extension of time, and indicating that that office was seeking Cabinet approval to prepare the necessary amendment bill to be subsequently laid before Parliament for enactment.

After more than a year of receiving no information on the promised action, OccupyGhana wrote again to the Attorney-General on 16 July 2021 to request an update and whether there was anything that we could do to aid or speed up the amendment process. Curiously, this time, we were ignored. Our 24 September 2021 reminder was also ignored.

Thus, on 21 October 2021, we wrote to the Office of the Special Prosecutor, inviting that office to throw its weight behind our fight for the critical amendment, which would give teeth to that Office’s expressed desire to pursue public officers with unexplained wealth. The OSP responded on 22 October 2021 to agree with us and assure us of ‘the unreserved backing of the office.’

We therefore began work on drafting what we considered a ‘citizens bill’ to submit to Parliament for the sole purpose of the amendment. However, sometime in May 2022, we discovered that a draft Conduct of Public Officers Bill, 2022 (‘Bill’) had been prepared, which not only took our concerns into consideration, but contained exhaustive provisions that would regulate what public officers may or may not do or acquire while in public office. We were however informed that although the Office of the Attorney-General had forwarded the Bill to Cabinet, there was apparently considerable resistance or reluctance at Cabinet in granting approval for the Bill to be forwarded to Parliament for debate and enactment.

Since then, the following has transpired:

  1. 29 May 2022: OccupyGhana Press Release demanding that (i) the President summons an emergency cabinet meeting for the sole purpose of approving the Bill, (iii) the Attorney-General provides a clear timeline on when the Bill would be submitted to Parliament, and (iii) Parliament ensures passage before it rose for the 2022 long vacation – NO RESPONSE;
  2. 24 August 2022: OccupyGhana Letter to Attorney-General inquiring about the status of the Bill and demanding a roadmap on the questions posed in the 29 May 2022 Press Release – NO RESPONSE;
  3. 31 August 2022: OccupyGhana Right to Information Letter to Cabinet Secretary requesting information on the status of the Bill and a roadmap on when it would be approved and sent to Parliament;
  4. 5 September 2022: Cabinet Secretary Response marked ‘Confidential’ to OccupyGhana stating that the Cabinet Committee on Governance and Legal Matters had considered the Bill and referred it to Cabinet for approval. However, Cabinet had requested the Committee to undertake further work on certain aspects of the Bill, and was awaiting the Committee’s recommendations to facilitate Cabinet approval and submission to Parliament;
  5. 17 October 2022: OccupyGhana Letter to Cabinet Secretary requesting a status update – NO RESPONSE;
  6. 11 January 2023: OccupyGhana Reminder to Cabinet Secretary requesting a status update;
  7. 14 February 2023: Cabinet Secretary Letter marked ‘Confidential’ and ‘Secret’ to OccupyGhana to state that the Cabinet Committee had resubmitted the Bill to Cabinet with the necessary recommendations. But Cabinet, having reconsidered the Bill, had declined approval because in its view, there are already adequate provisions in existing law to deal with the conduct of public officers;
  8. 20 February 2023: OccupyGhana Letter to Cabinet Secretary, requesting a withdrawal of the ‘Confidential’ and ‘Secret’ status of the 14 February 2023 Letter so that its ‘disappointing contents’ may be shared with Ghanaians – NO RESPONSE;
  9. 27 February 2023: OccupyGhana Letter to Cabinet Secretary repeating request for withdrawal of the ‘Confidential’ and ‘Secret’ status of the 14 February 2023 Letter, and pointing out that under the Right to Information Act, 2019, Cabinet cannot purport to assert a privilege over the contents of the 14 February 2023 Letter – NO RESPONSE;
  10. 30 May 2023: OccupyGhana Letter to Cabinet Secretary to state its surprise that the Government, this time, under pressure from the International Monetary Fund, had promised to enact the Bill into law. We also attached a 20-page table comparing the contents of the Bill with existing law to show that the vast majority of the Bill’s clauses do not already exist in Ghana law as falsely claimed by Cabinet, and therefore, once again, urging its quick passage into law; and
  11. 16 June 2023: Cabinet Secretary Letter to Occupy Ghana (also marked ‘Confidential’) stating that the 30 May 2023 Letter and its attachments ‘will be brought to the attention of Cabinet.’

We have set out the above correspondence detail to show that in our view, the Government appears inexplicably unwilling or unprepared to approve the Bill and transmit it to Parliament for enactment. This is strikingly ironic because the passage of this Bill was a campaign promise at page 105 of the New Patriotic Party’s 2020 Manifesto, Table 1.13 on Governance, Corruption and Public Accountability, items 235 and 236. Even the admitted IMF pressure does not appear to us to be having any effect. We are concerned that this deliberate dithering will remain until the people of Ghana take a firm interest in the Bill and what it says, and then demand that Cabinet does what is required under the circumstances.

We therefore invite Ghanaians, fellow Civil Society Organisations and the media, to join us in this campaign to ensure that Cabinet approves the Bill and forwards it to Parliament, and that Parliament passes the Bill into law, all at the earliest times possible.

  • END –

DEMAND TO ISSUE DISALLOWANCES AND SURCHARGES

9 September 2021

The Acting Auditor-General

Office of the Auditor-General

Ministry Block ‘O’

P O Box M 96

Accra (GA-110-8787)

Dear Sir:

DEMAND TO ISSUE DISALLOWANCES AND SURCHARGES

We write to demand that you forthwith issue disallowances and surcharges to all persons you have identified as having been either engaged in or responsible for the illegal use of government funds in your 2019 and 2020 Audit Reports. This is because you are bound to do so, and any omission constitutes both contempt of the Supreme Court and a high crime under the Constitution.

