Ghana's Members of Parliament: Lawmaking lawbreakers?

By far, the most topical and potentially explosive issue in Ghana today is the news report carried on the front page and page three of the Daily Graphic of  March 10,  2014 that the former Minority Leader, former Majority Leader and former Minister of State, Alban S. K. Bagbin, MP, has stated that his colleague Members of Parliament (MPs) receive bribes.

The statement itself, captured in an audio recording and its transcript, is widely available on the Internet and on social media.

This article examines the fallout from that statement, mainly from a legal perspective, in five sections. Section I attempts to review the law on corruption and extortion as it may relate to MPs.  

Section II seeks to show that when an MP is bribed, both the MP and the 'briber' commit contempt of Parliament. Section III will examine what Mr Bagbin is recorded to have said and Section IV will recount some social attitudes toward the receiving of "gifts” by persons in authority. In Section V, I will make some suggestions for strengthening the existing laws on corruption and extortion. 

Corruption and extortion

Article 35(8) of the Constitution imposes a duty on the state to work to eliminate corruption as follows: “the State shall take steps to eradicate corrupt practices…” Under section 42 of the Interpretation Act, 2009 (Act 792), the word “shall” is construed “as imperative and mandatory” so that Ghana has an obligation to take steps to eliminate corruption. The constitutional provision does not define “corrupt practices” or “corruption.” 

However, there is some definition and explanation under the Criminal Offences Act, 1960 (Act 29), section 239 of which makes it a misdemeanour for a public officer to practise Corruption or Extortion; and a person who corrupts another in respect of that other person’s duty as a public officer is also guilty of the misdemeanour of corruption.

Misdemeanours

Misdemeanours are the lowest category of offences and they attract a maximum penalty of three years’  imprisonment, unless otherwise specified by legislation. 

The term "misdemeanour" is used in contradistinction to “felony” and covers offences which do not amount to felony. Felonies are crimes of a graver or more atrocious nature, and extortion may be tried as a second degree felony if it is accompanied by threats.

Public officers

There is, therefore, no doubt that an MP is a "public officer", a term that is defined by section 3(1) of the Criminal Offences Act and Article 295 of the Constitution by a logical reference to the constitutional definition of the term “public office.” It includes “a person holding an office by election or appointment under an enactment or under powers conferred by an enactment.”

 A “public office” includes “an office the emoluments attached to which are paid directly from the Consolidated Fund or directly out of monies provided by Parliament and an office in a public corporation established entirely out of public funds or monies provided by Parliament.” 

Thus the offence is committed when there has been an attempt or effort to influence the official acts of an MP with a gift. It is, therefore, not sufficient to simply show that an MP has received a gift. It must be shown that the gift was part of an endeavour to manipulate his/her conduct as an MP.

Further, what the MP received must be a gift or some assurance, hope or expectation of “valuable consideration.” This refers to some right, interest, profit or benefit accruing to him/her and at the same time some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other person. By law, this needs not be translated into cedis and pesewas, but it is sufficient if it consists of performance or promise of performance, which the promisor treats and considers of value to him.

The law  also covers 'pre-paid bribes' and 'post-paid bribes.' Thus an MP would be held to have received a bribe even where the payment is made to him/her in the hope, anticipation, belief, prospect or probability of his/her election. 

It is immaterial that the person is not yet an MP as at the time of the making of it, if the endeavour, agreement or offer is made in the expectation that he/she will or may become an MP.

It is also immaterial, whether the act to be done by a person in consideration or in pursuance of the gift, promise, prospect, agreement or offer is criminal or wrongful, otherwise than by reason of any other law. This covers a corrupt agreement for lawful consideration. But it is critical to note that if you make a payment to a candidate in an election, as part of an agreement or endeavour to influence his/her conduct if elected, both you and the candidate are guilty of the offence of corruption, even if the candidate loses the election! 

With respect to what may be called ‘post-paid’ bribes, the offence is committed where after an MP does an act, he/she secretly accepts or agrees or offers to secretly accept for personal gain or for any other person valuable consideration on account of the act. 

Here, the law presumes that until the contrary is shown, the MP acted corruptly before doing the act. In like manner, the offence is also committed where after an MP does an act, any other person secretly agrees or offers to give or to procure for the MP or any other person, valuable consideration on account of that act. Here too, the presumption is also that the person so agreeing or offering corrupted the MP before the doing of the act.

