RESOURCE MATERIAL SERIES No.66

COUNTRY REPORT - GHANA
Bright Oduro*
I. INTRODUCTION
Ghana formerly the Gold Coast is about 238,500 sq. km and our immediate neighbours are Burkina Faso
in the North, Togo in the East, Cote D’Ivoire in the West and the part of the Atlantic Ocean called the Gulf ofGuinea in the South. Currently the population of Ghana is close to 20 million.
My paper will attempt to highlight the various forms and manifestations of economic crime and the
problems that it presents to our criminal justice system. The paper also covers the rules that are applicable,
available mechanisms up to the institutions that are required to control economic crime.
I have also examined what I perceive to be preventive and counter measures to confront the crime. Alsoan examination of the existing provisions of the criminal code and the current manifestation of the problem
has been highlighted to expose the uses to which the old provisions have been put as well as a considerationof their adequacy for the current task.
I have also examined the operations of the police, the court and other investigative agencies such as theserious fraud office and the securities regulatory commission.

II. WHAT IS ECONOMIC CRIME
Economic Crime may be defined broadly as the range of crimes that occur in the course of economictransactions, or crimes that result in loss of an economic nature to the victim while the perpetrator and or
his/her accomplices become the ultimate beneficiary of the illegal economic or financial gain. The victim of
the economic crime may be an individual, an institution or a state.
In recent times the field of economic crime has grown by leaps and bounds on account of globalisation andthe changed nature of instruments of communication. The categories of crime of an economic nature in thepast years when advancement in technology had not been so high were largely those of officials or otheragents who handled other people’s money or other economic resources hence the name ‘white collar
crimes’. As the name suggested these were crimes committed by those of the clerical and administrativeclass of employees and other agents by reason of their pen-pushing occupations. Such crimes did not requirephysical presence or contact with the property, only ability to have access to and deal with the property on
paper. Thus the offences were mostly of a financial nature such as embezzlement, fraud by agents, fraud byfalse pretences, counterfeiting, issuing false prospectuses, etc. The range of offences was also limited insphere because the perpetrator had to be the custodian or trustee before the crime could be possible.
These days, owing to the advancement in technology, globalisation and improvements in communicationand computers as well as the developments in financial markets, credit financing and the scope ofinternational trade, many economic crime possibilities have opened up.
The range and variety of crimes of a financial nature have so multiplied that the term ‘white collar crime’has become too narrow and the more general term ‘ECONOMIC CRIME’ reflecting the current trends andnature of the activity appears to be a more appropriate term to describe the myriad of criminal activity in theeconomic domain with which the Police and other law enforcement agencies must now contend.
‘White Collar Crime’ has ceased to be an appropriate term for the other reason that as the categories offraud have so been opened up by technological advancement and developments, so has the profile of theoffender or perpetrator changed. With emphasis shifting from pen and paper to telephone, facsimile andcomputer, the economic criminal has ceased to be the one who has to be well educated to have thenecessary access and opportunity to commit the crime. In consequence in economies with high illiteracy
rates such as ours those capable of perpetrating economic crimes may no longer be the ‘white collar’ type.
* Chief Superintendent of Police, Ghana.

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III. ECONOMIC CRIMES UNDER THE GHANA CRIMINAL LAW
Our Criminal Code recognises several forms of economic crime, the oldest of course, being fraud.
Sections 131-135 of the Criminal Code act 29/1960 deal with fraud. They are:(i) Fraud by false pretences(ii) Stamp offences(iii) Falsification of accounts(iv) Fraud in sale or mortgage of land(v) Fraud as to boundaries or documents(vi) Fraud as to things pledged or taken in execution(vii) Fraud in removing goods to evade legal process(viii) Fraud by agents.

