A US federal jury in Brooklyn has convicted former banker Asante Kwaku Berko of violating the Foreign Corrupt Practices Act (FCPA). The conviction relates to more than $1 million (GHS 12 million) in bribes paid to Ghanaian government officials. These payments were made in connection with a power plant project in Ghana.
The verdict followed a nine-day trial, concluding a long-running legal process. Berko, a former Managing Director of the Tema Oil Refinery (TOR), resigned in April 2020 after US authorities announced initial allegations. The US Securities and Exchange Commission (SEC) had previously accused him of funneling millions of dollars through an intermediary. These funds facilitated bribes to Ghanaian officials, including payments he allegedly made personally.
This conviction underscores the persistent nature of corruption investigations, even across international borders. The case began with civil allegations from the US in 2020. It has now culminated in a criminal jury conviction years later. This demonstrates that corruption files, though they may age, do not necessarily disappear from scrutiny.
Professor Kwaku Asare, a legal expert, highlighted the dual nature of bribery. He stated that for every briber, there is usually a bribee. He emphasized that a serious anti-corruption system must target both parties involved in a corrupt transaction. The person offering money to corrupt a public decision is not an innocent victim. They are an author of the corruption.
The FCPA, enacted in 1977, primarily targets the supply side of foreign corruption. It prohibits individuals and companies from paying bribes to foreign public officials to obtain or retain business. Berko's conviction falls squarely under this framework. He was found to have violated these provisions by orchestrating the payments.
Historically, the FCPA focused on the individual or entity offering the bribe. This created an asymmetry where the bribe-giver could face prosecution, but the foreign official receiving the bribe generally could not under the FCPA itself. However, other American laws, such as money-laundering statutes, could still apply to the recipient.
A significant development is the Foreign Extortion Prevention Act (FEPA). FEPA now addresses the demand side of corruption. It allows for US prosecution of foreign officials who corruptly demand, seek, receive, or accept bribes. This means the American legal framework now targets both the act of bribing and the act of receiving a bribe.
It is important to note that FEPA cannot be applied retroactively to Berko's case. The criminal scheme charged against Berko occurred between December 2014 and March 2017. FEPA was enacted much later. Criminal laws cannot be applied to punish past conduct under a statute that did not exist at the time. Therefore, the Ghanaian officials allegedly involved in Berko's transactions cannot automatically be prosecuted under FEPA for those specific payments.
Ghana must also strengthen its own anti-corruption laws and enforcement mechanisms. The country needs to pursue both the individuals who offer bribes and the officials who accept them. This ensures accountability for all parties involved in corrupting public administration. The Berko conviction serves as a stark reminder of the global fight against corruption and the need for robust domestic measures.
The implications for Ghana's economic landscape are significant. Such convictions can deter foreign investment and damage the country's reputation. Investors seek environments with strong rule of law and minimal corruption risks. The government must demonstrate its commitment to tackling corruption to attract and retain legitimate business. This case highlights the ongoing challenges in achieving transparency and integrity in public procurement and project execution.