The offence is illustrated by the case of Republic v. Hagan [1968] GLR 607 where the court held that for the purpose of committing the offence of accepting a bribe to influence a public officer, whatever public office is held by the accused is irrelevant, for no question of the colour of the offender’s office arises. His position would be the same whether he holds public office or not. 

The accused must have acted under pretence or under colour of having influenced or being able to influence. One acts “under colour” if he represents or misrepresents that he has influenced or is in a position to influence. Such a representation or misrepresentation may even be made through an intermediary.

Extortion

Extortion is committed by a public officer who, under colour of office (such as the office of an MP), demands or obtains (whether for public purposes or private gain or for any other person) money or valuable consideration which he/she knows is not lawfully authorised. There are three decided cases that explain this principle very well.

First, in Motayo v. COP (1950) 13 WACA 114, the court was emphatic that “to constitute an offence under that section, there must… not only be a corrupt demand, but also a pretence that the party making it is lawfully empowered to do so by reason of his employment. It is immaterial whether he pretends that the money is to be paid into the funds of the public authority that employs him or whether it is a perquisite for himself; it suffices if he conveys the impression to his victim, whether directly or by implication, that by virtue of his employment he is entitled to demand it.” 

Second, in Republic v. Hagan (supra.), the court distinguished between bribery and extortion, and held that where a public officer demanded or obtained a bribe, that did not ipso facto amount to extortion, merely because the recipient happened to hold a public office. The demand or obtaining must have some reference to the particular public office held by the accused, and there should be an act or conduct which amounts to the representation or misrepresentation of the duties of his office.

And third, in Appiah v. The Republic [1989-88] 2 GLR 377, it was held that the offence of extortion as defined is in the alternative, “demand” or “obtain.” The demand might be either directly or indirectly made. If indirect, proof of the demand might well nigh be impossible without other enabling statutory provisions.

“Obtaining” lends itself to readier proof and readier defences. It is the suspicious end result that flows from a representation that must be explained and is capable of explanation if an innocent one existed. Accordingly, a posture of an ability to deliver under colour of office, whether positively or impliedly, might amount to a constructive representation if the other limb of the offence, namely “obtaining” is proved. Consequently, provided there is representation, demand or obtaining, the offence is committed even when the payment secures no returns.

Thus the offence of extortion is committed, for instance, where MPs, as members of a committee of Parliament, adopt a posture that delays or frustrates the consideration and approval of a budget or agreement in a way that compels a person to send “brown envelopes” to them. Once the benefit is obtained, the demand for it would be implied by law, and the offence would have been committed.

Contempt of Parliament

In the previous section, we examined how the giving of gifts to, and receiving of gifts by, MPs can trigger criminal prosecution for corruption or extortion. In this section we will discover that the same acts can also constitute contempt of Parliament. 

The general position under article 122 of the Constitution and section 26 of the Parliament Act, 1965 (Act 300) is that acts that impede or tend to impede Parliament in the performance of its functions, or affront its dignity, amount to Contempt of Parliament.

The Parliament Act then sets out specific acts that would amount to contempt of Parliament. Under section 27, a person commits this contempt if he/she endeavours to influence an MP’s official functions by means of bribery, among others. 

An MP is in contempt where he/she accepts, or procures for personal gain or for any other person a benefit in return for undertaking to perform any of the functions of an MP in a particular manner, or by reason of anything done or omitted to be done by the MP in the performance of functions.

In other words, bribing an MP and an MP accepting a bribe are acts considered as contemptuous of Parliament because they obstruct, hinder or hamper Parliament in the performance of its functions, and are also an affront to the dignity of Parliament.

An MP who is found guilty of Contempt may be reprimanded, suspended or even expelled from Parliament, depending on the gravity of the matter. A non-MP in Contempt may be excluded from coming within the precincts of Parliament for a period not exceeding nine months, reprimanded or subjected to criminal prosecution that may lead to a fine not exceeding 250 penalty units (i.e. GH¢3,000) and/or a term of imprisonment for one year. 

It is important to note that while the severest sanction that may be meted out to an MP for being in Contempt is expulsion from Parliament, the criminal prosecution with the prospect of imprisonment is only reserved for

iii. What did Mr. Bagbin say?

