An Accra High Court has prevented the Office of the Special Prosecutor from freezing the assets of late Kwadwo Owusu Afriyie (Sir John), former CEO of the Forestry Commission.
The Special Prosecutor had frozen the assets of Sir John for further investigation over suspected corruption.
The Office subsequently filed an application at the High Court for confirmation of the freezing order, but the application was dismissed by an Accra High Court presided over by Her Ladyship, Justice Afia Serwaa Asare Botwe, on Tuesday, July 12, 2022.
Unhappy with the dismissal of the application, the Office of the Special Prosecutor, in a statement, insisted that: “the judge with respect totally misapprehended the application for confirmation of the freezing order and misdirected herself by characterising the application as that of a confiscation order”.
The Office has thus decided to appeal the ruling.
“On this reckoning, the Special Prosecutor has directed the filing of an appeal against the ruling of Her Ladyship Justice Afia Serwaa Asare Botwe. The net effect of the ruling of the High Court is that a person may, in his lifetime, gleefully acquire property through corruption and then upon his demise, happily pass on the corruptly acquired property to his beneficiaries for their benefit and by so doing, extinguish all scrutiny as to the propriety or otherwise of the acquisition of the property because his corrupt activities were not discovered during his lifetime.”
The Special Prosecutor in the statement explained it is appealing the ruling because: “If this decision is left to stand, the Republic will lose the fight against corruption in unimaginable ways”.
The Office of the Special Prosecutor commenced investigations into alleged corruption by Sir John after it emerged that he had illegally acquired state lands within the Achimota forest and the Sakumono Ramsar site.
Some civil society groups had petitioned the Special Prosecutor and the Commission on Human Rights and Administrative Justice (CHRAJ) to investigate the acquisition of the state lands.
The will caused public uproar after he bequeathed state lands to some relatives.
It went viral online and sparked anger among many Ghanaians.
The emergence of the will came after the controversial declassification of parts of the Achimota Forest and return to its allodial owners.
Independent Lawyers however gave legal education on the ruling of the case as that:
The OSP Act, Act 959 gives the SP power under section 38, 39 and 40 to freeze the assets of anyone dead or alive that he is investigating if he has reasonable grounds to believe the asset may have been acquired through unlawful means.
This freezing power is to last for 14 days.
The law provides that after 14 days the SP shall apply to the court and the court for confirmation of his orders and the Court SHALL confirm up to a period of 12 months if it is satisfied under the grounds listed in section 40;
(a) the respondent is being investigated for corruption or a corruption-related offence:
(b)the respondent is charged with corruption or a corruption-offences
(c) there are reasonable grounds to believe that the property is tainted property;
(d) the respondent derived benefit directly or indirectly from corruption or a corruption-related offence;
(e) the application seeks a freezing order against the property of a person other than the respondent because there are reasonable grounds to believe that the property is tainted property and that the property is subject to the effective control of the respondent; and
(f) there are reasonable grounds to believe that a confiscation order shall be made under this Act in respect of the property.
The issue is that the judge refused to confirm the freezing order. It disagrees with the section’s SP came under. It directed SP to come under section 54 instead.
Here is the problem- section 54 has to do with confiscation and pecuniary penalty order.
But SP is in court for confirmation of freezing and not confiscation.
Besides section 54 has to do with when you have charged a person and the person is on trial or is convicted of corruption but dies or absconds.
See below;
Procedure against property where a person dies or absconds
- (1) The Special Prosecutor shall apply to the Court for a confiscation order in respect of tainted property if the person from whom the property was seized
(a) is on trial for corruption or a corruption-related offence; or
(b) is convicted of corruption or a corruption-related offence but dies or absconds.
The problem is that this section can’t apply as no one is on trial or convicted. Sir John is dead. The OSP is doing investigations to ascertain whether the properties listed in the Will pertaining to the Achimota and the other sites in contention in the public space were acquired lawfully. So, it cannot come under section 54.
I am sure this is why SP says the judge misdirected himself and in the last paragraph states that when such things happen, it sets back the corruption fight.
Because by the you finish appeal, the assets would have been touched and/or dissipated.
