The Trial Of Probity And Accountability

ISSUE: Captain Kojo Tsikata (Rtd) Once Brought A Defamation Action Against UK Publishers, So Why Not The Indicted Ghanaian Public Officials In The Mabey & Johnson Bribery And Corruption Verdict?

Asante Fordjour LLB(Hons), LLM International Law And Criminal Justice

Case Commentary And Analysis

ABSTRACT

There seems to be unsettled dust over established application of the rules of probity and accountability. So, we reconsider this one, too- from the UK Southwark Crown Court: “*6. It is accepted by Mabey & Johnson for the purposes of sentencing that the payment of commissions to agents was a routine aspect of the Company’s business, authorized at director level. These payments were structured into the Company’s commercial processes and were factored into contract pricing. Commission fees paid to local agents or middlemen ranged from contract to contract and by jurisdiction. However, historically, it was not atypical for agents to be paid between 5-15% by M&J, although M&J maintain the average was about 8%. *7. In Jamaica and *Ghana M&J knew that its agents were involved in *corrupt relationships with *public officials with influence over M&J’s affairs in those *jurisdictions. M&J accept that they *agreed with their agents to *pay bribes directly to *public servants in those jurisdictions. Those *bribes were *deducted from the overall commission due to the *agents. *16. Although, historically, M&J’s *corrupt *business practices appear to have been carried on in a number of the countries in which it operated, for reasons which will become clear the Company is *indicted for its dealings in Jamaica, Ghana, and… *30. The SFO also recognises that since the commencement of the investigation M&J has taken certain remediation steps. The SFO has been informed that five former directors have stepped down as directors and ceased to be employees…”

INRODUCTION

There could have been an unknown reason to the Ghanaian why the then President John Agyekum Kufuor insisted and indeed forcefully ((reserved)), and imposed Dr Richard Anane on Ghanaians as a minister of state amid all his glaring socio-political woes, not notwithstanding millions of equally-qualified Ghanaians and public outcry over Anane’s continued quest to remain the overlord at the Ministry for Roads and Highways. Most intelligent bystanders and true, ordinary people like us had imputed that there could be something more to this. Perhaps this had come as a result of Anane’s demonstrated good works and efficiency. Yet the Ghanaian had rumoured that Anane did invest heavily in Kufuor’s presidential bid which was why Kufuor-led NPP was at pains to let Anane go?

MATERIAL FACTS

It appears that we have enough compelling evidence that seems to indict the Ghanaian accomplices to the M&J bribery and corruption case (Regina v Mabey and Johnson Ltd, Case Reference No. T2009 7513) but these paragraphs stand out: *107. M&J has conducted business with government departments in Ghana over a number of decades. From the mid 1980’s until approximately 1996, M&J’s interests in Ghana were represented by Kwame Ofori. During the early 1990’s Kwame Ofori acted as M&J’s agent in Ghana. He controlled a Ghanaian bridge building company, and apparently had influence within the ruling circles of the then ruling party in the Ghanaian government – the National Democratic Congress (“NDC”)…. *119. During the 1990’s M&J entered into three principal contracts with the Ghanaian Ministry of Roads and Highways (“MRH”) for the provision of bridges: Priority Bridge Programme Number 1, worth £14.5 million, was agreed in 1994; Priority Bridge Programme Number 2, worth around £8 million, was agreed in 1996; and the Feeder Roads Project, worth £3.5 million, was agreed in 1998.

The Court further found out that *120. Throughout the relevant period, and until the general election in 2000, the NDC formed the Government of Ghana and many of the GDF payments were directed to its members. Thus the then Minister at the MRH, Dr. Ato Quarshie, received a cheque when he visited London in July 1995 in the sum of £55,000 for “contract consultancy”. The cheque, according to the ruling, was drawn on M&J’s Clydesdale Bank account at the Victoria branch in Buckingham Palace Road, and signed by Director A, and another M&J director at that time. It is established that Director A also faxed the bank instructions to enable Dr. Quarshie to cash the cheque. *121. The payment to Dr. Quarshie and the following payments, the court found, are but examples of a wider-ranging series of bribes to various ministers and officials, which as set out in a schedule, exposed even relatively junior officials as indeed willing recipients of bribes.

For the UK media landscape this has come as no surprise. On Wednesday 8 July 2009, the Guardian newspaper reported on its website that Bridge-builders Mabey & Johnson, the firm owned by one of Britain’s wealthiest families, which has been under prolonged investigation by the UK Serious Fraud Office, is to plead guilty to bribery offences and breaching United Nations sanctions. The firm indeed did appear at Westminster magistrates’ court on that Friday in what according to the firm’s own lawyers, was a ground-breaking SFO prosecution that might or is expected to attract a substantial fine following lengthy confidential negotiations with the authorities and a pioneering deal. This, according to the Guardian, is the first time the SFO has successfully negotiated the equivalent of a US plea-bargain with a firm accused of overseas bribery and corruption.

