Re-Examining The OSP’s Attacks on Ghana’s Judiciary (2)

Election Of Section 40(1)(f) by OSP

It can be seen from the statutory options provided under Section 40(1) that the OSP was precluded from relying on paragraphs A and B, as well as E, since Sir John was already dead but could have relied on either C or D, that D deals directly with the source of the properties and status of the property provided that he had the evidence to meet the threshold.

However, the OSP elected paragraph F which required the conditions under Section 54(1) to be met or immediately anticipated. That election is evinced by the factual background to the application established at the ‘probable cause’ hearing held on the case.

Factual Grounds of the OSP’s Application

The factual grounds upon which the OSP premised their application in the case were that Sir John was the CEO of the Forestry Commission from March 2017 to July 2021, which classified him as a public officer during that period.

He had a Will, the authenticity of which was disputed in the High Court. Despite the ongoing dispute, the OSP maintained its belief in the Will’s validity. It was further the OSP’s contention that the Will listed several properties, which Sir John allegedly acquired but did not declare while he was in office.

Some of these properties were located within the Sakumono Ramsar site. Additionally, it appeared that Sir John ran a bank account under the name Ruth Korkor Odonkor. Given these circumstances, the OSP contended that Sir John’s estate might have been tainted.

If it were determined that the property was tainted, the OSP anticipated that the Court would have issued an order for confiscation under Section 54. The sum of the OSP’s contention was therefore founded on Section 40(1)(f), read in the light of Section 54 of the OSP Act.

It must be submitted that the OSP chose to rely on paragraph F simply because he is a populist, and was reacting to the public opinion momentarily persisting, and did not undertake any proper investigations. Also, frankly, he could not discharge the evidential burden imposed by options C or D by relying solely on the ‘Will’ without any proper investigation.

Failure to Meet Statutory Conditions under 40(1)(f)

Section 40(1)(f) however refers to ‘reasonable grounds’. At common law, that involves ‘the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.

Reasonable grounds are thus only inferred after evidence has been led objectively, showing the existence of the state of circumstances and is found where the trier of fact or any other reasonable person would agree with the position of the accuser given the same set of facts and circumstances.

The OSP’s application simply did not meet the statutory threshold, because the OSP did not articulate any reasonable grounds warranting his belief that an eventual application for confiscation would have been successful.

That is because the statutory conditions needed for the grant of such an application could never have been fulfilled. As referred to earlier, the grounds are that:

1. A person is facing prosecution for a specified corruption or corruption-related offence or
2. A person dies or absconds following a conviction for a corruption or corruption-related offence.

It was therefore a fundamental requirement for the OSP to show evidence proving that, either Sir John, during his lifetime had been faced with prosecution for any or all of the 11 specified offenses under the OSP Act, or had died or absconded following a conviction.

By the clear wording of Section 54, Parliament also did not intend to circumvent the common law, granting immunity to persons who had died from criminal proceedings. That intention is deducible from the basic principle of statutory interpretation that Parliament is not intending to take away common-law rights and immunities except through explicit language.

Yet in this circumstance, Parliament could not even have taken such rights away, as the rights in question are also linked intrinsically to the Fair Trial provisions enshrined under the Constitution of Ghana. It needs no explaining that a dead person can never have a fair trial within the meaning of Article 19.

Section 40(1)(f) read together with Section 54, could not therefore be taken as empowering the OSP to initiate criminal proceedings against a deceased person.

On that basis, there were no reasonable grounds to call for the OSP’s belief that the Court was going to make a Confiscation Order under Section 54 of the OSP Act, or under any provision at all.

And no reasonable judge would have found such belief warranted in the face of the statutory language of the OSP Act.

Source: Kofi Opare Hagan, Barrister