The Commission on Human Rights and Administrative Justice (CHRAJ) has cleared President John Mahama over bribery allegation against him in a ford vehicle gift saga.
The youth wing of the Convention People’s Party filed a case against President Mahama at CHRAJ when it emerged in the media that he received a car gift from his Burkinabe friend and contractor, Mr Djibril Freres Kanazoe, who later received government contracts.
Even though CHRAJ in a 78-page report, indicted President Mahama, saying he violated the gift policy with regards to his decision to accept the vehicle, he was cleared of any bribery
Read the full CHRAJ Report below:
IN THE MATTER OF THE COMMISSION ON HUMAN RIGHTS AND ADMINISTRATIVE JUSTICE, ACT 1993 (ACT 456)
BETWEEN:
COMPLAINANTS
1. THE NATIONAL YOUTH LEAGUE OF THE CONVENTION PEOPLES PARTY
2. NANA ADOFO OFORI
3. THE PROGRESSIVE PEOPLE’S PARTY
AND
RESPONDENT HIS EXCELLENCY, JOHN DRAMANI MAHAMA, PRESIDENT OF THE REPUBLIC OF GHANA
DECISION
1.0. INTRODUCTION
The Commission on Human Rights and Administrative Justice (the Commission) received three separate complaints from two political organisations and a private citizen namely: the National Youth League of the Convention People’s Party (CPP), dated 21st June 2016; the Progressive People’s Party (PPP) dated 23rd June 2016 and Nana Adofo Ofori, dated 21st June 2016; (hereinafter referred to as “the Complainants”).
For purposes of this investigation, the three complaints/allegations have been consolidated, as all three, in essence, rely on similar sets of facts, and allege contravention of the provision on conflict of interest under Chapter 24 of the 1992 Constitution (the Constitution) (in particular Article 284) against the President of the Republic of Ghana, His Excellency, John Dramani Mahama (the Respondent). All the three Complainants allege that the Respondent, in accepting a Ford Expedition vehicle valued at $100,000 as a gift/donation from Mr. Djibril Kanazoe, a Burkinabe businessman who does business with the Government of Ghana, placed himself in a conflict of interest situation contrary to Article 284 of the Constitution.
In accordance with Regulation 3 of the Commission on Human Rights and Administrative Justice (Investigations Procedure) Regulations, 2010 (C.I. 67), the Commission assigned Investigators to conduct Preliminary Investigations into the complaints. This is the decision of the Commission resulting from the findings of the Preliminary Investigations.
2.0 BACKGROUND
On or about 15 June 2016, Myjoyonline.com of the Multimedia Group Ltd, advertised and subsequently published a story titled “Burkinabe contractor offers controversial gift to Prez Mahama” which it said, was the result of an investigation by one of its journalists, Manasseh Azure Awuni.
In that story, it was alleged that the Respondent, among other things, received a gift of a Ford Expedition vehicle from one Djibril Freres Kanazoe who has been a friend. As evidence of their friendship, the report indicated that the Respondent, then Vice President of the Republic of Ghana, sent a delegation, which included Hon. Mark Woyongo, then Upper East Regional Minister, to Burkina Faso to mourn with his friend, and made a donation at the funeral, when Mr. Kanazoe’s father died in October 2011.
The publication by Joy News also alleged that Manasseh Azure Awuni was in Ouagadougou, the capital city of Burkina Faso “…to investigate allegations that Mr. Djibril Freres Kananzoe used undue influence to get contracts and paid bribes to some Ghanaian officials”. The contracts listed in the report relate to the following: Ghana Embassy Perimeter Fence Wall worth $650,000; the Dodo Pepeso-Nkwanta Road worth €25.9million, and a 28km road project worth GHc82 million.
Concerning the $650,000 Ghana Embassy Fence Wall Contract, the report alleged that the procurement process was breached in order to favour Mr. Djibril Freres Kanazoe (claiming that the contract sum exceeded the threshold of the price quotation method used). The report stated that the cost of the fence wall was questioned by Public Accounts Committee of Parliament (PAC), when it discovered that an amount of $656,246.48 had been spent on the construction of a fence wall, and ordered the Bank of Ghana to investigate what it termed “outrageous” cost.
Regarding the €25.9 million Dodo Pepeso-Nkwanta Road contract, the report alleged that Mr. Djibril Freres Kananzoe was favoured in the award of the contract.
On the 28km Road project valued at GHc82 million, the report alleged that the Minister for Roads and Highways had said that his Ministry was in the process of awarding the contract to Oumarou Kanazoe Construction Limited through sole sourcing and that “The sector Minister, Inusah Fuseini, says the Burkinabe contractor is being handpicked for the 28-kilometre road project because of the quality of the road and the fact that he is near the project site. He said moving from Burkina Faso to the Hamile area will be easy for the contractor whose tools and equipment are in Burkina Faso. Another reason Inusah Fuseini says Kanazoe is being considered for the project is the fact that he did Burkina Faso-Hamile stretch of the road and that he was familiar with the terrain”.
Turning again to the “gift”, Joy News reported that “There is evidence that the contractor gave a brand new Ford Expedition out (2010 model) as a “gift” to President John Mahama in 2012, the year he won the two contracts … He says the Ford is not a bribe. A Laissez-Passer dated October 29, 2012, and signed by the Head of Chancery at the Ghana Embassy in Burkina Faso, Maxwell Nyarko-Lartey, for the Head of Mission and addressed to the Divisional Commander of the Ghana Revenue Authority at the Paga Border, show that the Ford had entered Ghana on 29 October 2012″.