The Reports are replete with ‘irregularities’ that have led to the loss of huge amounts of government funds, which article 187(7)(b) of the Constitution calls (i) ‘expenditure which is contrary to law,’ (ii) sums ‘not been duly brought into account’ and (iii) ‘loss or deficiency [through] negligence or misconduct.’

Sir, once you determined these had taken place, you did not have any discretion: you must disallow and surcharge. In 2017, the Supreme Court held in OCCUPYGHANA v ATTORNEY-GENERAL, that the exercise of your power to disallow and surcharge is ‘mandatory, and no longer permissive,’ and could no longer be ‘at the whims and caprices of the Auditor-General.’

That is why we are disappointed that although your Reports identified breaches, you have largely dithered on both the exercise of your powers and your compliance with the mandatory injunctions of the Supreme Court by (i) merely threatening to exercise the powers, without actually exercising them, (ii) making bare recommendations, and (iii) inexplicably deferring to others by asking them to exercise your powers.

You cannot return to the pre-2017 regime where successive Reports contained a similar litany of plain theft of government funds, yet Auditors-General were content to make impotent recommendations that no one regarded, followed or enforced.

The Supreme Court, to ensure that we do not slip back, (i) made specific, binding consequential orders or directions that require that you ‘SHALL TAKE STEPS TO RECOVER’ funds spent or lost, and (ii) ordered the Attorney-General to also ‘TAKE ALL NECESSARY STEPS TO ENFORCE THE DECISION OR STEPS TAKEN BY THE AUDITOR-GENERAL.’

Thus, each omission to disallow and surcharge by you is a blatant contempt of the Supreme Court. It is also a ‘high crime’ under the Constitution because article 2 says you ‘SHALL DULY OBEY AND CARRY OUT THE TERMS’ of the Supreme Court’s consequential orders or directions, and that your ‘failure to obey or carry out the terms of an order or direction made or given… CONSTITUTES A HIGH CRIME.’ The punishment for each high crime is imprisonment of up to ten years without the option of a fine, followed by a ten-year ban from being elected or appointed to any public office.

Based on the foregoing, we demand that you immediately issue disallowances and surcharges for each instance where the Reports found and disclosed ‘irregularities.’ We are copying the Attorney-General in this letter, to put him on notice that when you have complied, we shall require him, in line with the same injunctions, to take the enforcement steps that the Supreme Court ordered and directed.

This is the least that the people of Ghana can expect from our Auditor-General and Attorney-General.

Yours in the service of God and Country

Sydney Casely-Hayford

For OccupyGhana®

The Case of the Missing Galamsey Excavators

29 JANUARY 2020

FOR IMMEDIATE RELEASE

JOINT PRESS STATEMENT BY THE MEDIA COALITION AGAINST GALAMSEY AND OCCUPYGHANA

THE CASE OF THE MISSING GALAMSEY EXCAVATORS

Accra, January 29, 2019 – The Media Coalition Against Galamsey, OccupyGhana, and we believe, most Ghanaians, are disappointed and saddened by the revelation by the Minister for Environment, Science, Technology and Innovation, Professor Frimpong Boateng that hundreds of seized Galamsey excavators have disappeared from District Assemblies around the country.

Our deep concern at this revelation stems from the fact that the authorities have simply once again failed to follow and enforce the law. The inability of the government to enforce the law, from the facts as we know them, is only matched by the brazenness of the illegal miners.

We have a number of questions for the government that require answers; and we respectfully demand those answers.

First, under the 2006 Minerals and Mining Act, it is illegal for anyone to “erect equipment… for the purpose of mining” without being the holder of either a mining lease or a small-scale mining licence. Everyone who does this commits an offence. The government has to explain to Ghanaians whether the persons from whom the equipment was allegedly seized were also arrested. If that did not happen, the government should explain why it did not happen. Or, were the illegal miners also allowed to disappear just like the equipment?

Second, the law then provides that upon the arrest of illegal miners, the equipment they were using “shall, regardless of the ownership…, be seized and kept in the custody of the police.” It is for very good reason that the law demands that the equipment should be kept by the police, and no other institution. The government therefore has to explain to Ghanaians why the equipment allegedly seized was kept with District Assemblies and not the police. Was this deliberate? Was this to make it very easy for the equipment to simply ‘disappear’? Did anyone take an inventory of the seized equipment and if so where is that inventory? Which public officers were responsible for flouting the law?

Third, the Act demands that the arrested persons should be tried in court and then upon conviction, the court is empowered to “order the forfeiture of any equipment… seized.” The government has to explain to Ghanaians whether the persons from whom the equipment was seized were duly prosecuted, and if not, why not? Without prosecution, the seized equipment cannot be forfeited in the manner the law demands. Are any prosecutions still taking place? If so, have there been any convictions? And if so, did the courts order forfeiture? Is the government able to publish a report on these matters?

Fourth, the Act provides that within 60 days of the confiscation, the Minister for Mines shall “allocate the equipment… to the appropriate state institution and publish in the Gazette the name of the state institution to which the equipment… is allocated.” We do not need to ask this question because it is pretty obvious to all of us that this has not happened.

