- On August 23, 2016
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The GII Consortium in a letter to Political Parties and their Presidential Candidates contesting the 2016 General Elections has presented a list of legislative gaps which when addressed will contribute immensely to the fight against corruption in Ghana.
The documented gaps presented to the Political Parties are made up of corrupt conducts that should either have been criminalized or if already criminalized, are deemed inadequate (ie. gaps in anti-corruption legislation) to deal with the offence more effectively. The document captures the offence, the existing legislation (if any) that deals with the offence, the gaps that have been identified, and more importantly the actions proposed to close these gaps.
The questions on the minds of many are WHY THIS ACTION, WHY THIS TIME and WHY POLITICAL PARTIES MANIFESTOS?
According to Ghana’s National Anti-Corruption Action Plan, (NACAP), corruption continues to exact a heavy toll on Ghana’s economy, society and politics, retarding national development. To address the challenge of corruption, Ghana criminalised corruption in 1960. Over the years Ghana’s Parliament has passed several laws and Ghana has also signed a number of international and regional Anti-corruption Conventions. Despite the progress made, the impunity with which some public officials are engaging in corruption is very worrying. Several factors may account for this including the lack of enforcement of the laws confirmed during the review of Ghana’s implementation of the United Nations Convention against Corruption (UNCAC) in 2013. It is important to also state that the review of UNCAC also brought to the fore some weaknesses in the Anti-corruption laws that need to be addressed.
Pre-elections periods in Ghana just as in other parts of the sub-region are characterised by many political campaigns across the length and breadth of the country with “how political parties will fight corruption” a dominant campaign issue. Pre-elections periods are also characterised by Parliamentary and Presidential debates where corruption is still a key subject on the agenda.
It is also common knowledge that Political parties manifesto developed and launched during pre-elections periods become the main development planning tool that is implemented after elections by the party that forms the government.
The aim of the GII Consortium therefore, is to take advantage of the pre-election window of opportunity to influence the development of political parties’ manifestos to reflect appropriate strategies that have capacity to address some of the gaps needed to strengthen Ghana’s Anti-Corruption legislative framework in order to make corruption a high risk and low gain activity.
The GII Consortium identified gaps and proposed actions to address same in 17 Anti-Corruption laws. Presented below are examples:
The following Sections of the Criminal Offences Act 1960 (Act 29) apply to the offence of Bribery: 3, 151, 239, 242-244, 247, 253, 254 of national public officials.
However, Bribery of foreign public officials and officials of public international organizations has not been criminalized, though the sections listed may apply to the offence to a limited extent. For purposes of clarity of the law, transnational bribery (passive & active) should be criminalized.
Article 286 (4) of the 1992 Constitution, section 5 of Act 550, Sec. 7(1)(e) of Act 456, relate to this offence. Although the provisions in the Constitution, Act 550 and the CHRAJ Act 456, deal with illegal acquisition of wealth or illicit enrichment, the conduct has not been criminalized.
Compensation for damage
Section 15 of the Whistleblower Act, 2006 (Act 720) states that:
“A whistleblower who has been subjected to victimisation may bring an action in the High Court to claim damages for breach of contractor for another relief or remedy to which the whistleblower may been titled, except that an action shall not be commenced in a court unless the complaint has first been submitted to the Commission under section13”
Though the section above provides an exceptional privilege for an employee victimized due to breach of contract or other entitlements, No law specifically provides for compensation for damage as a result of corruption. Such a law is desirable.
Abuse of functions, or abuse of office/power, under the Criminal Offences Act 1960 (Act29) Section 179C—Using Public Office for Profit.
Any person who—
(a) while holding a public office corruptly or dishonestly abuses the office for private profit or benefit; or
(b) not being a holder or a public office acts or is found to have acted in collaboration with a person holding public office for the latter to corruptly or dishonestly abuse the office for private profit or benefit, commits an offence.
A person convicted of an offence under any of the offences specified in this Chapter is liable on conviction to a fine of not less than ¢5 million or imprisonment not exceeding ten years or both.”
Though Section 179 C of Act 29 is applicable to abuse of functions/abuse of office/abuse of Power, there is need for legislative clarification to bring it into conformity with the elements of the offence and for that matter, into conformity with UNCAC.
Art. 19 of UNCAC provides:
Each State Party shall consider adopting such legislative and other measures… to establish as a criminal offence, … the abuse of functions or position, that is, the performance of or failure to perform an act, in violation of laws, by a public official in the discharge of his or her functions, for the purpose of obtaining an undue advantage for himself or herself or for another person or entity.
Definition of Corruption
Section 239-240 of Act 29 defines the scope of corruption offences. However, this Scope of corruption under the definition falls short of UNCAC & AU Convention. An amendment is recommended of Act 29 to widen the scope to include illicit enrichment, conflict of interest, bribery in the private sector, embezzlement in the private sector.
We have distributed the full list of the gaps as presented to the political parties to you and we are hopeful as a main stakeholder in the fight against corruption, you will publish them widely. Finally we call on all Presidential Candidates and Political Parties to demonstrate commitment to the fight against corruption by incorporating the gaps is their manifestos and implement same should they win the elections.
The Ghana Integrity Initiative (GII) Consortium comprising GII, Ghana Anti-Corruption Coalition (GACC) and SEND GHANA is implementing Accountable Democratic Institutions and Systems Strengthening (ADISS) Project. ADISS is a four-year project funded by USAID over the period September 2014 to September 2018. The goal of ADISS is to increase government accountability in Ghana. Specifically, ADISS’s purpose is to renew and build upon on-going anti-corruption efforts and increase the capacities of anti-corruption Civil Society Organizations (CSOs) to motivate citizens to apply pressure on policy makers and institutions with the aim of reducing corruption in Ghana. ADISS is being be implemented in fifty (50) Districts across the ten regions of Ghana.