PARTICIPANTS’ PAPERS
COUNTRY REPORT ~ GHANA
Alfred Kofi Asiama-Sampong*
I. INTRODUCTION
In the past the Criminal Code of Ghana Act 29 of 1960 was extensively used to protect individuals in theCountry against the acts of aggression of others in relation to their person or their property, to maintainsecurity of the State itself and to maintain peace and order within the territorial boundaries. However, in
recent times the Criminal Law has been used to enforce the demands of the economy, for example, by theenactment of the Securities Industry Law of Ghana, PNDCL 333 of 1993 and the Finance Lease Law of
Ghana, PNDCL 331 of 1993 in consonance with the changing economic philosophy of Ghana. Currently,
there is also the tendency of criminalising acts that aim at destroying the general economic interest of thecountry as these acts have economic consequences which adversely affect the economic development of thewhole country. Supplementary offences have been inserted in the Criminal Code of Ghana to deal with
Public Officials and others whose acts cause financial loss, damage or injury to the property of the State.
In line with the international concept of providing measures to combat international crime, theGovernment of the Republic of Ghana is on the warpath to fight such crimes by promulgating laws to fightcorruption, money laundering, and other economic crimes as well as the control of the international narcotic
drug trade. In this way, the activities of the individual that hinder economic development can be seen anddealt with by the Criminal Law. Formerly, the nature of economic crime took the form of activities ofGovernment officials and agents who handled other people’s money or other economic resources. The
offences were mostly of a financial nature such as embezzlement, fraud by agents, fraud by false pretences,counterfeiting, forgery, issuance of false prospectus and so on. Additionally, the range of offences was limitedin sphere because one had to be a custodian or a trustee of the property before the crime could becommitted.
Nowadays, many opportunities have been offered by technological advancement and globalization,
improvement in communications, computers as well as developments in the financial markets, credit
financing and the scope of international trade. These developments have opened up the possibilities forcriminal economic activities so much so that there is a wide range of such crimes these days. The categories
of fraud have opened up widely, so have the modus operandi of the perpetrators which has changed from pen
and paperwork to telephone, facsimile and computer or internet communication, such that the activities ofthe perpetrators permeate the entire economy.
The measures for control and the prosecutions of economic crime are important to Ghana as a developing
nation. Apart from providing protection and redress at the interpersonal level, there are also responsibilities
at the national level to grapple with. In Ghana, the Government is still the largest employer, and as a result
any breach of trust or any criminal act of a Public Servant will have direct repercussions on the fragile
national economy. For instance, if a high government official allows a foreign investor to swindle a colossal
amount of money from Government coffers and bolt with it in exchange for personal reward, on the face of it,
it might seem to be a small favour done, but in terms of the effect on the economy, it would hamper
economic development, because not only would the State lose that money but the social and economic
benefits of the investment would have been lost completely to the citizenry.
It is therefore important for the Government of the Republic of Ghana to put measurers in place todiscourage such conduct among public officials by swift prosecution and imposition of heavy penalties on
those who engage themselves in such criminal activities. With the growth of new technology and theopportunities that it offers to the perpetrators of economic crime, it is imperative for the criminal justicesystem in Ghana to provide the legal framework for preventive measures as well as curative measures todeal with these economic crimes. It has been recognised that even the types of offences which the law musttake cognizance of have changed greatly. For instances, at the moment there is no law dealing with economic
crime involving the illegal movement or sale of confidential information belonging to an individual.
* Senior State Attorney, Ministry of Justice and Attorney-General’s Department, Accra, Ghana.

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The Criminal Code, of Ghana gives the definition of illegal movement of property stipulated in section
122 (2) as follows: “Any moving, taking, obtaining, carrying away, or dealing with the intent that some person
may be deprived of the benefit of his ownership, or of the benefit of his right or interest in the thing, or in its
value or proceeds, or any part thereof”. A close look at the provision will show that it aims at handlingsomeone’s object or article physically and transferring its content to oneself. In the circumstance, taking thecontent of somebody’s document and passing it on without destroying the document or browsing a computer
and taking information from it without tampering with it would be impossible to successfully prosecute
under this provision of the Ghana Criminal Code. The system therefore needs some changes to make itpossible to prosecute such crimes.
Ghana’s criminal justice system therefore needs vigorous and aggressive changes to meet squarely the
new crimes that the world is witnessing today otherwise, as it is currently, any effort to deal with economic
crime within the criminal law “would be pitiful” as one Professor of law puts it. At this juncture, it isappropriate to examine some of the economic crimes engulfing society in these days of technologicaladvancement. The obvious starting point is fraud, one of the conventional economic crimes which has
traditionally been provided for in all legal systems.

