2. A history of corruption in Ghana
Ghana’s legal history suggests that the idea of limited government or imposing restraints on the exercise of governmental powers has been resisted since independence.1 Indeed, under President Kwame Nkrumah, the first post-independence government was characterized by (p. 193) abuse of power. One can reasonably infer that Nkrumah’s actions were calculated to weaken institutions that could control the excesses of the executive and thereby to pave the way for executive dominance. This became quite evident in a series of cases2 in which the executive recklessly sought to assert maximum executive power by disregarding any notion of the rule of law and democratic governance. Coincidentally, these early cases saw the judiciary unwittingly connive in this agenda by ceding its authority to the executive.
Nkrumah’s determination to assume excessive authority could no longer be stopped once the judiciary had in effect granted him safe passage. His recklessness reached a climax in The State v Otchere & 4 Ors,3 a case in which various citizens were charged with treason before a Special Court. The latter, however, acquitted them, and Nkrumah, unhappy with the outcome, took drastic measures.4 With the judiciary having been weakened, the only other institution that could be expected to limit the executive powers of the regime was the legislature. Nevertheless, under Nkrumah it was as muzzled as the judiciary. Consequently, the country became a one-party state and the legislature fell under the aegis of the ruling party, the Convention People’s Party (CPP).
During Nkrumah’s reign, first as the Leader of Government Business from 1951 to 1956, then as Prime Minister, and, subsequently, President from 1957 to 1966, there were various corruption cases involving government officials who illegally acquired wealth and/or plundered state resources.5 Shortly before independence, some major corruption cases surfaced. At this stage Nkrumah had been appointed Leader of Government Business, which in effect made him the de facto leader of the country. The Colonial Government was, however, still in control of the country. To address the problem and presumably hand over the nation with a clean slate, it arranged for a respected jurist from Nigeria, Justice Olumiyiwa Jibowu, to be flown into Ghana to undertake a thorough investigation into the cases.6 These involved the Cocoa Purchasing Company, a semi-governmental organization responsible for buying cocoa from farmers. Through the machinations of the ruling party, it had become a wing of the CPP, with huge sums of money having been siphoned from it into the party’s coffers.
After the country gained independence in 1957, other cases of corruption emerged. The most notorious was the case of Savundra, a Lebanese businessman involved in illegally amassing wealth through the sale of flour with the connivance of some members of Nkrumah’s party. The notoriety of the case stems from the position the President took when the opposition insisted on an official investigation and appropriate action from the (p. 194) government. Instead of acting decisively against those concerned, the President issued a statement declaring, ‘As far as I am concerned, the Savundra’s case is dead and buried.’7 Many have seen this as a founding moment in the country’s history of corruption—the origin of the executive’s proclivity for turning a blind eye to the problem and failing to take decisive action against members of the ruling party so implicated.
Indeed, during the Nkrumah era no formal investigations took place and no criminal charges were brought against officials involved in corruption. It was only after his regime was overthrown in a military coup in 1966 that further revelations of corruption came to light. Various commissions of enquiry established after his exit from power found that corruption had occurred on a massive scale under Nkrumah’s rule.8 For example, in the case of Republic v Inkumsah,9 the former Deputy Speaker of the National Assembly was charged and convicted on six counts of conspiring with the Minister of Trade to commit the offences of extortion and corruption contrary to the Criminal Code, Act 29 of 1960. These charges arose out of the findings of a Commission of Enquiry which had been appointed pursuant to the Corrupt Practices (Prevention) Act 230 of 1964.10
A further example of corruption emerged from the work of the Jiagge Assets Commission of Enquiry, which was appointed pursuant to the Commission of Enquiry Act 250 of 1964 and the Investigation and Forfeiture of Assets Decree, 1966 (NLCD 72). The Commission found Mr KA Gbedemah, a prominent member of the CPP regime, to have acquired assets unlawfully whilst holding public office. As a result of the finding, he was unable to hold office as a Member of the National Assembly in 1969 upon the coming into force of the 1969 Constitution of Ghana,11 even though he had won the parliamentary election in the Keta constituency.12
The military regime that overthrew Nkrumah stayed in power for three years. During that time, it was concerned primarily with repelling any possible counter coup. In the process, it concentrated its energies on security rather than on the pursuit of corrupt deals. Accordingly, the abuses that took place during the tenure of the regime were directed at the restriction of individual liberty to ward off the perceived threat of Nkrumah’s making a return to power. Civilian rule resumed in 1969 when Dr Kofi Abrefa Busia became Prime Minister, but his government was short-lived, as it too was overthrown by a military coup, one led in 1972 by Colonel Kutu Acheampong.
