Mr Kissi Agyebeng
Office of the Special Prosecutor
RE: UNCONSTITUTIONAL TIME EXTENSION FOR PUBLIC OFFICERS’ ASSETS/LIABILITIES DECLARATION
We welcome you, although belatedly, to your office as Ghana’s Special Prosecutor, and respectfully invite you to join our effort to have the unconstitutional 6-month extension to assets/liabilities declarations by public officers removed from our law. We are particularly encouraged by your declared interest to pursue persons with unexplained wealth. We agree with you that this should apply in equal measure to both public officers and private persons. However, we believe that this exercise should begin with public officers, especially within the context of the asset/liabilities declaration regime that the Constitution establishes as the basic standard to ascertain unexplained wealth.
In article 256 the Constitution provides foundation to the fight against unexplained wealth by requiring public officers to declare all assets and liabilities (a) “BEFORE TAKING OFFICE,” (b) “at the end of every four years,” and (c) “at the end of his term of office.” The pre-appointment declaration is novel, as the 1979 Constitution had only a post-appointment provision, requiring declarations within ‘three months… AFTER taking office.’ This was however strengthened by the additional mechanism by which a Public Trustee would take over and manage all appointees’ interests in business, trade or undertakings ‘for the period during which that person continues to hold such public office.’
The 1992 Constitution did away with both the post-appointment declaration and Public Trustee regime, requiring pre-appointment declarations. This was supposed to make it easy to compare what a person had before taking office with what that person acquires subsequently, rendering the Public Trustee requirement redundant.
Somehow, Ghana’s political class, uncomfortable with the pre-appointment declarations, in passing the Public Office Holders (Declaration of Assets and Disqualification) Act, 1998 (Act 550), provided in section 1(4) that although the declarations should be “made” in accordance with article 256(1) of the Constitution, a public officer is allowed a 6-month post-appointment period to “submit” the declaration. By this bizarre and incongruous provision, the public officer would make the declaration before being appointed, but would be entitled to hold on to it and submit it to the Auditor-General up to six months after being appointed.
The effect has been that public officers are never required to declare any assets/liabilities BEFORE taking office, contrary to what the Constitution expressly states. They may wait and do so within six months AFTER taking office. By this deliberately confused and cleverly bizarre provision, the political class has, by statute, overridden the 1992 Constitution’s rule, reinstated the 1979 post-appointment declaration regime, and even extended the time for doing so from 3 months to 6 months. In reality, once the person is appointed, everyone conveniently forgets about this requirement, and the basic tool to ascertain unexplained wealth is lost.
Unhappy with this state of affairs, OccupyGhana wrote to the Attorney-General on 1 December 2019 (letter ref no OG/2019/010), requesting an amendment to the Act that removes the unconstitutional 6-month extension. We were glad when the Attorney-General responded by a letter dated 8 January 2020 to convey unequivocal agreement with us on both the unconstitutionality and amendment, and to state that the office was seeking cabinet approval to prepare the necessary amendment bill to be laid before Parliament. We did not hear from the office again. Thus, on 16 July 2021 and 24 September 2021, we wrote back to the Attorney-General to follow up on the status of the matter. We have received neither acknowledgments of receipt nor responses to those reminders.
As a necessary adjunct to the pre-appointment declaration, article 286(4) compares properties listed in “the initial declaration” with subsequent acquisitions, and declares that properties “not reasonably attributable to income, gift, loan, inheritance or any other reasonable source” are “deemed to have been acquired in contravention of this Constitution.” The effective extraction of pre-appointment declarations by section 1(4) of the Act, renders article 286 completely toothless.
It is on these grounds that we respectfully invite your office to throw its weight behind our fight for the critical amendment, which will give teeth to your desire to pursue public officers with unexplained wealth.
We wish you well in this and all your endeavours
Yours in the service of God and Ghana
cc. The Attorney-General & Minister of Justice
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