From the recording, a questioner first informed Mr. Bagbin of “a perception that MPs take bribe before a bill is even passed, especially when the bill is under the certificate of urgency.” This was followed by a specific, pointed question: “Do MPs take money?”

Mr. Bagbin’s response was a clear, unambiguous and unequivocal “Yes.” Having made that candid admission he then took his audience on an interesting verbal excursion. The bribery of MPs, according to him, occurs in two ways. First, MPs are bribed to canvass certain positions in Parliament. He said “there is some evidence that some MPs take bribe, and they come to the floor and try to articulate the views of their sponsors.” He then sought to distinguish between “bribery” and “lobbying,” stating that Ghana has not developed rules to govern lobbying, “and so we think that lobbying is taking money to go and give to some MPs and writing pieces for them to articulate on the floor. That is bribery.” He was emphatic!

Second, Mr Bagbin revealed that MPs are also bribed by governments to vote for unpopular government policies. He pulled no punches and minced no words: “at least there are some members who take bribe.

And sometimes some governments, both sides, they are coming with some policies to the House that are very, very controversial; that even their members disagree with them. And they have had to influence the members through this bribery.”

He then gave the example of the allegation by former NPP MP, P. C. Appiah-Ofori that certain MPs were bribed with US$5,000 to pass the Ghana Telecom privatisation deal. He then gave another, and rather curious, example where he and “a team… were called to be given the full details” of the Merchant Bank transaction. He said they were given all the relevant information and “all the story.”

Then he says “we were fed; food and that kind of thing. Ok? We were given T&T.” [“T&T” is an acronym for ‘Telecommunications and Transportation’ expenses, but is now generally accepted as monies distributed to cover the perceived cost of travel and ‘fuel’.] Although Mr. Bagbin denied receiving dollars, he said that “that team came to the House and led the caucus to try and debate it.”

Having stated this, Mr. Bagbin then meandered into what some might consider a red herring, a deliberate deviation. But I don’t think so. I think that Mr. Bagbin, by a subtle and obviously studied use of euphemisms, tells us that MPs are susceptible to bribery simply because they are not paid well and thus do not have the resources to do what is expected or required of them. His chosen euphemism for that was “No Releases,” and his exact words were “we want to do a lot of work, but No Releases.” He then tells us of four effects of the “No Releases” phenomenon.

First, “No Releases” means that MPs do not have office spaces in Parliament and that even if rooms ordinarily reserved for Committee meetings are available, MPs cannot afford to provide even “water.” By the use of another euphemism, “water,” Mr. Bagbin tells us that if an MP holds a meeting, he/she is expected to provide something edible and/or drinkable for the persons who will attend the meeting. “You can’t even buy that,” he complains.

Second, “No Releases” means that MPs are unable to meet the constant demands from their constituents as they attend funerals and festivals, and to pay for vacation classes (obviously for students.) He said “the man is being pressurised from his constituency… they expect you to give them money to motivate them. They don’t say pay them, but they say ‘motivate us.’” This drew laughter from the audience.

Third, the MPs' share of the Common Fund is inadequate, and as is typical of the “No Releases” phenomenon, even that has not been paid since the first quarter of 2013. He said “now you think the MP can use Common Fund to do all this? No, he won’t get that.” 

Fourth, “No Releases” means that MPs are not equipped with the personal capacity or tools for their work. He says “you need to have these resources to be able to get the MPs together, to be able to build their capacities to do what you want them to do.” He then elaborates this dearth of “capacity building” because of “No releases” argument, further by giving two instances, where the intervention of either outside help and the use of personal resources in “capacity building” was required.

In the first instance, he stated that he has had to study matters that were not within his area of learning. He stated that even “as a lawyer,” he had to equip himself for the work that he was required to do in Parliament, particularly in areas of the law that were not taught to him in school, such as intellectual property. In such cases, MPs are also compelled to rely and on external help. He said “and so when you take us through your subject area, you improve our capacity, then we can handle the policy or the business in Parliament better.” What I understand Mr Bagbin to be saying is that the phenomenon of “No Releases” compels MPs to rely on their personal resources and resources provided by others, to be equipped for their work. This obviously exposes MPs to bribery. 

