Ghana does not have one legislation specifically dedicated to anti-bribery or anti-corruption. However, there are a number of statutes that cover certain aspects of bribery and corruption. First, our Constitution expressly provides in article 35(8) that “The State shall take steps to eradicate corrupt practices…” The key legislation is the Criminal Offenses Act, 1960 (Act 29).  Other legislation includes the following:

• Customs Act, 2015 (Act 891);
• Economic and Organised Crime Office Act, 2010 (Act 804);
• Public Procurement Act 2003, (Act 663);
• Whistleblower Act, 2006 (Act 720);
• Financial Administration Act, 2003 (Act 654);
• Parliament Act, 1965(Act 300);
• Audit Service Act, 2000 (Act 584);
• Government Contracts (Protection) Act, 1979 (AFRCD 58);
• Anti-Money Laundering Act,  2020 (Act 1044);
• Real Estate Agency Act, 2020 (Act 1047);
• National Signal Bureau Act, 2020 (Act 1040); and
• Security and Intelligence Agencies Act, 2020 (Act 1030).

No.  

The Criminal Offences Act prohibits the payment of bribes to public officers, which includes government officials. It says that a person commits the offense of corrupting a public officer, juror, or voter in respect of the duties of his office or in respect of his vote if the person endeavors directly or indirectly to influence the conduct of the public officer, juror, or voter in respect of the duties of his office or in respect of his vote, by the gift, promise, or prospect of any valuable consideration to be received by the public officer, juror, or voter, or by another person, from any other person (Criminal Offences Act, 1960 (Act 29), section 241). 

Further, although the Criminal Offences Act provides that the offense of corruption is a misdemeanor (which would ordinarily attract a maximum punishment of three years imprisonment), the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) specifically provides for enhanced punishment of up to 25 years in jail (Criminal and Other Offences (Procedure) Act, 1960 (Act 30), section 296). 

Even though the law does not specifically provide that bribing foreign government officials is a crime, it generally prohibits giving gifts or consideration to an “agent” (defined to include “a person employed by or acting for another”) as an inducement or reward for doing or failing to do an act in relation to the principal’s affairs or business.  Therefore the payment of a bribe to a foreign government official would be prohibited as that official is an agent of the foreign government (Criminal Offences Act, 1960 (Act 29), section145 (1)(b)). 

³ Criminal Offences Act, section145 (1)(b)

The Criminal Offences Act prohibits a public officer from requesting or accepting bribes. It provides that a public officer, juror, or voter commits corruption in respect of his duties of office or the vote, if the public officer, juror or voter directly or indirectly, agrees or offers to permit his conduct as a public officer, juror, or voter to be influenced by the gift, promise or prospect of a valuable consideration to be received by him, or by any other person, from any other person (id., section 241). Further, persons acting as agents and persons dealing with them are also prohibited from taking or offering bribes as the Act provides that it is an offense for an agent to accept or obtain, or agree to accept a consideration as an inducement or reward for doing or failing to do an act in relation to the principal’s affairs or business (id., section 145(1)(a)).  

Further, a public officer who, under color of office, demands or obtains from or for another person, money or valuable consideration that is not lawfully authorized, commits the offense of extortion, which is also subject to the enhanced punishment regime stated above (id., section 247). 

The Act also provides that a person commits a misdemeanor (the same enhanced punishment provision for corruption applies here too) if he gives or agrees to give or offers a gift or consideration to an agent as an inducement or reward for doing or failing to do an act in relation to the principal’s affairs or business (id., section145 (1) (b)). 

Under Ghanaian law, bribery relates to the action of public officials in their official capacity or private persons in their dealings with public officials in their official capacity. It also relates to persons acting as agents and persons dealing with them in relation to the principal’s affairs or business.

