Mahama breaches Gift policy … Says CHRAJ, but exonerates prez of any wrong doing

By Emmanuel Akli
The Commission of Human Rights and Administrative Justice (CHRAJ) appears to be blowing both hot and cold at the same time, following its decision to exonerate President John Dramani Mahama over the Ford gift saga, but at the same time finding him guilty of contravening the gift policy that has been drafted by his government.

“At the end of the Preliminary Investigation, the Commission has come to the conclusion, based on the extensive evidence assembled, that the allegations that the Respondent [President Mahama] has contravened Article 284 of the 1992 Constitution by putting himself in situations of conflict of interest has not been substantiated,” it said, in the report, which was released yesterday.

The above article of the constitution reads: “A public officer shall not put himself in a position where his personal interest conflicts or is likely to conflict with the performance of the functions of his office.”

But having made this conclusive statement, the commission went ahead to state that the Ford gift from the Burkinabe contractor, Mr. Djibril Kanazoe formed part of gifts prohibited under the Code of Conduct for his ministers and that, despite the fact that President Mahama subsequently handed over the Ford car to the State, his conduct still breaches the gift policy.

Efforts to speak to the Minister of Communications, Dr Omane Boamah, to get government's reaction to the story were not successful.

The President's lawyer, Tony Lithur, however, issued a statement commending CHRAJ for doing a good job.

“In my capacity as solicitor for His Excellency, John Dramani Mahama, President of the Republic of Ghana (My Client), I acknowledge receipt of the report prepared by the Commission on Human Rights and Administrative Justice (CHRAJ) dated September 29, 2016, in respect of complaints of conflict of interest and corruption lodged against My Client by 3 different complainants.

“While I was always confident of my Client's innocence, the report throws more light on the circumstances surrounding the subject of the complaints and demonstrates clearly to the people of Ghana that the accusations of conflict of interest and corruption variously made against my Client by different people and entities in various fora, were wrong, without basis and unsupported by the facts.

“The thoroughness of the investigations conducted by CHRAJ, and the manner in which it has tackled all the issues arising from the complaints are commendable.

“I commend CHRAJ for discharging its constitutional mandate with despatch, and hope that the clarity and completeness of its determination of all the issues, will finally lay this matter to rest once and for all,” his statement noted.

President Mahama in his response to the earlier letter sent to him by CHRAJ to react to the story, whilst the investigation was going on, asked the latter to dismiss the case filed against him by the CPP Youth and two others because it lacks merits.

“The gift was completely unsolicited, as neither he nor Mr. Kanazoe had previously discussed Mr.Kanazoe’s intention of making a gift of the vehicle to My Client; and the vehicle has remained in the Presidential car pool since… while it may have been Mr. Kanazoe’s intention to donate the vehicle to him as a personal gift, neither he nor his office regarded or treated it as such.

Since its delivery to the Presidency, therefore, the vehicle has always been treated as state property; and, as can be seen from the facts stated hereinabove, My Client’s conduct at all material times was consistent with such treatment,” President Mahama's lawyer noted in the response to the letter sent to him by CHRAJ.

The New Patriotic Party (NPP), which also called for full probe into the gift saga, is, however, not amused with the report that has been released by CHRAJ.

According to the Director of Communications, Nana Akomea, CHRAJ just took what President Mahama told them without doing proper background investigations.

According to Nana Akomea, President Mahama told Ghanaians that he did not know anything about the gift and that it was rather his minister in charge of Upper East who briefed him about the gift, whilst he was in the region campaigning.

To the NPP Director of Communications, if the president did not know anything about the gift, then he was wondering the one who gave the instructions for Customs to waive the duty on the car. He promised to react appropriately to the report after they (NPP) have done a thorough work on it.

CHRAJ is, however, arguing that investigation found as a fact that the vehicle, blue-black in colour with Chasis Number 1FMJU1J58AEB60748 and engine no. E173A1905101, was being used as part of vehicles under the charge of the Counter Assault Team (CAT) at the Office of the President.

“The Investigation also established that the Vehicle had been retrofitted with security gadgets and ammunition. The Investigators also noticed that the Vehicle used different numbers on different occasions of inspection, something the Officer in Charge explained was a security measure.

“As seen from the Guidelines, receiving a prohibited gift by itself does not automatically put someone in a conflict of interest situation. Disclosure and surrendering of the gift are some of the ways prescribed under the Guidelines for dealing with conflict of interest that may arise from gifts received in violation of the Gift Policy.

