Ex-PPA board chair slips through CHRAJ ban: chairs Minerals Fund almost two years

The Commission on Human Rights and Administrative Justice (CHRAJ) in February 2022, banned a former Board Chair of the Public Procurement Authority (PPA), Prof. Douglas Boateng, from holding public office for two years for failing to declare his assets and liabilities.

The ban was from February 2022 to February 2024.

However, The Fourth Estate can reveal that Prof Boateng did not serve a single day of the two-year penalty. Instead, he has been serving as the board chairman of the Minerals Income Investment Fund (MIIF), the fund that was to manage the controversial Agyapa deal which sought to trade off 49% of the country’s mineral royalties for $500 million from the London and Ghana stock exchanges.

CHRAJ’s decision was as a result of investigative journalist Manasseh Azure Awuni’s exposé, Contract for Sale, which revealed that the then PPA Chief Executive, A.B Adjei, had used his office to help the company he co-owned, Talent Discovery Ltd (TDL), win high-value government contracts which were then sold to the highest bidder.

Antigraft civil society organization, Ghana Integrity Initiative (GII), then filed a complaint against the nine-member board of the PPA, which was at the time chaired by Prof. Boateng. The GII said it suspected collusion between the disgraced CEO of the PPA and his board. GII, therefore, asked CHRAJ to investigate all the board members, the board chair, and officials of TDL.

After its investigation, CHRAJ exonerated all members of the board but two: Prof Douglas Boateng and Mr Adjei. While Prof Boateng was banned for two years, the PPA CEO, Adjenim Boateng Adjei, was barred for 10 years.

Documents available to The Fourth Estate show that CHRAJ had on two occasions (in two letters dated August 6, 2020, and September 4, 2020) invited Prof. Boateng to react to the GII’s accusations against him regarding his alleged failure to comply with Article 286(1) of the Constitution and Section 1 (1) of Act 550.

Article 268 (1) of the 1992 Constitution states that “a person who holds a public office mentioned in clause (5) of this Article shall submit to the Auditor-General a written declaration of all property or assets owned by, or liabilities owed by, him whether directly or indirectly (a) within three months after the coming into force of this Constitution or before taking office, as the case may be, (b) at the end of every four years; and (b) at the end of his term of office.”

The Constitution requires the declaration to be done before the public officer takes office. However, Section 1(4)(c) of the Public Office Holders (Declaration of Assets and Disqualification) Act, 550 directs public office holders to meet this requirement not later than six months after taking office, at the end of every four years and not later than six months at the end of his or her term.

It took Prof. Boateng two months to respond to the letters: on October 9, 2020, he said in his defence that he had started the asset declaration process but had not completed it. He cited a misunderstanding of the relevant laws and COVID-19-related disruptions, particularly with international travel, as reasons for the delay. Prof. Boateng was appointed board chairman of the PPA in 2017.

CHRAJ bans Prof. Boateng

Needless to say, CHRAJ disagreed with Prof Boateng’s excuse in its ruling dated February 11, 2022.

“The Commission finds his excuse for not declaring his assets and liabilities not reasonable, and hereby disqualifies him from appointment as Chair or member of any public Board, Council or Commission for a period not less than 2 years from the date of this decision,” the CHRAJ decision stated.

However, there was a qualification.

“The Commission is of the considered view that the disqualification should be limited to public boards, councils and commissions, and not to extend to Public Office generally, except however, that he must comply with the mandatory exit requirement under Article 286(1)(c) to declare his assets and liabilities as a condition for consideration for future appointment to public office. He has 3 months from the date of this decision within which to provide evidence before the Commission that he has complied with Article 286(1) (c).”

Prof. Boateng challenges CHRAJ decision

When The Fourth Estate asked Prof. Boateng why he is still in office as the board chairman of the MIIF when he has been banned from occupying any such position, he said CHRAJ erred.

“I’ve not done anything wrong. CHRAJ got it wrong,” he explained.

He told The Fourth Estate he had instructed his lawyer Andrew Nii Adjei Khartey to write to the commission to review its decision. In evidence, Mr Khartey provided a letter to CHRAJ dated February 24, 2022, in which he asked the commission to review its decision because it believed it had made a mistake in banning his client.