It was under this military junta that the term kalabule was coined, signifying the highest form of corruption: corruption in this era was so massive that what had taken place under Nkrumah paled into insignificance. The military acted with impunity, in effect following the tradition established by Nkrumah, namely that the executive could do (p. 195) whatever it pleased heedless of any institutional check. The situation deteriorated to the extent that some junior army officers could no longer stomach the excesses and staged an internal insurrection, overthrowing the Acheampong military regime in June 1979. This led to the mass execution of various leaders of that regime in a three-month-long intervention carried out in the name of ‘house cleaning’. Within those three months a number of commissions of enquiry were set up to redress cases of corruption and abuse of power, with ad hoc tribunals convicting numerous former officials, jailing them and confiscating their assets. Again, it can be seen that what occurred was in line with the trend in the post-Nkrumah era for a new government to investigate and prosecute officials of the previous regime.
During this period of ‘house cleaning’, the new military regime committed many abuses, in particular in its confiscation of assets belonging to anyone perceived as an enemy, namely prominent Ghanaians with sympathies for the previous regime and those opposed to the regime. Whereas it was easy for the soldiers to look into the activities of the regime they had overthrown, they inserted into the Constitution that ushered in civilian government an indemnity provision that prevented any enquiry into their own period in power. Most people were dissatisfied with their stay in power, but there was nothing that could be done about it, as the courts accepted the view that the indemnity provisions were sacrosanct.13
A civilian government headed by Dr Hilla Limann assumed office in September 1979. Under his rule, Ghana witnessed the virtual resurrection of Nkrumah-era corruption, with the government once again adopting a stance of unconcern about corruption by officials. The Limann government lasted for little more than two years before being overthrown on 31 December 1981 by a military junta led by Flight Lieutenant JJ Rawlings.
It became the longest-serving government in the history of post-independence Ghana, given that it remained in power for nineteen years—a fact all the more remarkable considering that it ruled as a military regime for eleven of those years before transforming itself into a civilian regime for the other eight years. This regime was as equally embroiled in massive corruption and abuse of power as preceding governments. Allowing that it was comprised mainly of the leaders of the previous junta that had taken over the country’s affairs in June 1979, it can be argued that this military intervention served to pursue the unfinished business of that so-called revolution of 1979. Rawlings’s regime was notorious for confiscating the assets of any apparently successful person deemed to have acquired wealth by unlawful means; at the same time, the seized assets were distributed among the leaders of the regime.
When the country returned to civilian rule in 1993, the military rulers once again entrenched an indemnity provision in the newly adopted 1992 Constitution preventing any investigation into their activities.14 As such, the corruption and abuses of that era have been covered up.
(p. 196) 3. The rhetorical fight against corruption in the Fourth Republic
The lack of transparency of governance structures and the inability of the people to hold public officeholders effectively to account have hampered all attempts at combating corruption in Ghana. The country thus continues to perform poorly in all surveys or indexes that track corruption. For example, in 2016 it ranked in 70th place out 176 countries and scored 43/100 in Transparency International’s Corruption Perception Index.15 What this means is that Ghana’s score is equivalent to the global average, which indicates that there is widespread endemic corruption in the country’s public sector.
In fact, it has been suggested that Ghana has been on a downward trajectory in terms of perceptions of corruption.16 The 2016 Mo Ibrahim Index of African Governance conveys the gravity of the country’s situation:17 at eighth place in the index, it ranked among the top ten best-performing African countries, even though it recorded the eighth-largest deterioration in terms of performance of governments on the continent within the past decade or so.18 However, according to the World Justice Project’s Rule of Law Index for 2016, Ghana is amongst the highest performers in the world, ranking 44th out of 113, and is placed second behind South Africa in sub-Saharan Africa.19 Thus, although Ghana does relatively well in terms of advancing the rule of law generally, it is within the specific field of perceived corruption that it lags behind.
3.1 Legal and institutional framework
The measures and initiatives that have been put in place to tackle corruption over the years have lacked an essential ingredient: political will. Thus, even though legislation has been adopted in recent times dealing with certain hitherto unregulated aspects of corruption,20 it is difficult to say with certainty that successive governments have been truly committed to the fight against corruption. The inevitable conclusion to be drawn is that legislation alone will not eradicate corruption in the public sector, considering the fact that Ghana has a plethora of anti-corruption laws and yet corruption nevertheless still thrives within the upper echelons of government.