The report continued that Ghana’s Ambassador to Burkina Faso at the time, Chief Dauda Mandiaya Bawumiah, accompanied the vehicle from Ouagadougou to Bolgatanga and handed it over to then Upper East Regional Minister, Mr. Mark Owen Woyongo, to be sent to President Mahama in Accra, with Chief Bawumia confirming the gift in the following words, “I believe he would have handed it over to the President,” he said.
The report further had it that the Ford Expedition vehicle entered Ghana on October 29th, 2012, with one Quedraogo Cheik Mohammed as the importer. That the vehicle was declared as a “used” vehicle and cleared at Tema harbour on 13th February, 2013, by Vision Logistics Limited, a private clearing agent, with Customs Declaration Number of the vehicle given as 420130771843/0.
According to Joy News, it was not clear why the vehicle was declared as a used vehicle. However, the donor of the gift as well as Ghana’s ambassador who facilitated the transportation of the Ford Expedition to Ghana, said the vehicle was a brand new one. A source at the Customs Division of the Ghana Revenue Authority (GRA) said sometimes goods are under-declared in order to reduce the value of import and the duty to be paid.
Furthermore, Joy News reported that a duty of GHc23, 646.41 was paid on the vehicle; all other details of the vehicle, including receipt numbers, are captured except the registration details at the Driver and Vehicle Licensing Authority (DVLA). The person in whose name the vehicle was registered as well as the vehicle’s registration number are not found in the system of the DVLA when Joy News made its checks. According to highly placed sources within the DVLA and the Customs Division of the Ghana Revenue Authorities, the absence of details meant that the vehicle had either not been registered, or that the registration details were deliberately deleted from the records of the DVLA…”.
The rest of Joy News’ report and publication contained views and opinions of some individuals on issues of gifts and conflict of interest, among others. The publication also contained the following documents, which were said to have been obtained in the course of the investigation by Manasseh Azure Awuni:
• a copy of a Laisser-Passer, dated 29 October 2012 (with myjoyonline.com inscribed on it) said to be from the Head of Chancery, Ghana Embassy in Burkina Faso, addressed to the Divisional Commander, Ghana Revenue Authority, Paga Border, Upper East Region, Ghana
• A copy of a letter (with myjoyonline.com inscribed on it) supposed to be from the Chief of Staff to the Minister of Finance, dated 12 May 2015.
Several other media houses reproduced the Joy News publication under various headlines such as “Mahama took car ‘gift’ from Burkinabe contractor”, dated 15 June 2016; “PPP to petition CHRAJ over Mahama Ford gift”, attributed to the Daily Graphic, 21 June 2016; “Speak up; NPP tells Mahama on Ford Expedition car gift”, attributed to graphic.com.gh, 22 June 2016; “Bribery claims over Ford gift baseless – Mahama”, Wednesday 22nd June, 2016 6:33 pm – available at http://citifmonline.com/2016/06/22/; “Ford Expedition vehicle cannot be a gift to Mahama – Lawyer”, available at Ghana | Adomonline.com, 16 June 2016; and “Mahama did no wrong in Ford Expedition ‘gift’ scandal”, among others.
In sum, the Joy News report suggested that the Respondent received a gift from Mr Djibril Kanazoe that improperly influenced Respondent to award him two contracts, namely, the construction of the perimeter Fence Wall around the Ghana Mission plot of land in Ougadougou, Burkina Faso, and the Dodo-Pepeso-Nkwanta road contract, and was about to award another contract worth GHc82 million through sole sourcing.
It is against this background that the three Complainants lodged the three separate complaints with the Commission. All three Complainants relied broadly on the Joy News report.
Neither Joy News nor Manasseh Azure Awuni lodged a complaint with the Commission beyond publishing the story/report.
2.0. THE ALLEGATIONS
3.1. The Youth League of the Convention People’s Party
The CPP Youth League is said to be a youth wing of the Convention People’s Party, one of the Political Parties in the country. In the complaint titled “PETITION TO INVESTIGATE THE PRESIDENT ON A CASE OF POSSIBLE CONFLICT OF INTEREST”, signed by the Secretary of the Youth League of the CPP on the instructions of “the Commander-in-Chief of the CPP Youth League”, it is alleged as follows:
“Taking note of discussion over the past week on a Ford Expedition car purportedly taken by President John Dramani Mahama as a gift sometime in 2012 triggered by a report by Manasseh Azure Awuni, broadcast journalist at Joy Fm (please find report attached).
Understanding that the said gift was given to and taken by H.E. John Dramani Mahama whilst in office as President and that the said giver, Mr Djibril Kanazoe, a contractor of BurKinabe origin represents a commercial interest:
Noting that such occurrences can occasion conflict of interest;
And having regard to articles 284, 287, 218 (a) and (e) of the 1992 Constitution as well as section 7(1) of Act 456 to petition…” the Commission, “…to
1. i) institute a formal investigation into the matter.
2. ii) establish whether or not accepting the gift occasioned a conflict of interest situation
iii) clarify what manner of gifts given to and taken by public workers and government officials may be properly classified as bribes”.
The Commission, on receipt of the complaint, requested the CPP Youth League to clarify the capacity in which it presented the complaint, as well as furnish any additional evidence it may have beside the Joy News story to assist the Commission with its preliminary investigations. In response, the CPP Youth League submitted a recording by Manasseh together with a copy of a letter (also contained in Manasseh’s story), and stated it had a “star” witness in Manasseh.
3.2. Nana Adofo Ofori, a Private Citizen
Nana Adofo Ofori’s complaint is under the heading, “A PLEA FOR INVESTIGATION INTO THE “FORD EXPEDITION” SAGA BY THE PRESIDENT”. He alleges as follows:
“I start by quoting Article 284 of Chapter 24 that states “A public officer shall not put himself in a position where his personal interest conflicts will or is likely to conflict with the performance of the functions of his office.”