The import of US Foreign Corrupt Practices Act of 1977 (FCPA), that evolves around the Office of the Special Prosecutor, are that it prohibits and (is) indeed illegal for governmental officials, as well as partnerships, companies and organizations from not only giving payments but also offering or authorizing payments to foreign officials or political parties with the objective of encouraging or assuring business relationships. According to U.S. Department of Justice, the origin of FCPA is that more than 400 U.S. companies admitted to making questionable payments to various foreign governments and political parties as part of an amnesty program. Given the environment of the 1970s- proliferation of white-collar crimes (insider trading, bribery, false financial statements…), particularly the payments made to foreign officials by corporations, US Congress felt obligated to restore confidence in the manner U.S. companies transacted business.

The OECD Convention of 1999 prohibiting overseas corrupt practices and its enacted sections 108 and 109 and Financial Services and Market Act 2000, are all pieces of legislations against all sort of emerging crimes that inflict not only hardships on peoples and nations but also, continue to thwart the efforts of governments, businesses and shareholders. On this basis and here, the issuance and cashing of cheques at identifiable UK Banks and alibi, the Court handed down its verdict against Mabey & Johnson and directed it to put impoverish Ghana and Jamaica back to where they would have been, had the bribery not occurred…. “At the G8 summit at Gleneagles in July 2005, the UK re-affirmed its commitment to the eradication of overseas corruption, as did the world’s other leading industrialised nations, distort proper competition and are wasteful and damaging to the economies of, in particular, developing nations,” the Court established.

Accordingly, the Court, on Friday, 25 September 2009, fined Mabey & Johnson, £3.5m, and was also ordered to pay a £1.1m confiscation order and £350,000 in prosecution costs. In addition to this is the fact that the company has made £1,413,611 available as reparations to Ghana, Jamaica and Iraq. Sentencing, Judge Geoffrey Rivlin QC said the “unusual case” came to light after five of the company’s directors stepped down and the new board decided to “dramatically” turn itself into the SFO. The BBC quotes SFO director Richard Alderman as saying that: “The offences are serious ones but the company has played its part positively by recognising the unacceptability of those past business practices and by coming forward to report them and engage constructively with the SFO.” The unacceptability here is the court’s findings that the Ghanaian public officials featuring in this case, had in their various roles, been incriminated in a decided case. The issue then is whether Ghana must transpose this judicial decision in its legal books or ought to initiate its own proceedings against them?

The rule of universal jurisdiction holds that some crimes are so serious that they harm the international community as a whole and as a consequence, States are entitled, if not required, to bring proceedings against the perpetrators, regardless of the location of the crime and the nationality of the perpetrator or of the victims. Yet State pride often associated with sovereignty and what one might describe as nationalistic instincts, as the long search for war crime suspects Radovan Karadzic and Ratko Mladic suggested, blurs these fine lines. Thus, not overlooking the unevenness and indeed odds in international and various domestic laws, it seems legally prudent for President J.E.A. Mills-led Ghanaian Government, to have a second opinion on the Mabey & Johnson case.

The traditional belief here is the State’s presumed jurisdiction to judge crimes committed on its own territory; and the power to judge not only crimes committed by its nationals everywhere on the globe; but also jurisdiction to judge crimes committed against its nationals abroad. Among some of the serious crimes identified by international law are genocide, crimes against humanity, torture, some war crimes, apartheid and slavery. For example, under s51(1) International Criminal Court Act 2001, genocide and crimes against humanity committed either in Ghana and by Ghanaians or non-Ghanaian nationals at home or abroad, can attract universal jurisdiction if the accused finds himself within the jurisdiction of the country interested in initiating such proceedings. Where this was not the case, an extradition from the state in which s/he is located, must be sought. There seems not to be “serious international crime” in dispute in Mabey & Johnson’s case, so we now consider the legal rules that might be applicable in Ghana.

THE LAW/APPLICATION

We are told at *119 that during the 1990’s M&J entered into three principal contracts involving public officials at the Ghanaian Ministry of Roads and Highways (“MRH”) for the provision of bridges: Priority Bridge Programme Number 1, worth £14.5 million, was agreed in 1994; Priority Bridge Programme Number 2, worth around £8 million, was agreed in 1996; and the Feeder Roads Project, worth £3.5 million, was agreed in 1998. Article 284* of the 1992 Constitution provides that the public officer shall not put himself in a position where his personal interest conflicts or is likely to conflict with the performance of the function of his office. The phrase… ‘In a position where his personal interest conflicts…’ Accordingly, it could be suggested that acceptance of monies into a private Bank Accounts of a public officer for awarding State contracts is unreasonable.

In Scott v State 141 NE 19 (1923), defendant told a woman that he would assist her father to get a licence to sell soft drink if she went riding with him and showed him a good time. The Supreme Court of Ohio held that sexual favours constituted a ‘valuable thing’ within the meaning of the local bribery statute. We might hardly see this as bribe, yet, Russell (A Treatise of Crimes and Misdemeanours, 1865, p. 223) defines bribe in terms of ‘regard’ because of its intended value to the person bribed. Art 218(a) mandates the Commissioner for Human Rights and Administrative Justice (CHRAJ) (e) 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 investigation.