II. FRAUD
Under the Criminal Code of Ghana there is a long list of types of fraud, provided in sections 131-145.
They include fraud by false pretences, stamp offences, falsification of accounts, fraud in sale or mortgage ofland, fraud as to boundaries of documents, fraud as to a thing pledged or taken in execution, fraud inremoving goods to evade legal process and fraud by agents. Though the list is long it does not exhaust in any
way the types of fraud that the world is witnessing these days. Section 132 of the code defines fraud by false
pretences as follows: “A person is guilty of defrauding by false pretences if, by means of any false pretenceor by impersonation he obtains the consent of another person to part with or transfer the ownership ofanything”.

A. Fraud by False Pretences
From the foregoing definition it is clear that fraud is about obtaining a financial or other benefit in termsof money at the detriment of another person. All of these frauds contain an element of dishonesty since theintent of the fraudster is to use dubious means to do an act which benefits him or her at the expense of theinterest of the victim.
Fraud by false pretence occurs if a person misrepresents an existing state of facts such that themisrepresentation induces another to consent to parting with the ownership of a thing. The essence of thisoffence is that the false representation induces the victim to consent to part with or give the fraudster
access to his or her property. A case in point is how a Ghanaian defrauded a French national in Ghana. He
was arrested and brought to court for trial. The perpetrator of this crime is a Managing Director of acompany in Accra, known as Diamond Motors and Enterprise Limited. In 2002 he met the French national in
London and informed him that he dealt in gold and therefore had in his possession, 250 kilograms of gold ore
valued at 51.562 million. The fraudster told his victim to test a sample of the ore to verify its genuineness in
Switzerland, to which he complied. The victim who agreed to buy the consignment after a successful test,
was assured by the fraudster it would be exported to him in Switzerland and that payment should be madeafter five days of export. The fraudster sent a pro forma invoice to his victim but failed to deliver theconsignment on the appointed day. When he was confronted, he explained that the chiefs and elders of thetown, where the ore was to be obtained had filed a writ in the High Court, restraining him from exportingthe consignment. Meanwhile the fraudster had already collected $156,250 which represented ten percent(10%) of the total amount from his victim, with the excuse that he was going to use it to influence the chiefs
and elders to withdraw the legal suit. This turned out to be false. There is the need for an efficientmechanism for the verification of claims of people. Prospective investors should also be educated on theneed to be careful who they do business with.

B. Revenue Related Fraud
One other fraud that relates to State revenue is the one which involves altering and falsification of bills of
lading and invoices, receipt or other documents showing evidence of quantity, character or condition of any
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Criminal Code of Ghana in section 142 (b). This provision is so wide that customs and Excise Duties as wellas Value Added Tax (VAT) depend on the provision. The Value Added Tax of Ghana, 1998, Act 546 provides
provisions that deal sections 57, 59 and 70 under part XII of the Act. These offences and penalties have been
made available in the Act because as the Act provides for refunds for exported goods, there is bound to be
increased attraction for fictitious documents to show such transfers.

