Exposition of the current position of the law on corruption, anti-money laundering and narcotics

PRESENTATION AT THE ASSOCIATION OF MAGISTRATES AND JUDGES CONFERNCE ON 29TH SEPTEMBER, 2021 BY JUSTICE DENNIS ADJEI

Criminal laws are country specific and  in Ghana nothing is an offence unless it is defined and the appropriate sanction to be imposed is prescribed in a written law[1]• Criminal laws created by an Act of Parliament may be repealed or Amended. Furthermore, a subsidiary legislation which creates an offence may be revoked or amended. Where a criminal law is repealed or revoked, it shall cease to constitute part of the criminal offences unless there is a saving provision which permits it to form part of the existing laws and specifically states so.

The legal effect of a criminal law which is repealed or revoked without a saving provision, it shall cease to form part of the existing law and persons who are being investigated or prosecuted for that offence shall be discharged unconditionally and cannot be subsequently investigated or prosecuted under the non-existing law or under a new enactment by the fact that the offence did not form part of the existing law at the time the act was committed[2].

A criminal offence may be amended in two  ways; either by amending the  elements of the offence or the punishment for the offence. Where an element of an offence is amended, the amending law shall have effect from the date it comes into force but a person who was standing trial shall be prosecuted or investigated under the amended law[3]and where a punishment of a criminal offence  is amended, a  person standing trial shall be prosecuted  and sentenced  under the amended  sentence. The only exception is where a sentence, a forfeiture or a penalty under the old !aw is reduced or mitigated by the new law, it shall be accordingly reduced in favour of the accused person[4].

A criminal law has prospective effect and an act or omission  which was not a criminal offence but subsequently becomes a criminal offence shall have an effect from the day on which it is criminalized[5]. A permissible act or omission which is subsequently criminalized shall constitute a crime from the date it was criminalized and not otherwise else it shall be in conflict with article 19 (5) of the Constitution which provides that a person shall not be charged with a criminal offence founded on an act or omission that did not constitute an offence at the time it took place.

There have been amendments and repeals of the laws on corruption, anti- money laundering and narcotics and their legal effect of the amendments and repeals on jurisdiction are to be addressed in this paper.

THE PREVIOUS POSITION ON CORRUPTION

There were different types of corruption under the Criminal Offences Act, 1960 (Act 29) and they were created as misdemeanours which ordinarily should have attracted a maximum sentence of three years. The legislature through section 296 of the Criminal and Other Offences(Procedure) Act, 1960 (Act 30) provided for a maximum term of twenty-five years for four of them owing to the seriousness of those offences even though they continued to remain as misdemeanours. These offences were: corruption of and by public officer or juror; contrary to section 239 of Act 29; accepting or giving bribe to influence a public officer or juror contrary to section 252 of Act 29; corrupt promise by judicial officer or juror contrary to section 253 of Act 29 and; and withholding of public money by a public officer, contrary to section 260 ofAct29.

The High Courts, the Circuit Courts and the District Courts had concurrent original jurisdiction in corruption matters irrespective of the offence including the four offences which the courts could impose a maximum sentence of twenty- five years. An accused who was lucky could be charged and arraigned before a District Court for any one or more of the corruption offences and the maximum sentence the Court could impose was two years or five hundred penalty units or both to run concurrently.

Corruption  is considered as  one of the” infectious” offences in the  country and  offenders wereto be given severe punishments to serve as both prevention and deterrence to accused persons. The High Court and the Circuit Courts could impose a sentence of up to twenty-five years, The District Court could impose a maximum sentence of two years.

CURRENT POSITION ON CORRUPTION

The Criminal Offences (Amendment) Act, 2020 (Act l 034) came into force on 27th October, 2020 to amend the sentencing regimes by introducing minimum and maximum sentences to reduce discriminatory sentencing regimes which operated under Act 29. The jurisdiction of the District Court in the following corruption cases has been ousted by the introduction of minimum sentences that are over and above the jurisdiction of the District Court.

A public officer or juror who commits corruption or  willful oppression  or extortion  in respect of his office; or a person who corrupts a public officer or a juror shall upon conviction be liable to a term of imprisonment of not less than twelve years and not more than twenty-five years[6]. The same sentencing regimes were made for a person who accepts or agrees or gives or offers to accept bribe to influence a public officer or juror, a corrupt promise by judicial  officer or juror, and a public officer who withholds public money[7].