Fifth, the Roadmap For Lifting of Ban on Artisanal & Small Scale Mining & the Way Forward policy document says in section 3.2.1 bullet 3 that there shall be a “Directive by the Government/IMCIM to move all earth moving mining equipment for artisanal and small-scale mining to designated areas for subsequent registration and installation of tracking devices. This will be done under the direct supervision of the Regional Ministers prior to the vetting of artisanal and small-scale mining companies”. Obviously from the statement of the Minister this directive has not been implemented.

Also, section 3.2.5 states that “The Minerals Commission in collaboration with the Driver and Vehicle Licensing Agency (DVLA) have been tasked to register and install tracking devices on earth moving equipment to ensure that the use of equipment at inappropriate locations are monitored and reported. A committee was formed to deal with the registration and installation of tracking device on the earth moving mining equipment.” Has this provision been implemented? If it had, these excavators would have been registered and could be tracked making it impossible for them to be stolen. Can the government explain to Ghanaians why this has not happened?

And, sixth, we also need to know from the government whether all existing mining leases and small-scale licences have now been submitted to Parliament for ratification as is required under both the Constitution and the Minerals and Mining Act.

Considering the above and the revelation by the Minister, the government should be as unhappy as we are, and more so. If the government with all the power and force at its disposal is unwilling to or incapable of implementing and enforcing its own laws, then it gives a signal to potential wrongdoers that we have no respect for the rule of law; it is just something we mention to others to make us feel good. That is why the nation is still under brazen attack from illegal miners. They know that we make noise and even deploy our military, but we have no teeth to bite. Nowhere is this more evident than the blatant illegal mining at the place called “Dollar Power,” and the apparent inability or unpreparedness of the government to enforce the law there. This and the impunity it connotes should be a scar on our conscience.

We are therefore not surprised that the War Against Galamsey is generally accepted to be failing. Operation Vanguard has all but petered out. That is unacceptable. We call on the government to shake itself out of its stupor and enforce the mining law without fear or favour. We also call on the media and civil society organizations to reawaken, hold leadership to account and reinvigorate the #StopGalamsey war.

Losing this war is not an option. Irresponsible and unsustainable mining is an existential threat and should not be countenanced.

Issued by:

Media Coalition Against Galamsey
OccupyGhana

OccupyGhana® Demands Return Of Government Vehicles Illegally Sold To Political Appointees

OccupyGhana® Demands Return Of Government Vehicles Illegally Sold To Political Appointees

27TH JANUARY 2020

OCCUPYGHANA® PRESS STATEMENT

OCCUPYGHANA® DEMANDS RETURN OF GOVERNMENT VEHICLES ILLEGALLY SOLD TO POLITICAL APPOINTEES

OccupyGhana® has read reports of a statement by President John Mahama on 17 January 2020 that if he is elected back to office, he would “to put an immediate and permanent end to the purchase of duty post vehicles by political appointees,” and that “Government vehicles will remain government vehicles.” On this matter there appears to be unusual unanimity among the two leading contestants, as President Akufo-Addo is also reported to have told ministers on 11 April 2017 that “No official is any longer going to have the opportunity to buy any official car, so that we put an end to [the constant buzz], ‘Where are the cars? Where are the cars?’ Nobody is going to have that capacity anymore.”

While we at OccupyGhana® wholeheartedly agree with these pronouncements, we have grave reservations that must be addressed. Simply, we are not satisfied with bare promises and assurances of executive action. We believe that this is a matter where government is simply required to respect and comply with the law as laid down in the 2003 Public Procurement Act, as amended in 2016.

Therefore, we demand proof that the government followed that law in the sale of a massive 361 government vehicles to “political appointees” between 29 December 2016 and 6 January 2017, or a return of all of those vehicles to the government for due process to be complied with and proper value realised for them. The law that applied in 2016 is that which applies now. If the law was breached then with no consequences and sanctions, there is no guarantee that it would not be breached again. That is why these the “never again” assurances provide cold comfort and ring hollow to us.

When the Public Procurement Act was passed in 2003, it introduced under its Part Eight (sections 83 and 84) a mandatory procedure for disposing of government “stores, plant and equipment.” That procedure involved establishing a Board of Survey, obtaining a Technical Report and Recommendations, and ultimately, the sale of only “obsolete or surplus items” by public tender to the highest tenderer or public auction subject to a reserve price.

While several citizens were in no doubt that this law applied to the sale of government vehicles, successive governments still disposed of such vehicles especially to their appointees after every election, without recourse to the law. The ridiculous and risible excuse from those governments was that the words “stores, plant and equipment” in the law did not specifically apply to vehicles.

However, with pressure from civil society and several others, in June 2016, Parliament finally amended section 83 of, and introduced a new section 83A to, the 2003 Public Procurement Act, so that the mandatory procedure for disposing of government assets would specifically apply to government vehicles.

Thereafter, one would have expected that the government would comply with this new law. However, in a period of just nine days starting from 29 December 2016 and ending on the night before the handover of power on 7 January 2017, and while Ghanaians were focused on the political transition, there was this massive sale of government vehicles to departing political appointees in apparent disregard and breach of the law, at an average of 40 cars per day!

On 28 March 2017, we wrote to both the Chief of Staff and the Administrator-General under our right to information under Article 21(1)(f) of the Constitution, inquiring whether the government followed the law in those disposals. It was within weeks of this letter and while we were awaiting responses that President Akufo-Addo announced the ban.

When after several months of more waiting we did not receive a response from either office, we sent reminders on 30 January 2018. This time we received a response from the Administrator-General on 7 February 2018 providing us with a schedule and details of 361 “vehicles disposed of as end-of-service benefits to political appointees,” the names of the beneficiaries, and how much they were sold for.