C. Fraud by Agents
There is also Fraud by Agents, who may be Government officials or the employees of private
businessmen. This is an area with great potential for abuse of power and corruption. Under the Criminal
Code of Ghana, section 145 (a) deals with financial inducements offered by third parties to agents so thatthey might show favour in dealing with them. The provision states as follows; “any agent who dishonestly
accepts or obtains or agrees to accept or attempts to obtain, from any person, for himself or for any otherperson, any gift or consideration as an inducement or reward for doing or forbearing to do or for having doneor forborne to do any act in relation to his principal’s affairs or business or for showing or forbearing to show
favour or disfavour to any person in relation to his principal’s affairs or business, he shall be guilty of amisdemeanour”.
Consequently, a Civil Servant who demands or takes a bribe in order to perform his duty is guilty under
this provision. Section 145 (b) of the Code also makes provision for those who dishonestly give or agree togive any gift to any agent as an inducement or reward. Any person found to have committed such a crime
can be prosecuted and consequently convicted.
As a measure against fraudulent deals by public officers and corruption by Government officials, or any
other person, there has been the inclusion in the Criminal Code of Ghana, of “Special Offences”. These
offences, which are largely economic in nature, were created as a result of the increasingly complex natureof economic crime. They are provided in section 179A (1)-(3) as follows:(1) “Any person who by a wilful act or omission causes loss, damage or injury to the property of any
public good or agency of the state commits on offence.
(2) Any person who in the cause of any transaction or business with a public body or agency of the state
intentionally causes damage or loss whether economic or otherwise to the body or agency commits
an offence.
(3) Any person through whose wilful action or commission, malicious or fraudulent(a) The state incurs financial loss; or(b) The security of the State is endangered, commits an offence”.
It can be clearly seen that the provisions cover areas of fraud attributed to any person whether
Government officials or private individuals. Perhaps these offences were created to cover the economic
crimes that were emerging which could not be catered for by the existing legislation in the fight against
economic crime.

D. Securities Market Fraud
The securities market has its own kind of fraud relating to economic crime. With the growth of the
securities market in an emerging market like Ghana, market manipulation associated with the securities
industry is bound to occur. Market manipulation is where the price of securities is controlled or artificiallyaffected by the wilful conduct of officials to deceive or defraud investors. This kind of crime causes a lot ofpain and hardship to people who invest their earnings in the hope of improving their resources. The
Securities Industry Law of Ghana, 1993, PNDCL 333 makes provisions and penalties for such offences
relating to investment fraud. Thus the acts of officials involving the creation of a false impression of priceappreciation of shares is made punishable in section 122 as false trading as follows: “A person who creates orcauses to be created, or does anything that is calculated to create a false and misleading appearance of active
trading in securities on a stock exchange in Ghana or a false or misleading appearance with respect to themarket for, or the price of such securities commits an offence”.
In the same vein, the Securities Industry Law can punish any person who distorts the market either byartificially inflating a price or lowering the price or even keeping a stable price when the market price would
have dictated otherwise. While the law creates offences, at the same time it provides for defences in asituation where a person’s act, which is alleged to amount to false trading on the stock market, may not have204

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been done with the intention to create a false picture of active trading, but for some other legitimate
purpose. In such circumstances the person will be exonerated, if he is able to prove that his action was for alegitimate purpose and not to defraud anyone.
In the securities industries, there is what is know as insider trading where persons who are involved in
the industry or management of companies occasionally use information that they have to obtain financial
rewards by using such information to buy or sell securities. This conduct is generally prohibited because it
distorts the market and enables those with such information of the companies to act at the expense of theinvesting public. The Securities Industry Law prohibits this conduct under section 128. The reason for theprohibition is to allow the price of the securities to be determined by the interplay of the forces of demandand supply in a free atmosphere without any interferences or artificial mechanism. The law also provides
offences for those who obtain information from people who have any association or dealings with thecompanies trading on the stock market for their own benefit.