President Mahama’s “Code of Ethics for Ministers and Political Appointees” states that a conflict of interest “may arise if a Minister’s family or personal friends might derive, or be perceived as deriving some personal, financial or other benefits from a decision or action by a Minister or the Government.”
If allegedly receiving a Ford Expedition vehicle valued at $100,000 in order to award contracts to a Mr. Djibril Kanazoe is not corruption then what is corruption?
If some government spokespersons defend this conduct of the president by saying the vehicle was put in a pool and cite a Mercedes Benz gift given by the late Libyan president Muamar Gadafi to president John Kuffour in 2007 as a defence for such a scandalous act then what has our leadership been reduced to?
Popular among the alleged series of contract given to the said Burkinabe contractor, Mr. Djibril Kanazoe is the $650,000 deal to build a wall around Ghana Embassy in Burkina Faso.
My fellow countrymen, it is time for us to come together to cause a change, as Ghanaians, we have been taken for granted for so long a time by the president and his team. It is very important that citizens of this country have faith in their government and such actions go a long way to affect that. It would be rather unfortunate and highly unfair if such an act is over looked. Our country is a constitutional one and as such the constitution reigns supreme.
Would this issue be swept under the carpet as usual or would actions be taken in order to serve as a deterrent for future presidents?
It is of great interest to this issue that these questions are answered:
1. when was the vehicle cleared?
2. In whose name was it registered or cleared?
3. When was it added to the presidential pool?
4. Is it a gift or a bribe?”
The Commission requested Nana Adofo Ofori to furnish it with any additional evidence he may have to assist the Commission. In a letter dated 20 July 2016, he responded thus:
“…In your response on 13th July to follow up sent on 12th July, 2016, the Commission requested I provide evidence in relation to my complaint.
The Commission being the body licensed to investigate such issues would have an easy access to documents relevant to the case which an ordinary citizen would not easily have access to…”
He concluded by stating that:
“I humbly request the Commission to acquire these documents and any other document deemed relevant by the Commission and investigate the various processes involved. It would be of great interest to most Ghanaians that this issue is investigated immediately and a conclusion drawn as to whether the Ford Vehicle was a gift or a bribe”
3.3. The Progressive People’s Party
The Progressive People’s Party is a registered political party in the country. The allegations are in substance the same as the story by myjoyonline.com, and attributed to an investigation by Mr. Manasseh Azure Awuni.
The complaint was signed by the National Chairman of the Progressive People’s Party (PPP), and alleges as follows:
1. “The sitting President of the Republic of Ghana His Excellency John Dramani Mahama has conducted himself in a manner that has clearly violated Article 284 of the 1992 Constitution of the Republic of Ghana
748. This conduct of the President involves a receipt of a gift in the form of Ford Expedition 2010 model with engine No. E173A1905101 and Chassis No. 1FMJUIJ58AEB748.
• The Donor of this gift is a Burkinabe National by name Djibril Kanazoe.
1. Djibril Kanazoe runs a company Oumarou Kanazoe Construction Limited, whose core business is road construction inter alia.
1. Djibril Kanazoe has been a personal friend to the President since 2011 when the President was then the sitting Vice President of the Republic of Ghana.
1. Djibril Kanazoe has since he became a personal friend to the President, secured two contracts from the Republic of Ghana.
• The first contract was secured and executed in the year 2011 at the cost of US$656,246.48 being Ghana Embassy Fence Wall in Quagadougou, Burkina Faso.
• The second was the 46.4 – kilometre Dodo Pepeso – Kwanta road which road the President commissioned on April 19, 2016.
1. Djibril Kanazoe with his company Oumarou Kanazoe Construction Limited is in a process of being awarded the 28 – kilometre road project via sole sourcing by the Ministry of Road and Highways in Hamile area worth GHC82,000.000.00.
1. On October 29, 2012, the Head of Chancery of Ghana Embassy in Quagadougou, Burkina Faso wrote a letter captioned “Laisez – Passer” to the Divisional Commander, Ghana Revenue Authority, Paga Boarder, informing the Commander of his direction that Ghana Mission in Ouagadougou was assisting the transportation of a gift donated to H.E. John Dramini Mahama, the President of the Republic of Ghana offered to him by his friend Mr. Djibril Kanazoe of which gift was a Ford Expedition with Engine No. E173A1905101 and Chassis No. 1FMJUIJ58AEB60748.
1. The letter supra concluded by stating that it was requested that the competent Ghanaian Boarder Authorities at the Paga Boarder would assist with the passage of the said vehicle and those transporting it without any let or hindrance.
• This vehicle which is said to be a brand new vehicle at the time it entered Ghana was cleared at Tema Port of the Republic of Ghana as a used car at a duty of GHC23,646.41 with one Quedrago Cheik Mohammed as the importer.
• All other details on the Vehicle including receipt numbers among others are captured except registration details at the Driver and Vehicle Licensing Authority (DVLA).
• That there is no information that the President paid gift tax on this vehicle donated to him by his friend Djibril Kanazoe.
1. Ministry of Communication by Press Release under the sector Minister Dr. Edward Omane Boamah dated June 15, 2016, stated that the Ford Expedition with Engine No. E173A1905101 and Chassis No. IFMJUIJ58AEB60748 has been placed in the vehicle pool at the Presidency as per established convention”.
The PPP further alleges:
1. “That the Nation has suffered a violation of article 284 of the 1992 Constitution by its sitting President whose Presidential oath requires him to protect and defend same.