In the second instance, and almost as a corollary to the first instance, Mr Bagbin stated he also needed to be equipped to contend with a “very strong” opposition NPP. In a back-handed compliment to the opposition NPP, particularly its immediate past presidential candidate, Nana Akufo-Addo, Mr Bagbin said that as chairman of the Legal Committee of Parliament between 1997 and 2000, he had to contend with and debate Nana Akufo-Addo, who was the “ranking member” of that committee. He said “you know the NPP is mostly lawyers because of their value-system, aristocrats.”

To do this, Mr. Bagbin had to do a lot of reading. “I took time to read. That is how I built my capacity to be able to lead that committee. If not, the other side were very strong, ok?” Mr Bagbin’s “reading” could not have come for free; he must have incurred expenses to purchase the materials that he read, the acquisition of which must have been difficult because of “No Releases.” 

These statements raise a very fundamental issue whether the “food”, “T&T”, ‘per diems’ provided or funded by persons or organisations outside parliament, and even cash donations made to MPs may amount to bribery? When is a thing a bribe and when is it just a gift? Answers to these questions are compounded by accepted social practices that involve the giving of gifts to persons in authority, including MPs.

Iv.Social perspectives

It is important to consider these matters also from a social perspective. There is no denial that by some pervading and accepted customary or traditional practices, persons in authority receive gifts from others, and also give gifts to people who come their way.

For example, when the policeman at a checkpoint stops your vehicle, smiles at and salutes you, and calls you “Honourable,” he does so in expectation of a gift. You are riding in a car.

He is contending with either the hot sun or the cold night. He has done nothing for you and you have done nothing wrong. But on the sheer account of him being in a position of authority, he expects you to make a “dash” to him. The obviously practised forlorn and disappointed look on his face, if you prepare to drive away without a tip, can compel you to look for money for him.

Actually, you may sometimes even feel guilty if you don’t find some money for them. By the same token, if he had stopped your vehicle because you have violated some traffic regulation, then the expectation of, and your willingness to give, a “gift” are even heightened.

In his new book on the ancient town of Anomabo, titled Where the Negroes Are Masters: An African Port in the Era of the Slave Trade, and published by the Harvard University Press, Randy J. Sparks, refers to near-comical 18th century records allegedly compiled by the British traders in the Anomabo Fort, and which showed that they had to routinely make officially sanctioned “dashes” to members of the ruling “Corrantee” family under numerous, different circumstances.

The fort’s account books reveal the quantities of goods that went into the town every month as payments to Corrantee’s family and to the townspeople for a range of goods and services. Dashes or gifts went to Corrantee’s three wives and to his sons George Banishee and Quasah. Dashes might be given on almost any imaginable occasion, or for no apparent reason at all. The British dashed George Banishee because he was paying a visit to Cape Coast and to allow him to entertain a visiting “Mulatto Relation.”

Both William Ansah and Quasah received gifts for building new houses. Corrantee received gifts “on coming home from Brafo Town & his wife who attended him on going.” Corrantee received a gallon of rum because he was “Complaining of its being a Cold Day,” a half gallon of rum because he wanted to “wash himself,” and more rum and brandy for the New Yam harvest festival.

From November to December 1755, for example, Corrantee received nineteen gallons of rum in dashes. The entire town received rum for the New Yam Festival, “a great day with them.” They dashed George Banishee’s wife because she was “with child & Longing for it.” The pynins of the Upper Town and those of the Lower Town were also paid. 

During the negotiations with the Asante in 1768, the British made payments to pynins from other towns who came to Annamaboe to discuss those issues, and to the “principal men among soldiers” in the town “to induce them to settle the Ashante Business.”

They gave dashes to the “Townspeople for clearing the paths above the Town (as usual),” and to “a Mulattoe for making a New Flagg” for the fort. Dashes went to Corrantee’s Chicko (or Chickee, a messenger identified as his “public cryer”) and to his “Wenches.” In July and August 1768, for example, the fort made sixty-four payments to Corrantee’s “favourite wives.”

As almost hilarious, and probably patronising, as these “records” may be or read, they speak to the matters that we still grapple with today, that persons in authority expect gifts from others. What is worse, we “the others” do expect to give such gifts, and are sometimes embarrassed when the gifts are turned down.