The sentencing regimes for a person who is summarily convicted of any of the following offences shall be a liability to a term of imprisonment of not less than five years and not more than ten years; a person who makes a false declaration for office or voting; a public officer who makes a false certificate; a public officer who destroys a document; a person who deceives a public officer; a person who uses corrupt means to select a juror; and a person who uses corruption, intimidation, and personation in respect of election[8].

LEGAL EFFECT OF ACT 1034

The offence of corruption is a felony to be tried summarily by the High Court and the Circuit Courts. The offence is neither a first nor second degree felony but a felony and has prescribed punishments for each of the offences. There is no option of a fine and a court cannot impose sentences below the minimum prescribed by Act I034 for the offences[9]•

The jurisdiction of the District Court in the offence of corruption has been ousted by the fact that the minimum sentence that can be imposed is over and above the jurisdiction of the District court

A public officer shall have to vacate his office after that officer has been convicted of any of the offences on corruption as amended by Act 1034 unless the Court orders otherwise[10]. The officer shall further lose his pension, superannuation, allowance, or any emolument payable out of public revenue or fund except a contribution made by that person under any other enactment[11]• A juvenile who holds a public office and is convicted of the offence of corruption shall be detained under the Juvenile Justice Act, 2003 (Act 653) and not be affected by section 298 of Act 30[12]•

ANTI-MONEYLAUNDERINGACT,2020(ACT1044)

The Anti-Money Laundering Act, 2020 (Act 1044) came into force on 29th December, 2020to repeal Anti- Money Laundering Act, 2008 (Act 749) and the Anti- Money Laundering(Amendment) Act, 2014 (Act 874) which had ceased to achieve the purposes for which they were enacted. The repealed Acts had several lapses as a result of which the Financial Action Taskforce (FATF) and the International Cooperation Review Group (fCRG) placed Ghana under FATF Grey List as a result of which the European Union also placed Ghana on its Blacklist in October, 2020.

The Anti- Money Laundering Act, (Act 1044) was enacted to deal with the mischief and in particular to introduce a Regulatory Regime for Non-Financial businesses and Professional bodies and to provide stiff punishments for breaches of the Act.

A person who is investigated for money laundering has the burden to account for the difference between the property in that person’s control or possession and the income of that person from known sources. A person who fails to account for the disproportionate property between the property in that person’s custody or control and the person’s known sources of income shall be deemed to have engaged  in money laundering for the unaccounted  property. Money laundering is not about a person’s wealth but rather the portion of that person’s property which cannot be accounted for from that person’s known sources of income[13]•

SANCTIONS AND CONFISCATION

A person convicted for anti-money laundering suffers a stiffer punishment including the payment of a fine of not less than one hundred percent section and not more than five hundred percent of the money laundered,[14] in case of an individual; a term of imprisonment of not less than twelve months and not more than ten years; or both a fine and  imprisonment as stated above; and in the case of a corporate entity a fine of not less than three hundred percent of the proceeds from money laundering[15]• A court which convicts a person or a corporate entity is required to confiscate the property which was not accounted for to the State[16].

There are several offences created  to fight the crime including: offences in relation to records and information by a person or corporate entity; public officers who refuse to co-operate with an authorized agent, officer or employee of Financial Intelligence Centre; persons who obstruct or interfere with the authorized officers, agents and employees of the Centre in the performance of their function; and general penalty[17]•

UNLAWFUL ACTIVITY

The Act has widened the scope of unlawful activity, the thrust of money-laundering to include serious offence, organized  crimes, terrorism  and terrorist financing, and traditional  offences such as corruption  and bribery, fraud, environmental  crime, murder, kidnapping, robbery or theft, smuggling, tax offences, extortion, forgery and piracy[18]• A person who is engaged in robbery or tax offences and fails to account for the difference between the property in that person’s custody or possession and income of that  person  from known  sources shall be guilty of the offence and upon conviction, the unaccountable property shall be confiscated.

ACCOUNTABLE INSTITUTIONS,THEIR ROLE AND INDEMNITY

Accountable institutions responsible for conducting businesses with the public including banks, financial institutions, estate agents, car dealers, accountants, non- governmental bodies(NGOs), lawyers, casinos are to report anti-money laundering transactions failure of which they commit an offence. An accountable institution is to appoint an Anti-Money Laundering Reporting Officer to oversee anti-money laundering transactions within its establishment[19]• The accountable institutions are to report electronic transfer of money from and into the country made in violation of Foreign Exchange Act, 2007 (Act 723) and the Regulations made under it[20].

