After almost four months of what CHRAJ terms as extensive investigations, the commission indicated that President Mahama only violated the gift policy regime for public officers.
According to CHRAJ not only did its investigation into allegations of bribery, fraud and conflict of interest brought against President Mahama in connection with the Ford gift vindicate the President but also brings the matter to closure.
After almost four months of what CHRAJ terms as extensive investigations, the commission indicated that President Mahama only violated the gift policy regime for public officers.
But the Youth Wing of CPP, one of the parties responsible for the petition to CHRAJ to have President Mahama investigated after he received the Ford gift from Burkinabe contractor Jibril Kanazoe, who was in turn awarded government contracts.
Though the CPP Youth League commended the commission’s efforts of looking into the matter brought before it, it has shown that investigation was: “very opaque and casual”.
They also labelled the 78-page report by CHRAJ in a statement released on Monday, October 3, as a “simple compilation of interviews with stakeholders in the case and running the interview scripts by available relevant legislation, albeit selectively in some instances”.
The statement further noted that: “The CHRAJ report also did not indicate any third party independent verification of the validity or otherwise of documents presented as evidence to the commission by both parties. Concerning the information submitted by stakeholders interviewed (some of who work at the presidency), it appears the commission’s report assumed their validity without any efforts at verification. If there were any efforts at cross-checking their validity, the report does not say,” the release pointed out.
They believe the report “has also left some submitted evidence still unaddressed”.
Read the full statement below:
CHRAJ’s Ford Gift Report – 78 Pages of Blind Faith in Mahama
The Commission on Human Rights and Administrative Justice (CHRAJ) on September 29, 2016, came out with its report on investigations of President John Dramani Mahama, regarding his controversial acceptance of a ford car gift from a Burkinabe Businessman.
The CPP Youth League (Fighters), being the first petitioner, in this case, welcomes the efforts of the commission on the matter. However, after careful study of the 78-page investigative report, it is clear that the presentation of findings cannot be accurately described as an exhaustive investigation. It appeared more like a simple compilation of interviews with stakeholders in the case and running the interview scripts by available relevant legislation; albeit selectively in some instances.
Approach to the Investigation:
While CHRAJ has the prerogative to determine how it conducts its investigations, the Fighters find the exercise very opaque and casual. We make this assertion due to a number of observations.
Firstly, after submitting the petition and following up with further evidence requested by CHRAJ, the only time we heard from the commission again was when their final report was published. One would have expected that after forwarding our petitions to the respondent, the commission would have reverted to us; to allow for a cross-examination of the evidence presented by both parties. However, this did not happen and the commission went ahead to derive its conclusions mostly on the responses of the respondent and officers who work under him.
It is clear from the report that, apart from submission of particulars, the petitioners were confined in the dark about the whole process. Again, the Star witness presented to the Commission by the Fighters was not interrogated any further than taking recordings of his work, which formed the basis of the petitions.
The CHRAJ report also did not indicate any third party independent verification of the validity or otherwise of documents presented as evidence to the commission by both parties. Concerning the information submitted by stakeholders interviewed (some of who work at the presidency), it appears the commission’s report assumed their validity without any efforts at verification. If there were any efforts at cross-checking their validity, the report does not say.
Blasé Interrogation of Respondent:
One would expect that the CHRAJ report would provide unambiguous answers to the questions that plagued the minds of the Youth League and many Ghanaians, hence our submission of the petition. However, we realise that the final investigative report is pithy, regarding probing of the respondent. It has also left some submitted evidence still unaddressed. Below are some of the lingering confusions that the investigation failed to address.
When and where was the Ford Gift Cleared
The CHRAJ report relied on the date of the vehicle’s entry into Ghana and clearance on October 29, 2012; and its delivery to the Presidency - November 2, 2012; as factual. However, it either consciously or unconsciously turned a blind eye to a piece of evidence, captured on Page 4-5, which stated that the said Ford Gift was cleared by one Quedraogo Sheik Mohammed, with the Customs declaration given as 420130771843/0. This clearance is said to have occurred on February 13, 2013.