The position of the Attorney-General is provided for in Art 88(1) and as a Minister of State and the principal legal adviser to the Government and (2) The attorney-shall discharge such other duties of a legal nature as may be referred or assigned to her by the President, or imposed on him by this Constitution or any other law. In clarifying this role sub-section (3), states that the Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences. For avoidance of doubt, section 6 explains further that she shall have right of audience in all courts in Ghana. In the present case, what makes the position of the Attorney-General ((Betty-Mould Iddrisu (Mrs)) conflicting is the honest assumption that fast the majority of the identified individuals “stained” as accomplices to the conceded alleged bribery and corruption malpractices are members of its ruling government- the National Democratic Congress.

The Latin legal maxim: nemo debet esse iudex in propria causa, explains that no one should be judge in his own cause. The question is: How come President Mills had preferred the Office of the Attorney-General to that of an independent body such as the CHRAJ in such a probity and accountability case which influential members of his cabinet and to a larger extent, party-men, are implicated? Article 218(e)* also empowers the CHRAJ to initiate an investigation against a public officer. President Mills ought to have therefore, redeemed himself from inferences if he had taken this route to justice. In the General Pinochet Case, the failure of Lord Hofman to declare his links with Amnesty International Charity Limited before ruling on whether Pinochet was immune from extradition prosecution led to the setting aside of the ((3-2)) House of Lords’ judgement.

The Counsel for Pinochet- Alun Jones submitted and raised with the Home Secretary the possible bias of the Jewish-born Lord Hoffmann, the chairman and director of the human rights organisation. Pinochet was the Head of State of Chile from 11 September 1973 until 11 March 1990 and was accused of crimes against humanity- torture, hostage taking and murder. Here, the ruling NDC attempts to be the mouthpiece of the cited public officials identified in the decided the case. This is unlike that of Kojo Tsikata v Newspaper Publishing plc [1997] 1 All ER 655, [1997], where Captain Tsikata (rtd)- the then National Security Advisor to President Rawlings himself, attempted up to the UK Appeal Court, to restore his hard-won reputation vis-à-vis a publication that sought to link him to the abduction and murder of the three High Court judges and the retired army major.

Dr. Kwabena Adjei- the NDC National Chairman is quoted by GNA to have said that NDC’s attention had been drawn to media reports on proceedings of the Southwark Crown Court decision. “For the record, the NDC wishes to categorically state that it has never received funds from Mabey and Johnson Company. Records available to the party do not reveal receipts of any such funds from the said company or its agents… the prosecution’s statement of the case which contains many inaccuracies. For instance, former First Lady Nana Konadu Agyeman-Rawlings…,” the statement added. The issue is but why NDC but not the accused themselves, one might have puzzled.

Technically, the NDC appears and rightly so, on the attempt to discredit the evidence in the trial. But it must not overlook the fact that evidence is a material put before a court so that the court may decide the truth or probability of a fact asserted before it. Indeed for it to admissible in law, it must be relevant and fair. It is also true that in order to give that evidence, the witness must be competent, and if the witness is reluctant to attend court, you will need to consider if they are compellable. Some of the issues arising in these indictments are that the affected personalities were not given their chance at court to defend themselves and/or attest to the damaging confession made without compulsion, by the Mabey & Johnson. But must we always summon a witness in a trial? The rule of judicial notice infers that some matters are sufficiently established that they are accepted without the need to prove them by calling evidence. Thus, if a matter is of such common knowledge as to be beyond serious dispute the court will take judicial notice without further enquiry (for example, Dr Nkrumah is the first president of Ghana).

Some matters, it is said, may be accepted after judicial enquiry (for example, where a date fell on a particular day of the week). Indeed in Carter v Eastbourne Borough Council 164 J.P. 273, the court held that there could be a matter where expert evidence should have been called. Here, Magistrates who had been dealing with an allegation of breach of a Tree Preservation Order, had not been entitled to draw on their own knowledge to decide that the trees (which they had seen in photographs of) must have been at least 4 years’ old (and hence subject to the order). This is in contra to Laboratories (GB) v Health and Safety Executive, Times 23rd February 1998, where the Magistrates had been entitled to rely upon personal knowledge in a trial when it was an issue of a known “local notoriety”? Thus politically, yes, but judicially, might President Mills be hesitant in reasoning with Lord Justice Neil at *73(3) in construing the Defamation Act 1952 in Captain Tsikata’s Case that the definition of Her Majesty’s dominions in para 14 of the Schedule includes Ghana and in this context, the decision of UK Southwark Crown Court?

CONCLUSION/ADVICE

We at JusticeGhana share the views of President Mills that it is indeed judicially prudent to set 99 alleged criminals free than to convict one innocent soul, which is why he might have trekked at length to exonerate those deemed as having unjustified judicial cloak hanging around their necks with political redemption? Yes, the president is right that Art. 219(b) imposes restriction on CHRAJ on matters involving the relations or dealings between the Government and any other Government or an international organisation but as Anane’s Case shows, its subpoenas/investigation powers remain unfettered- might justice therefore, not be seen to be done if he were to revoke the Muntakas Convention?

JusticeGhana