The accountable institutions are insulated from civil, administrative and criminal actions brought against them and their officers in respect of any disclosure of information  made  in good faith in respect of suspicious transactions[21]•

The Act has further created supervisory bodies to supervise and regulate the activities of the accountable institutions established under the Act. The supervisory bodies are Bank of Ghana, the National Insurance Commission, the Securities and Exchange Commission, the Gaming Commission, the Minerals Commission[22].

COURT WITH JURISDICTION

The High Court has original exclusive jurisdiction in any offence under Act 1044. The Circuit Courts which had concurrent jurisdiction with the High Court under the repealed Acts have been ousted off their jurisdiction[23].

SAVING CLAUSE

The Act saved the offences committed or proceedings commenced before the repeal and the High Court shall proceed to hear all cases that were pending before them[24].

The Act is robust to cater for every infraction under the Act and  the High Court shall perform the functions assigned to it by the Act including monitoring orders upon an application made to it by the Centre to compel an accountable institution to make a report to the Centre, and an application  made to it to confirm a freezing made  by the  Chief Executive Officer of the Centre or de-freezing of an account or transaction[25].

NARCOTICS CONTROL COMMISSION ACT, 2021 (ACT1019)

The Narcotics Control Commission Act, 2020 (Act IO19) came into force on 11th May, 2020.The Act repealed the Narcotic Drugs (Control, Enforcement and Sanctions) Act, 1990 (PNDCL236) without saving matter spending investigations and proceedings  pending  before  the courts[26].

CREATION OF SPECIFIC OFFENCES

The Narcotics Commission Act has ironed out all the ambiguities that existed under the repealed Act with respect to  possession or control of  narcotic drug for use or for trafficking[27]• A person who controls or possesses narcotic drug for use shall upon conviction  be liable to a fine of not  less than two hundred  penalty  units and  not more than five hundred  penalties, and in default to a term of imprisonment of not more than fifteen months[28]. The Act has further created the offence of unlawful possession or control of narcotic drug to differentiate between possession to use and unlawful possession to use but the sentence regimes for the two are the same as there is a marginal difference between the two[29].

A person who possesses or controls narcotic drug for trafficking is differentiated from a person who unlawfully possesses or controls narcotic drug for trafficking even though both of them carry  the same  punishment. A person convicted of any of the two offences shall be liable to a fine of not less than ten thousand penalty units and not more than twenty-five thousand penalty units and a term of imprisonment of not less than ten years and not more than twenty-five years; and in default of paying the fine, the convict shall serve three years imprisonment[30].

The ambiguities  that confronted  by a  person  who possesses   or controls  narcotic drug for use, a person who unlawfully controls or possesses narcotic drug for use, a person who possesses or controls narcotic drug for trafficking, and a person who unlawfully possesses or controls narcotic drug for trafficking have been resolved as the courts mechanically construed the word “possession” under the repealed enactment to impose a minimum custodial term of ten years on any person found  in  possession  of a  narcotic drug without taking into account the purpose of the law.

The Act has further created  the offence of administering  narcotic drug on another  person  with a reasonable sentence. A person convicted  of administration of narcotic drug on another person is liable to a fine of not less than five thousand penalty units and not more than ten thousand penalty units, or a term of imprisonment of not less than five years and not more than ten years, and in default of payment of the fine shall serve two years imprisonment[31].

SPECIAL MITIGATION FACTORS FOR A PERSON WHO ADMINISTERS NARCOTIC DRUG ON ANOTHER PERSON

The courts are given the power to reduce the sentence prescribed for a person convicted of administering narcotic drug on another person to a term of not less than two years in addition to a fine of not less than seven hundred and fifty penalty units and not more than one thousand five hundred penalty units having regard to the nature and special circumstances of the offence. This provision is referred to as special mitigating factors and these factors are determined by the courts[32]•

SPECIAL PRE-BARGAIN FOR COURIER CHARGED WITH POSSESSION OF NARCOTIC DRUG OR PLANT FOR TRAFFICKING

This provision is available to a person who is used as a courier only by a principal and that person co-operates fully with the officers of the Narcotics Control Commission and the principal is arrested and charged after investigations. The courier may plead guilty in the course of the proceedings and have their sentence reduced by at least half of it[33]•

COURTS WITH ORIGINAL JURISDICTION

The High Courts, Circuit Courts and the District Courts have original jurisdiction to try offences under the Act provided the offence concerned is within the jurisdiction conferred on the court by the Courts Act, Act459[34].