The question that immediately comes to mind is, why would a vehicle, which went through Customs at the Paga border and has been already delivered at the Flagstaff House be cleared once more at the Tema Harbour? Interestingly, CHRAJ did not address this contradiction; neither did it set to verify the authenticity or otherwise of the said piece of evidence. The only objection to this piece of evidence was on page 17 of the report. Here, a feeble defence was put up by the Respondent that;
“the customs documents exhibited by The National Youth League of the Convention Peoples Party in support of its complaint were not in the name of the respondent …”
So if the respondent claims the vehicle clearance document does not bear his name, on what basis did CHRAJ decide to work with one of two clearance documents; both bearing the name of the same importer of the said vehicle? Interestingly, the commission upheld and accepted that Mr Quedraogo sheik cleared the vehicle at Paga, but failed to investigate why he would be clearing the same vehicle on a later date after it had been delivered to the Flagstaff house.
The Commission’s failure to interrogate the validity of this piece of evidence of clearance at the Tema Port brings a number of questions to bear:
a. Why would the Commission uphold only one of two pieces of evidence submitted without a fair investigation of the validity of both?
b. Doesn’t it sound curious that the piece of evidence upheld was the very same one corroborated by the respondent or persons who worked closely with him in receiving the so-called gift?
c. Wouldn’t CHRAJ’s investigation into conflict of interest have taken a different dimension if the second clearance was investigated and found to have occurred as well?
How thorough was the Inspection of the Ford Expedition?
We are told in the CHRAJ report, on page 42, that one Mr Abbam;
“provided access to the CONFIDENTIAL records on all Ford vehicles on the computer. The Ford Expedition Vehicle in question is listed as number 34 on the list.”
We would want to know what CHRAJ meant by ACCESS to CONFIDENTIAL records in this instance;
a. Did the said ACCESS mean visual inspection of a list of vehicles and just noting that the Ford was listed as the 34th? If that is the case, then our concern of lack of thoroughness has been displayed once again. Because it must be said that a lot of time elapsed from when the news broke to when CHRAJ began their investigation. It doesn’t take more than a minute to insert a piece of information in a computer file, so it is clear that a simple visual confirmation of the Ford in the records is no guarantee that the said information was recorded as claimed.
b. For transparency and proof of authenticity, every file in a computer has a stamped date indicating the date of entry and modification, if any. Did CHRAJ have enough access to confirm the date on which the said vehicle was added to the official list? Do they have a printed copy of any such query of the computer as confirmation? Did they take note of the specifications of this computer?
It is important to note that the only point CHRAJ employed in clearing the President of Conflict of Interest is the claim that he added the said vehicle to the Presidential Pool. Therefore one would expect CHRAJ to look for incontrovertible evidence; showing that the vehicle was actually added to the Presidential Pool on November 2, 2012, and not just taking the respondent’s word for it in essence.
c. Also, CHRAJ said it had verified that the Ford was re-fitted for security purposes as claimed by the respondent. That notwithstanding, did the CHRAJ investigation team obtain the trail of invoices of vendors and experts who did the re-fitting? Were questions such as who, where and when the said re-fitting was done with receipts to confirm dates answered? Does CHRAJ have copies of these receipts as an appendage to a fuller report?
d. Again, we are told in the report that the Commission was given videos and pictures depicting the use of the said vehicle. Once again, questions arise that are not captured in the report:
i. Apart from the vehicles colour and fittings which can be immediately determined visually through pictures and a video, how did the commission ascertain that it was the same vehicle in question that was in the pictures and videos?
ii. If the commission went further than just visual confirmation, do they have any technical report on the forensic verification conducted
Determination of Conflict of Interest
Article 284 of the Constitution provides that;
“ A public Officer shall not put himself in a position where his personal interest conflicts or is likely to conflict with the performance of the functions of his office”
The facts as presented by CHRAJ in this case clearly set the President and his receipt of the Ford Gift in the domain of conflict of interest. The relationship between the President and the Burkinabe Contractor, Mr Djibril Kanazoe, is a personal one. Not once has the President denied this Personal friendship with Mr Kanazoe. Also in the interrogations of Hon. Mark Woyongo by CHRAJ, he revealed this:
“… According to Mr Woyongo, the President asked if he could call Djibril Kanazoe so that he (the President) could thank him. … He readily called Djibril Kanazoe, and the President duly thanked him.”
