For what shall it profit a legal system if it is only interested in jailing accused people when the law says you can recover stolen cash as well?

The Ato Essien case in which the former MD of Capital Bank took millions of cedis from ‘his’ own bank and avoided jail by reaching an agreement with the State has split opinions in the legal industry.

“The poor cannot get justice.” “Justice is on sale to the rich.” “People are in jail for stealing ¢100 yet people walk free after stealing ¢100 million.” “The justice system is a joke in Ghana. Tweaaaaa” These comments have sought to ridicule the kind of justice that was meted out to Ato Essien from some legal commentators not least H. Kwasi Prempeh and Professor Kwaku Azar.

Nonetheless, it was justice and perhaps the model that the country needs to adopt going forward with financial crimes.

WHY?

Because the law says so. Section 35 of the Courts Act 1993 (Act 459) stipulates clearly what should be done if there is a crime resulting in economic loss to the state. Kindly read for yourself. You don’t need a lawyer to understand and it is legal by the widest stretch of anyone’s imagination. Just read up. It will take only about a minute;

 Section 35—Offer of Compensation or Restitution.

(1) Where a person is charged with an offence before the High Court or a Regional Tribunal, the commission of which has caused economic loss, harm or damage to the State or any State agency, the accused may inform the prosecutor whether the accused admits the offence and is willing to offer compensation or make restitution and reparation for the loss, harm or damage caused.

(2) Where an accused makes an offer of compensation or restitution and reparation, the prosecutor shall consider if the offer is acceptable to the prosecution.

(3) If the offer is not acceptable to the prosecution the case before the Court shall proceed.

(4) If the offer is acceptable to the prosecution, the prosecutor shall in the presence of the accused, inform the Court which shall consider if the offer of compensation or restitution and reparation is satisfactory.

(5) Where the Court considers the offer to be satisfactory, the Court shall accept a plea of guilty from the accused and convict the accused on his own plea, and in lieu of passing sentence on the accused, make an order for the accused to pay compensation or make restitution and reparation.

(6) An order of the Court under subsection (5) shall be subject to such conditions as the Court may direct.

(7) Where a person convicted under this section defaults in the payment of any money required of the person under this section or fails to fulfil any condition imposed by the Court under subsection (6), any amount outstanding shall become due and payable and upon failure to make the payment, the Court shall proceed to pass a custodial sentence on the accused. [As substituted by the Courts (Amendment) Act, 2002 (Act 620), s.4].

The whole thing is there in black and white ooooo. The law is prescriptive of the ingredients.

First, the economic loss should be to the state. This means only certain types of crimes can come under this law. It shows that the concern is the protection of the state’s meagre purse as the state really needs money. Somebody stealing a fowl in Makola cannot come under this law because it does not involve economic loss to the state.

Secondly, the accused should plead guilty and be convicted on his own plea which makes him a ‘Convict’, suffering the full breadth of infamy associated with his crimes including not being able to serve as a director or senior management staff in a financial institution forever or able to stand for public office, unless the reprieve given by Article 94 of the 1992 constitution applies (the reprieve is that he is eligible only after 10 years).  

Thirdly, the amount being restituted or the reparation should be agreeable to both the state i.e. prosecution and the court i.e. the judge.

Fourthly, if the payment schedule were to suffer default, all hell breaks loose the next day. The entire amount in the event of a breach becomes payable the next day, in default of which the person will be sentenced to a jail term by the court. That is the Sword of Damocles right there. Strict adherence to the payment terms or you are toast!

And supposed legal luminaries will decry this extensive justice because it excludes time in custody? I beg all you lawyers in the name of God to look at the law and not argue on the basis of unhinged sentiments as laymen do.

WAY FORWARD FOR BANKING CRISIS

The reason you are going to hear a lot about Section 35 is that it remains the most logical way to retrieve monies that were stolen, lost or misspent in the banking crisis. By the way, how much do you think has been retrieved by the Receivers of the liquidated financial institutions through the court system from the many cases filed since the banking crisis started in 2018? How much did you say?

Well, the answer is zero. Absolute zilch!!!  

This Ato Essien ¢90 million settlement is the first venture into securing money for the State through the judicial system. The Attorney General’s Office must absolutely employ Section 35, to get more funds for the state.

Three scenarios play out here when section 35 is in play.

First, it is difficult to recover assets as most have been cleverly done in other people’s names or used certain vehicles to cover them up. In the case of Alfred Agbesi Woyome in which the State has the judgement, finding the assets and selling them have proved to be ultra-challenging. So going after assets presents its own unique problems in a bid to adequately compensate the state.

Secondly, custodial sentences are easy to ride out. Culprits may actually go to jail, survive a few years and return to ‘chop’ their booty, as we have seen with the convictions in the NCA case. The convicts are spending jail time in hospital because they claim they are sick, and not even $1 has been paid out of the $4 million at issue in that case because of the extreme difficulty in tracing their assets. Recently a dilapidated house in the Northern parts of Ghana, valued at ¢150,000 allegedly belonging to Mr Tevi has been identified.

Clearly, a law which allows the culprit to return the money stolen in addition to other consequences of conviction, apart from a jail term, is commendable. It robs them of the largesse which would have been stashed away till after their release.  Returning the money which may have been misspent disincentivizes anybody from stealing to fund a luxurious lifestyle of cars and houses which may not have liquidity value in the short to medium term when performing restitution or reparation.