E. Advance Fee Fraud
There is yet another type of fraud known as Advance Fee Fraud (a.k.a - 419). The use of modern
communication equipment all over the world enables businessmen to communicate and enter into businessnegotiations without physical contact. This system has bred a type of economic crime where goods ordered
are not paid for because of false contact addresses or forged letters of credit, etc. This type of fraud throws areal challenge to the commercial world since quite often those who engage in international commercial
transactions may not be able to check the background of their clients who may be separated by distances of
thousand of miles. Such an offence comes under section 131 of the Criminal Code.
F. Intellectual Property Fraud
There is also copyright of intellectual property fraud where the infringement of intellectual property has
achieved new dimensions in view of international and domestic trade. The imitation of goods ranges frompharmaceutical products to food and pirated works such as music. In the past copyright owners only had tofight for their rights against their infringement in the civil courts. However, by the promulgation of the
Copyright Law, which recognised the problem associated with the enforcement and the prosecution of rights
of authors and music makers, the Copyright Law of Ghana, PNDCL 110 of 1985 made the infringement of
copyright a criminal offence. Studies have shown that even though the Copyright Law has stringent
provisions for infringement of copyright, prosecutions have been minimal.
The punishment which the Copyright Law provides is nothing to talk about. Sections 44-48 of the law
provide that any person who infringes any copyright or neighbouring right shall be liable on summaryconviction to a fine ranging from c10,000.00 to c1,000,000 (i.e. $1. to $100) and a term of imprisonment of up
to two years. In addition to this, the courts may order seizure and disposal of all infringing material andequipment involved in the infringement of the copyright. The statute therefore needs to be amended so as toimpose a heavy penalty on those who infringe the law.

G. Abuse of the Financial System
Banking and non-banking institutions are not left out - with frauds in the form of abuse of the financial
system. Frauds in the banking system can be stated as misappropriation of assets or intentionalmisrepresentation of financial information by one or more individuals among management, employees or
third parties. This kind of fraud takes the form of manipulation, falsification or alteration of records or
documents, suppression or omission of the effects of transactions from records or documents, recording oftransactions without substance and sometimes misapplication of accounting policies. Computer fraud in thebanks is on the ascendancy and it takes the form of manipulation of electronic data to facilitate and cover up
the fraud.
The introduction of Automated Teller Machines (ATM) in the banking system has come with its own typeof economic crime with the use of fake ATM cards by unscrupulous employees of the banks for thewithdrawal of money from customers’ accounts. As Ghana is trying to catch up with the fast developing
electronic technology of this age, electronic fraud of such a nature, where most bank employees can obtain
internal records to produce additional bank ATM cards for themselves or customers, will become rampant.
With the use of these fake but functional cards, an employee or his accomplice can withdraw funds from any
ATM. The negative aspect of the operation of the ATM system should be identified so that measures can be

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put in place to check its occurrence. A case in point is the case of Tsegah v. Standard Chartered Bank (Gh.)
Ltd. No.C602/99, where a customer of the Bank sued the Bank for a refund of monies withdrawn from hisbank account apparently through the use of a fake ATM card. A whopping sum of c13.1 million. ($1,360) was
fraudulently withdrawn from the customer’s account. It was found that the plaintiffs pleading did not indicate
the area of Law the action was founded on. This is indicative of the fact that the legal system of Ghana has
not made inroads into such a new economic crime pervading the banking system.
Currently, the Bank of Ghana Act, 2002, Act 612 and the Currency Act, 1964, Act 242 have provisions
governing the printing, use and offences relating to cash. Similarly, the Bill of Exchange Act, 1994, Act 55
and the Criminal Code, 1960, Act 29 deal in part with cheques.
In the area of electronic payments, Ghana did not have legislation that regulated electronic transfer offunds or cheque abuses, even though computer related frauds abound in both domestic and international
payments. The Evidence Decree of Ghana, 1975, NRCD. 323 is silent on the admissibility of electronicallystored information as evidence in Law. Although section 51 of the Evidence Decree gives direction to thecourt to accept relevant evidence. A payment Act should remove any doubt surrounding the admissibility ofelectronically stored information as evidence. It could be seen that the law did not take cognizance of theopportunities that were opened up for criminals’ technological advancement, therefore there was the need toprotect society particularly users of the payment systems.
Having seen the need for new legislation to deal with the payment system, the Parliament of Ghana hasrecently passed into Law a modern Payment Systems Bill known as the Payment Systems Act of 2003. (Act662). The Law provides the statutory framework for electronic banking in Ghana and prevents the
manipulation of the bank accounts of customers.