If the breach of the law was surprising, then the prices at which the vehicles were sold told shocking story. For instance a Toyota Camry registered in 2014 was sold to a political appointee in 2016 for GHS12,500. A Toyota Corolla commissioned in 2013 and registered in 2015 was sold to another political appointee for GHS6,000. Another Toyota Corolla, commissioned and registered in 2016 was sold for GHS6,100 to an appointee. A one-year old Nissan Sunny went to an appointee for GHS7,500. In another instance, a Toyota Avensis was sold for just GHS1,200 to another appointee. BMWs were sold to the more prominent appointees at between GHS25,000 and GHS45,000.

In the absence of the Technical Report that the law demands, it is impossible to ascertain if these vehicles were even or duly classified as “obsolete and surplus.” What has become apparent is that there was no Board of Survey or Technical Report. There certainly were no public tenders or public auctions. The vehicles were simply handed over to political appointees at ‘yor kɛ gari’ prices, all in flagrant breach of the law.

That is why in the Administrator-General’s 7 February 2018 letter, he tellingly stated that he could not provide information on whether the disposals complied with the mandatory procedure imposed by law, and then directed us to seek answers to this from the Office of the Chief of Staff. That office has never responded to us. When on 14 February 2018 we wrote back to the Administrator-General demanding data on disposal of assets since 2003, he responded on 15 February 2018 to say that his office did not have that data since it only came into existence in 2013.

Our further letter to the President dated 17 July 2018 demanding a full-scale inquiry into the matter has received neither a response nor any action. The lack of response is particularly worrying when viewed against the fact that section 92 of the Act criminalises breaches of its provisions and makes offenders (i.e. officials and beneficiaries) liable to be jailed for up to five years.

It is in the light of the above that we remain unconvinced by the assurances made by the immediate past president and the current president to end this practice. We note that they still fail to acknowledge the sheer illegality of it. That is why we believe that the best way to assure Ghanaians that this practice is or will be a thing of the past, would be to satisfy Ghanaians that the December 2016 sale of 361 government vehicles was in accordance with the law. If not, we expect the government to rescind those sales forthwith and then compel compliance with the law.

We call on all well-meaning Ghanaians to support our demands especially in the light of our shared constitutional duty under Article 41(f) “to protect and preserve public property and expose and combat misuse and waste of public funds and property.”

We believe that in the coming elections, Ghanaians will judge the parties, especially those that are in power or have been in power before, not just by the sweetness of their promises and assurances, but by their deeds concerning the same matters about which they seek to make promises and give assurances.

Still in the service of God and Country.

OccupyGhana®

CONSTITUTION DAY: IT IS TIME TO TAKE THE ASSETS AND LIABILITIES DECLARATION REGIME SERIOUSLY

7th January 2020

OCCUPYGHANA® PRESS STATEMENT

CONSTITUTION DAY: IT IS TIME TO TAKE THE ASSETS AND LIABILITIES DECLARATION REGIME SERIOUSLY

OccupyGhana® salutes Ghanaians on the 26th anniversary of the coming into force of the Fourth Republican Constitution. Marking 7th January as ‘Constitution Day’ is intended to acknowledge Ghana’s collective efforts at ensuring that the tenets of democracy, rule of law and principles of constitutionalism are upheld. This has been the longest spell of constitutional democracy since independence, and it is no mean achievement.

On this auspicious day we would want to highlight, once again, an aspect of our Constitution that has been largely ignored by successive governments, but which is currently being forced to the front burner of our national discourse by the Auditor-General: the declaration of assets and liabilities by public office holders.

Our position is summarised as follows:

(i) affected officers must file the declarations at the specific times prescribed by the Constitution (for which reason the six-month extension granted by statute is unconstitutional and must be repealed),

(ii) the over 40,000 public officers in default must be compelled to comply forthwith, and

(iii) the Auditor-General must end the unconstitutional system of secret, unverified declarations.

TIME FOR FILING

The Constitution expressly and mandatorily requires that prescribed office holders must declare their assets and liabilities to the Auditor-General (i) before taking office, (ii) on every fourth anniversary thereafter, and (iii) at the end of a person’s term of office. We demand strict compliance with these mandatory timelines.

That is why we remain convinced that the provision in section 1(4) of Public Office Holders (Declaration of Assets and Disqualification) Act, 1998 (Act 550), which gives a 6-month extension for making declarations, is unconstitutional and void.

We therefore repeat our invitation to the government to take immediate steps to repeal this offending provision, without us having to proceed to the Supreme Court to have it struck down as unconstitutional.

PRESCRIBED OFFICERS

The Constitution prescribed specific public office holders who were to declare, and allowed Parliament to extend the coverage to other public office holders. This is what Parliament did when it passed Act 550, Schedule 1 of which contains the extended list.

Unfortunately, the vast majority of public office holders have simply failed, refused or neglected to make the declarations. From our conservative estimates, more than 40,000 public officers are currently in breach of the law.

While we were contemplating legal action against every public office holder in breach, we became aware of the Auditor-General’s 31st December 2019 Circular that announced that henceforth the declarations would be considered part of audits and that offending officers shall be reported to the Commission on Human Rights and Administrative Justice for action as required by article 287 of the Constitution.

Since then we have become aware of some frantic and even desperate efforts by some heads of affected institutions to ensure compliance within those institutions. We commend this to every institution mentioned in the law. As the saying goes, “better late than never.”