1. That the State has suffered an abuse of office of the Presidency by the President using the State’s material and human resources to transport his personal gift from Burkina Faso to Ghana.
1. The State has lost tax revenue as a result of the President’s failure to pay gift tax on Ford Expedition with Engine No. E173A1905101 and Chassis No. IFMJUJ58AEB60748.
1. The State again has suffered a loss of revenue as a result of inadequate duty for the Ford Expedition with Engine No. E173AQ1905101 and Chassis No. IFMJUIJ58AEB60748 declared as a used vehicle instead of a brand new vehicle and thereby paying under – declared duty.
1. The President has perpetrated fraud on people of Ghana by representing to Ghanaians that Quedrago Cheik Mohammed was actually the importer of the vehicle in question when indeed the vehicle was infact transported by road with personnel from both Ghana Embassy at Burkina Faso and Ghana Boarder at Paga through to Accra”.
Finally, the PPP asked for the following “reliefs” from the Commission:
1. “A declaration that the said Gift from Djibril Kanazoe to His Excellency President John Dramani Mahamah, Ford Expedition 2010 model with engine No. E173A1905101 and Chassis No. IFMJUIJ58AEB748 was given with intent to corrupt the President of the Republic of Ghana and that the President of the Republic of Ghana received same knowing very well that was the intended purpose.
2. A declaration that the said Gift from Djibril Kanazoe to His Excellency President John Dramani Mahamah, Ford Expedition 2010 model with engine No. E173A1905101 and Chassis No. IFMJUIJ58AEB748 was a brand new vehicle at the time it was cleared at the Port of Tema in the Greater Accra Region of the Republic of Ghana.
3. A declaration that the said Gift from Djibril Kanazoe to Dramani Mahamah, Ford Expedition 2010 model with engine No. E173A1905101 and Chassis No. IFMJUIJ58AEB748 being a brand new vehicle had its duty under-valued and or under declared by the officials of the Ghana Revenue Authority, Customs Division on sole grounds that the beneficiary of same was the sitting President of the Republic of Ghana which act was intended to cause the Nation to lose money and indeed led to the loss of funds to the State.
4. A declaration that Quedrago Cheik Mohammed, the alleged importer of the said Ford Expedition 2010 model with engine No. E173A1905101 and Chassis No. IFMJUIJ58AEB748 was an instrument of fraud in the hands of the sitting President of the Republic of Ghana, John Dramani Mahama.
5. A declaration that the said Gift from Djibril Kanazoe to His Excellency President John Dramani Mahamah, Ford Expedition 2010 model with engine No. E173A1905101 and Chassis No. IFMJUIJ58AEB748 was subject to Gift Tax as per section 106 of the Internal Revenue Act, 2000 (Act 592) as amended and now repealed by Income Tax Act, 2015 (Act 896) which Act 896 has saved the gift tax regime.
6. An order and or recommendation directed against the Ghana Revenue Authority, GRA, Customs Division, to cease the Vehicle, assess same and request the President to pay for its full duty and interest on the said amount from the date of clearing to the date of final payment.
7. An order and or recommendation directed against the Ghana Revenue Authority, GRA, to assess President John Dramani Mahama for gift tax and same paid to the State forthwith accordingly”.
Attached to the PPP complaint were 1) copy of a Letter (Laisser-Passer) dated October 21, 2012 from the Head of Chancery of Ghana’s Embassy in Burkina Faso; 2) copy of an extract from the Joy News story, obtained from myjoyonline.com; and 3) copy of a Myjoyonline.com publication, “Gov’t admits Ford gift to Prez. Mahama but….Omane Boamah”, containing a statement attributed to Dr. Omane Boamah, Minister for Communications, dated June 15, 2016.
3.0. RESPONDENT’S COMMENTS ON THE ALLEGATIONS
In accordance with the provisions of Article 287 of the 1992 Constitution, the Commission wrote to H. E. John Dramani Mahama, President of the Republic of Ghana, (in a letter dated 07 July 2016 with Ref. Nos 145/2016, 146/2016 & 147/2016) requesting him to comment on the allegations of contravention of Article 284 (of Chapter 24) of the Constitution made against him by the three Complainants. On July 18 2016, the Respondent, through his Lawyers, Lithur Brew and Company Ltd, duly submitted his comments on the allegations, denying that he had contravened Chapter 24 of the Constitution.
On the gift of the Ford Expedition (the vehicle), the Respondent stated that in or about October 2012 the vehicle in question was delivered by Ghana’s Mission in Burkina Faso to the Upper East Regional Minister, Hon. Mark Woyongo, for onward delivery to him at the Castle, then the Seat of Government. The Upper East Regional Minister was informed that the vehicle was a gift from Mr. Djibril Kanazoe, a Burkinabe national and businessman, and friend of the Respondent.
According to the Respondent, the vehicle was delivered to the Castle at a time he was on a nationwide election campaign tour, and was unaware of the existence of the gift. It was not until his campaign took him to the Upper East Region that the Honourable Minister, assuming that the Respondent had already been notified of the delivery of the vehicle, enquired about it. The Respondent there and then asked the Minister to call Mr. Kanazoe (the donor) for him (Respondent) to thank him (the donor) and it was accordingly done. When the Respondent returned to Accra after his campaign but before the December 2012 General Elections, the officer-in-charge of the Presidential car fleet confirmed to the Respondent that he had taken delivery of the vehicle, and asked what he should do with it. The Respondent instructed the officer-in-charge to add it to the Presidential car fleet.