3.1.1 Ghana’s Constitution of 1992
In terms of the constitutionalizing of anti-corruption measures, the Constitution of Ghana 1992 seems to afford some safeguards for the protection of the public purse. For example, its Chapter 24, the Code of Conduct for Public Officers, provides a complaints procedure, (p. 197) located within the mandate of the Commission on Human Rights and Administrative Justice (CHRAJ), for dealing with contraventions of this Code.21 Similarly, the Public Office Holders (Declaration of Assets and Disqualification) Act 550 of 1998 seeks to give effect to the provisions of Chapter 24. Public officeholders are hence required under the Constitution and Act 550 to declare all their direct and indirect assets and liabilities before they take office, at the end of every four years, and/or at the end of their terms of office.22 Finally, the Constitution also provides that properties or assets that are acquired after a public officer has made this declaration, but which are 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’.23
However, this regime of asset disclosure is less than entirely effective in helping to curb corruption in the public sphere.24 The reality is that public officers do not comply with the provisions of Act 550, with the result that the law meant to give effect to the provisions of the Constitution25 is rendered ineffective. Although the current President has declared his assets in accordance with law, it is unclear how many of his ministers and other public officials have done the same,26 given that there is no transparent system for checking and ensuring compliance by public officials. It is therefore notoriously the case that previous government appointees, including ministers of state, have wantonly disregarded this constitutional requirement and suffered no consequences whatsoever.27 This is so despite the provision in the Constitution that public officers shall not put themselves in a position where their personal interests do or are likely to come into conflict with the performance of the functions of their offices.28
The general perception in the country is that asset disclosure is something that applies only in theory, a point underlined by a headline that Graphic Online ran in August 2017: ‘Assets Declaration Act is a Big Joke—Speakers at IEA Forum’. The newspaper reported that participants at the forum were of the opinion that Act 550 is ‘a joke’ because its weaknesses make a mockery of the fight against corruption.29
3.1.2 Commission on Human Rights and Administrative Justice
The Commission on Human Rights and Administrative Justice (CHRAJ) was established upon the coming into force of the 1992 Constitution.30 The Commission is a constitutional (p. 198) body mandated, inter alia, to fight public corruption in Ghana, and as such theoretically provides a platform for this purpose.
In particular, it is mandated to investigate allegations that a public officer has contravened or not complied with a provision of Chapter 24 of the Constitution.31 Article 218(d) of the Constitution and section 7(d) of the Commission on Human Rights and Administrative Justice Act 456 of 1993 therefore stipulate the means by which an appropriate action can be brought for the remedying, correction, and reversal in the case of corruption by a public officer in the exercise of his or her official duties.32 The CHRAJ is also mandated to ‘investigate all instances of alleged or suspected corruption and the misappropriation of public moneys by officials and to take appropriate steps, including reports to the Attorney-General and the Auditor-General, resulting from such investigations’.33
To be able to undertake these duties, the Commission has been given certain limited powers to equip its staff to perform their duties. Article 219 of the Constitution and section 8 of Act 456 provides for these powers, which include the power of subpoena to require attendance and production of documents, and the power of contempt. However, the CHRAJ is precluded from investigating matters already pending in court; matters involving the relations or dealings between the government and a foreign government or international organization; and matters relating to the exercise of the prerogative of mercy.34
The independence of the CHRAJ is guaranteed by the Constitution and Act 456, and as such it is not subject to the direction or control of anyone in the performance of its functions.35 In reality, though, it tends to turn a blind eye or otherwise fail to act decisively when allegations of corruption are made against officials of the government in power. For instance, in the case of an expensive vehicle allegedly given to former President John Mahama (when he was the Vice-President) as a gift by a Burkinabe businessman, who was subsequently awarded three government contracts, the Commission concluded that the President had breached the policy on gifts but nevertheless found that it was not a bribe and did not create a conflict of interest situation, since he was alleged to have declared it.36 This is very weak reasoning, because if he was wrong to have accepted the gift in the first place, regardless of his declaration of the gift, the fact that the person who gave the gift received profitable government contracts subsequently renders the CHRAJ’s conclusion without any merit.
3.1.3 Economic and Organized Crime Office
The Economic and Organized Crime Office (EOCO) was set up in 2010 by virtue of the Economic and Organized Crime Act 804 of 2010 as a successor to the erstwhile Serious Fraud Office.37 It was established in line with article 190(1)(d) of the 1992 Constitution as one of the public services of the country for the purposes of assisting the government’s effort in the fight against corruption. The EOCO is thus a specialized body that monitors and (p. 199) investigates economic and organized crime and which on the authority of the Attorney-General can prosecute such crimes to recover their proceeds.38
Since its inception, it has been energetic in initiating investigations into alleged corrupt practices in the public sector. For example, the Ghana Football Association came under its scrutiny a few years ago with regard to allegations of embezzlement, fraud, and corruption.39 Yet although it is a vibrant institution, the EOCO lacks independence, since it operates essentially under the auspices of the Ministry of Justice and Attorney-General’s Department—a branch of the executive.40 As a result of the absence of political will and lack of adequate resources, it has been unable to undertake investigations of members of successive incumbent governments.41
3.1.4 Miscellaneous laws and institutional mechanisms
As noted, modern Ghana has a plethora of laws as well as institutions for anticipating and dealing with diverse forms of corruption. For example, the Whistleblowers Act42 provides for the manner in which individuals may disclose information in the public interest that relates to the unlawful or illegal conduct or corrupt practices of others. The Act also provides for rewards for making such disclosures as well as protection from being victimized for them.43 That is to say, where the whistle-blower has been subjected to any form of victimization for his or her whistle-blowing activities, he or she may make a complaint to the CHRAJ, which is mandated to provide a remedy of some sort.44
In addition, the Financial Administration Act45 and Financial Administration (Amendment) Act46 regulate the financial management of the public sector and establish a specialized court for that purpose. Similarly, the Public Procurement Act47 seeks to regulate public procurement by making the process open and transparent, whilst the Internal Audit Agency Act48 is established to coordinate, facilitate, monitor, and supervise internal audit activities within governmental agencies. In a like manner, the Audit Service Act 584 of 2000 mandates the Auditor-General to audit the accounts of government ministries, departmental agencies, the courts, and so on.49 Act 584 governs the work of the Auditor-General. For example, section 20 of the Act requires the office of Auditor-General to submit a special report to Parliament at the end of its work every financial year. Thus, any irregularities noted in its findings must be included in its report.
