By Nick OPOKU
Public officials are entrusted with the authority to award contracts, allocate resources, and oversee decisions involving public funds. To ensure they act in the public’s interest rather than for personal gain, most countries require them to declare their assets, liabilities, and other interests, including those owned or controlled by their families and close associates.
Requiring public officials to disclose their assets and interests before, during, and after their tenure enables effective monitoring of any enrichment during their time in office. It is refreshing, therefore, that the incoming President of Ghana, John Mahama, has listed anti-corruption and a code of conduct for public officials as one of his administration’s topmost priorities.
The Conduct of Public Officers Bill, a draft law that would strengthen existing legislation on asset declaration and regulate the conduct of public officials (“the Bill”), was re-introduced in Parliament in 2022 by outgoing Attorney-General, Godfred Dame.
However, it was not prioritised despite promises by the outgoing President in 2024 to ensure its passage before his tenure ends. The Bill seeks to amongst others “plug the loopholes as far as the legal framework on anti-corruption for public officers is concerned.”
Having advised some multilateral and civil society organisations on anti-corruption strategy and legislative reform, I am acutely aware of the many loopholes within Ghana’s asset declaration framework that compound anti-corruption efforts.
I have also been an advocate for robust public financial management and anti-corruption systems to address the root causes of poverty and improve public service delivery in Ghana. In June 2020, three like-minded lawyers and I petitioned the Commission on Human Rights and Administrative Justice (CHRAJ) to investigate the reported failure of certain public officials to declare their assets.
We anticipated that CHRAJ would conclude its investigations and take appropriate action against the defaulting public officers, but unfortunately, that was not the case. Drawing from these experiences and my expertise, I present the following analysis and recommendations for consideration and adoption by policymakers and the incoming administration.
Addressing loopholes in existing law with the Bill
Every credible asset declaration framework is grounded on 5 key principles, namely (i) extensive coverage; (ii) accessibility; (iii) verifiability; (iv) frequency of filing; and (v) sanctions.
Chapter 24 of Ghana’s Constitution and the Public Office Holders (Declaration of Assets and Disqualification) Act, 1998 (Act 550), which form the regulatory framework for public officers’ conduct and asset declaration, is deficient in several key areas.
Coverage
Under Ghanaian law, persons subject to asset declaration laws are occupants of public office. The Ghanaian Constitution provides that “public office includes an office the emoluments attached to which are paid directly from the consolidated Fund or directly out of moneys provided by Parliament and an office in a public corporation established entirely out of public funds or moneys provided by Parliament” (Article 295). Clause 56 of the Bill adopts this definition and adds that officers of companies in which the state has a “controlling interest” must declare their assets.
For the purposes of coverage of asset declaration laws, this definition is limited in scope because it fails to include persons who serve at the behest of the state, including directors of companies which the state has a non-controlling interest in.
The state maintains a stake in several companies, including GOIL PLC, formerly known as GOIL Company Limited. The regulations of these companies allow the state to appoint certain persons to serve on its behalf on the boards of directors.
Such individuals make decisions with various financial implications for the state and reap the benefits and financial advantages of their positions. Therefore, it is reasonable to require such individuals to declare their assets and liabilities. It is recommended that the Bill’s scope be expanded to include such appointees just as a CEO of state-owned enterprise like the Ghana National Petroleum Corporation (GNPC) would be required to declare his assets.
In addition to personal and business assets disclosure, it is considered good practice for public officials to disclose sources of income, positions held in profit or non-profit organisations, debts, gifts, payments for travel, advances, reimbursement as well as assets and income of spouse and dependent children.
Most countries such as Kenya, Tanzania, Uganda, and Nigeria require that public officials declare the assets of their spouse and children in a separate declaration, to prevent dishonest officials from hiding their assets in their spouse or relatives’ names. It is recommended that the Bill adopts similar provisions.
Frequency
Under Ghanaian law, public officers must declare their assets before taking office, every four years, and at the end of their tenure. Clause 4 of the Bill adopts this 4-year interval as the timeline for asset declaration.
The 4-year interval is unjustifiably long and problematic. The frequency of filing asset declarations is crucial to monitoring any enrichment or ill-gotten wealth by public officers. The country has a better chance of detecting corruption and unjust enrichment of public officers with a shorter filing interval.
Most countries such as Tanzania, United States of America, Romania, South Korea, Bangladesh, India and Sri Lanka, make provision for a yearly filing interval in addition to the initial declaration upon entry into office and after the end of the term. Uganda and Kenya have a two-year filing interval. The Bill must adopt at least a two-year filing interval.
Some might argue that any legislation adopting a one or two-year filing interval would be inconsistent with the Constitution. However, that position is incorrect. Article 286 of the Constitution only imposes a minimum and maximum timeframe for filing asset declarations. If Parliament, in the exercise of its residual legislative powers, imposes an additional filing obligation that falls within the minimum and maximum timeframe, such legislation will be constitutional.
Accessibility
Experience in most countries suggests that allowing public access to declarations significantly enhances the impact of asset declaration laws. However, Clause 12 of the Bill seeks to restrict disclosure of officials’ declaration to an authorised staff of the CHRAJ when a public officer is under investigation; the declarant or his representative; and “a person authorised by law”.
This is problematic and inconsistent with modern best practice. Most countries make provision for the creation of a register of declarations that allow public disclosure. For instance, in Tanzania, the particulars of a declaration are kept in a publicly accessible register. In South Africa, the register has two parts: a confidential part and a public part. Liabilities of public officials are recorded in the confidential part of the register.
Making disclosure public allows investigative journalists, researchers and civic groups to play an important role in monitoring the accuracy of declarations. Therefore, it is recommended that the Bill be revised to comply with Article 21 (1) (f) of the Constitution and the Right to Information Act, 2019 (Act 989).
Verifiability
Clause 7 of the Bill enjoins public officers not to submit false or misleading declarations or clarifications. However, the Bill fails to provide a mechanism for verifying the accuracy of declarations and or clarifications submitted.
Without a verification mechanism, how does the Office of the Auditor-General determine which declared asset is ill-gotten wealth? It is recommended that the Bill makes provision for a mechanism by which declarations filed could be properly verified to ascertain their authenticity, completeness, accuracy or otherwise.
Sanctions for breach
It should be an offence for a public official to violate asset declaration laws. Public officers found guilty of the offence must be liable to hefty fines and or terms of imprisonment. Sanctions for failing to disclose or for making false or misleading declarations need to be severe enough to have a deterrent impact. In Kenya, public officers found guilty of such offences are liable, on conviction, to a fine not exceeding one million shillings (about USD 7,600) or to imprisonment for a term not exceeding one year or to both.
Enforcement
In accordance with modern best practice which enhances law enforcement, the Bill must specify a timeframe within which CHRAJ and the Office of the Auditor-General must act on a petition to investigate and take appropriate action against defaulting public officers. Experience has shown that often when legislation places a duty on an institution but leaves the timeframe for its performance open-ended and entirely at the institution’s discretion, existing problems with non-enforcement of laws are further compounded.
Conclusion
Research shows that countries with rigorous asset declaration laws experience lower perceived levels of corruption. An effective asset declaration framework can help prevent abuse of power, reduce corruption and increase public accountability. The incoming government must, therefore, make it a priority to tighten the existing asset declaration framework accordingly.
The writer is a lawyer with experience in corporate law and regulatory compliance (including anti-money laundering and sanctions). He has advised several local and international clients, including a major oil corporation and the fourth largest US bank on commercial transactions. He also has considerable experience in strategic litigation, constitutional and legislative reform, having consulted for multilaterals and civil society organisations. Email: [email protected]