The issue of giving gifts to persons of authority also engaged the mind of the ancient writer and third King of Israel, Solomon, who is recorded in Proverbs 18:16 of the New International Version of the Bible as saying that “a gift opens the way and ushers the giver into the presence of the great.”

And in Proverbs 17:8, he stated that “a bribe is seen as a charm by the one who gives it; they think success will come at every turn.” Indeed on account of there being many versions of the Holy Writ, the words “gift” and “bribe” are sometimes used as if they are synonyms of each other. But whether or not Solomon spoke with his tongue stuck firmly in his cheek, what he is recorded to have written, are facts. Gifts or bribes do indeed open doors, make room and probably bring “success.”

The modern day MP occupies a very important societal position, which involves wide-ranging interaction with various persons at different levels of society. As stated above, it is known (and even accepted) that in the course of such interactions, “gifts” and “donations” are made to and by MPs.

But where then, do we draw the line between what is a “gift” and what is a “bribe”? The answer, I respectfully submit, lies in simply looking at and enforcing the laws of the land, which to my mind, are clear on when the giving and/or receiving of a gift constitute(s) an offence. And in areas where the existing laws are inadequate, we need to amend them.

V.RECOMMENDATIONS & CONCLUDING COMMENTS

Politicians and social actors speak of the “perception” of corruption. But I think that anyone who still thinks that corruption is just a “perception,” probably just arrived on earth from Mars. Corruption is real, and we call it a “perception” simply because either we are too cowardly to speak to it frontally and expose those involved it in, or we are guilty of it ourselves.

That is why Mr. Bagbin’s statements have serious legal implications and consequences that cannot be trivialised, laughed at or wished away. If it is true that our lawmakers are themselves lawbreakers, then there is an urgent need to tackle this situation headlong, and take the constitutionally mandated steps to eradicate such corrupt practices in Parliament.

We may never succeed in completely eliminating corruption, and on that I tend to agree, in part, with the reported statement of President John Kufuor, that “corruption has been with us from Adam.”

But what he failed or neglected to add is that his previously declared “zero tolerance for corruption” also meant that we have to continue the fight against corruption, and that even if all we succeed in doing is making it less attractive and potentially more painful than it has been, we would have some success to fall on and refer to. Win the battles. Chalk up small victories.

Take steps towards eliminating corruption, even if we never achieve full elimination.

An MP who takes money to promote a bill or other process (or forbear to do same) in Parliament is guilty of the offence of corruption. If Mr Appiah-Ofori’s allegation is true, then all the MPs who took money to vote on the Ghana Telecom privatisation are guilty of the offence of corruption. Even Mr. Bagbin’s curious Merchant Bank example is problematic. An MP who is fed, given “T&T” and/or “per diem” commits the offence if the food and monies were given to him/her as part of a deal to influence his/her actions (or inactions) in Parliament. It is curious that Mr. Bagbin did not reveal how much money was distributed as “T&T” to the members of “the team” who attended the meeting.

However, the current Minority Leader, Osei-Kyei Mensah-Bonsu, stated on Oman FM, on the morning of 10th March 2014 when the news broke, that the alleged “T&T” was only given to the members of one political party, and that the amount was GH¢5,000. If true, that could raise red flags especially if the meeting was held in Accra. So that what is described as “just T&T” could trigger criminal prosecution if the amount of it is so out of tune with how much an MP is reasonably expected to have spent to attend the meeting or seminar, and if the other elements of the offence exist.

Whatever the figure was, Mr. Bagbin stated that “that team came to the House and led the caucus to try and debate it.” If it is proved that the position of members of the team in subsequently “leading the caucus to debate the matter,” was influenced by the food that they were fed with and money that they received as “T&T,” then they would be guilty of the offence of corruption. In both of this instance and Mr Appiah-Ofori’s alleged instance, the MPs involved would also be guilty of the offence of extortion if they actually demanded those items, directly or indirectly.

This is because all of those acts done after the alleged receipt of food and money, were things that MPs are officially required to do, such as advocating positions, making speeches and voting. To the extent that any of those acts was or were thus influenced, offences would have been committed. That is why a full public inquiry into Mr. Bagbin's the allegations would be welcome. The people of Ghana deserve to know where the truth lies in this matter.

I would also like to make the following points and recommendations.