The Audit Service has been criticized, however, as another ‘toothless bulldog’ lacking the authority to enforce its audit-finding recommendations.50 Unfortunately, too, the Public Accounts Committee of Parliament that exercises oversight responsibility over the (p. 200) Auditor-General in relation to all public accounts has not inspired any confidence either over the years in discharging its onerous responsibilities.51
The Criminal Offences Act52 prohibits bribery and corruption by and on behalf of public officers.53 It also provides for the offence known as ‘causing financial loss to the State’ as well as ‘using public office for profit’, which are basically aimed at punishing the corrupt acts of public officials who wilfully dissipate public funds or resources.54 The Anti-Money Laundering Act 749 of 2008 establishes a Financial Intelligence Centre to combat money-laundering as well as trace the proceeds of unlawful activity.55 Ghana is also a party to the United Nations Convention against Corruption, having ratified this treaty on 27 June 2007,56 and the African Union Convention on Preventing and Combating Corruption.57
It is clear that there is, theoretically, an extensive, multifaceted legal framework for fighting corruption in Ghana. In the past few years, moreover, the issue of corruption has been so topical that the government saw the need to adopt a national plan of action for dealing with it.58 Thus, the National Anti-Corruption Action Plan (NACAP)—(2015–2024) was adopted by the Parliament of Ghana in 2014.59 The NACAP reflects three key principles that must be in harmony for the fight against corruption to succeed: prevention; education and public awareness; and enforcement (including investigations and, where necessary, prosecutions).
In terms of its strategic objectives, the NACAP aims at achieving the following: building capacity to fight corruption and make the practice unattractive, that is, a high-risk, low-gain activity; institutionalizing efficiency, accountability, and transparency in the public, private, and not-for profit sectors; engaging individuals, the media, the private sector, and civil society in reporting and combating corruption; and conducting effective investigations into and prosecution of corrupt conduct.60
Nevertheless, the existence of laws, policies, and institutions alone has not magically cured corruption in Ghana; indeed, it has been on the rise in the past two decades, with each of the governments of the Fourth Republic having been guilty of either perpetuating it or showing weakness of resolve in tackling it—or both.
3.2 The era of ‘zero tolerance of corruption’
The New Patriotic Party (NPP) that won the presidential and parliamentary elections in 2000 replaced the National Democratic Congress (NDC), which, led by President Jerry Rawlings, had ruled Ghana since 1993. Before then, the Provisional National Defence Council (PNDC), (p. 201) which came to power by overthrowing the constitutional and democratically elected government in December 1981, had presided over the affairs of the state, again under the leadership of Jerry Rawlings.61 In his maiden address on being sworn in as President, the NPP’s John Kufuor famously declared that his government would have ‘zero tolerance of corruption’:
We on our part in the new administration, accept that we need to sacrifice and work hard. We pledge to cut waste and corruption from public life. There will be, under this administration, zero tolerance of corruption and I make a solemn pledge to you my compatriots, and fellow citizens that I shall set a personal example.62
There was every hope that concrete action would finally be taken to curb corruption effectively in the public sector. Unfortunately, it was less than a year before the government was rocked by its first corruption scandal, one involving the Minister of Youth and Sports, Mallam Issah.63 Although he was swiftly prosecuted and convicted, many believed the Minister was sacrificed on the altar of political expediency, given that he was an ‘outsider’ within the government, belonging not to the NPP but its election coalition partner, the People’s National Convention (PNC).64
Subsequent allegations of corruption against members of the ruling party that were similar or greater in gravity to those in Mallam Issah’s case, however, were not vigorously pursued by the government. In fact, President Kufuor famously responded to critics who said he was not taking the fight against corruption seriously enough by challenging them to substantiate their claims and provide any evidence they had to the appropriate authorities so that the law could take its course.65
In the meantime, the government was indeed vigorous on another front—consistent with established practice, it was pursuing former officials of the previous NDC government, some of whom were prosecuted and convicted on charges of causing financial loss to the state.66 Many took the view that the new government was engaging in the politics of vindictiveness by persecuting members of the old regime.67 For example, high-ranking NDC members such as Dan Abodakpi,68 Tsatsu Tsikata,69 Victor Selormey,70 and Kwame Peprah71 who had previously served in public office were all successfully prosecuted.