We also welcome this bold move by the Auditor-General and we give it our full and unalloyed commendation and support.

END OF SECRET DECLARATIONS

The fact is that even in the relatively few circumstances where declarations have been made, they have been made in sealed envelopes to the Auditor-General and remain unopened, unaudited and unverified.

However an automatic audit or verification would ascertain whether (i) the assets and liabilities were declared in accordance with the law, (ii) the assets declared actually exist, so as to prevent ‘assumptive’ declarations (where the person declares non-existing assets now, based on the assumption that through corruption those assets may be acquired later), (iii) the declarations were submitted within the time provided by the Constitution, and (iv) any new assets were acquired or liabilities discharged while in office, so that an inquiry may be conducted into whether those assets or the means to settle the declared liabilities were genuinely acquired.

Sadly, successive Auditors-General have not considered it part of their obligations under the Constitution to open the sealed envelopes, let alone verify or audit their contents.

We reiterate our position that there is nothing in article 286 that supports the current “secret declaration,” which is a contradiction in terms. The concept of a “secret declaration” that remains uninspected in the hands of the Auditor-General is not just alien to the Constitution but an anathema, and is therefore unconstitutional.

Verification by the Auditor-General is the only way to give life to article 286(3) as follows:

“Any property or assets acquired by a public officer after the initial declaration required by clause (1) of this article and which is not reasonably attributable to income, gift, loan, inheritance or any other reasonable source shall be deemed to have been acquired in contravention of this Constitution.”

The current stance therefore flies in the face of the probity, accountability and transparency provisions in the Preamble to the Constitution, negates the mandatory obligation placed on the state under article 35(8) “to eradicate corrupt practices,” and claws back the duty placed on citizens by article 41 “to protect and preserve public property and expose and combat misuse and waste of public funds and property.”

CONCLUSION

This is the fifth time that OccupyGhana® is raising the issue of assets and liabilities declaration. We believe that the government must take the lead in this matter and simply ensure that affected officers comply with the law. Further, we do not think that the government wants to wait for years of litigation before simply repealing the six-month extension for the declarations.

While saluting and congratulating Ghanaians on the 26th anniversary of the Fourth Republican Constitution, we wish to remind ourselves that there is a lot more to do to safeguard the Constitution and make its provisions relevant.

We once again invite all Ghanaians to occupy our spaces because if each of us does a little, together we will do a lot.

Still in the service of God and Country

OccupyGhana®

OCCUPYGHANA® HAILS CONSTITUTIONAL INDEPENDENCE OF AUDITOR-GENERAL

12TH DECEMBER 2019

OCCUPYGHANA® PRESS STATEMENT

OCCUPYGHANA® HAILS CONSTITUTIONAL INDEPENDENCE OF AUDITOR-GENERAL

OccupyGhana® has closely followed the story about the Auditor-General disallowing a one million dollar payment and surcharging the Senior Minister with that amount.

We have also seen a statement dated 11th December 2019, issued by the Senior Minister in which he states his disagreement with the Disallowance and Surchage and communicates his intention to challenge them in court.

We do not think that these momentous developments in our history ought to pass without comment.

This is probably the first time in this Fourth Republic (and possibly in Ghana’s political history) that an Auditor-General has dared to issue a Disallowance and then Surcharge a minister; and no less a minister than the Senior Minister.

And under the constitutional dispensation that we are blessed with, the Auditor-General who issued the Disallowance and Surcharge cannot mysteriously disappear. He cannot be shut up. He cannot be arrested or lose his job for doing his work. Rather, people he surcharges (whoever they are) have no option but to work under the principles of constitutionalism and the rule of law, and to challenge the Auditor-General in court.

When in November 2014, OccupyGhana began the fight to compel the Auditor-General to exercise the constitutionally-mandated powers of Disallowance and Surcharge, our biggest obstacle was the several naysayers who were convinced that we had no case and would lose. But we were confident because our cause was just and our course was right. We were fortified in our simple argument: that where the Constitution donates a power and prescribes the circumstances under which the power is to be exercised, it is a breach of the Constitution if that power is never exercised. We were convinced that especially where the Auditor-General himself issued annual reports showing the routine illegal dissipation of Ghana’s resources, the non-use of the power to check that wrong was in and of itself an abuse of the power.  We therefore urged the Supreme Court to interpret the empowering word “may” in the Constitution as the imperative “shall,” so that whenever the Auditor-General discovers what he considers to be a wrongful use of Ghana’s money, he would be mandatorily required to disallow and surcharge.

When on 21st June 2016 the Supreme Court came out with a judgment that granted each of the five reliefs we had sought, we knew that the history of public sector accountability in Ghana had changed forever. But the Supreme Court was not done. It gave one further relief that we had not even asked for, as follows: “Finally, the Attorney-General is hereby ordered to take all necessary steps to enforce the decisions or steps taken by the Auditor-General…to ensure compliance including in some cases criminal prosecutions.”

 

Going to court cost us a lot in terms of energy, time and resources. But Ghana was and remains the winner from our convictions and resolve.

We do not know as yet the legal route that the Senior Minister plans to take in his promised challenge. However, if it is an appeal under the new Order 54A of the High Court (Civil Procedure) Rules, 2004 (CI 47), then we are even more gratified because we were proud to work on and submit the original draft that gestated into the Bill, which was adopted by the Rules of Court Committee and passed by Parliament as the High Court (Civil Procedure) (Amendment) (No. 2) Rules, 2016 (CI 102), and which we have happily named “the OccupyGhana Rules.”