The District Courts shall have jurisdiction in offences including possession of narcotic for use and unlawful possession of narcotic drug for use where the mandatory custodial sentence is fifteen months and the minimum fine is less than two hundred penalty units. A District Court shall not have jurisdiction in a matter where the minimum sentence is five hundred penalty units or mandatory custodial sentence of two years. An example  is the offence of interference with the arrest and seizure contrary to section 49 of the Act where the minimum fine shall not be less than five hundred penalty units or a term of imprisonment of not less than three years. The jurisdiction of the Circuit Courts and the High Courts under the Act seems to be concurrent with the exception of where life imprisonment is to be imposed on a person convicted  in Ghana or any other country, on more than one previous occasion, on offences such as illegal importation,    exportation, re-exportation, processing, sale, manufacture, distribution, cultivation or supply of a narcotic drug or plant.[35] The short title to section 50 of Act 1019 which provides as follow; “life imprisonment on third conviction” is misleading and should be disregarded. Where a person has a previous conviction on any of the above listed offences the person should be arraigned before the High Court which has the jurisdiction to impose a life sentence.

LEGA LEFFECT

The Narcotic Commission Act, Act 1019 repealed the Narcotics Drugs (Control, Enforcement and Sanctions) Act, 1990 (PNDCL 236) without saving the offences committed or proceedings commenced before the repeal of PNDCL 236[36]• The law is settled that no person shall be convicted of a criminal offence unless the offence is defined and its penalty is prescribed in a written law[37]. PNDCL 236 was not saved but rather the Regulations, notices, orders, directions, rules and  instructions made or done under it that were saved[38].  No provision was made ­for offences committed or  proceedings  which were pending before the courts and those cases are not regulated by any written law and no person can be tried and convicted of same[39]. This serious legal flaw should never happen in the country as the same serious error happened in the Land Act, Act 1036 and all those standing trial under it for various offences had to be left off the hook.
 

[1]article19 (11) of the Constitution.

[2]British Airways v Attorney-General [1996-97) SCGLR

[3]section 34(1)(e)of the Interpretation Act, 2009 (Act 792).

[4]section 35 (2)(e) of the Interpretation Act, 2009 (Act792).

[5]article 19(5) of the Constitution

[6]section 239 (1) & (2) of Act 29 as amended by Act 1034.

[7]sections 252, 253 and 260 of Act 29 respectively as amended by Act 1034.

[8]sections 248, 249, 250, 251, 254 and 256 of Act 29 respectively as amended by Act 1034.

[9]section 296 (3) of Act 30 and the Long title to Act 1034.

[10]section 298 (1) (a) of Act 29.

[11]section 298 (1) (a) of Act 30

[12]section 298 (2) of Act 30.

[13]section 1 (3) of the Anti-Money Laundering Act (Act 1044).

[14]section 1 (3) of the Anti-Money Laundering Act (Act1044)

[15]section 4 of the Anti-Money Laundering Act (Act 1044).

[16]section 5 of the Anti-Money Laundering Act (Act1044).

[17]sections 48, 58, 59 and 61 respectively of Act 1044.

[18]sections 1 and 63 of Act 1044.

[19]section 63 of Act 1044.

[20]section 42 of Act 1044.

[21]section 44 of Act 1044

[22]section 52 of Act 1044.

[23]section 55 of Act 1044.

[24]section 64 (3) of Act 1044.

[25]sections 46 and 56 of Act 1044.

[26]section 114 of the Narcotics Commission Act, 2020 (Act1019).

[27]section 37 of Act 1019.

[28]section 37 (2) (a) of Act 1019.

[29]section 41 (2) (a) of Act 1019.

[30]sections 37 (2) (b) and 41 (2) (a) and (b) of Act 1019 respectively.

[31]section 44 of Act 1019.

[32]section 46 (1) and (2) of Act 1019.

[33]section 47 of Act 1019.

[34]section 52 of Act 1019.

[35]Section 50 of Act 1019

[36]section 114 (1) of Act 1O19.

[37]article19 (11) of the Constitution.

[38]section 114 (2) of Act 1019.

[39]British Airways v Attorney-General, supra