Corruption thrived nonetheless under Kufuor’s government, with allegations in this regard levelled against several members of the administration, including the President himself.72 For instance, the then national chairman of the ruling party, Haruna Esseku, admitted (p. 202) to sending ‘bags’ of money to the seat of government (the Presidency) as ‘kickbacks’ for contracts duly awarded by the government.73 The ‘Hotel Kufuor’ scandal, in which the President allegedly used his influence to help one of his sons access the credit to buy prime real estate in Accra for the purpose of building a hotel, was yet another example of the profligacy in which Kufuor’s government seemed to be embroiled.74 It was against the backdrop of these and other allegations that the NPP lost its hold on power in the 2008 presidential and parliamentary elections.75
3.3 The (bitter, not so) Better Ghana Agenda
With the NDC’s return to government in January 2009, there was again hope that the days of wanton displays of wealth by officials were over, seeing as the new President, John Mills, was widely regarded as a decent man who would not tolerate corruption. In his inaugural address, Mills announced ‘a dawn of a new era for Ghana’,76 going on to declare:
Our politics will not focus on power and privilege. On the contrary, we will not forget the concerns of the Ghanaian people who want to see an improvement in their living conditions. Willingness to put personal advantage aside will therefore be one of the key demands on those who will serve in the Atta Mills government. Honesty, fairness, compassion and sincerity will be the hallmark of my administration. I have no wish to carry out political vendetta of any kind.77
The Mills administration was, however, characterized by anything but honesty, fairness, compassion, or sincerity. The Better Ghana Agenda it set out for itself soon became ‘bitter’ instead. For example, there was the GHS51-million judgment debt case of 2011, a scandal involving a sympathizer of the NDC government, Alfred Woyome. Mr Woyome had been contracted prior to 2008 by Kufuor’s NPP government to help raise money for the construction of stadia for the 2008 African Cup of Nations held in Ghana. However, after failing to meet the deadline, the contract was abrogated. After the NPP left power in January 2009, Mr Woyome sued the state alleging that his contract with the state was illegally terminated and that as a result he had incurred substantial financial loss.78 Surprisingly, the government did not defend the state against the debt claim by Mr Woyome, but rather acquiesced by virtue of the adoption of a consent judgment by the court, thus allowing the government to incur judgement debts in favour of Mr Woyome.79 The way the government addressed the case (p. 203) aroused suspicion among the wider Ghanaian public of the Government’s connivance in allowing Mr Woyome to have a judgment debt against the state, and also signalled its weakness of resolve in tackling corruption.80 As it happened, President Mills fired the then Attorney-General and the Minister of Justice, Martin Amidu, in early 2012, for publicly criticizing the government’s handling of the Woyome case.81
Prior to this in 2010, the CHRAJ had investigated allegations of corruption brought against Mubarak Mohammed Muntaka, the then Minister of Youth and Sports and a Member of Parliament for the Asawase constituency in the Ashanti region.82 The allegations included the fraudulent acquisition of a German visa for a woman believed to be his girlfriend, under the pretext that she was an employee of his Ministry when in fact she was employed by the Ghanaian parliament.83 Muntaka was also accused of corrupt acts such as buying airline tickets for his family and himself at the taxpayer’s expense and allocating state vehicles for his personal use.84 It was alleged too that Muntaka had travelled with his girlfriend to Côte d’Ivoire, retained the services of a spiritualist, and bought meat and other gifts for his constituents, with all of it paid for by public funds.
However, the CHRAJ mysteriously cleared him of all charges; indeed, there was no serious attempt by the government to take up the case any further even though the evidence was overwhelming. This state of affairs led, however, to his losing his job as Sports Minister.
3.4 The ‘dead goat’ era
If corruption thrived under Kufuor and there was a weak resolve to tackle it under Mills, then it escalated to danger level in an unprecedented way under President John Mahama, who succeeded Mills after the latter’s untimely death in July 2012.85 To be fair to Mahama, unlike his two predecessors he made no grand claims in his inaugural address about rooting out corruption.86 The speech was in fact devoid of reference to any specific plan for the country’s future and amounted rather to an exercise in rhetoric.87 One can therefore argue that he was not committed to fighting corruption. It is not surprising that he famously referred to himself as a ‘dead goat’ no longer afraid of the knife, doing so evidently to express his satiety in the face of constant accusations that he and his government were blatantly corrupt.88
(p. 204) A notable instance of the corruption prevalent during the Mahama era involved the Ghana Youth Employment and Entrepreneurial Development Agency (GYEEDA), the successor to the National Youth Employment Programme established under the Kufuor administration to address youth unemployment.89 Corruption was widespread in the Agency, with companies having been paid huge sums of money to render services under the different modules of the programme but without any work having been done.90 This led to the eventual trial and conviction of Abuga Pele, a former Member of Parliament and national coordinator of GYEEDA, and Philip Assibit, chief executive officer of Goodwill International Group.91
Similarly, in 2014 the Savannah Accelerated Development Authority misappropriated more than GHS47 million allocated to it for its operations, but the government failed to act in any manner likely to inspire confidence that the public purse was being safeguarded. Another example was the scandal surrounding Ghana’s involvement in the 2014 FIFA World Cup in Brazil.92 Following public condemnation of the sums of money rumoured to have been spent on Ghana’s participation—and the football team’s dismal performance—a commission of inquiry was appointed to investigate allegations of corruption. It emerged, for example, that, in support of fans who went to Brazil to cheer on the Ghanaian team, the government paid a consultant USD20,000 for directing catering staff to a supermarket.93 The list of such high-profile corruption scandals during the ‘dead goat’ era is almost endless.94