The letter accused CHRAJ of failing to give Prof. Boateng a hearing after it established adverse findings against him in respect of his declaration of assets, which, according to the letter, he did on October 14, 2020.

The letter continued that Prof. Boateng, among other things, believed that the provisions of Article 286 and Section 3, Schedule 1 of Act 550 were misconstrued and unfairly applied to him. Further, it believed the decision did not take into account the full scope of the law regarding asset declaration by public officials.

“Assuming arguendo that the aforementioned provisions are applicable to our client, we respectfully submit that the conclusion arrived at by the Commission suggesting that only the Chairman of a Board is bound by the said provisions is erroneous, and an unfair application of the law.

“Assuming arguendo that the Commission’s findings were justified in law and in procedure, the sanctions applied by the Commission were excessive and harsh, considering the fact that our Client as Board Chairman has in the Commission’s own Decision, been exonerated of all charges of inappropriate conduct including corruption, and conflict of interest.”

It continued:

“No findings regarding unlawful acquisition of assets, defrauding the Republic, engaging in wilful or dishonest or corrupt acts prejudicial to the interests of the Republic, and/or knowingly making a false declaration of his assets, properties or liabilities, were made against our client”

CHRAJ takes 10 months to review decision

After receiving the application for review of the decision, it took CHRAJ 10 months to review its decision. During the 10 months, Prof Boateng  was in office as board chairman of the MIIF.

His lawyer, Andrew Khartey, told The Fourth Estate that once the legal team had “applied for a review of the decision, it operated as a stay [of execution] until after CHRAJ comes back to say if it agreed or disagreed” with the application for review.

In its decision dated December 20, 2022, and signed by its Commissioner, Joseph Whittal, CHRAJ said further engagement showed that Prof. Boateng had indeed provided evidence of his assets and liabilities declaration on October 16, 2020, in the form of a receipt, from the Office of the Auditor-General. However, this evidence was not brought to the attention of the Commissioner or the investigative team because it was not accompanied by a letter.

CHRAJ said it relied on Section 18(2) of the CHRAJ Act, 1993 (Act 456) to re-look its decision.

That provision states that:

“If within three months after the report is made no action is taken which seems to the Commission to be adequate and appropriate, the Commissioner, may after considering the comments, if any, made by or on behalf of the department, authority or person against whom the complaint was made, bring an action before any court and seek such remedy as may be appropriate for the enforcement of the recommendations of the Commission.”

This resulted in a shift in CHRAJ’s position on the matter.

“Having carefully considered the comments of Prof. Boateng and all the circumstances of the case, the Commission has come to the conclusion that submitting written declaration of his assets and liabilities to the Auditor General on the 16th of October 2020, about three years after his appointment, does not negate the finding of the Commission that his excuse for not declaring his assets and abilities is not reasonable.”

It continued:

“However, the Commission has taken into consideration steps taken by Prof. Boateng to make a written declaration of his assets and liabilities under Article 286(1)(a) on declaration on assumption of office, and 286(1) (c) on declaration at the end of his term of office. Accordingly, the Commission disqualifies Prof. Douglas Boateng from appointment as Chair or member of any public Board, Council or Commission for a period not less than one year.”

The new decision was to take effect from the date of the original decision— February 11, 2022— which meant that he had only two months left to serve his punishment.

His lawyer, Andrew Khartey explained to The Fourth Estate that his client did not have to serve any punishment because he was already in office and could not have stepped aside for the two months left.

GII’s response

The Ghana Integrity Initiative disagrees. However, it says CHRAJ’s latest decision on the matter lacks transparency.

“It’s curious that the complainant was not involved in the process of the review. GII complained and a decision was taken. If new evidence comes up, it is a matter of natural justice that GII should be brought in the know. To have done this on our blindside is quite curious,” Michael Boadi of GII said.

He said the GII was not even given a copy of the reviewed decision.

He also indicated that per the law, CHRAJ did not have the power to review its decision but “it can accept new evidence which may impact on earlier views expressed.

“If they said they reviewed [the decision] that is not proper but they reopened the case again and reinvestigated, based on fresh evidence that was available to them, then that is in order.”