Thirdly, in drafting this law, somebody must have thought about the general good that the money will do compared to the value of incarceration. Simply put, Ato Essien’s Ghs90 million when paid back can be used for a public good like constructing boreholes or delivering school uniforms to school-going kids. Will incarcerating him result in the delivery of this public good to the many beneficiaries that will enjoy because of the reparation or restitution he has performed?  The answer is in one scenario, he becomes a charge on the state while in the other he becomes a useful ‘provider’ for dependents of the state.

SPIRIT OF THE LAW and JUSTICE FOR SALE? 

Ultimately, the criticism of the Ato Essien judgement rests on a linear thread. Justice is for sale to the rich. The poor man is condemned because he lacks resources. Are you in that mode of thinking as well? Do you think a ‘poor’ man would have been screwed by the justice system and thrown in jail? Do you think jail would have been a bigger and fairer punishment for the tongues-speaking former Capital bank capo?  Pause a minute and consider the sentence clearly;

If a man of straw or poor man had stolen a fowl in Makola, he would have been convicted and thrown into jail. Conviction and jail time in law are not technically the same. Convicts usually spend their time in jail. However, a conviction means they are guilty of the crime of say stealing. The man who stole the fowl in Makola is thrown into jail but will not be asked to restore the fowl to its owners. He serves time for his crime.

In Ato Essien’s case, he is also a convict having been found guilty of the law. Whatever disgrace or punishment a convict suffers, Ato Essien is their classmate. If Ato Essien were to fill out a form for a visa or passport application and he was asked the question ‘have you ever been convicted of any crimes’, he has to answer in the affirmative. He is as guilty as the guy who stole the fowl at Makola. In his case, however, the law says ‘ what you have done is too significant. We cannot let you just go and pass the time. Please go and bring the fowl you stole as well because it is too important for us to lose all of it.”

This is the real justice that the law seeks to administer. It places a greater burden on the convict than just going into the cooler.

Now Ato Essien has to find the money on scheduled dates to pay back if not, fire go burn am brutal. In that wahala of paying back the money on scheduled dates and the guilty convict rests the spirit of the law. You shall be convicted and on top, you shall return the dough. Justice can not be dispensed at a more acute level. This is justice that bites every day because you are looking at the clock in abject desperation that your failure to find the money means you will definitely go inside.

In any case, a poor man who steals say ¢10,000 from the state can also take advantage of section 35 of the Courts Act. If he pleads guilty to the crime, he will be convicted and asked to return the money to the State in lieu of prison time. There is no discrimination at all as the law applies to a certain type of economic loss to the state, irrespective of the quantum and who committed it.

COULD ATO ESSIEN HAVE WALKED FREE?

It sounds highly improbable, right? Well, guess what? The other accused persons standing trial with Essien were discharged by the court. Let that sink in. And Ato Essien had one of the country’s topmost lawyers. He could have been acquitted of some of the charges and even if guilty, the amount in question could have been greatly reduced. Or who knows? He could have walked free to the glory of the Living God.

So what does Section 35 of Act 459 do? It secures the certainty of conviction. The law requires the accused to plead guilty and therefore be convicted on his own plea. This is then the basis for the restitution or the reparation which in Ato Essien’s case came to Ghs 90 million.

SO WHAT HAVE WE LEARNT FROM THE ATO ESSIEN CASE?

First of all, the State has a case and the Attorney General and his team are damn good. They went after Essien who kept fighting back even in tongues yet after three years claiming he stole only 27 million cedis, they broke him. Godfred Dame and his battery of lawyers are lions who will haunt you down. From 27 million cedis admitted by the convict, they got 90 million for the state. Don’t joke!

Secondly, justice delivery can adopt innovative approaches permitted by the law. Custodial sentence is overrated. The law has better solutions albeit hidden in plain sight.

Thirdly, the media does not always get it right. Justice Kyei Baffour, the trial judge was misquoted by journalists who reported that he had accused state prosecutors of comprising themselves with the ¢90 million. The judge swiftly came out to set the record straight and also used open court on the last date of the hearing to denounce journalists for misreporting.

Fourthly, Section 35 of Act 459 guarantees certainty of conviction. No beating about the bush or no long things. While appealing the case is not stunted, it is rare to appeal against your own guilty plea.

Fifthly, not all of the ¢600 million liquidity support from the Bank of Ghana was allegedly Ato Essien. About ¢192 million was what was being contested. Records showed that the state had already recovered back about ¢120 million. What was left was about 70 million and the State chose, out of which Essien admitted only ¢27 million. The state settled for ¢90 million in these hard economic times, making it the biggest-ever reimbursement to the state through Ghana’s law courts since the inception of time.

Sixthly, Ato Essien’s classmate is anybody who has ever been caught by the law and pronounced guilty. He can not run away from that status. All the disbenefits of being guilty accrue to him. He can not run for office or near any financial institution even as a director and many other barrings. Simply put, Ato Essien will never be the same again in the eyes of the law and his fellow men.

Finally, don’t you dare think you will go scot-free when you steal from the state? Custodial sentence upon conviction is easy. Bringing the money back may prove more difficult.