3.5 A new dawn?
On 7 January 2017, a new government took over the affairs of Ghana after winning an overwhelming mandate in the December 2016 presidential and parliamentary elections, thanks in part to its focus on rooting out endemic corruption during the campaign season.95 Indeed, corruption had been a major campaign issue. At his inauguration, President Akufo-Addo reiterated his long-standing commitment to protect the public purse and eradicate corruption in public life. He declared thus:
We must restore integrity in public life. State coffers are not spoils for the party that wins an election, but resources for the country’s social and economic development. I shall protect the public purse by insisting on value-for-money in all public transactions. Public service is just that—service and not an avenue for making money. Money is to be made in the private sector, not the public. Measures will be put in place to ensure this.96
(p. 205) It is perhaps too early to judge the new government’s commitment to fighting corruption, since at the time of writing it is only in its second year of being in power. However, the signals to date suggest it is a case of more of the same. The fact that the government boldly declared in 2017 that it lacked the money to pay government appointees, and as such had not paid them for the first six months of the administration, is a worrying omen indeed.97 There is a high likelihood that individuals or entities looking for favours could exploit the situation to corrupt such persons. The possibility is all the greater in the light of allegations within the first few weeks of the new government that a minister-designate paid bribes to Parliament’s appointments committee to ‘facilitate’ his confirmation.98
This notwithstanding, the present government has taken some steps that seems to suggest its willingness to take the fight against corruption seriously. It has, accordingly, established an ‘independent’ Office of the Special Prosecutor (OSP), by passing the Office of the Special Prosecutor Act 959 of 2017, which purports to restrict and/or defer the power of the Attorney-General in terms of prosecutions relating to corruption. Section 4(2) of the Act provides that ‘[s]ubject to clause (4) of article 88 of the Constitution, the Office shall for the purposes of this Act be authorized by the Attorney-General to initiate and conduct the prosecution of corruption and corruption related offences’. Section 4(1) of the Act in turn states that ‘[e]xcept as otherwise provided in the Constitution, the Office is not subject to the direction or control of any person or an authority in the performance of the functions of the office’.
These provisions have the potential to limit the OSP’s independence, given that in practice the Attorney-General can halt a prosecution by the OSP if it so wishes. The inevitable conclusion is that the OSP is not genuinely independent, but subject rather to the direction or control of the Attorney-General. In effect, this weakens the current government’s ability to fight corruption, and hence raises doubts too about its commitment to doing so. Interestingly, the OSP, more than one year since its establishment, is yet to prosecute anyone on corruption charges.
(p. 208) 5. Conclusion
It is clear that the laws enacted over the years to tackle corruption in Ghana have not been effective in reaping dividends. The truth is that corruption has thrived in the face of all these laws and the legal framework in existence for its eradication. As already noted, the government has adopted the NACAP (2015–2024). This initiative seems a laudable one in theory, but in practice the lack of political will to implement it stands to undermine any impact it could have on the fight against corruption in the long term.
As we have also noted, successive governments in the Fourth Republic of Ghana have tried to address corruption. The measures have included prosecutions of high-profile former public officials who allegedly used their offices for corrupt purposes. That notwithstanding, the convictions have been seen in some quarters as political witch-hunting since the efforts targeted officials belonging to opposition political parties. Thus, although the fight against corruption has secured a few prominent convictions in the past, that fight, arguably, has been more rhetorical than practical or effective. Thus, it seems as though the actual political will to tackle corruption on a wholesale basis is lacking in Ghana.
In order to maintain an environment where corruption can be controlled and even possibly eliminated, we need to ensure that some concrete measures are in place to establish sound, transparent, and endurable democratic institutions. These are the tools that withstand the test of time and provide a sound basis for the exposure of corrupt tendencies and practices. The fact remains that as long as politicians and high-level public officials feel invincible because of the cloak of political power they wear, these tendencies and practices are likely to continue. If, however, the OSP is empowered as a genuinely independent institution prosecuting corruption involving all persons, irrespective of their political power, then Ghana may find itself on the right track in the fight against corruption.