First, Mr. Bagbin says that there are no rules governing lobbying in Ghana. I respectfully disagree. Lobbying an MP by simply seeking to influence or convince him/her to take a position on a matter is no offence. But an offence is committed if that lobbying involves any gift, or the promise or prospect of some valuable consideration.

The scope of Ghana’s anti-bribery and corruption law, rustic though it may appear, is so wide that what might be accepted in other countries as “lobbying” would constitute an offence here. If we want to change it, then we should introduce formal legislation on lobbying MPs, for instance by amending the Parliament Act, to provide for the maximum value of gifts that MPs are allowed to receive, the circumstances under which such gifts may be received and a strict declaration of and accounting for them.

Second, the offences of Corruption and Extortion should no longer be just misdemeanours. It is my view that a maximum of  three years’ imprisonment is not a sufficiently strong deterrent. If the amount to be received is sufficiently huge, a public officer may very well want to take the risk, knowing that he/she gets to keep the money and return from jail after three years to enjoy that ill-gotten wealth. It is time to deliberately make the punishment for Corruption and Extortion as painful as, if not more painful than, say, the offence of Stealing, which is a second degree felony.

Third, I would also advocate specific provisions in legislation, which would empower a court that convicts a person of Corruption or Extortion to order that person to forfeit the benefit received to the state. There is already precedent in what I consider the most ignored, but probably the most potent, anti-corruption statute in Ghana, the Government Contracts (Protection) Act, 1979 (AFRCD 58).

That statute provides that a contractor who wrongly receives payment under a government contract may be ordered by the court to refund those monies to the government. And upon conviction for corruption under those circumstances, the court, in addition to imposing a sentence between five and fifteen years' imprisonment on both the contractor and the government official who certified the contract, may impose fines of up to three times the amount of money improperly paid, on those persons. It is time to dig up and dust up that statute, breathe life into it, give it teeth, and incorporate some of its provisions into our general law on bribery and corruption.

Fourth, the offences of Corruption and Extortion are only committed if they involve the official acts of public officers. That would mean private acts of corruption and extortion are not offences. In effect, and for instance, while a headteacher of a public school may go to jail for engaging in Corruption, the headteacher of a private school may only lose his/her job for engaging in the same act, with no prospect of prosecution, let alone jail time.

It is time to review the law so that the offences cover both public and private acts of corruption and extortion. In this, there is no shame in borrowing from the provisions of the recent UK Bribery Act, which extends to private acts of corruption. Indeed, it might be time to consider a stand-alone Bribery and Corruption Act, to deal specifically with this canker, because currently, our laws on Corruption uncoordinated, are scattered in nearly 10 separate pieces of legislation.

Fifth, simplify government processes. Long, drawn-out procedures for getting anything done by government, is a prime and fertile ground for corruption. It is unacceptable, nay, criminal, for it to take five years to register title to land. That system compels anxious land owners to pay monies just to speed the process up.

Also, persons who travel to and drive in the US, obey the speed limits not because they become angels upon arrival, but because they know that if they are caught, they cannot simply dish out a twenty dollar bill to the arresting officer and then go scot free. If you are caught, you are given a ticket that imposes a fine. You are required to pay within a specified time or you are liable to be arrested. It beats my mind why we cannot do this in Ghana. 

Today, if you are caught speeding by the now notorious speeding gun used by the police between Cape Coast and Takoradi, and you know that you would have to travel to court in Takoradi from Accra, for about five  adjournments (each spread over two weeks) before you are declared “not guilty” or fined, your ‘angelic self’ is likely to take a back seat if you know that a single mauve note will send you along your merry way with no record of your arrest, let alone a speeding ticket.

Sixth, as crime and criminals get more and more sophisticated with time, it is to be expected that persons engaged in acts of Corruption and Extortion are also getting more sophisticated.

That is why institutions such as the CID of the Ghana Police Service, the Economic and Organised Crime Office (EOCO) and the Commission for Human Rights and Administrative Justice (CHRAJ) require more empowerment and resources to carry out their respective mandates properly and in tune with the changing times.

Seventh, there is the need to engage in continuous public education and discourse on bribery and corruption. The logic that “exposure” kills corruption is pretty unassailable. And in this regard, our religious bodies can play a key and leading role, because we all need to be reminded, constantly, of the cost of corruption to both the totality of our beings.