We know that CHRAJ has cleared the Minister of the allegation of breach of conflict of interest rules. My claim is that the evidence on record could not allow CHRAJ to come to that conclusion. I’ve been writing this note to show this. In Part 1 of this note, I disclosed some of the challenges that the Deputy A-G faced in defending the Minister at CHRAJ. In Part 2, I attempted a simplified explanation of the concept of conflict of interest. In this Part 3 of the note, I’ll begin to dissect the CHRAJ report. Particularly, I’ll outline the circumstances under which CHRAJ could clear the Minister of the allegations.
The Complainant’s allegations are that the Minister cooked the US$ 2.25 billion bond deal for his cronies. According to him, the Minister did this by side-stepping the Bank of Ghana (BoG) rules on how such bonds are to be issued.
The Complainant outlines the alleged crony-relationship between the Minister and the persons who took the bond. He says that: (1) the Minister has interests in certain companies, particularly, Enterprise Group Limited (Enterprise). Enterprise owns Databank, a company in which the Minister has significant interest; (2) one Trevor G Trefgarne is a director at Franklin Templeton Investment Limited (Templeton). Templeton is the entity which acquired as much as 95% of the bonds; (3) the same Trefgarne is the chairman or director at Enterprise. By these facts, the Complainant alleges that the Minister, a “public officer”, is found in “the position where his personal interest conflicts or is likely to conflict with the performance of the functions of his office” contrary to Article 284 of the Constitution.
Clearing the Minister
CHRAJ could only clear the Minister of the allegations if it makes the following 3 major findings. First, CHRAJ has to find that the Minister did not breach the BOG rules in issuing the bonds in question. Ordinarily, one needs not show a breach of these rules in order to prove the existence of conflict of interests. However, such breaches, when proven, go a long way to lend substantial credit to the allegation of conflict of interest violations.
Second, CHRAJ has to find that the alleged crony-relationships don’t exist. This second finding may be arrived at by any 1 of 2 sub-findings: either that (a) Trefgarne was not a director at Templeton and also not a director or chairman at Enterprise; or that (b) the Minister does not have any interest in Enterprise or the other related persons or entities. If the Commission finds that the crony-relationship is non-existent, the Complainants case collapses; in which case there would be no need to make the third finding. For the Commission to move to the third finding, therefore, it should have found that the alleged crony-relationships existed.
Nonetheless, a finding that the crony-relationships exist would still not be enough to conclude that the Minister is guilty of a breach of the conflict of interest rules. This is because of the ‘safe harbour’ opportunity offered by our Constitution. On the other hand, if the Commission finds that the alleged crony-relationships exist, it needs to go further to make the third finding. The third finding should be that the Minister, though cough in a crony-relationship, has docked himself at the ‘safe harbour.’ To benefit from the safe harbour, however, two things must happen: (a) the Minister should have disclosed the material facts of such crony-relationships to Parliament prior to the transaction; and (b) Parliament should have independently approved that the Minister continue to oversee the transaction notwithstanding the crony-relationships.
For this proposition (of disclosure to Parliament and prior Parliamentary approval), I rely on Article 78(3) of the Constitution. The Article provides that:
“A Minister of State shall not hold any other office of profit or emolument whether private or public and whether directly or indirectly unless otherwise permitted by the Speaker acting on the recommendations of a committee of Parliament on the ground (a) that holding that office will not prejudice the work of a Minister; and (b) that no conflict of interest arises or would arise as a result of the Minister holding that office.”
In order to not constitute myself into an oracle, I would make a brief detour to demonstrate accountability in respect of my reliance on the provision. A careful reading of the Article 78(3) would reveal that its essence (which I believe has sadly been ignored over the years) is to provide a safe harbour for Ministers who may be caught up in Article 284 conflict of interest situations.
