OccupyGhana®, a pressure group is calling for any new Bill on the long-standing Conduct of Public Officers to go further and state in no uncertain terms that in any situation of a likely conflict of interest, the public officer must ensure that any bid for contracts or other interaction between their private company or property and the public institution be immediately withdrawn.
“It is now imperative that firm measures
are brought into law to restrict the excesses of certain public officials, and
to provide a key deterrent against further abuse of public office. It will
simply state what we accept or do not accept in Ghana. This must be combined
with a campaign to educate Ghana’s public on this vexed and deeply
misunderstood issue of conflicts of interest and duty,” the group said in a
press statement yesterday.
Read
below the full undited release from OccupyGhana®:
OccupyGhana® has noted, fully identifies
with and wholeheartedly endorses the 2nd September 2019 call by the Commission
on Human Rights and Administrative Justice (CHRAJ) for the enactment into law
of the long-standing Conduct of Public Officers Bill. It would be recalled that
we made the same call in our press statement dated 23rd August 2019 titled
“OCCUPYGHANA® DEMANDS FIRM ACTION ON THE PUBLIC PROCUREMENT AUTHORITY AND COLLAPSE OF
FINANCIAL INSTITUTIONS MATTERS,” where we also stated that “there is no
justifiable or acceptable reason for the failure to pass that into law.”
Tellingly, we added that “public office holders ought to know that there would
be painful legal consequences for engaging in conflict of interest and conflict
of duty acts.”
It is almost ironic that within days, Ghana has had to deal with yet another
‘scandal’ involving allegations of conflict of interest concerning a Board
Member at a major public institution. Without commenting on the facts of any
particular case, these latest issues and the rapidity of them throw into stark
relief the urgent and continuing need to enact legislation to enforce public
officers to take seriously their duties as guardians of the public purse.
More fundamentally, there is a crying need for thorough investigations and
stiff penalties where public officers are found to be placing themselves at
potential conflict of interest. This can be achieved by government immediately
bringing back to Parliament debate on the Conduct of Public Officers Bill,
which has been sitting dormant since 2015.
OccupyGhana® has repeatedly discussed and brought up for discussion, the duties and roles of
a Board and Board Members. That is because what is often apparently
misunderstood is the utmost duty of good faith and bona fides that comes with
serving in a fiduciary position, which is what Board Membership really means. A
fiduciary relationship is essentially one of a trustee. It is a basic principle
of a trust that a trustee cannot profit personally from the property to which
they have been entrusted. A Board Member of a public institution must never
place themselves in a position where they may be suspected of profiting
(directly or indirectly, including through any company or property they own)
from the institution’s funds. That is why Article 284 of the Constitution
prohibits, not just actual or real conflicts of interest and duty but even the
likelihood (possibility, potential, chance) of it.
That brings into question whether the normal requirements of full disclosure,
non-participation in decisions and even full arm’s length transactions, which
might pass muster under the common law, are sufficient to meet the
constitutional standard in Ghana. If mere likelihood is prohibited, then it
stands to reason that under no circumstances should any Board Member allow
their company or property to be offered to the public institution for which
they serve, whether for profit, personal benefit or otherwise. Thus, it would
appear to us that a bid won by a public official’s company, concerning the
institution for which they serve, is a tainted bid and brings into question the
value for money of the bid concerned, and whether the bid was truly fair and
competitive.
We are of the view that simply declaring an interest and not participating in
the decisions are not enough to deal with suspicions over the use or abuse of
insider information. Worse, declaring their interest could in fact heap
substantial pressure on fellow Board Members and staff, especially
significantly, on those in the entity who have to take procurement decisions.
This can skew the playing field in one direction and would prevent other
companies from entering the bidding process with any confidence that they can
compete fairly and, on a level, playing field.
We believe that it is for this reason that the framers of the constitution
prohibited both actual conflict and the “likelihood” of conflict. In our view,
the proper course for a public officer facing a conflict of interest is to
remove themselves and any company they own completely from pitches or offers of
contracts with the institution concerned.
The proposed Conduct of Public Officer’s Bill makes clear that conflicts and
likely conflicts of interest are forbidden. Further, not only must a public
officer facing a conflict declare that conflict to the institution concerned,
but they must also declare it to CHRAJ or other prescribed body, and comply
with any directions thereafter.
OccupyGhana calls for any new Bill to go further and state in no uncertain
terms that in any situation of a likely conflict of interest, the public
officer must ensure that any bid for contracts or other interaction between
their private company or property and the public institution be immediately
withdrawn.
It is now imperative that firm measures are brought into law to restrict the
excesses of certain public officials, and to provide a key deterrent against
further abuse of public office. It will simply state what we accept or do not
accept in Ghana. This must be combined with a campaign to educate Ghana’s
public on this vexed and deeply misunderstood issue of conflicts of interest
and duty.
Yours in the service of God and Country
OccupyGhana®