“From the evidence available, the Respondent surrendered the gift in question for use by the State, and the vehicle has been under the charge of the Counter Assault Team (CAT) at the Office of the President. Beyond accepting the prohibited gift, the available evidence does not show that the Respondent:

• participated in the decision/matter involving the donor, in violation of section 3.3.1 on Impartiality in Performing Official Duties;

• used his office for the private benefit of the donor, or person with whom he is affiliated in a private capacity, in violation of section 3.5.1 on Use of Public Office for Private benefit;

• used or permitted the use of his position or title or any authority associated with his office in a manner intended to coerce or induce another person, including a subordinate, to provide any benefit, financial or otherwise to the donor or a person with whom he is affiliated in a private capacity, in violation of section 3.5.2 on Inducement or Coercion of Benefit; or

• used his office to influence a decision to be made by another person to further the interest of the donor in violation of section 3.5.7 on Influence Peddling

Having reviewed the evidence on the actions and conduct of the Respondent after the gift was made, the Commission is satisfied that his actions and conduct sufficiently dealt with any conflict of interest that could have been occasioned. In the circumstances, the Commission finds that the Respondent did not put himself in a conflict of interest situation or contravene the conflict of interest rules under Article 284 of the 1992 Constitution.

Issue 3: Whether the Vehicle which is said to be a brand new vehicle at the time it entered Ghana was cleared at Tema Port as a used car in order to undervalue it and pay less duty.

“The evidence shows that the vehicle first entered Ghana through the Paga border on 29th October 2012. The driver/importer of the vehicle was Ouedrago Cheik Mohamed, who was issued with Customs Temporary Vehicle Importation (TVI) permission on the same day to expire on 27 November 2012. The TVI also shows that the Vehicle was manufactured in 2010.

Commissioner John Kuudamnuru of the Customs Division of the Ghana Revenue Authority whose evidence and explanation the Commission places a lot of weight, explained that in assessing the duties to be paid on a vehicle imported into the country, the age of the vehicle is very critical. The age is determined from the time of manufacture of the vehicle and the time it first enters the country.

“According to the Commissioner, where a motor vehicle is less than six (6) months old from the time of its manufacture and the time it enters Ghana, that motor vehicle is considered a new vehicle, or unused.

“But where the age of the motor vehicle exceeds six months from the time it was manufactured and the time it first enters the country, that motor vehicle is considered a “used” one.

Therefore, a motor vehicle could be new but if it enters Ghana after six months from date of manufacture, then for purposes of calculating duty, it may be categorized as “used” on date of its first entry and depreciated accordingly.

Section 89 (2) of the Customs, Excise and Preventive Service (Management) Act, 1993 (P.N.D.C. L 330, as amended by the Customs Excise and Preventive Service (Amendment) Act, 1998, Act 552, provides as follows:

“The age of a motor vehicle under this law shall be calculated with effect from the year in which the motor vehicle was first manufactured.”

Section 91 (1) of Act 330 under the Heading “Import value of used vehicles” provides as follows:

(1) Despite an enactment, this section applies for the determination of the value for customs purposes of used motor vehicles imported under this Act.

(2) The value of a used motor vehicle shall be the price of the motor vehicle as assessed in accordance with this section together with freight, insurance commission and any other costs, charges and Page 57 of 78 expenses incidental to the delivery of the vehicle at the port or place at which the vehicle first entered Ghana.

(3) Where the age of a used motor vehicle
(a) does not exceed six months, the price shall be deemed to be the first purchase price;

(b) exceeds six months but does not exceed one and a half years, the price shall be deemed to be eighty-five percent of the first purchase price;

(c) exceeds one and a half years but does not exceed two and a half years, the price shall be deemed to be seventy percent of the first purchase price…”

In the instant case, the evidence show that the vehicle was manufactured in 2010. Therefore, it was two years old or thereabout when it entered the country. Accordingly, the Ghana Revenue Authority assessed it as a “used vehicle” only for purposes of meeting the requirements of the law referred to above for calculating customs duty on it.

On the basis of the evidence, the Commission is satisfied with the explanation from the GRA that the vehicle was assessed in accordance with sections 89 & 91 of Act 330, and not described as used vehicle to undervalue the duty payable. The term “used” therefore, is not synonymous with the term “second hand” vehicle.

Whether the acceptance of the gift (Ford) amounts to a bribe

“The Commission has already found on the evidence before it that the Respondent, from the outset, admitted having received the gift (Ford) from Mr. Djibril Freres Kanazoe, a Burkinabe national and businessman, through the Upper East Regional Minister, Honourable Mark Woyongo.

The Commission has also found on the evidence that beyond receiving the gift, the Respondent did not use the gift for his person or private interest, but surrendered the gift to his office to be used as State property.

Continued on page 15
Records at the Presidential Pool as well as information from Mr. Niiti and Rev. Abam all confirm that the vehicle was received and added to the Presidential Pool of vehicles on 2nd November, 2012.

The investigation also confirmed that the vehicle, blue-black in colour, with Chassis Number 1FMJU1J58AEB60748 and engine no E173A1905101, has been retrofitted, and is used as part of vehicles under the charge of the Counter Assault Team (CAT) at the Office of the President to provide security for Presidential and VIP convoys.