We believe that in the final analysis, if the Auditor-General erred in the Disallowance and Surcharge against the Senior Minister, the court will say so. However, if he was right, the court will also say so and hold the Senior Minister liable to pay the money paid under the transaction to the state.

That is democracy. That is constitutionalism. That is the rule of law. Ultimately, when the story of Ghana is told, it ought to end with three words: “…and Ghana won.”.

Yours in the service of God and Country,

OccupyGhana®

OCCUPYGHANA® DEMANDS ASSETS AND LIABILITIES DECLARATION BY OVER 40,000 AFFECTED PUBLIC OFFICERS

16th OCTOBER, 2019

OCCUPYGHANA® PRESS STATEMENT

OCCUPYGHANA® DEMANDS ASSETS AND LIABILITIES DECLARATION BY OVER 40,000 AFFECTED PUBLIC OFFICERS

NON-COMPLIANCE
Article 286 of the Constitution demands the declaration of assets and liabilities by the occupants of certain public offices under three circumstances: (1) upon appointment, (2) every four years, and (3) at the end of the appointment. This provision has become notorious for the breach of it rather than compliance with it.

Often, the discourse has focused on the political offices that article 286(5) specifically mentions. Scant attention has been paid to the chairpersons, MDs and CEOs, General Managers and Departmental Heads in public corporations and companies “in which the State has a controlling interest,” who are also covered. Possibly no attention is paid to the category the Constitution specified as “such officers in the public service and any other public institution as Parliament may prescribe.”

In the Public Office Holders (Declaration of Assets and Disqualification) Act, 1998 (Act 550), Parliament prescribed several additional, covered officers including officers “in any other public office or public institution other than the Armed Forces, the salary attached to which is equivalent to or above the salary of a Director in the Civil Service.”

From preliminary and raw data to which we are privy, the number of public officers who fall within this ‘salary-based requirement’ but who do not comply with the mandatory declaration of assets and liabilities exceeds 40,000.

In the Ministry of Education alone, over 5,000 officers are covered. Others include the Ministries of Finance and Health, each of which has over 3,000 officers covered. Each of the Ministry of Interior, Ghana Health Service and Controller and Accountant General’s Department has over 1000 officers covered. The Audit Service has well over 600 officers affected.

When we apply the ‘salary-based requirement’ to officers of the various other Ministries, Departments, Agencies, Authorities, Commissions, Councils, Boards, Services, Institutes, Organisations, Secretariats, Colleges, Programs, Diplomatic Missions, and the Metropolitan, Municipal and District Assemblies, then our 40,000 estimate appears extremely conservative. The actual figure could exceed 10% of all public servants.

The effect is that all of these public officers are in breach of article 286 of the Constitution and should be facing sanctions under article 287.

ONLINE DECLARATIONS
The sheer volume of declarations required brings into sharp focus the capacity of the Auditor-General to receive the declarations and then verify them to ensure that the correct declarations are made. The statutory requirement for obtaining, completing and submitting hard copy forms is clearly obsolete and impractical, and a fetter to both compliance and the Auditor-General’s audit and verification responsibilities.

We therefore call upon the Government to, as a matter of extreme urgency, procure necessary, appropriate and robust software that will make it easy both for affected officers to comply by simply filling the forms online and for the Auditor-General to audit and verify the declarations made. We also call for the immediate amendment of Act 550 to provide statutory support for the online declaration regime, if deemed necessary.

CONCLUDING COMMENTS
In our press release on Assets and Liabilities Declaration issued on January 28, 2018, we stated that the Auditor-General’s post-declaration audit and verification function, which to the best of our knowledge have never happened, are critical to ascertain whether the assets and liabilities are declared in accordance with the law, upon the assumption the public officer assuming office. The audit and verification would investigate whether the assets declared actually exist, so as to prevent ‘assumptive’ declarations, where the person declares non-existing assets now, based on the assumption that through corruption those assets may be acquired later. The audit and verification would also determine whether the declarations were submitted within the time provided by the Constitution, and whether any new assets were acquired or liabilities discharged while in office, so that an inquiry may be conducted into whether those assets or the means to settle the declared liabilities were acquired genuinely.

We repeat that the only way to give voice and flesh to article 286 is to equip the Auditor-General to verify and audit declarations that are submitted, or at least a sample of them.

We once again call on the Auditor-General to outline a verification and audit procedure that reflects the true and proper interpretation of the Constitution, particularly article 286, in line with the above, and implement it forthwith.

Yours in the service of God and Country

OccupyGhana®

Re: Fight Against Galamsey – OccupyGhana’s Response To The President’s Regret On Aisha Huang’s Deportation Without Trial

Re: Fight Against Galamsey – OccupyGhana’s Response To The President’s Regret On Aisha Huang’s Deportation Without Trial

23rd SEPTEMBER, 2019

OCCUPYGHANA® PRESS STATEMENT

RE: FIGHT AGAINST GALAMSEY – OCCUPYGHANA’S RESPONSE TO THE PRESIDENT’S REGRET ON AISHA HUANG’S DEPORTATION WITHOUT TRIAL

OccupyGhana® has noted with wry resignation the recent statement by the President that he regrets the Government’s decision to deport Aisha Huang without first completing the trial of her for mining-related offences. The President specifically said that that decision, “on hindsight, was a mistake.”

We appreciate the President’s candour in admitting this mistake. We agree with him that that decision was a mistake, a grave and regrettable one. What we are concerned with is that it had to take hindsight, an understating of the situation only after it had happened and almost two years after the fact, for the Government to realise how bad a mistake that was. Ghanaians knew right from the start that it was a mistake and said so to the Government, which ignored us, making this regret very little and very late.