In this chapter, we have sought to identify several of the essential steps that can be adopted to inhibit the emergence and growth of corrupt practices in society in general. We have therefore made some recommendations, based on a case study of Ghana, to help ensure that the democratic system has the capability to withstand corruption. However, we are mindful of two important limitations. First, there is no foolproof panacea that can offer an antidote to all forms of corruption in any given country: human ingenuity in cheating can never be defeated. However, the tendency can be curbed if the chances are high that corruption will be exposed and decisively dealt with. Second, the recommendations provided here cannot, in the nature of things, be exhaustive. This necessarily implies that there is room for improvement and this study therefore invites further research, reflection, and deliberation.
1 For example, under the rule of Ghana’s first president, Kwame Nkrumah, power was notoriously centralized to the extent that the Constitution granted him special legislative powers and authority to unilaterally dismiss the Chief Justice and all other justices of the Superior Courts.
2 Lardan v Attorney-General (No. 2) (1957) 3 WALR 114 (HC); Balogun v Edusei (1957) 3 WALR 547 (HC); Re Akoto & Seven Others  GLR 523 (SC), The State v Otchere & 4 Ors  2 GLR 463, SC.
4 He dissolved the court; he kept the accused persons in prison; a referendum was held that amended the Constitution and conferred power on the President to dismiss judges; he dismissed the Chief Justice and others perceived ‘anti-Nkrumah’ judges; a new Chief Justice was appointed; the verdict of the court was overturned by the National Assembly; he set up another Special Court to try the accused for the second time; a retrial by this Special Court under the new Chief Justice was ordered; the jury was composed allegedly of products of the Kwame Nkrumah Ideological Institute; the accused persons were convicted and sentenced to death; the death penalty was commuted to life imprisonment; and the prisoners were released only after the 1966 coup against Nkrumah.
5 Several corruption cases in the law reports of this period involved former high-ranking government officials, including a deputy speaker of the National Assembly and Minister of Trade. Similarly, at least twenty-one individuals with a connection to the Nkrumah regime were adjudged to have acquired assets and monies unlawfully and illegally during the life of the regime. See Government of Ghana, ‘White Paper Report on the Jiagge Commission of Enquiry into the Assets of Specified Persons’ (White Paper No. 3/69, 1969).
8 The Ollenu Commission (chaired by a sole commissioner, Justice Ollenu of the Court of Appeal) was appointed by the National Liberation Council (NLC) after the overthrow of Kwame Nkrumah to investigate alleged irregularities and malpractices in connection with the grant of import licences between 1963 and 1966. Similarly, Justice Annie Jiagge, a High Court Judge, was appointed as the Chairperson of a Commission of Inquiry established by the NLC to investigate the nature, extent, and method of acquisition of the assets of certain individuals during the Nkrumah Regime.
11 Article 71(2)(b)(ii) of the 1969 Constitution provided that ‘[n]o person shall be qualified to be a member of the National Assembly who has been adjudged or otherwise declared … by a report of a Commission of Inquiry to be incompetent to hold public office or that while being a public officer he acquired assets unlawfully, or defrauded the State, or misused or abused his office or wilfully acted in a manner prejudicial to the interests of the State’.
12 Awoonor-Williams v Gbedemah, 2 G & G 1184 (2d) (SC).
13 An example is the Kwakye case  GLR 944. Here, a Special Tribunal established by the military regime had convicted the accused, the former Inspector General of Police of Ghana, in absentia for treason. He was able to adduce evidence that he had never been tried by a court of competent jurisdiction under the laws of Ghana and therefore could not be said to have been convicted. However, the Supreme Court held that it was powerless to address his problem, since even though the procedure adopted by the Special Tribunal lacked the fundamental essentials for trials under the laws of Ghana, it (the Supreme Court) could not offer him redress thanks to the indemnity clause in the 1979 Constitution, which ousted the jurisdiction of all courts in Ghana in questioning actions taken by the previous military regime, including judicial action taken or purported to have been taken.
14 Sections 34–37 of the Transitional Provisions of the Constitution of Ghana 1992.
20 See eg Whistleblowers Act 720 of 2006; Financial Administration Act 654 of 2003; Financial Administration (Amendment) Act 760 of 2008; Public Procurement Act 663 of 2003.
21 The Constitution of the Republic of Ghana 1992 (Constitution 1992), arts 284–288.
25 ibid. Importantly, the Act does not provide for criminal penalties for breach of its provisions. All it provides for is disqualification from holding public office for ten years and the power of the Commission on Human Rights and Administrative Justice and the Chief Justice to take ‘appropriate action’ upon a complaint or admission of breach of provisions of the Act. What ‘appropriate action’ means is not defined, though it is highly doubtful it would include criminal penalties—for that to happen, the persons concerned would have to be prosecuted for a specific criminal offence, which the Act does not provide.
27 Institute of Economic Affairs, Fighting Corruption in the Public Sector of Ghana: The Role of Assets Declaration Regime (2016) IEA Monograph No. 44, ch 8.
