Unexplained Wealth Orders can accelerate Ghana’s fight against corruption

Ghana’s two largest political parties, the NDC and the NPP, have both been implicated in several major corruption scandals such as the GHS 15 million ($2 million) SADA scandal and the GHS 15 million ($2 million) BOST scandal, respectively.

As Ghana heads into a new decade and election year, it is time for a fresh start and a new approach to tackling graft. One of the most powerful weapons in Ghana’s arsenal could be the newly proposed Unexplained Wealth Order (UWO), announced this January by Special Prosecutor Martin Amidu.

If passed into law, UWOs would place a burden of proof on public servants and private individuals to explain the sources of their wealth; failure to do so would lead to prosecution. These measures would complement Ghana’s existing asset disclosure regime, which is difficult to enforce.

First introduced in the UK in 2017 under the Criminal Finances Act, UWOs are court orders that enable investigators to ask Politically Exposed Persons (politicians and state officials), individuals involved in serious crimes, and their close family members and associates, who hold assets worth over £50,000 that they would not be able to afford based on their legitimate income, to prove that such assets were obtained from legitimate sources.

If the source cannot be proved, the authorities can take steps to seize those assets. To date, UWOs have been successfully obtained against Mrs. Zamira Hajiyeva, the wife of Jahangir Hajiyev, a former chairman of the International Bank of Azerbaijan who himself has been in an Azerbaijani jail for fraud and embezzlement since 2015.

After spending £11.5 million on a home in the tony London neighbourhood of Knightsbridge and £10 million on a golf course, Mrs. Hajiyeva faced questions regarding the source of her funding. Similarly, the UK’s National Crime Agency secured a UWO against a prominent businessman in Northern Ireland, who was required to reveal the source of funds that contributed to his £10m “property empire.”

While Ghanaian law currently contains provisions similar to Unexplained Wealth Orders, an absence of effective enforcement mechanisms compromises their usefulness as an anti-corruption mechanism. Under Article 286 of Ghana’s Constitution, high-ranking public officials such as the President, Vice President, Members of Parliament, Ministers of State, and Ambassadors must make written declarations of all their property and assets to the Auditor General of Ghana.

These declarations must take place at three instances: before taking office, at the end of every four years, and at the end of their terms.

Any property or assets acquired by these public officials after their written declarations, and which are not reasonably attributable to their income, gifts, loans, inheritance or another reasonable source are deemed to have been acquired in breach of the Constitution.

Article 287 allows individuals to submit allegations that public officers have failed to comply with the law to the Commission for Human Rights and Administrative Justice (CHRAJ), which has the authority to investigate these allegations, and to take “appropriate actions” with respect to the allegations or admissions of guilt.

In theory, these constitutional provisions are powerful, but they have been rendered impotent in practice and by design.

Firstly, the law requires public officials to declare their assets to the Auditor General but does not explicitly state that these declarations must be made public. As the current Auditor General has pointed out, it is only when citizens know what has been declared by public officials that they can report omissions to CHRAJ.

The CitizenGhana Movement, of which I am a member, wrote to the Auditor General on 4 February 2018 and again on 14th November 2019, urging him to provide us with copies of public officers’ declarations, which we believe we have the constitutional right to, as affirmed by the bus branding case (Lolan Sagoe Moses & Others vs Minister of Transport & Attorney General).

We have not received a response from the Auditor General, but in a 31 December 2019 circular, he instructed audit service staff to make an audit observation of any public officials who have not declared their assets.

While the Auditor General’s actions are laudable, they may not be sufficient to promote transparency, or to deter public officials from using public funds to acquire private wealth. An audit observation would only state instances where officials have failed to declare their assets.

It will not list the assets declared by public officials. Furthermore, the only existing penalty for failure to declare assets, or acquiring unexplained wealth, is an investigation and “appropriate action” by CHRAJ, which does not have the power to independently bring criminal prosecutions against public officials who acquire ill-gotten wealth.

As such, under the current laws, public officials may escape punishment even after an investigation.

A new Ghanaian law modeled after the UK’s UWOs could correct the defects in our current laws. Instead of relying on citizens to report omissions to CHRAJ, a Ghanaian UWO law would place the burden on public officials to prove that their assets were acquired using legitimate sources of wealth.

A Ghanaian UWO law would also give the Special Prosecutor the power to seize ill-gotten assets in civil proceedings and to use the evidence of unexplained wealth to bring criminal charges, including for corruption, against these public officials.

If Ghanaians wish to truly fight corruption, we should support the Special Prosecutor’s push to introduce an Unexplained Wealth Order law.

Lolan Ekow Sagoe-Moses is a lawyer, open governance activist and member of the CitizenGhana Movement.