CHRAJ refuses to comment on The Fourth Estate’s request

In February this year, The Fourth Estate wrote to CHRAJ and requested to know how CHRAJ’s ban affects Prof Douglas Boateng’s current position at the MIIF. It also wanted to know whether, per CHRAJ’s decision, the MIIF qualified to be a public, council or commission board.

In a response to a Right To Information request, CHRAJ Commissioner Joseph Whittal declined to respond to key queries on the grounds that it could prejudice its position if it is petitioned to investigate the matter.

“The refusal of access to the information sought is because disclosure will reveal an expression of opinion of the Commission on the effect of its decision in Ghana Integrity Initiative (GII) vs The Board of the Public Procurement Authority in which Prof Douglas Boateng was the [Board] Chairman [of the PPA] and a totally unrelated matter of the allegation being made concerning his role with the Minerals Investment Fund which has not been investigated by the Commission specifically but which is capable of being investigated and therefore, exempt information under section 13(1)(a) of the [RTI] Act,” the letter said.

Must board chairpersons declare their assets?

The asset declaration law require that the President, Vice-President, the Speaker of Parliament, Deputy Speakers of Parliament, members of Parliament, ministers and deputy ministers of state, ambassadors, the Chief Justice, Judges of Superior Court, Judges of Inferior court and managers of public institutions in which the state has interest submit to the Auditor-General written declarations of all property or assets owned by, or liabilities owed by them, whether directly or indirectly.

Prof Boateng’s lawyer, Andrew Nii Adjei Khartey, however, does not believe CHRAJ’s interpretation of the law must include board chairmen.

He said Article 286(5)(i) reference to “Chairman” was about the executive heads of institutions such as chief executive officers, managing directors, and not chairpersons of the boards of directors.

“When chairman is mentioned, the constitution is envisaging people like the CHRAJ boss who is a commissioner, the chairman of the Electoral Commission, the Chairman of the Public Services Commission and not the interpretation CHRAJ gave it,” he suggested.

GII’s Michael Boadi disagrees with Khartey’s characterization and insists that “PPA is a state institution and there is no ambiguity at all in the provision. The provision doesn’t distinguish between an executive chairman and a non-executive chairman. PPA is a state institution and there is no ambiguity at all in the provision.”

Other anti-corruption experts say Article 286(5)(j) ropes in all other public officers who are not mentioned explicitly when the law says, “such officers in the public service and any other public institution as Parliament may prescribe.”

According to Lawyer Adjei Khartey, his client Prof. Boateng intends to go to the Supreme Court for an interpretation of the provision.

Justice Emile Short weighs in

A former Commissioner of the Commission on Human Rights and Administrative Justice (CHRAJ), Justice Emile Short, declined to comment on the specific details of the case.

However, he stated that the non-adherence to the asset declaration law stems from the lack of accountability on one side and impunity on the other.

“It is not because it is difficult. Some people are complying: why should it be difficult for other people?” he asked.

Michael Boadi agrees, suggesting that the state institutions responsible for enforcing the law may be complacent.

A tale of little compliance

Anti-corruption crusaders have over the years criticised Ghana’s asset declaration law for lacking transparency.

They want assets and liabilities of public office holders declared to be verified and published when they come to the office and when they leave. However, public officeholders opposed such demands, citing privacy concerns.

The Fourth Estate last year ran a series of stories on asset declarations that point to disregard for compliance with the law.

During President Akufo-Addo’s first term (2017-2021), only 18 out of his 126 ministers declared their assets fully. 18 others failed to declare their assets. For his second term, eight out of 87 ministers did not declare their assets at all as of March last year, while 89 appointees, including the vice-president, did partial declarations.

Under former President Mahama, only 34 out of the 102 ministers who served at one point or the other, fully complied with the law. 56 others declared partially while 11 ministers never declared their assets.

In the current Parliament, 95 legislators have complied with the law. 180 others have not. 85 of them are first-time MPs. This pegs the compliance rate of the legislators at 35%.

294 appointees including ministers, parliamentarians, and judges scurried to comply with the law as of November 2022 after The Fourth Estate series on asset declarations.

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Asset Declaration: Bawumia, Ofori-Atta, Osafo-Maafo, Kyei-Mensah-Bonsu, and 89 others did not fully comply