However, the Courts Act, 1993 (Act 459) provides that except in circumstances that are specifically provided in the Act, “the [criminal] jurisdiction of the Courts in criminal matters is exercisable only in respect of an offense committed within Ghana including its territorial waters and airspace and in respect of offenses committed on a ship or an aircraft registered or licensed in Ghana.”(Courts Act, 1993 (Act 459), section 56(1).)  It is therefore arguable that it is only where the act in question occurs in Ghana that the person would be subject to the legislation and the criminal jurisdiction of our courts.

Yes. The Companies Act, 2019 (Act 992) provides that the actions of (i) the members of a company in general meeting; (ii) the board of directors; or (iii) a managing director while carrying on in the usual way the business of the company shall be treated as the act of the company itself. Accordingly, the company shall have criminal liability for those acts, as if it were a natural person (Companies Act, 2019 (Act 992), section 147). In Maxwell v. The Republic [1977] 1 GLR 336, the court held that the acts of the assistant foreman engaged by a company could not qualify under any of the three heads and so prima facie the company could not be criminally liable for his acts. The court, however, added that the foreman as an agent or officer of the company would have qualified if there were evidence that he had been expressly or impliedly authorized by the company acting through its members in general meeting, the board of directors or managing director. Therefore if the members, the board of directors or the managing director of a company, or a person authorized by them, pay or accept a bribe in the manner stated above, a company shall be criminally liable for that.

Although an individual that violates the law on corruption and related offenses commit a misdemeanor (Criminal Offences Act, sections 145, 239 and 252), which should normally attract a sentence of up to three years in jail, the law specifically provides for enhanced punishment of up to 25 years (Criminal and Other Offences Procedure Act, section 296(5)). 

If a company is found guilty of corruption and related offenses, the company would be fined, and its officers who actually took part in the offense would be exposed to all the punishment options, including imprisonment. In Abu Ramadan & Anor. v Electoral Commission & 4 Ors. In Re: The Owner of the Station – Montie Fm & 3 Ors [Unreported, Suit No. Cm No. J8/108/2016, dated 27/07/2016] the Supreme Court found a company and some individuals working for it guilty of criminal contempt. The court fined the company while the individuals were imprisoned.
 

Having a compliance program to prevent corruption, per se, would not be a defense if a corporate entity is found to have committed corruption and related offenses. However, it would raise questions whether the individual who purported to act in the name of the company is committing the crime was, in the words of Section 147(1) of the Companies Act, “carrying on in the usual way the business of the company.” If this critical causal connection between the company and the individual is not established, for instance, if it can be established that the individual was acting in breach of the existing compliance program, then the company may not be held liable for the acts of the individual.

Generally, a court with criminal jurisdiction has the power to promote reconciliation and facilitate an amicable settlement of a matter relating to an offense which is not a felony and not aggravated in degree, on terms approved by the court (Courts Act, 1993 (Act 459) section 73). However, although corruption and related offenses are described as “misdemeanors” and would ordinarily have formed part of the offenses that the court may consider to be resolved amicably, given the nature of the penalty prescribed for it, a judge is not likely to exercise this power in relation to such offenses.

Also, the Courts Act provides that a person charged with an offense that has caused “economic loss, harm or damage to the State or a State agency” may admit the offense and offer compensation, restitution or reparation for the loss, harm or damage caused. If the prosecution and the court consider the offer as satisfactory, the court would accept a guilty plea and convict the accused; but make an order for the payment of the compensation or making of restitution or reparation in lieu of passing sentence. If the convict fails to meet the terms, the outstanding sum shall become due. If it is not paid, then the court will pass a custodial sentence (id., section 35). 

There is also the plea-bargaining provision under the Office of the Special Prosecutor Act, 2017 (Act 959), where a person under investigation or charged with corruption or a corruption-related offense may voluntarily admit the offense and either offer restitution or provide information to aid arresting and prosecuting other persons who have committed or are about to commit such offenses. If the prosecutor and court accept the offer as satisfactory, the court would accept a guilty plea in lieu of passing a sentence. If the convict fails to meet the terms of the bargain, the outstanding sum would become payable and if not paid, the court will pass a custodial sentence (Office of the Special Prosecutor Act, 2017 (Act 959), section 71).