Would shareholding or directorship amount to “office” within the intendment of Article 78(3)? Of course! This is why: directorship of a company is an office for “emolument”. Shareholding in a company, too, is a profit-making venture. Both shareholding and directorship are examples of direct interest. It’s worth stressing however that the provision is not limited to direct interests. It also talks of indirect interests. Why? Because, a person may not be a shareholder or a director personally. She may, however, be closely related to or associated with a shareholder, director or even the company itself in such a way as to put her in a situation where her interest (though impersonal) may clash with her duties to protect the interest of the public. Conflict of interests rules reins in such indirect situations, too. For example, I may not be a shareholder or director of a company; but my spouse may. Such situations may fall within the “indirectly” component of the Article.
By way of summary, CHRAJ could only clear the Minister if it finds the following: (1) That the Minister did not breach the BoG rules on issuing bonds; (2) That the alleged crony-relationship did not exist; and (3) that even if the alleged crony-relationships existed, the Minister has taken refuge in a safe harbour under Article 78(3). In all this, you would observe (and in line with the explanation of the conflict of interest in Part 2 of this note) that there is no requirement that the persons in question should have actually intended or caused an injury to the principal or made a gain out of the transaction. In other words, there is no requirement that the Minister should have actually “cooked” the deal for Templeton or actually made a profit.
The Fatal Misunderstanding
One of the cases that the Deputy A-G cited to the Commission is the Okudzeto Ablakwa (No.2) case (2012). In that case the Supreme Court gave a check-list for determining a claim against public officials. The Supreme Court (per Justice Brobbey) stated that one has to answer the additional question – “did the decision-maker profit by the decision or action (to provide the basis for conflict of interest or economic gain)?” This question, when put within this context, would imply that an adjudicator cannot find a violation of conflict of interest rules unless he also finds that the public officer actually made a profit from the transaction.
The question, however, is whether this understanding of the Supreme Court decision is accurate. A more committed reading of the Okudzeto Ablakwa line of cases would reveal that this understanding of the decision is morbid. This is why:
In Okudzeto Ablakwa (No. 1), the Respondent Attorney-General, by way of preliminary objection, prayed the Supreme Court to dismiss the writ on the basis that CHRAJ (rather than the Supreme Court) has exclusive original jurisdiction over the enforcement of Article 284 conflict of interest claims. The Supreme Court, however, overruled the A-G’s objection on the basis that the Plaintiffs’ case turned more on other constitutional provisions than Article 284. These other provisions included Article 23, Article 35(8) and Article 296. As a result, Okudzeto Ablakwa (No. 2) was decided not on Article 284.
As a matter of fact, the checklist which the Deputy A-G cited to the Commission was never in respect of Article 284. It was rather in respect of Articles 23, 35(8) and 296 only. This is what the very learned Justice Brobbey said before laying out the checklist:
“For a complainant to succeed in an action brought under Articles 23, 35(8) or 296 based on these conditions, it is essential to establish the following …”
Justice Brobbey, then, went on to list the 7-item checklist which the Deputy A-G cited to CHRAJ. In fact, he went on to state further that:
“Since specific remedy has been provided for investigating complaints of conflict of interest [at CHRAJ], 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.”
Quite clearly, therefore, the Supreme Court did not consider Article 284 at all in the case. Accordingly, it did not (and could not) possibly have added a criterion which requires evidence of actual gain or injury for a breach conflict of interest rules to be proven. Therefore, I submit, respectfully, that the Deputy A-G’s understanding finds no place within the hallowed principles of conflict of interest, the jurisprudence of the Supreme Court or anywhere for that matter.
Should I find time to continue this note, I would digest CHRAJ’s findings and humbly inform you on the following: (1) whether the Commission relied on the Deputy A-G’s misunderstanding of the decision in Okudzeto Ablakwa (No. 2); and (2) the extent to which such reliance (if any) affected CHRAJ’s final decision to clear the Minister of the allegation of conflict of interest.
Before I go, however, this is what the Commission said:
“There was also no evidence before the Commission at this stage that there was a personal benefit to the Respondent or his business and other relations. On the basis of the foregoing, it is reasonable to conclude that though there was the significant potential that the Respondent’s personal interest could have been in conflict with the vast personal interest in the securities sector, it was not the case in this specific bond issue.” (I did the underlining)