The Respondent further stated that when the allegations first surfaced, he called for information about the vehicle and the use to which it had been put since delivery. The information furnished him showed that since its delivery, the vehicle has been re-fitted with security equipment including machine guns, and used exclusively to provide security for state convoys and very important persons (VIPS) generally. The Respondent attached a collection of pictures of the vehicle, together with its contents, six pen drives of video of how the vehicle has been used over a period, and an extract from the digital logbook used to record vehicles received at the Presidency.
The Respondent added that:
“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.
My Client was not involved in, and until the news broke out, was not aware of the formal processes by which the vehicle came to be delivered to the Ghana Embassy in Burkina Faso, driven from Burkina Faso and delivered to the Castle in Accra. He cannot therefore comment on the customs and other formalities relating to the delivery of the vehicle to the Presidency in Accra beyond the facts that, from the documents delivered to him upon his request…”
The Respondent indicated that the customs documents exhibited by the National Youth League of the Convention People’s Party in support of its complaint, were not in the name of the Respondent, and the Laisser Passer dated October 29, 2012, attached to the petition by the Progressive People’s Party, was not the one used for customs purposes. The official document has the Customs official stamp affixed to it.
He maintained he was not aware of the gift and when it was delivered to Ghana. Nevertheless, when his attention was drawn to it, he instructed that it should be added to the official Presidential fleet. And since then the vehicle had been used and continue to be used for official purposes.
On the construction of the Perimeter Fence Wall around the Ghana Mission Plot of Land (the Wall) in Ouagadougou, Burkina Faso, the Respondent categorically denied the allegations that he played any role and/or was involved in any shape or form, in the award of the contract for the construction of the Wall and/or the payment therefore, and that, until these allegations came to his notice, he was not aware that the donor’s company had been awarded, and was executing, the contract for the construction of the Wall.
The Respondent also said that the documentation furnished him shows that: “…the Government of Burkina Faso had created a diplomatic enclave in Ouagadougou, its capital, where all diplomatic missions and international organizations in Ouagadougou were required by the Government of Burkina Faso to relocate. The documentation further shows that Ghana Government has lost two previous allocations because the Burkinabe Government repossessed them due to delays by the Government of Ghana in developing them. This time, the Mission, through several correspondences, communicated to the Ministry of Foreign Affairs and Regional Integration (“the Ministry”) the necessity of hurriedly securing the allotted plot in the diplomatic enclave, by constructing a perimeter fenced wall around it.
In or about September 2011, the Mission intimated to the Ministry that in order to secure a piece of land in a diplomatic enclave allocated to the Mission by the Government of Burkina Faso, there was the need to construct a perimeter fence wall around it with the aim eventually of relocating the chancery to the enclave.
In a letter, dated April 12, 2012, with Reference Number OU/AD/CB/VOL.1, the Mission forwarded to the Ministry three quotations from three construction companies who had placed bids to construct the perimeter wall. In the letter, the Mission recommended that the contract should be awarded to Kanazoe Freres, as its quotation of 353,136,603 FCFA was the lowest, compared to the two other bidders – 413,177,892 FCFA and 462,608,949 FCFA from COSITRAP and IBOUS, respectively. Based on Appendix R3, the Ministry wrote to the Minister of Finance to authorize the release of funds for the construction of the perimeter wall”.
According to the Respondent, the documentation also showed that before making its recommendation to the Ministry for the award of the contract to Kanazoe Freres as the lowest bidder, the Ghana Mission in Burkina Faso, in a letter dated 16th March, 2012, contacted the Architectural and Engineering Services Limited (AESL), to validate the price quoted by Kanazoe Freres. AESL, in response to the request by the Mission, in a letter dated 20th March 2012 with Reference Number AESL/HQO2/36.V.0/834), confirmed to the Ministry of Foreign Affairs and Regional Integration (MoFARI) that Kanazoe Freres’ offer was a fair one; hence the contract could be awarded to the company for commencement of the work on the Fence Wall. The documentation further showed that, by a letter dated August 9, 2012 addressed to the Controller and Accountant-General, the Minister of Finance authorized the release of funds for the construction of the Fence Wall.
He stated that from his understanding, JOY NEWS, as part of its investigations, had requested for information from AESL regarding the award to Kanazoe Freres of the contract to construct the Wall, to which AESL obliged. The Respondent attached copy of the AESL’s response to JOY NEWS, dated the 8th June 2016 with reference AESL/HQ02/36V.11/228, explaining AESL’s involvement in the Wall contract.
The Respondent stated that from the available records, AESL was the independent entity contracted by the Ministry to provide, among others, pre and post contract consultancy services in terms of architecture, structure and land surveying in relation to the construction of the Wall. That from the documentation, it can be seen that the scope of works included, not only the construction of a 673.0 meter-long reinforced fence wall in sandwiched design, but also two septic tanks, security gate houses, complete with visitors waiting area.
With regards to the procurement processes that ensued prior to the award of the contract for the Wall, the Respondent stated: “since at the time, he was not involved in, or aware of, all the matters described above, he cannot say anything about the procurement processes that went into the award of the contract beyond the documents that have come to his attention”.
The Respondent further stated that the documentation available to him show that designated State Officials independently took and executed decisions in the normal course of their work, and in accordance with the demands of the situation, and that he played no part in the award of the contract to construct the Wall.
On the Award of Contract No. 294552 for rehabilitation of the Dodo Pepeso-Nkwanta Road, the Respondent wrote: “The Petitioners also alleged that the award to Enterprise Oumaroe Kanazoe of the contract mentioned above was as a result of the gift of Ford Expedition made to My Client by Mr. Kanazoe. My Client denies this. Even the most cursory investigation into the circumstances of the award of that particular contract would show that it was a European Union (EU) funded project, awarded after an international competitive bidding process, supervised by the EU, and therefore not subject to any external influence.
