Judge did not understand Sir John asset-freezing case- Special Prosecutor

The Special Prosecutor says the High Court judge erred in dismissing his request to confirm the freezing of assets of the late Chief Executive of the Forestry Commission, Kwadwo Owusu-Afriyie.

In a statement responding to Justice Afia Serwa Asare Botwe’s decision, the Special Prosecutor, Kissi Agyebeng, criticised the decision and schooled the judge on the matter.

In June 2022, the Office of the Special Prosecutor (OSP) froze the assets of Mr Owusu-Afriyie, popularly known as Sir John, after his will showed that he had gifted many properties, including lands at the Achimota Forest and the Sakumono Ramsar, site to his relatives.

Mr. Agyebeng subsequently went to court in compliance with the Special Prosecutor’s law, Act 959, to ask the court to confirm the freezing.

However, the court said the Special Prosecutor came on the back of the wrong law.

The Special Prosecutor cited Sections 38, 39 and 40 of the law:

Section 38: Freezing of Property

1. Where the special prosecutor considers that freezing of property is necessary to facilitate an investigation or prosecution, the special prosecutor shall in writing direct the freezing of 

The court, however, said the antigraft institution should have come to court on the back of Section 54 of the law. That law states:

“The Special Prosecutor shall apply to the court for a confiscation order in respect of tainted property if the person from whom the property was seized:

(a)is on trial for corruption or a corruption-related offence or (b)is convicted of corruption or corruption-related offence but dies or absconds.”

The court then dismissed the Special Prosecutor’s application for the freezing order.

But, the Special Prosecutor disagrees with the judge’s position.

“The judge with respect totally misapprehended the application for confirmation of the freezing order and misdirected by characterising the application as that of a confiscation order, which regime regimes are governed by different considerations,” the Special Prosecutor said in a statement shortly after the ruling.

“The regime for application for confirmation of a freezing order is designed to facilitate an investigation or a prosecution to avoid dissipation of the property in question,” the statement added.

Explaining the differences, the Special Prosecutor said that a confiscation order is designed to permanently deprive the owner of the property.

“The special prosecutor asked for the freezing order to be confirmed to facilitate the investigations into the circumstances of the purposed acquisition by the deceased of protected lands in the Achimota forest enclave and the Sakumono Ramsar site. The special prosecutor did not apply for confiscation of the estate of the deceased,” the Special Prosecutor said.

The Special Prosecutor warned of a dire consequence in the fight against corruption of the decision stands:

“The net effect of the ruling of the high court is that a person may in his lifetime gleefully, acquire property through corruption and then upon his demise happily pass on the corruptly acquired property to his beneficiaries for their benefit and by so doing, extinguish all scrutiny as to the propriety or their acquisition of the property because his corrupt activities were not discovered during his lifetime.

“If the decision is left to stand the country will lose the fight against corruption in unimaginable ways.”

The special prosecutor is therefore appealing the decision while it continues investigations.

Background

The OSP began investigations following a petition by Corruption Watch to the OSP to investigate the acquisition of state lands.

Corruption Watch petitioned the OSP after The Fourth Estate published the will of Kwadwo Owusu Afriyie.

The OSP said last week that it had begun “full investigations into suspected corruption and corruption-related offences in respect of alleged improper acquisition of state lands at the Achimota Forest enclave and Ramsar catchment in Accra by the former CEO of the Forestry Commission, Kwadwo Owusu Afriyie alias Sir John (now deceased) and other two persons.”

The statement signed by Special Prosecutor, Kissi Agyebeng, asked the Ministry of Lands and Natural Resources to cooperate in the investigations.

The wealth Mr. Afriyie bequeathed to his family and loved ones shocked many Ghanaians when The Fourth Estate exclusively revealed the contents of his will. Of particular interest have been the large parcels of land he owned at the Achimota Forest and the Ramsar site, a protected area he had warned people against acquiring land while he was in office.

Corruption Watch petitioned the Special Prosecutor “to investigate the alleged acquisition of several acres of alleged state lands situated in the Achimota Forest and Ramsar sites in Sakumono by three artificial persons namely Jakaypros Limited, Fasoh Limited, DML Limited, and two natural persons namely Charles Owusu, an officer of the Forestry Commission and Kwadwo Owusu Afriyie, popularly known as Sir John, now deceased, who served as the Chief Executive Officer (CEO) of the Forestry Commission from March 2017 until July 2020.”

Per the laws regulating asset declaration in Ghana—Article 286 of the 1992 Constitution and Public Office Holders (Declaration of Assets and Disqualification) Act—Mr Afriyie should have declared his assets upon assumption of office in 2017.

The Fourth Estate’s checks from the Auditor-General’s department, however, revealed he did not declare his assets.

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