The Criminal Offences Act, 1960, Act 29 defines acceptance of bribe by a public officer at Section 244 as follows:

“Where after a person has done an act as a public officer….that person secretly accepts, or agrees or offers secretly to accept for personal gain or for any other person, a valuable consideration on account of that act, that person shall be presumed, until the contrary is shown, to have acted corruptly, within the meaning of this chapter, in respect of that act before the doing of the act”

Key ingredients of the offence of “acceptance of bribe by a public officer” are “secrecy” and “personal gain” that must be proven.

The Commission had occasion in the past to determine whether a “gift” accepted by a public officer was a “bribe” in the case of the Crusading

Guide V Appiah Ampofo, decision dated April 5, 2002, Case No. CHRAJ/195/2001/1319, affirmed in Appiah Ampofo V. CHRAJ, Fast Track (HC) 2/20, decision dated 17 February 2006, unreported.

In that case, the Complainant alleged that the Respondent “caused the displacement of the former insurance brokers of Ghana Airways, Bowring (the former Lloyd's broker) now known as Marsh, in 1995 and in their place put another insurance company by name AON. The Complainant alleged that the Respondent was influenced by assurances from the new brokers that it was going to reward him with commission. Subsequently, he was alleged to have received USD 96,500 from AON between 1995 and 1998. In response to the complaint, the former Insurance Commissioner denied receiving any payments.

After preliminary investigations, the Commission found that there were reasonable grounds for full investigations to determine the merits of the complaint. During the full investigations, the Respondent continued to deny receiving any payments.

He also denied playing any role in the selection of the new insurance broker, AON, for Ghana Airways. When he was confronted with the evidence, he admitted receiving the payments but said it was “meant for the boys”.

On conclusion of the investigation, the Commission found that in total, five payments were made to him over a three-year period (1995-1998) totaling USD 96,500 into his personal account.

A sixth payment was requested but was stopped by AON's senior lawyer. In addition, it was found that he had, in his official role as Insurance Commissioner, played a prominent role in the appointment of AON as reinsurance brokers for the Ghana Airways and he did it against opposition from the state based Insurance and Reinsurance Companies involved in the risks.

The Commission found that the USD 96,500 that he had received over the period, was a bribe, for the following reasons:

.The payments made to him were from an official of the new brokers for his contribution in facilitating the change of reinsurance brokers for Ghana Airways for a lower premium, which Ghana Airways did not even know about the payments.

. All the installment payments were paid after Ghana Airways reinsurance had been awarded to AON.

.The USD 96,500 received was, under the circumstance, significant.

. Respondent's continued denial that he had received any payments until he had heard the very damaging evidence against him, and then he changed his evidence and said it was a “thank you” to the boys.

. The payments were made clandestinely into Respondent's personal account totaling the USD 96,500 without the knowledge of any of the parties involved in the negotiations.

The Commission then recommended, inter alia, that the 96,500 (at the conclusion of the investigation, the amount left was less than 20,000USD), be recovered to the state and the Respondent prosecuted. The Commission further disqualified Respondent from holding public office.

Dissatisfied with the decision of the CHRAJ, and without waiting for CHRAJ to seek enforcement of its decision in Court, he issued a Writ of Summons in the High Court seeking, inter alia, a declaration, “that the decision of the Defendant dated the 5th April 2002, which made adverse findings against the Plaintiff was absurd, perverse, illogical and unreasonable to the effect that it cannot stand in law and same should be set aside by the Honourable Court”.

One of issues set for determination was “Whether or not the Defendant understood the true meaning of a bribe vis-à-vis gift”. In other words,

whether the US 96,500 the Plaintiff in that case received was a gift or a bribe. The High Court, affirming the decision of the Commission held, inter alia that the 96,500 paid to the Plaintiff was a bribe since: (1) the payment was from an official of AON, the New Broker, (2) the payments were made after the award of the contract to AON, and (3) the Plaintiff's continued denial, and lack of transparency in the payment of the money.

In the instant case, it has been clearly established that beyond receiving the gift, the Respondent did not profit personally from the gift. The vehicle was first receive at the Ghana Mission in Burkina Faso, and was transported under a Laissez Passer officially issued by the Mission. Again at the Paga Border, officials who handled the vehicle and issued a TVI were aware that the vehicle was a gift made to the President.

The evidence shows that the Respondent surrendered the gift to the State, and it was received and added to the Presidential Pool by State Officials in charge of the Transport and Logistics Section of the Office of the President.

The evidence further shows that the vehicle is being used by the Counter Assault Team (CAT) at the Office of the President to provide security for Presidential and VIP convoys.

The channels by which the gift was delivered to the Respondent and the surrender of the gift to the Presidential Pool which are well documented, rebuts the element of secrecy (clandestineness) and personal gain that must be proved under the law.

The Commission accordingly finds that the circumstances under which the gift was delivered to the Respondent, and conduct of the Respondent after the gift was made sufficiently rebuts the presumption of acceptance of a bribe by a public officer.