CORRUPTION: AN ethical

CHALLENGE?

INTRODUCTION
THE JOURNEY
The road from Accra to Takoradi
Inevitable? Are we programmed to be corrupt? Are we set up to

fail?
ETHICS?
The term ethics derives from the ancient Greek word ethikos,

which is derived from the word ethos (habit or custom).

INTRODUCTION
Ethics (or moral philosophy): Are we dealing with the

philosophy of systematizing, defending, and recommending

concepts of right and wrong conduct. Are we investigating
questions such as What is the best way for people to live?
and What actions are right or wrong in particular
circumstances? Are we seeking to resolve questions of
human morality, through defining concepts such as good and
evil, right and wrong, virtue and vice?

INTRODUCTION
EFFECTS OF CORRUPTION
Politically: obstacle to democracy and the rule of law
Economically:
depletes a country's wealth by diverting it to corrupt officials' pockets
puts an imbalance in the way that business is done, enabling those who

practise corruption to win.

The language of bribery also deceives, implying that what is being offered

or expected is of no consequence. But corruption is not a victimless crime; it

leads to decisions being made for the wrong reasons. Contracts are awarded
because of kickbacks and not whether they are the best value for the
community. Corruption costs people freedom, health and human rights and,
in the worst cases, their lives. Harriet Kemp, head of engagement at
the Institute of Business Ethics, writing the The Guardian of 30th
January 2014

INTRODUCTION
Mao Zedong said "food before ethics. In other words, survival

takes precedence over other moral considerations

If Corruption is an Ethical Challenge, then it is rendered
susceptible to factors such as customary practices, fear,
ignorance, pressure to meet targets, or pressure from a more
senior figure.
Corruption is an act that is harmful, not only to some individuals,
but also to a community, society or the state. It is a public wrong.
Thus, instead of/in addition to being a mere ethical challenge,
should it not simply be a violation of a law in which a term in jail
or prison, and/or a fine are possible penalties?

CONSTITUTIONAL
UNDERPINNINGS
Article 35(8): The State shall take steps to eradicate corrupt

practices and the abuse of power.

Article 218(a): CHRAJ to investigate complaints of
corruption, abuse of power by a public officer in
the exercise of his official duties.
Article 218(e): CHRAJ to investigate all instances of
alleged or suspected corruption and the misappropriation of
public monies by officials and to take appropriate steps,
including reports to the Attorney-General and the
Auditor-General, resulting from such investigations.

ENTER THE SUPREME COURT

Complaints: Republic v. High Court (Fast Track Division), Ex

parte CHRAJ (Richard Anane Interested Party) [2007-2008]

SCGLR 213 CJ Wood drew distinction between 218(a)
(requiring definite, formal complaints) and 218(e) (All that is
required are allegations/suspicions).
Public Officials: CHRAJ v. Attorney-General & Baba Kamara
[2011] SCGLR 750) Court refused to draw artificial lines
and boundaries. A narrow interpretation would place
unjustified functional limitations on CHRAJ. The provision
covers private persons when necessary to expose the total
picture of corruption involving a public official.

CORRUPTION IS A CRIME
FIRST:
In respect of the duties of a public office
A Public Officer agrees or offers (directly/indirectly) to

allow his conduct to be influenced

By gift, promise or prospect of a valuable consideration
To be received:
By him/her, or by any other person
From any other person.

CORRUPTION IS A CRIME
SECOND:
In respect of the duties of a public office
A person endeavours (directly/indirectly) to influence the

conduct of a Public Officer

By gift, promise or prospect of a valuable consideration
To be received:
By the public officer or by any other person
From any other person.