The account above shows a clear exchange of a ‘gift’ between President Mahama and his personal friend. Nothing at this moment shows that the State was involved. At this juncture, the President evidently did set himself in the domain of conflict of interest; unless the Commission is able to prove that the said gift is not LIKELY to conflict with the performance of the functions of the President’s office.
Obviously, CHRAJ’s determination was limited to whether the said Gift influenced the Embassy Wall and EU-funded road project undertaken by Mr Kanazoe. This determination is however limited to only one aspect of the section of Article 284 quoted above.
CHRAJ focused selectively on the part of the composite sentence in Article 284 above, which conveys that;
“A public Officer shall not put himself in a position where HIS PERSONAL INTEREST CONFLICTS with the performance of the functions of his office”;
While totally disregarding the aspect which says that;
“A public Officer shall not put himself in a position where HIS PERSONAL INTEREST IS LIKELY TO CONFLICT with the performance of the functions of his office
So giving CHRAJ the benefit of the doubt that they did properly investigate the embassy wall and the road projects and found no wrongdoing, did they also consider the following:
a. That the President took an unacceptable gift to the tune of an estimated USD100,000.00 from his personal friend;
b. The said gift was delivered to the President through his appointee
c. Meanwhile, this personal friend was earlier awarded a contract by this same appointee who took the gift on behalf of the President.
d. And in fact, this personal friend had bided for another contract from an appointee of the President, but curiously pulled out when the investigations into the gift issue came up.
Upon a preponderance of the facts above, is it the position of CHRAJ that this scenario is UNLIKELY to bring about any influence on the business relationship between these appointees of the President, the President himself and the said contractor? Unfortunately, the report does not make any such determination.
In any case, how would CHRAJ describe the reputational damage brought to bear on the Presidency just by the single act of the President taking this gift, an act determined as unacceptable by CHRAJ itself? Is that not basis enough to establish conflict of interest?
It, therefore, remains very questionable that CHRAJ managed to extricate the President from the domain of Conflict of Interest.
While CHRAJ found that the President violated the gift policy, and thus should not have taken the gift, they were unable to ask the President to return it. This would have meant wading into the waters of addressing conflict of interest, a verdict CHRAJ was clearly unwilling to arrive at. As such, CHRAJ essentially makes the case that, it is wrong for the President to accept the gift, but it is alright for his Office to use this same unacceptable gift. So effectively, CHRAJ determined that it is okay for the State to eat the fruits of the poisoned tree. This determination is extremely PROBLEMATIC, as aptly captured by their former boss, Mr Emile Short.
Lastly, the code of conduct which the President is said to have breached is certainly meant to prevent public officers from finding themselves in situations of conflict of interest. As such, abiding by the code means protecting oneself from conflict of interest; so how can President Mahama breach the gift policy and by extension the code and still remain immune from conflict of interest?
On the Matter of President Mahama’s Violation of the Gift Policy
Whereas many sympathisers of the President may want to treat lightly his violation of the Gift Policy, we must be advised to take such an action rather seriously. The point must be made clearly that, the differences between laws and policies are really thin de facto and only material de jury. Most often, policies are made into laws, and every policy reflects the spirit of an existing law. Therefore, the only difference in violating one of the two is that, for laws, there are prescribed penalties, whereas for policies there are no predetermined punitive measures.