And, while the legislative amendment that enhances the punishment regime for mining-related offences might deter some from engaging in Galamsey, we do not see how that, in and of itself, will prevent the repetition of the government’s mistake. That is because the mistake, the decision to free Aisha Huang without trial, had nothing to do with the law as it existed at the time.

We take these positions because there was sufficient basis, at the time of the decision, to show that the deportation without trial would hurt and weaken the fight against illegal mining. Certainly, the Government was aware of the message that that act gave to the whole world: the law will be enforced against citizens, but foreigners who breach the same law would be flown to their countries to sleep in the comfort of their beds and enjoy their illegal made-in-Ghana Galamsey booty. Yet the Government went ahead, took that decision and implemented it. That was the mistake, not the law.

For several years, OccupyGhana has been involved in the campaign against illegal mining. From that, we know that Ghana cannot divorce the scourge of Galamsey from the invidious roles played by several foreign nationals who exploit our weak and sometimes non-existent internal security system to engage in illegal mining.

That is why we were extremely disappointed when the then Minster of Lands and Natural Resources, Mr. Peter Amewu, instead of seeing to it that the law was simply enforced, was reported to have met with the Chinese Ambassador to Ghana and the Mayor of China’s Guangxi Zhuang Province on 27th March 2017, to solicit their help to fight Galamsey, saying, “we are begging you to help us address this particular difficulty that we are having.”

Disappointed in this anemic and pathetic approach by the Minister towards the fight, it was refreshing and reassuring when the President, in a speech at Akyem Wenchi in April 2017, called the bluff of Galamsey operators. We issued a statement on 2nd May 2017 to stand with the President on this matter. Pleased with the stance taken and leadership provided by the President at the time, we expressed the “hope that the fight against this scourge will continue on an even higher level,” and that “with the President taking the lead and the support of all well-meaning Ghanaians, we will win.”

This was followed by the launch of Operation Vanguard by the military in July 2017 to combat Galamsey operations.

However, the matter involving Aisha Huang and the Government’s handling of it beggars belief, insults our intelligence, contradicts the President’s numerous pledges to fight Galamsey, and is probably the most obvious indicator that the Government’s commitment to the anti-Galamsey fight has been at best half-hearted.

When Aisha Huang was first arrested, being as obviously involved as she was in Galamsey, she was only charged with petty immigration infractions, namely hiring foreign nationals and disobeying directives. The steepest penalty for these was a risible and ridiculous GHS12,000 administrative fine!

It took an OccupyGhana Petition addressed to the Attorney-General in May 2017, protesting this and demanding that proper charges are laid under the Minerals and Mining Act, for that to happen. In that petition we pointed out that “the fight against illegal mining in Ghana is a fight to protect, not only the present, but the future of this country. It is therefore imperative that the law must be applied to all who fall foul of it, without fear or favour.”

But we were to be disappointed again when after several fits and starts, the prosecution on the charges laid by the Attorney-General only after OccupyGhana’s petition, was truncated and aborted by the same Attorney-General’s nolle prosequi; and then Aisha Huang was deported without standing trial. The result is that Aisha Huang did not even pay the GHS12,000 in administrative fines for the petty immigration infractions she was originally charged with before our protest and the Attorney-General’s intervention. We recall a petition from the Media Coalition Against Galamsey (MCAG) dated 21st December 2018, pointing out in real time that that decision was a mistake, and which fell on deaf ears.

It was sad that in the face of protests by the public over this action, a Presidential Staffer and the then secretary to the Inter-Ministerial Committee on Illegal Mining, Mr. Charles Bissue, in apparent answer to the MCAG’s petition, added insult to injury in December 2018 by claiming that the Government deporting Aisha Huang was to prevent tax payer monies from being spent on her trial and possible imprisonment. What Mr. Bissue was unable to tell us was what that cost of prosecution and imprisonment would have been, compared to the damage that Aisha Huang’s alleged activities had caused, and as compared with the Ghanaians and others who had been tried for, convicted of and punished for the same offence.

Then, as recently as April 2019, the Senior Minister Mr. Yaw Osafo-Maafo compounded the situation, justifying the lack of prosecution of Aisha Huang on the basis of Ghana’s relationship with China and the prospect of receiving $2bn under the Sinohydro bauxite project.

In our statement dated 22nd April 2019 in response, we were emphatic that “the Senior Minister’s comments make complete mockery of the fight against Galamsey and critical decisions Government and the coalition against Galamsey have taken to address this issue. This statement suggests that there is a price tag for the exoneration of foreigners implicating in the appalling desecration of Ghana’s environment, rivers and laws. It positions foreigners who break/flout our laws as untouchable and above the law because their countries offer a trade partnership and benefits, we will receive from them.”

Neither Mr. Bissue nor Mr. Osafo-Maafo has withdrawn and apologised for these offensive and insulting statements. That is why we think that the Government’s alleged volte-face, captured in the President’s “mistake on hindsight” statement gives no, little or very cold comfort.

We are unable to agree with the President’s claim that this would not happen again simply because the punishments provided in the law have been enhanced by a recent amendment. The decision to free Aisha Huang without trial had nothing to do with the state of the law or punishment regime at the time. It was simply an unfortunate political decision, the real reason being possibly what Mr. Osafo-Maafo’s epiphany revealed. The amendment that the President refers to will not compel the Attorney-General to prosecute foreign nationals who are arrested for engaging in Galamsey or any other offence. Indeed, in July 2019 Huang Yanfeng, another Chinese national who was arrested in May 2019 for illegal timber operations, was also quietly deported, reminiscent of a pattern in dealing with foreign nationals who defy our laws regulating natural resources.