CORRUPTION IS A CRIME
CLASSIFICATION OF CRIMES
1ST DEGREE FELONY LIFE IMPRISONMENT (MAX)
EGS: ATTEMPTED MURDER, MANSLAUGHTER, RAPE, USE OF
OFFENSIVE WEAPONS & ACCEPTING ENLISTMENT INTO A FOREIGN
ARMY WITHOUT THE PRESIDENTS APPROVAL!
2ND DEGREE FELONY 10 YEARS (MAX)
EGS: CAUSING HARM, UNLAWFUL USE OF HUMAN PARTS,
STEALING, DEFRAUDING BY FALSE PRETENCE, PERJURY,
FALSIFICATION OF ELECTION RETURNS, TRIAL BY ORDEAL &
FRAUDULENT LAND TRANSACTIONS
MISDEMEANOUR 3 YEARS (MAX)
EGS: ASSAULT, BESTIALITY, INSULTING NATIONAL FLAG, CAUSING
FEAR & PANIC, BIGAMY, PIMPING, KEEPING A BROTHEL,
PORNOGRAPHY, HABITUAL DRUNKENESS

CORRUPTION IS A CRIME
SPECIAL PROVISION
CORRUPTION ATTRACTS UP TO 25 YEARS IMPRISONMENT

ELEMENTS
PUBLIC OFFCE
INFLUENCE
RECEIVING

PRE-PAID BRIBES

Payment in hope, anticipation, belief, prospect, probability of

appointment

CORRUPTION IS A CRIME
POST-PAID BRIBES
Where after a public officer does an act
He secretly accepts or agrees or offers to secretly accept for

personal gain or for any other person

Valuable consideration on account of the act
Presumption: until the contrary is shown, he acted corruptly
before doing of the act.
Where after a public officer does an act
Any other person secretly agrees or offers to give or to procure for

that person or any other person

Valuable consideration on account of that act
Presumption: the person so agreeing or offering, corrupted the
public officer before the doing of the act

EXTORTION
EXTORTION OF PROPERTY UNDER THE COLOUR OF A

PUBLIC OFFICE MISDEMEANOUR (SPECIAL PROVISION

APPLIES)
A public officer who:
Under colour of office
Demands or obtains from a person, whether
for public purposes,
for personal gain, or
for any other person
Money or valuable consideration which he knows is not

lawfully authorised to demand or to obtain

FALSE CERTIFICATION
FALSE ATTESTATION/CERTIFICATION BY PUBLIC

OFFICER
ATTESTS/CERTIFIES EVENT WITHOUT KNOWING OR

HAVING REASON TO BELIEVE THAT IT HAS OR HAS

NOT HAPPENED
MISDEMEANOUR (SPECIAL PROVISION DOES NOT

APPLY.

REVOLUTIONARY FALSE
CERTIFICATION
GOVERNMENT CONTRACTS (PROTECTION) ACT, 1979

(AFRCD 58)

a contract entered into by the Government or a statutory corporation or any

other agency of the Government for the performance of a work or service for
[or] the supply of goods to the Government or the statutory corporation or the
agency of the Government.
KNOWLEDGE/RECKLESSLY CARELESS/GROSSLY
NEGLIGENT
WORK IS NOT DONE/SERVICE IS NOT PERFORMED/GOODS ARE

NOT SUPPLIED/MONEY IS OTHERWISE NOT DUE

CIVIL LIABILITY: REFUND, JOINTLY & SEVERALLY
CRIMINAL LIABILITY: 3X FINE OR 10 YRS IMPRISONMENT (MAX)
BRIBERY/CORRUPTION: 3X PENALTY, 5-15 YRS IMPRISONMENT

PUBLIC PROPERTY
PROTECTION OF PUBLIC PROPERTY ACT, 1977 (SMCD

140)

INTENTIONAL DISSIPATION OF PUBLIC FUNDS 10 YRS

WITHOUT THE OPTION OF A FINE

INTENTIONAL MISSAPPLICATION, CAUSE OF LASS OR
DAMAGE TO PUBLIC PROPERTY/LOSS CAUSED BY
CARELESSNESS, GROSS NEGLIGENCE OR DISHONESTY/
FAILURE TO ACCOUNT FOR PUBLIC PROPERTY ENTRUSTED
OR UNDER CONTROL/ USING PUBLIC PROPERTY FOR
PRIVATE GAIN/ OBTAINING PUBLIC PROPERTY BY FALSE
STATEMENTS 5 YRS AND/OR GHS12,000
PENALTIES: INCLUDE SEIZURE OF ASSETS HELD DIRECTLY
OR INDIRECTLY IN GHANA, FORCED TO TRANSFER TITLE TO
ASSETS SITUATED OUTSIDE GHANA