However, the effects of breaching a policy and breaking a law cannot be of radically different consequences for the society or institution in question. Where leadership is concerned, breaching a policy has more serious consequences than we seem to apprehend currently in the wake of the President’s breach. The essence of the Gift Policy is to ensure that Public Officials are not unduly influenced by overly lavish gifts. Now that the President of the land has breached this policy with impunity, what incentive is there for other public officials to adhere to it? Is it the precedent that now public officials can take extravagant gifts, once they register it in the name of their office?
Again, we find that leaders with integrity across the world do resign from office due to Policy breaches. They do this not because it is a prescribed punitive measure. But violating a policy simply means you have done something wrong but there is no set punishment for you. So resignation is a signal from these leaders that they have ethical principles by which they lead; and that their violation of those principles will mean a loss of confidence in them by the people. Therefore holding onto office after violating a set of principles or guidelines agreed on by a leader to guide him and his charges towards a set of goals can only mean that such a leader is unprincipled, unreliable and definitely undisciplined.
Consequently, in the investigations by the CHRAJ, while they found no prescribed punitive measure for the policy violation by the President, we found it worrying that they did not fall on best practice in their recommendations. Just recently, the Prime Minister of UK, David Cameron resigned when he failed to live up to his proposed policy of keeping his country in the European Union. On this continent, in South Africa, though a judicial verdict on the interference of Thabo Mbeki in the investigations of Jacob Zumah was overturned, the latter heeded the call of his Party and went ahead to resign from office; due to the confidence deficit, the whole spectacle created around the Presidency.
In Ghana, it is obvious that the Ford Saga has not only cast the image of John Dramani Mahama in a bad light, but it has also painted an image of him being undisciplined and incapable of adhering to a policy crafted to guide the conduct of himself and the officers over whom he superintends. However, we find it unlikely (based on their disposition on the matter) for the NDC to call for John Mahama’s resignation in order to protect the integrity of the Presidency of Ghana. Nonetheless, we find no reason why an independent State body such as CHRAJ could not go ahead to make such a recommendation. It is the duty of institutions such as CHRAJ to protect and enhance the sanctity of the State. It, therefore, remains unedifying for the Commission to remain mute after it had determined that the President had violated a documented Policy of State.
In Conclusion, our study of the report and involvement in the petitioning process does not give us an impression of a transparent investigation. Also, the report does not provide a clear picture of a thorough investigation process; apart from running responses garnered from stakeholders by constitutional provisions. It is our belief that a more thorough investigation and a bolder determination by CHRAJ could have yielded outcomes beyond just the breach of the Gift Policy by President John Dramani Mahama.
Further Action – We shall seek advice from the legal department of the Youth League on whether there are any more constitutional avenues by which we may bring closure to Ghanaians on this matter; which is fast becoming an indelible taint on the image of the President and Presidency of Ghana.
Beyond the recommendations of CHRAJ, we further propose that:
a. Government (paradoxically ) must commit to sponsoring and or supporting to be passed a piece of legislation that excludes all Politically Exposed Persons (PEPs) from bidding for public contracts. PEPs shall include the immediate associates and family members of politicians; such as siblings, cousins, uncles, aunties, nephews and nieces as well as parents and close friends. This will go to strongly check many instances of real or perceived conflict of interest
b. Public Officers who take Gifts on behalf of their superiors or colleagues (whether in their knowledge or not) shall remain equally liable to the charges that may occur as a result of receiving such gifts.
c. We strongly recommend that funding for judicial and quasi-judicial bodies such as CHRAJ should be completely delinked from the Executive arm of government. When these institutions have to depend on the Executive for funding, we clearly see that they are not resourced enough in order to carry out first-rate forensic investigations. Currently, their independence from Executive influence or pressure cannot be guaranteed under prevailing circumstances.
God Bless you all, and God Bless Our Homeland Ghana.
CiC Ernesto Yeboah
National Youth Organizer, CPP Youth League (CiC – Fighters)
Commander Jason Tutu
Head, Communication and Student Command – Fighters
Commander Hardi Yakubu
General Secretary – Fighters