III. MONEY LAUNDERINGThe concept of money laundering has been in existence for a long time and it is principally tied down tomonies and assets acquired from illicit trade (e.g. illicit drug trade) by criminals. This laundering involves
not just individuals, but sometimes major banks. The money the criminals obtain is transferred into various
accounts or invested in legal businesses to disguise the origin of their criminal money so they can avoid
detection and the risk of prosecution when they use it. Invariably, the criminals invest such monies bypurchasing real estate or establishing big projects, especially in countries with legislation in support ofsecrecy of bank accounts. The launderers usually deceive the governments concerned with employment
creation for their nationals and a contribution to national revenue. Through these processes, a criminal tries
to transform the monetary proceeds derived from illicit activities into funds with an apparently legal source.
Money Laundering can have devastating economic and social consequences for countries, especiallythose in the process of development and those with a fragile economy like Ghana. It has been observed thatthe economy, society and ultimately the security of the countries used as money laundering platforms are allat risk. This is due to the fact that laundered money from criminal mining and exploitation of natural
resources are known to have been used to buy weapons used in various civil wars in Africa. The civil
conflicts have dislocated the economy and caused widespread disease and the death of millions of people.
Before 1990 the term money laundering did not feature frequently in discussions of offences we know asmoney laundering today. Ghana therefore, showed a limited response to money laundering when it enacted
the Narcotics Drug (Control, Enforcement and Sanctions) Law, 1990, PNDCL 236. Section 12 of this Law
criminalised money laundering in the area of narcotic drugs. Ghana began to take a serious look at money
laundering in 1997 when the Bank of Ghana, and the Inspector General of Police, with the support of theGovernment, formed a Committee for co-operation between Law Enforcement Agencies and the Banking
Communities (COCLAB) to provide a platform for members to exchange ideas, knowledge and information
about criminal syndicates and the process of obtaining evidence to track down and find culprits involved inmoney laundering. The committee has influenced Ghana’s anti-money laundering programme by identifying
illegal activities, contributing to a draft statutory framework for the prohibition of money laundering (nowpending before Parliament) and organizing seminars on money laundering, and other economic crimes, tosensitise the banking and non-banking financial community and the law enforcement agencies.

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In spite of the fact that Ghana currently has no legislation to deal effectively with the offence of money
laundering, it has put in place institutional arrangements to combat money laundering. The law enforcement
agencies, the Attorney-General’s Department and the courts on one side, and the financial regulators on theother, are the established institutions involved in the monitoring, investigating and prosecution of suspicioustransactions.
Ghana’s position is that the attention given to the issue of money laundering should now move beyond acomprehensive anti-laundering programme, hence the drafting of the Money Laundering (Proceeds ofCrime) Bill, which when passed into Law will deal effectively with this socio-economic menace.

IV. INSTITUTIONS AND MEASURES SET UP TO DEAL WITH ECONOMIC CRIME
IN GHANA.
A. Police
The Police are the most effective antidote or barrier for all types of crime. Traditionally it has operated inareas where its activities are useful for the detection and investigation of criminal activities. It has beenfound that given the wealth and resources at the disposal of modern economic criminals, the quality ofcriminal investigations need to be improved so as to equip them with the necessary skills to deal effectively
with the sophisticated modern criminals. In order to be abreast with operations of the modern criminals,
Ghana Police personnel are constantly undergoing training in the areas of modern economic crime. To catch
up with the modern trend of crime, especially in the areas of the abuse of the financial system, the Ghana
Police need a sound understanding of financial operations as well as accounting and other forms of expertiseand the requisite equipment for investigations.
Currently pending before the Parliament of Ghana is the whistleblower Bill which seeks to provide a way
in which individuals may in the interest of the public disclose information that relates to, corruption or otherillegal conduct or practices of others in society and to make sure that the persons who make the disclosures
are not subjected to victimization. In Ghana where impropriety in both public and private sectors, as well associety in general is common, the need for such legislation is paramount. Under the Bill, written copies ofthe disclosure of information about criminal activities of persons should be submitted to the AttorneyGeneral who in turn causes investigations to be conducted into the cases, for prosecution if the need arises.