CEPS
OFFENCES:
TAKE A BRIBE, ETC FOR
NEGLECT OR NON-PERFORMANCE OF DUTY
ON ACCOUNT OF ANYTHING RELATING TO THE OFFICE
AGREE TO DELIVER OR NOT SEIZE ANYTHING LIABLE TO
FORFEITURE
CIVIL LIABILITY: SUMMARY DISMISSAL
CRIMINAL LIABILITY:
CEPS OFFICER: FINE OF 200% (MAX) OF POTENTIAL/REAL LOSS
OR 300,000 PENALTY UNITS (GHS3,600,000), OR 10 YRS
IMPRISONMENT (MAX)
BRIBOR: FINE THE HIGHTER OF 200% (MAX) OF
POTENTIAL/REAL LOSS OR GHS500,000, OR 10 YRS IMPRISONMENT
(MAX)

PARLIAMENT
CONTEMPT OF PARLIAMENT
USING BRIBERY/FRAUD TO INFLUENCE AN MP
MP ACCEPTING A BENEFIT/PERSONAL GAIN IN

RETURN FOR UNDERTAKING TO PERFORM ANY OF HIS

OFFICIAL FUNCTIONS IN A PARTICULAR MANNER, OR
TO OMIT TO DO SOMETHING
LOBBYING?
MPS TAKE BRIBES!! REALLY?

ADDITIONAL POINTS TO NOTE

Public Procurement Act
93. Corrupt practices
(1) Entities and participants in a procurement process shall, in
undertaking procurement activities, abide by the provisions of article 284
[conflict of interest provisions] of the Constitution.
(2) An act amounts to a corrupt practice if so construed within the
meaning of corruption as defined in the Criminal Offences Act, 1960 (Act
29).
Whistleblowers Act
Preamble: to provide for the manner in which individuals may in the public
interest disclose information that relates to unlawful or other illegal conduct
or corrupt practices of others; to provide for the protection against
victimisation of persons who make these disclosures; to provide for a Fund
to reward individuals who make the disclosures

AUDITOR-GENERAL
DUTY/MANDATE: AUDIT AND REPORT ON THE

PUBLIC ACCOUNTS OF GHANA

POLITICAL INDEPENDENCE
FINANCIAL INDEPENDENCE
POWER TO DISALLOW & SURCHARGE

POWER OF DISALLOWANCE &

SURCHARGE
SURCHARGE 1: DISALLOW Expenditure which is

contrary to law. Surcharge the person who

incurred/authorised the payment with the amount paid and
disallowed. (Article 187(7)(b)(i))
SURCHARGE 2: Failure to bring a sum into account, e.g.,
a person fails to record a transaction or having received a sum
on behalf of the government, records less than what was
actually received. Surcharge that person with amount not
brought into account. (Article 187(7)(b)(ii))
SURCHARGE 3: Through the negligence or misconduct of
any person, the state incurs a loss or deficiency. Surcharge
that person (whether or not a public servant) with the value
of the loss or deficiency. (Article 187(7)(b)(iii))

POWER OF DISALLOWANCE &

SURCHARGE
Where the Auditor-General determines that it is proper to

issue a Disallowance and Surcharge, he will issue a

Specification/Certification of Disallowance & Surcharge
which must:
Be addressed to the head of the appropriate MDA,
Copied to the person surcharged, Parliament and the Attorney

General,
State the exact amount disallowed and surcharged, and the reasons
Require that the person surcharged should pay the amount or appeal
to the High Court within sixty (60) days,
State that the Head of the MDA/Attorney-General may take civil
proceedings to recover the amount surcharged and may attach the
remuneration of the person, if that person receives remuneration
from public sources, and
State that the surcharge may only be revoked with the prior approval
of Parliament.

