This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its May 2020 ruling in R v. Bonnie and Others, Ghana’s High Court of Justice sentenced senior government officials to long prison terms with hard labour over a fraud scheme involving a government contract. The case dealt with the acquisition of a security surveillance system. As the Court summarized, the former chair and former director-general of the National Communications Authority (NCA) were both charged in a misappropriate scheme where the reseller overbilled the government and then diverted funds back to those government officials:
The facts as recounted by prosecution is that the first accused, a former chairperson of the Board of NCA, 2nd accused, the former Director-General of NCA, third accused, a Board member and chairman of the Finance sub-committee of the NCA and the fourth accused, being also a Board member and the former Deputy National Security Coordinator until December, 2016, all without any provision having been made in the budget and supplementary budgets of NCA in 2015 and 2016 for the purchase of a cyber-surveillance equipment, and with the NCA not having discussed and approved the use of NCA’s money for the purchase of such equipment, A5 was engaged by A1 for A2 to sign an agreement with A5 for the latter to be a reseller of a Pegasus equipment to NCA. That in the process all the accused persons agreed to act together to steal and cause the various offences for which they have been charged wherein A4, being the Deputy National Security Coordinator authored a letter purporting it to have emanated from the National Security Council Secretariat (NSCS) requesting for an amount of $US8 Million as institutional support for the NSCS for the purchase of a cyber- surveillance equipment. That by this letter generated by A4, the Finance Director of NCA was made to act under the directions of A1 and A2 to transfer an amount of $US4 Million into the account of Infralocks Development Ltd, (IDL) controlled by A5, when there had also not been any necessary required processes for selection of such an entity as required by the Procurement laws of the country for IDL to undertake such purchase of goods. That upon receipt of the monies, A5 transferred an amount of $1 US Million to an Israeli company, NSO Group Technologies for the purchase of a Pegasus equipment. That the $3 US Million was kept for the personal use of the Accused persons, who upon the matter coming to light, an amount of $I US Million was retrieved from A5.All the accused persons pleaded not guilty for which reason by law prosecution had to lead evidence against them to establish the charges.
The accused were found guilty of multiple offences, including conspiracy to cause financial loss to the state and wilfully causing financial loss to the state, as well as breaches of the Public Procurement Act and Public Property Protection Act.
In its sentencing considerations, the Court noted that while first-time offenders, the government officials were not young offenders, which factored against lighter sentences for the purposes of rehabilitation, especially since the individuals committed those offences while entrusted with public resources:
US$4 Million of Ghana’s money has been wasted with only US$1 Million recovered on what they claimed was an equipment to fight crime at a time when popular protest from the media and Ghanaians have compelled Parliament to shelve the Interception of Postal Packets and Telecommunications Messages Bill, also referred to as the Spy Bill, on the basis that it had the capacity to invade the private space of citizens. The intendment of that law was for the noble act of fighting terrorism and organised crime and the impunity and recklessness with which the convicts acted by acting in a manner as if whether there were laws or no laws they care less and purchased such an equipment. There is no indication that it has ever been of use to this nation having been parked and forgotten in a private residence.
In dealing with the convict themselves, I take into consideration that they are first time offenders but certainly not young offenders. For youthfulness itself induces leniency in the eyes of the law as there are lessons to be learnt by persons of young age. But these are experienced men of the world and lessons to be learnt by the youth are well known to them. As persons who were in positions of trust they completely failed in the discharge of their duties. In that circumstance, an exemplary and deterrent punishment is necessary to send the right signals to public office holders that if they fail to be good custodians of the resources of the nation, they would not be left off the hook by the law. A1 has been found to have personally benefitted from the transaction in a whopping sum of US$200,000.
The Court therefore concluded that in the circumstances a fine would serve as an insufficient sanction since the penalties should be more than a simple cost of doing business when misappropriating public funds:
Accordingly the mitigating factors that come up for consideration are the health conditions of some of the convicts, being first time but not young offenders, A2 and A4 having been found not to have personally benefitted. The aggravating factors include the sheer recklessness of their conduct, the unrepentant and unremorseful attitude of the convicts, the benefit that accrued to A1 and his unpreparedness to restore his ill-gotten booty to the Republic, the convicts being experienced men of the world who have abused their positions of trust, the inappropriate nature of non-custodial sentence as they are not indigent or impecunious men. They can easily afford to pay any fine imposed on them and that will send the wrong signal to the public that for the rich they can use their riches to avoid jail for their criminal acts.
Given the above, the Court sentenced the former government officials, along with their accomplice, to five years imprisonment with hard labour for conspiracy to cause financial loss to the state, and five years imprisonment with hard labour for wilfully causing financial loss to the state. The three individuals were also sentenced to three years with hard labour for breaching the Public Procurement Act and three years with hard labour for breaching Public Property Protection Act. Furthermore, the first accused was also sentenced to six years imprisonment with hard labour for having “benefited by the use of his public office for his personal profit coupled with his obstinate conduct not to return the ill-gotten wealth to the Republic”, as well as six years with hard labour for money laundering. The Court ordered that those sentences be served concurrently, rather than consecutively, meaning that the first accused faced a total of six years imprisonment with hard labour and the other two faced a total of five years imprisonment with hard labour.
In rendering its judgment, the Court raised concerns over the need to reform Ghana’s laws due to obstacles to successfully prosecuting government officials for illegal procurement-related conduct. As the Court warned, those reforms are necessary to create more effective deterrents and to prevent corrupt officials from enjoying their ill-gotten gains and using those funds to mount protracted legal defences:
Commission should seriously consider the introduction of a possible amendment in the Courts Act or the Evidence Act to make a trial proceed with minimum interruptions and only grant a limited widow of an appeal in respect of an interlocutory matter such as submission of no case to answer. For it is when after judgment, an appeal is lodged that a party can bring up the call of the trial court on a document that was admitted or rejected and how that call has affected the outcome of the case by resulting in a substantial miscarriage of justice.
Any claim of any serious fight against public sector corruption would be an uphill task for the nation if the rules that we operate moves at a snail’s pace. The citizens of Ghana in whom the sovereignty of the nation resides will continue to mourn that the poor without lawyers are tried within a short time but the rich and powerful who are able to afford the best of lawyers use the rules to drag cases in court ad infinitum. With case management conference now introduced in criminal cases, such an innovation as I have proposed, if added will give full meaning to the Constitutional provision under article 19(1) of the Constitution that a person charged with a criminal offence shall be given a fair hearing within a reasonable time.
Two, the necessity for pre-trial disclosures and inspections that emanated from this case as decided by the Supreme Court, to my mind calls for an urgent need for a complete overhaul of the both Act 29 and Act 30 as the decision of the Supreme Court makes the procedure under Act 30 now anachronistic. If these necessary amendments are effected to take away interlocutory appeals on admission or rejection of documents with the sole purpose to cause enough delay and stultify criminal trials when there is no evidence to demonstrate how such a ruling has occasioned a substantial miscarriage of justice, that would send cold shivers down the spine of corrupt public officials that when their misdeeds come to light and are arraigned in court, their fate would be known in not more than six months’ time, such persons would definitely be deterred from corrupt acts. These are the innovations needed for public officials to know that public funds are not meant to be used as personal property.
As this case illustrates, public institutions in many jurisdictions face serious challenges in prosecuting senior officials who engage in procurement-related corruption. Public institutions in all jurisdictions should establish appropriate internal governance safeguards to protect against corruption and avoid the need for downstream criminal prosecutions.