B. Serious Fraud Office
In Ghana, the Serious Fraud Office (SFO) was set up in 1993 by the Serious Fraud Office Act, 1993 (Act466) as an investigative agency to investigate, monitor, and on the authority of the Attorney-General,prosecute any offence involving serious financial or economic loss to the state. Before the Serious Fraud
Office (SFO) was set up, there was no particular state agency with the sole mandate to deal with
Commercial and other economic crimes. Its establishment took into account the increasing sophistication ofcrimes committed by individuals in society, resulting from modern information technology, communications
and complexity in economic crimes. The traditional mechanism of existing law, the police, and otherinstitutions for fighting complex and serious economic crimes were found to be inadequate to cope with themodus operandi of modern criminals. The Serious Fraud Office has been framed to take advantage of skilled
professionals in the areas of law, accounting, banking, taxation, etc, and to use their expertise andresourcefulness to counter the developing trends of sophistication in the commission of economic crimes.
C. Bank of Ghana
The Bank of Ghana has the Statutory Power to licence financial institutions. Its functions cover those
who seek to operate as banks by taking in deposits and lending out money, such deposit taking being a
potential route for investment fraud, the work of the Bank is to see to it that depositors are not deceived into
putting money into a financial scam. It also ensures that operations in the financial sector are not conductedin a manner that harm the economy.
The Bank has supervisory authority over all the commercial banks and the non-banking financial
institutions in Ghana. Its supervisory activities are carried out within the framework of Laws, Regulations
and Conventions in force at any particular time. The Bank of Ghana Law, 1992, PNDCL 291 establishes the
Banking Supervision and Research Department in section 51 of the Law. It provides in part as follows: “...beresponsible for the supervision and examination of all banking institutions in the country”.

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With this tool in hand, the Bank was able to investigate the operations of the “Pyram” and “Resource 5”schemes. These are two companies which emerged on the financial scene in Ghana with investment
schemes that promised about 30% interest a month on any sum invested. Their operations turned out to be
one of the biggest financial scams in Ghana in 1995. During the Bank’s investigations into their operations,the companies folded up because they could not comply with the Bank’s regulations. People who invested
their money in these schemes lost it when the schemes collapsed. In order to protect the depositors andinvestors and to maintain public confidence in the financial sector, the Bank has intensified its supervisory
activities over the financial institutions in Ghana.

D. Courts
The Courts are the institutions that must come down hard on the fraudsters and other economic
criminals who engage themselves in economic crimes, including money laundering. There should be morediligent prosecutions and aggressive sentencing on the part of the court in order to deter those whose
intentions are to defraud and launder their ill-gotten money. It is the Attorney-General who has been given
the mandate under Article 88 (3) of the 1992 Constitutions of Ghana to initiate and conduct all criminal cases
in Ghana. The Attorney-General and his cohort of attorneys who have full control of the prosecution of
criminals should therefore marshal resources to fight aggressively against the perpetrators of economic
crime and money laundering in Ghana. In the circumstances, the trial of economic crimes should be swift
and more aggressive.
It has been noted that economic crime inflicts loss on the victims and at the same time it provides
unjustifiable economic gain to the perpetrator. Therefore the courts should switch from the traditional
criminal law system of monetary penalties and imprisonment, which are not adequate to restore the loss ofthe victim, to confiscation of properties of the criminals which are gotten from the proceeds of their illegal
activities, to enable the courts to make restitution orders in favour of the victims.
Efforts are being made to equip the courts in Ghana with modern equipment like computers, etc. and to
train judges so as to become familiar with the intricacies of high finance to enable them to appreciate theimportance of the issues involved in the prosecution of economic crime and money laundering. This has
culminated in the setting up of the Automated Courts or the Fast Track Courts in Ghana to deal with cases,
especially commercial and economic crime, so as to reduce long and slow methods of adjudication.

IV. CONCLUSION
Ghana shares the concerns of international organizations and governments on economic crime andmoney laundering. There is therefore the need for assistance, including the training of officials of law
enforcement agencies and authorities from the financial and other related sectors. There is also the need forprovision of financial and technical backup for the justice system and the Police and State Attorneys who
handle criminal cases.
The criminal justice system of Ghana is in a battle against crimes on all fronts. The globalization of crime
has come to stay with us and it is a great task for the criminal law and criminal justice system of Ghana to
put themselves up in the fight against economic crime and money laundering. Ghana therefore needs the cooperation and support of the international community to address the challenges posed by economic criminals
and money launderers.

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