POWER OF DISALLOWANCE &

SURCHARGE

POWER OF DISALLOWANCE &

SURCHARGE

POWER OF DISALLOWANCE &

SURCHARGE

POWER OF DISALLOWANCE &

SURCHARGE

POWER OF DISALLOWANCE &

SURCHARGE

POWER OF DISALLOWANCE &

SURCHARGE

POWER OF DISALLOWANCE &

SURCHARGE
Recurring words in the Auditor-Generals yearly reports (eg. 2013)

Paragraph 34: The cataloguing of financial irregularities in my Report

on MDAs and Other Agencies has become an annual ritual that seems to
have no effect
Paragraph 35: The 2013 audit results indicated continued infractions
and financial indiscipline on the part of MDAs We noted failure to
account for monies given out for implementation of programmed
activities, travels and settlement of claims or other recurrent
expenditures and the absence of pertinent records to support claims
paid, stores purchased or fuel utilised.
Paragraph 36: We also observed lack of probity and propriety on the
part of public officials in the performance of their management and
supervisory functions, leading to various forms of losses and potential
loss of public.

RIGHT OF
INFORMATION ACT?
DO WE NEED AN ACT? DOESNT THE CONSTITUTION ASSURE

US OF A RIGHT TO INFORMATION ANYWAY?

General fundamental freedoms
All persons shall have the right to information, subject to such
qualifications and laws as are necessary in a democratic society Article
21(1)(f)
THE VIRTUAL ASSURANCE OF PUBLIC INTEREST PRIVILEGE IS
THE BIGGEST HURDLE TO A PROPER FREEDOM OF
INFORMATION ACT. SEE ARTICLE 135 & SECTION 8 OF THE
COURTS ACT & STATE SECRETS ACT.
WILL THE GOVERNMENT TAKE THE LEAD AND PASS AN ACT TO
EXPRESSLY STATE WHEN IT WOULD OR WOULD NOT ASSERT
THE PRIVILEGE?

NOLLE PROSEQUI?
CONSTITUTION, Article 88(3)

The Attorney-General shall be responsible for the initiation and conduct of all
prosecutions of criminal offences.
The expression nolle prosequi means to be unwilling to prosecute. Republic v.
Abrokwah [1989-90] 1 GLR 385 at 389, per Abakah J. See also, section
54 of the Criminal & Other Offences (Procedure) Act.
the power of the A-G to enter a nolle prosequi at any stage of a trial
before judgment or verdict cannot be questioned upon any basis other
than political whether the A-G exercises this power after having
had regard to the circumstances of a case or not, or whether the A-G
exercises this power properly or improperly, is not a matter for judicial
inquiry or review. It is a matter for the political powers that be...
Abakah J.

NOLLE PROSEQUI?
CONSTITUTION, Article 296.

Exercise of discretionary power

Where in this Constitution or in any other law discretionary power is vested in
any person or authority,
(a) that discretionary power shall be deemed to imply a duty to be fair
and candid;
(b) the exercise of the discretionary power shall not be arbitrary,
capricious or biased either by resentment, prejudice or personal
dislike and shall be in accordance with due process of law; and
(c) where the person or authority is not a Justice or other judicial
officer, there shall be published by constitutional instrument or
statutory instrument, Regulations that are not inconsistent with the
provisions of this Constitution or that other law to govern the
exercise of the discretionary power.

CONCLUDING POINTS
WAKE THE AUDITOR-GENERAL UP!!

CONSOLIDATED BRIBERY & CORRUPTION ACT

MAKE CORRUPTION & EXTORTION A MORE SERIOUS OFFENCE,

EVEN IF THE PUNISHMENT IS SUFFICIENTLY PAINFUL

AFRCD 58 IS THE WAY TO GO
EXTEND THE DEFINITION OF CORRUPTION TO COVER PRIVATE
ACTS OF CORRUPTION (SEE UK BRIBERY ACE)
PROVIDE REMEDIES TO RECOVER ILL-GOTTEN GAINS IN ALL
INSTANCES
FOI ACT?

NOLLE PROSEQUI? Congratulations, Attorney-General.

EMPOWER (i.e. FUND & TRAIN) CHRAJ, EOCO, CID, ETC.
PUBLIC EDUCATION/DISCOURSE EXPOSURE, SOLI?