After My Client had received news about the false allegations being made against him regarding the contract, he called for information on the award process. The documentation received by My Client shows that Enterprise Oumaroe Kanazoe emerged as the lowest evaluated bidder in an international competitive bidding process, after undergoing a valuation process supervised by representatives of the EU. Thereafter, the Ministry of Roads and Highways invited the company for negotiations. The negotiation report listed those who were members of the negotiating team, to include “The Consultant representative and European Union delegation” were observers. The EU delegation was there to ensure that the negotiations were held in accordance with the EU procedure for negotiations.”
The Respondent further stated that: “…by a letter dated March 24, 2012, written by Claude Maerten, the EU’s Ambassador to Ghana, and addressed to the Honourable Minister of Finance, the EU signified its “No Objection” to the award of the contract to Enterprise Oumarou Kanazoe… Upon receiving the “No Objection” from the EU, and, by a letter dated March 23, 2012 with Reference Number MRH/HD81/214/01, the Ministry of Roads and Highways notified Enterprise Oumarou Kanazoe of its intention to award the contract to it after a successful bid, subject to the satisfaction by it of certain conditions precedent. Enterprise Oumarou Kanazoe’s response, dated April 10, 2012, is attached, marked Appendix “R11”. Both letters were copied to Head of EU Delegation in Ghana. The contract for the construction works is dated June 11, 2015 and signed between Government of Ghana as the Contracting Party and Enterprise Oumarou Kanazoe as the Contractor, and endorsed by Claude Maerten, the Head of EU Delegation in Ghana”.
According to the Respondent, the report on the negotiations and the issuance of “NO OBJECTION” letter by the EU Ambassador to Ghana, Claude Maerten, underscored the point that he could not have influenced the award because, being an EU contract, the EU supervised the formal processes leading to the award. Therefore, the allegation of bribery and corruption against him can only be described as malicious.
Concluding, the Respondent denied any involvement in and/or influenced the processes that led to the award of the two contracts mentioned by the Complainants as well as the payments that were made in this regard. The Respondent urged the Commission to peremptorily dismiss the claims/allegations against him, claiming that they are absolutely without any basis whatsoever, either in law or in fact.
5.0 MANDATE OF CHRAJ WITH REGARDS TO THE ALLEGATIONS
5.1 Ghana’s 1992 Constitution
Article 218 provides that:
The functions of the Commission shall be defined and prescribed by Act of Parliament and shall include the duty –
• To investigate complaints of violations of fundamental rights and freedoms, injustice, corruption, abuse of power and unfair treatment of any person by a public officer in the exercise of his official duties
(e) to investigate all instances of alleged or suspected corruption and the misappropriation of public moneys by officials and to take appropriate steps, including report to the Attorney-General and the Auditor-General, resulting from such investigations.
Article 287 provides that:
(1) “An allegation that a public officer has contravened or has not complied with a provision of this Chapter shall be made to the Commissioner for Human Rights and Administrative Justice and, in the case of the Commissioner of Human Rights and Administrative Justice, to the Chief Justice who shall, unless the person concerned makes a written admission of the contravention or non-compliance, cause the matter to be investigated.
(2) The Commissioner for Human Rights and Administrative Justice or the Chief Justice as the case may be, may take such action as he considers appropriate in respect of the results of the investigation or the admission.”
5.2 CHRAJ Act, 1993 [Act 456]
Section 7(1) on the functions of the Commission provides that:
The functions of the Commission are –
1. to investigate complaints of violations of fundamental rights and freedoms, injustice, corruption, abuse of power and unfair treatment of any person by a public officer in the exercise of his official duties;
2. to investigate complaints concerning the functioning of the Public Services Commission, the administrative organs of the State, the offices of the Regional Coordinating Council and the District Assembly, the Armed Forces, the Police Service and the Prisons Service in so far as the complaints relate to the failure to achieve a balanced structuring of those services of fair administration in relation to those services;
3. to investigate complaints concerning practices and actions by persons, private enterprises and other institutions where those complaints allege violations of fundamental rights and freedoms under the Constitution;
4. to take appropriate action to call for the remedying, correction and reversal of instances specified in paragraphs (a), (b) and (c) of this subsection through such means as are fair, proper and effective, including –
5. negotiation and compromise between the parties concerned;
6. causing the complaint and its findings on it to be reported to the superior of an offending person;
• bringing proceedings in a competent court for a remedy to secure then termination of the offending action or conduct, or the abandonment or alteration of the offending procedures; and
1. bringing proceedings to restrain the enforcement of such legislation or regulation by challenging its validity if the offending action or conduct is sought to be justified by subordinate legislation or regulation which is unreasonable or otherwise ultra vires;
2. to investigate allegations that a public officer has contravened or has not complied with a provision of Chapter Twenty-four (Code of Conduct for Public Officers) of the Constitution;
3. to investigate all instances of alleged or suspected corruption and the misappropriation of public moneys by officials and to take appropriate steps, including reports to the Auditor-General, resulting from such investigation;
4. to educate the public as to human rights and freedoms by such means as the Commissioner may decide, including publications, lectures and symposia; and
5. to report annually to Parliament on the performance of its functions.
The Supreme Court, in the seminal case on conflict of interest; Okudzeto Ablakwa (No.2) v Attorney-General & Obetsebi-Lamptey (No.2) (2012) 2 SCGLR 846 (hereinafter referred to as “the Okudzeto Ablakwa Case”), settled the question of forum for investigating complaints of conflict of interest against public officers under Articles 284 and 287.