28 Constitution 1992, art 284.
30 Constitution 1992, art 216.
31 ibid art 287 and Act 456, s 7(e).
32 These include causing the complaint and any finding thereof to be reported to the superior of the offending public official; and bringing proceedings in a competent court of jurisdiction for a remedy to secure the termination of the offending action or conduct, or the abandonment or alteration of the offending procedures.
33 Constitution 1992, art 218(e), and Act 456, s 7(f).
34 Constitution 1992, art 219, and Act 456, s 8.
35 Constitution 1992, art 219, and Act 456, s 8.
38 Economic and Organized Crime Act 804 of 2010, s 1.
40 Constitution 1992, art 88, and Act 804, s 1.
43 This is what the long title to Act 720 stipulates.
44 Act 720, ss 13 and 14.
50 Appiah Kusi Adomako, ‘Ghana: After the Public Accounts Committee Hearing—What Next?’ The Ghanaian Chronicle (Accra, 1 November 2007).
54 ibid ss 179(a), (c) and (d).
57 The African Union Convention on Preventing and Combating Corruption (2003).
59 Republic of Ghana, The National Anti-Corruption Action Plan (NACAP)—(2015–2024) (Republic of Ghana 2014).
61 Tapan Prasad Biswal, Ghana: Political and Constitutional Development (Northern Book Centre 1992) 185.
62 President JA Kufuor, Inaugural Address, 7 January 2001.
66 The Republic v Ibrahim Adam, Dr Samuel Dapaah, Kwame Peprah, Dr George Yankey and Ato Dadzie (28 April 2003) No. FT/MISC 2/2000.
68 Dan Abodakpi was an NDC Member of Parliament and minister of trade under the Rawlings regime.
69 Tsatsu Tsikata was a chief executive of the Ghana National Petroleum Corporation under the Rawlings regime.
70 Victor Selormey was a deputy minister of finance under the Rawlings regime.
71 Kwame Peprah was a minister of finance under the Rawlings regime.
75 Arthur Kennedy, Chasing the Elephant into the Bush: The Politics of Complacency (AuthorHouse 2009) 2.
76 President John EA Mills, Inaugural Address, 7 January 2009.
79 Thus, instead of putting up a legal defence against the claims by Woyome in the first instance, the state entered into an agreement with him which was presented to the court to adopt as its decision—a practice common in commercial claims. The problem with it in this case relates to the huge sum involved, which was to be paid out of the public coffers. If the state had put up a defence, the quantum of judgment debt might have been reduced substantially or even not awarded at all.
81 George Nyavor, ‘Woyome Saga: Martin Amidu Breaks Silence on Why He Was Sacked as Attorney-General’ (Myjoyonline, 18 March 2015) <https://bit.ly/2VQ40p8> accessed 13 August 2017.
86 President John D Mahama, Inaugural Address, 7 January 2013.
88 Nathan Gadugah, ‘I Have Dead Goat Syndrome—Mahama Tells Ghanaians’ (Myjoyonline, 11 March 2015) <https://bit.ly/1Mtq3XE> accessed 13 August 2017. Mahama’s ‘dead-goat syndrome’ statement was a response to strike threats by union workers, but it conveyed his apparent nonchalance to allegations of corruption as well. One can conclude as much from the analogy he gave: ‘It is said that when you kill a goat and you frighten it with a knife, it doesn’t fear the knife because it is dead already. I have a dead-goat syndrome.’ His government was embroiled in corruption scandals yet neglected to take remedial action, suggesting that its default posture towards corruption (inertia, acquiescence, complicity) was symptomatic of the ‘dead-goat syndrome’—the goat had suffered the worst and there was nothing more to be done.
91 The Republic v Abuga Pele & Another (Unreported High Court Case, 2018).
95 New Patriotic Party, ‘Change—An Agenda for Jobs: Creating Prosperity & Equal Opportunity for All’ (2016) NPP Manifesto for Election .
96 President Akufo-Addo, Inaugural Address, 7 January 2017.
98 Although a parliamentary committee was set up to investigate these allegations, it exonerated the Minister of wrongdoing. This was seen as an exercise in covering up Parliament’s own dirty laundry, given that the public regards it as one of the most corrupt institutions in the country.
99 Constitution 1992, art 78(1).
100 A case in point arose in the 1960s when members of the opposition in Ghana were imprisoned under the Preventive Detention Act. When they challenged the detention through habeas corpus, the Supreme Court denied their request on the ground that it did not apply in their case.
101 Anisminic v Foreign Compensation Commission (1962) 2 AC 147 (HL).
104 Ghana Bar Association v Attorney-General and Others  GHASC 43.
105 Constitution 1992, art 88.
106 Act 959, ss 4(1) and 4(2).
107 Constitution 1992, art 290.
108 They are misdemeanours, which means the maximum penalty on conviction is three years’ imprisonment.