Former Attorney General and Minister for Justice, Nii Ayikoi Otoo, has declared that evidence showing public officials participated in a criminal agreement could be sufficient grounds to prosecute them. This statement concerns the alleged bribery scandal involving AKSA Energy. Mr. Otoo's remarks highlight a critical aspect of Ghanaian law regarding criminal liability.
Under Ghanaian law, a person does not need to be physically present when an offense is committed to be held criminally liable. The law on conspiracy allows authorities to prosecute individuals if there is evidence they participated in an agreement to commit a criminal offense. This legal principle provides a pathway for accountability even when direct involvement is not immediately apparent.
This development follows the conviction of former Tema Oil Refinery (TOR) Managing Director, Asante Kwaku Berko, by a United States court. Mr. Berko's conviction was for a bribery scheme linked to a power plant deal involving Ghana. This case has intensified calls from civil society organizations for investigations into Ghanaian officials potentially implicated in the same scheme.
Mr. Otoo, speaking on Joy FM's Midday News on Monday, August 10, explained the legal framework. He stated, "You don't need to be present when the thing happens. But if there is evidence that you took part in the criminal agreement to commit those offenses, that should be sufficient." This clarification underscores the broad reach of conspiracy laws in Ghana.
The former Attorney General also noted that information indicating monies were allegedly paid both within Ghana and outside the country should prompt Ghanaian authorities to investigate the individuals involved. He stressed that Ghanaian courts can still exercise jurisdiction where an alleged offense is committed partly within Ghana and partly outside the country. This ensures that cross-border corruption schemes do not evade local justice.
Mr. Otoo further weighed in on the respective roles of the Office of the Special Prosecutor (OSP) and the Attorney General in pursuing potential prosecutions. He explained that the Supreme Court has clarified the relationship between these two institutions. The OSP can commence prosecution, but the Attorney General retains the power to discontinue proceedings by entering a nolle prosequi, which is a formal notice of abandonment by a prosecutor.
He stated, "The OSP is only an agent of the Attorney General. It can start its own prosecution, and then the Attorney General has every right to enter nolle prosequi and to stop it once again." This hierarchical structure means the Attorney General holds ultimate authority over prosecutions, even those initiated by the OSP.
However, Mr. Otoo raised concerns about the Attorney General's political will to pursue officials who may be connected to the alleged bribery scheme. He questioned, "The only issue now is that when indeed some of his people were facing corruption charges and other offenses in court, and the Attorney General comes to enter nolle prosequi and let them walk free, where is the confidence that he will go after his own people?" This highlights a potential conflict of interest and a challenge to independent prosecution.
The implications of these statements are significant for Ghana's fight against corruption. The legal opinion from a former Attorney General provides a clear path for prosecuting implicated officials, regardless of their physical presence during the alleged acts. The focus will now be on whether state institutions, particularly the Attorney General's office, will act on this advice and pursue justice. The public and civil society organizations will closely watch how these cases unfold, especially given the concerns about political will.
Mr. Otoo urged relevant state institutions to examine the evidence emerging from the US proceedings. He called for appropriate legal action against anyone found to have participated in the alleged scheme. This emphasizes the need for Ghana to leverage international legal actions to strengthen its domestic anti-corruption efforts.