In the Okudzeto Ablakwa Case, the plaintiffs invoked the original jurisdiction of the Supreme Court regarding Articles 284, 287 and 35(8) of the Constitution on conflict of interest. Instructively, the Supreme Court held, per Brobbey, JSC, that:
The issue of conflict of interest raised here can easily be resolved by recourse to Article 287 of the 1992 Constitution. Article 287 mandates that complaints under Chapter 24 of the 1992 Constitution are to be investigated exclusively by the Commission for Human Rights and Administrative Justice. Article 287 (1) provides that:
287(1) An allegation that a public officer has contravened or has not complied with a provision of this Chapter shall be made to the Commissioner for Human Rights and Administrative Justice and, in the case of the Commissioner of Human Rights and Administrative Justice, to the Chief Justice who shall, unless the person concerned makes a written submission of the contravention or non-compliance, cause or matter to be investigated.
(2) The Commissioner for Human Rights and Administrative Justice or the Chief Justice as the case may be, may take such action as he considers appropriate in respect of the results of the investigation or the admission.
Since specific remedy has been provided for investigating complaints of conflict of interest, the plaintiffs were clearly in the wrong forum when they applied to this court to investigate complaints relating to conflict of interest involving those public officers. This was the decision of this court in Yeboah v Mensah [1998-99] SCGLR 492 which endorsed similar decision of the court in Edusei v Attorney-General [1996-97] SCGLR 1 and Edusei v Attorney-General [1998-99] SCGLR 753.
In the earlier case of Yeboah v J H Mensah (1998-99) SCGLR 492, the Supreme Court held, per Hayfron-Benjamin, JSC that: “When a remedy is given by the Constitution and a forum is given by either itself or statute for ventilating that grievance, then it is to that forum that the plaintiff may present his petition”.
The Supreme Court has also held in the Republic v High Court (Fast Track Division) Accra; ex parte Commission on Human Rights and Administrative Justice (Richard Anane, Interested Party (2007-2008) SCGLR (hereinafter referred to as “the Anane Case”) that the Commission’s mandate over conflict of interest has to be triggered by an identifiable complainant, be it natural or legal (corporate).
From the forgoing, there is no question that the Commission is the competent forum for investigating the allegations made against the Respondent, and that the mandate of the Commission has been duly triggered.
This position is consistent with previous positions of the Commission when it had to investigate allegations of conflict of interest and corruption of public officers, notable among them the cases of Ibrahim Adam & P V Obeng Case; New Crusading Guide v Ampiah Ampofo; SSNIT Case; and the Hotel Kufuor Case, to mention but a few.
5.3. Special Investigative Powers of CHRAJ
1. 8 of Act 456 provides:
The Commission shall for purposes of performing its functions under this Act, have power –
(a) to issue subpoena requiring attendance of a person before the Commission and the production of any document or record relevant to any investigation by the Commission;
(b) to cause any person contemptuous of any such subpoena to be prosecuted before a competent court;
(c) to question any person in respect of any such matter under investigation by the Commission;
(d) to require any person to disclose truthfully and frankly any information within
6.0 APPLICABLE CONSTITUTIONAL, LEGAL AND POLICY FRAMEWORK
6.1 Ghana’s Constitution, 1992
In embarking on this investigation, the Commission was guided by the overarching values and principles underpinning the 1992 Constitution, among others, Ghana’s commitment to “Freedom, Justice, Probity, and Accountability”. The Directive Principles of State Policy, particularly article 35(8) of the Constitution which provides thus: “The State shall take steps to eradicate corrupt practices and abuse of power”.
Chapter 24 of the Constitution is the Code of Conduct for Public Officers. Under the said chapter, Article 284 provides that: 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.
6.2 The Criminal and Other Offences Act, 1960 (Act 29)
Section 239(1) provides: “A public officer or juror who commits corruption, or wilful oppression, or extortion, in respect of the duties of office, commits a misdemeanour”.
Explaining the term “corruption by public officers”, section 240 of Act 29 provides: “A public officer, juror, or voter commits corruption in respect of duties of office or the vote, if the public officer, juror, or voter directly or indirectly agrees or offers to permit the conduct of that person as a public officer, juror, or voter to be influenced by the gift, promise, or prospect of a valuable consideration to be received by that person or by any other person, from any person”.
In relation to bribery and its acceptance by a public officer after the act, section 244 of Act 29 provides: “Where, after a person has done an act as a public officer, juror or voter, 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 the act, that person shall be presumed, until the contrary is shown, to have acted corruptly, within the meaning of this Chapter [Chapter 5] in respect of that act before doing the act”.
6.3 Code of Conduct for Public Officers of Ghana and Guidelines on Conflict of Interest to Assist Public Officials Identify, Manage and Resolve Conflicts of Interest (Guidelines)
The Code of Conduct and Conflict of Interest Guidelines issued by CHRAJ provide the administrative and operational framework/guidelines for implementing the Constitutional intendment underpinning articles 284 through to 288 of the Constitution and, in the context of this complaint, articles 284 and 287 of the Constitution. The Preamble to the Conflict of Interest Guidelines states the rationale for the Guidelines at page 9 as follows: “… the Constitution does not define in detail the situations which constitute conflict of interest neither is there a document providing for the codes of conduct for the several public officers there are in Ghana which the Commission could fall on in determining complaints of conflict of interest made against public officials. The absence of such a definition of conflict of interest and a unified code of conduct for public officers make the processing of allegations ”… that a public officer has contravened or has not complied with a provision of this Chapter… (Chapter 24 of the Constitution)…” before the Commission an uneasy task for both the Commission and the public officer against whom the allegation has been made.”