Thus, in our view, what the President should do is to assure Ghanaians that the executive power vested in him under the Constitution shall not be used in this manner again. And then we expect the President to order that all persons who have been arrested for being involved in Galamsey, especially the foreign nationals who are routinely simply handed over to Immigration for deportation instead of standing trial, should immediately be put before trial.

This “on hindsight mistake” has been a rather unfortunate, deflating and regrettable phase in the fight against Galamsey and a slap in the face of Ghanaians. We expect that all subsequent acts will match the realisation of the titanic mistake we made with Aisha Huang and more recently with Huang Yanfeng. We will judge the Government in this matter, not based in its words and assurances based on hindsight, but on its acts that are based on foresight. Let the Government beget fruits that befit the repentance of the “on hindsight mistake.”.

Yours in the service of God and Country

OccupyGhana®

OccupyGhana® Calls For Urgent Government Action On Public Officer Conflicts Of Interest

4th SEPTEMBER, 2019

OCCUPYGHANA® PRESS STATEMENT

OCCUPYGHANA® CALLS FOR URGENT GOVERNMENT ACTION ON PUBLIC OFFICER CONFLICTS OF INTEREST

OccupyGhana® has noted, fully identifies with and wholeheartedly endorses the 2nd September 2019 call by the Commission on Human Rights and Administrative Justice (CHRAJ) for the enactment into law of the long-standing Conduct of Public Officers Bill. It would be recalled that we made the same call in our press statement dated 23rd August 2019 titled “OCCUPYGHANA® DEMANDS FIRM ACTION ON THE PUBLIC PROCUREMENT AUTHORITY AND COLLAPSE OF FINANCIAL INSTITUTIONS MATTERS,” where we also stated that “there is no justifiable or acceptable reason for the failure to pass that into law.” Tellingly, we added that “public office holders ought to know that there would be painful legal consequences for engaging in conflict of interest and conflict of duty acts.”

It is almost ironic that within days, Ghana has had to deal with yet another ‘scandal’ involving allegations of conflict of interest concerning a Board Member at a major public institution. Without commenting on the facts of any particular case, these latest issues and the rapidity of them throw into stark relief the urgent and continuing need to enact legislation to enforce public officers to take seriously their duties as guardians of the public purse.

More fundamentally, there is a crying need for thorough investigations and stiff penalties where public officers are found to be placing themselves at potential conflict of interest. This can be achieved by government immediately bringing back to Parliament debate on the Conduct of Public Officers Bill, which has been sitting dormant since 2015.

OccupyGhana® has repeatedly discussed and brought up for discussion, the duties and roles of a Board and Board Members. That is because what is often apparently misunderstood is the utmost duty of good faith and bona fides that comes with serving in a fiduciary position, which is what Board Membership really means. A fiduciary relationship is essentially one of a trustee. It is a basic principle of a trust that a trustee cannot profit personally from the property to which they have been entrusted. A Board Member of a public institution must never place themselves in a position where they may be suspected of profiting (directly or indirectly, including through any company or property they own) from the institution’s funds. That is why Article 284 of the Constitution prohibits, not just actual or real conflicts of interest and duty but even the likelihood (possibility, potential, chance) of it.

That brings into question whether the normal requirements of full disclosure, non-participation in decisions and even full arm’s length transactions, which might pass muster under the common law, are sufficient to meet the constitutional standard in Ghana. If mere likelihood is prohibited, then it stands to reason that under no circumstances should any Board Member allow their company or property to be offered to the public institution for which they serve, whether for profit, personal benefit or otherwise. Thus, it would appear to us that a bid won by a public official’s company, concerning the institution for which they serve, is a tainted bid and brings into question the value for money of the bid concerned, and whether the bid was truly fair and competitive.

We are of the view that simply declaring an interest and not participating in the decisions are not enough to deal with suspicions over the use or abuse of insider information. Worse, declaring their interest could in fact heap substantial pressure on fellow Board Members and staff, especially significantly, on those in the entity who have to take procurement decisions. This can skew the playing field in one direction and would prevent other companies from entering the bidding process with any confidence that they can compete fairly and, on a level, playing field.

We believe that it is for this reason that the framers of the constitution prohibited both actual conflict and the “likelihood” of conflict. In our view, the proper course for a public officer facing a conflict of interest is to remove themselves and any company they own completely from pitches or offers of contracts with the institution concerned.

The proposed Conduct of Public Officer’s Bill makes clear that conflicts and likely conflicts of interest are forbidden. Further, not only must a public officer facing a conflict declare that conflict to the institution concerned, but they must also declare it to CHRAJ or other prescribed body, and comply with any directions thereafter.

OccupyGhana calls for any new Bill to go further and state in no uncertain terms that in any situation of a likely conflict of interest, the public officer must ensure that any bid for contracts or other interaction between their private company or property and the public institution be immediately withdrawn.

It is now imperative that firm measures are brought into law to restrict the excesses of certain public officials, and to provide a key deterrent against further abuse of public office. It will simply state what we accept or do not accept in Ghana. This must be combined with a campaign to educate Ghana’s public on this vexed and deeply misunderstood issue of conflicts of interest and duty.

Yours in the service of God and Country

OccupyGhana®