Section 2.0 of the Guidelines defines conflict of interest as:
“a situation where a public official’s personal interest conflicts with or is likely to conflict with the performance of the functions of his/her office”.
The Guidelines explains conflict of interest to include:
1. Any interest or benefit, financial or otherwise, direct or indirect;
2. Participation in any business transaction, or professional activity;
• An incurring of any obligation of any nature; or
1. an act or omission which is or appears or has the potential to be in conflict with the proper discharge of a public official’s duties in the public interest.
3.5.1 Use of Public Office for Private benefit
General Rule: A public official shall not use his public office for his/her own private benefit for the endorsement of any product, service or enterprise, or for any product, service or enterprise , or for the private benefit of friends, relatives or persons with whom the public official is affiliated in a private capacity, including political parties, non-profit organization of which he/she is an officer or member, and persons with whom the public official has to seek employment or business relations.
3.5.2 Inducement or Coercion of Benefit
General Rule: A public official shall not use or permit the use of his/her position or title or any authority associated with his/her public office in a manner that is intended to coerce or induce another person, including a subordinate, to provide any benefit, financial or otherwise to himself or herself or to friends, relatives or persons with whom the public official is affiliated in a private capacity
Section 3.7.1 of the Guidelines sets out the Gifts Policy as follows:
General Rule: A public official shall not:
1. solicit gifts, tangible or intangible, directly or indirectly from persons with whom they come into contact in relation to official duties;
2. accept gifts, tangible or intangible, that may or appear or have the potential to influence the exercise of their official functions, proper discharge of their duties or their judgement, indirectly from a person with whom they come into contact in relation to official duties and;
iii. accept cash of any amount.
Section 3.7.4, dealing with Disposal of Prohibited Gifts, provides:
Gifts offered/accepted in violation of the exceptions must be politely declined or immediately returned to the sender if delivered without prior notice. Alternatively, the official should pay the market value for the gift. When it is not practicable to return a tangible item, the item should be given to an appropriate charity.
4.0: Dealing with conflict of interest situations
As soon as a conflict of interest situation is foreseeable, the public official must take all appropriate steps to extricate him/her from the situation. Such steps may include:
1. Reporting the conflict of interest situation and its circumstances to his/her superior officer, or
2. Removing him/her from the conflict of interest situation.
4.2 Disclosure of Conflicting Interests
Whenever a conflict of interest situation occurs or is likely to occur, the public official must make a disclosure of the situation as provided by law or as follows: What to disclose: Assets and liabilities, gifts, conflicting interests, outside employment, and NGO activities.
How to disclose: In writing, verbal and surrender the item.
When to disclose: As soon as a conflict of interest situation occurs or is likely to occur and when doubt.
To Whom: CHRAJ, superior officer/head of institution, and ethics committee or compliance officer or a similar set up within the institution.
To improve the regime for dealing with prohibited gifts, the Commission has further elaborated that all prohibited gifts offered or accepted in violation of the Gift Policy should be properly declared and surrendered to appropriate authorities [Ethics Officers and Heads of Entities] and documented, and directions given on how they should be disposed of. These have been duly incorporated in the Conduct of Public Officers Bill, 2013 currently pending before Parliament.
7.0. ISSUES FOR DETERMINATION
The allegations raised 2 broad issues for determination, namely:
.1. Whether the acceptance of the Ford Expedition Vehicle by the Respondent contravened existing Gift Policy under the Code of Conduct for Public Officers?
.2. Whether the acceptance of the gift by the Respondent occasioned a conflict of interest under Article 284 (Chapter 24) of the Constitution.
In addition to these two broad issues above, there were other issues emanating from the complaints which have been set down for determination, namely:
.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?
.4. If the Vehicle was declared as “used” when it was “new” on entry into Ghana, whether the State suffered a loss of revenue?
.5. Whether the Registration details of the Vehicle can be found at the DVLA and if so, in whose name was the Vehicle Registered?
.6. Whether the Vehicle has been added to the Presidential pool and if it has, when was it added?
.7. Whether the Respondent has perpetrated fraud on people of Ghana by representing to Ghanaians that Quedrago Cheik Mohammed was actually the importer of the vehicle in question when indeed the vehicle was transported by road with personnel from both Ghana Embassy at Burkina Faso and Ghana Boarder at Paga through to Accra?
.8. Whether the Gift was given with intent to corrupt the Respondent and whether the Respondent knew that Djibril Kanazoe made him the gift with intent to corrupt the Respondent?
.9. Whether the acceptance of the gift (Ford) amounts to a bribe?
.10. Whether due process and procedure were followed by public officials in the award of contracts.
.11. Whether the Ministry of Roads and Highways was in the process of “handpicking” Djibril Kanazoe for the award of a 28-kilometer Wa-Hamile Road worth GHC82,000.000.00. because of the gift of the vehicle to the Respondent?
.12. Whether the Respondent influenced the award of contracts?
.13. Whether the Respondent has conducted himself in a manner that violates Article 284 of the 1992 Constitution of the Republic of Ghana?
8.0. THE INVESTIGATION
The investigation was conducted in terms of Articles 284 and 287 of the Constitution and Section 7(1) (e) of Act 456 and comprised the following:
• Consideration and evaluation of the media reports including Joy News report on the Ford Expedition;
• Interviews with:
• Mark Woyongo – Member of Parliament (MP) for
Navrongo Central and former Upper East Regional Minister
• Inusah Fuseini – Minister for Roads and Highways
• Satchmo Atongo – Managing Director, Architectural
and Engineering Services (AESL)
• Frank Niiti –