A. What Is Fraud
Fraud occurs when an act is done by one person with the intention that it should deprive another personof some value to which the person is otherwise entitled and when it in fact causes such loss.
To establish fraud under Ghana’s Criminal law one must prove a conscious act done, as well as intention
on the part of the actor that he or she should acquire some gain with a corresponding loss to the victim i.e.
the act must be done with intent to defraud. An intent to defraud is defined under section 16 of our criminal
code Act 29/1960 as follows:
An intent to defraud means an intent to cause, by means of such forgery, falsification or other unlawfulact, any gain capable of being measured in money, or the possibility of any such gain, to any person at theexpense of any other person.
From the definition it is clear that fraud is about acquiring a financial or other benefit capable of being
quantified in monetary terms, at the expense of the other person. All of these frauds also contain an elementof dishonesty since the intent of the fraudster is to bend another’s will by trickery or other devious means to
do an act which benefits the one unjustly, to the detriment of the victim’s own interests.
Fraud by False Pretences
The commonest form of defrauding is the art of the confidence trickster, who adopts or uses false
pretence to induce the victim to part away a benefit or his property. This offence, which is a second-degree
felony under our criminal Code, attracts a maximum penalty of twenty-five years when convicted. The
offence is committed if a person misrepresents an existing state of facts such that the misrepresentationinduces another person to consent to parting with the ownership of any chattel. The representation may
take the form of either ‘written or spoken words’ or by any conduct, sign or means of whatever kind. It canalso be about anything and may even be misrepresentation of a right, liability, authority, ability, dignity or
ground of credit or confidence. It can also cover impersonation of another as well as consciously deriving
benefit from a situation of mistaken identity. It is also applicable to a person who by reason of identical nameobtains advantages and privileges that would not have otherwise been granted had the fraudster not been
mistaken for the more famous namesake. It is not only confidence tricksters of the more obvious sort who
can be prosecuted under this head. The scope of the offence extends into the world of commerce and covers
those who induce people to extend them credit when they actually have no intention of ever paying for thecommodity or services rendered.
In Ghana and some parts of Africa, rampant political corruption and entrenched corruption in public life
coupled with the need to launder the money so acquired has produced a new brand of confidence trickster.
So common is this brand of fraud in Nigeria in particular that every person on the street of Nigeria knows it
is called ‘419’ after a section of the penal code under which provision for the offence of defrauding by false
pretence is made. Unfortunately the perpetrators of the offence have found fertile grounds in Ghana and the
net for victims has also spread over to Ghana. This type of fraud by false pretences is based on the wellknown fact that African Politicians and junior public servants loot their national treasury and then seek totransfer the money into foreign banks in order to be able to travel abroad in the course of time and live inluxury. Persons claiming to have some such resources then seek the assistance of a foreigner resident inanother country, who would not have ready opportunity to effect background checks, and then defraud them.

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Typically, it begins by one person usually form Nigeria writing to a Ghanaian businessman whom he has
never met. The letter would typically inform the person/businessman of some funds corruptly obtained
which needed to be laundered and a promise of a percentage cut to the collaborator. The request would thenbe made for the businessman’s account number to be given for the ‘slush’ funds to be deposited therein.
Once the account number is given the account’s holder/businessman is impersonated and the accountcleared of whatever it contained.
Another variation of this trick is to indicate that the illicit monies have been deposited in a trust and that
it would be necessary to ‘unlock’ the trust.
Subsequently, a letter demanding some advanced payments written on the forged letterhead of a
reputable bank would be received by the victim. Once the so-called advance payments begin they never stopbecause several unforeseen expenses necessary to complete the ‘unlocking’ process emerge. By the timethe victim realises that it is a scam a lot of money would have been parted away to the fraudsters. Several
millions of dollars have been lost this way by victims of this particular trick. Clearly the scenario is that theperson who seeks to profit from the wrongdoing of another rather becomes the victim of this crime.

B. Falsification of Accounts
Those who handle financial resources of others in the capacity of servant or agent also have opportunities
for committing economic crimes. Obviously falsification of accounts is usually a preparatory step in somecriminal enterprise, usually acts of dishonest appropriation. Section 140 of the criminal code provides asfollows:
Whoever being a clerk, a servant or public officer and whoever being an officer of any partnership,company or co-operation, does any of the acts herein after mentioned, with intent to cause or enable any
person to be defrauded, or with intent to commit or to facilitate the commission, by himself of or by anyother, of any crime, that is to say:(a) Conceals, injures alters or falsifies any book, paper, or account kept by or belonging or entrusted tohis employers or to such partnership, company or corporation or entrusted to him, onto which hehas access, as such clerk, servant or officer, or omits to make a full and true entry in any account ofanything which he is bound to enter therein; or(b) Publishes any account, statement or prospectus relating to the affairs of such partnership, company
or corporation, which he knows to be false in any material particular, commits an offence.
The provision clearly covers a wide range of offences and includes, those employed by private companies
as clerks or servants and the state as public officers. It also covers any officer of any partnership company or
corporation. The code also provides a definition of ‘officer’, which is also very wide.
Any officer, chairman, director, trustee, manager secretary, treasurer, cashier, clerk, accountant or otherperson provisionally, permanently or temporarily charged with or performing any duty or function in respectof the affairs of the company or corporation, whether for or without any remuneration.
The categories of personnel set down in the provision are wide enough to cover even gratuitous
volunteers who are involved in the running or organisation of the affairs of the entity. In effect the entire
group of persons who are employed in the public or private sector in whatever capacity could be liable forthe offence extending even to officers of voluntary welfare associations or other charitable groups.
In order to ensure that entities, which do not have separate legal existence from their owners, are notexcluded, the code defines ‘Company’ not in the technical legal sense, but also includes:
Any partnership or association whether corporate or incorporate, and whether the purposes thereof be or
be not the carrying on of any trade or business and whether it be in course of formation or be actuallyformed or be in course of dissolution, winding up as liquidation.
The entity need not be fully in existence; whatever its stage of formation it can be the victim of suchoffence if the people at the helm of affairs misconduct themselves. In committing the offence, the person
must tamper with entries made on paper or into books of account or must have failed to make a full andaccurate entry into such book of account.

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Indeed ‘tampering’ which is the crux of the offence could take the form of concealing the document inquestion, cutting away part of or burning it in whole or in part, altering part of the document and falsifying
any book i.e. changing the content such that it gives false information.
From this, it is inferred that the information contained in a ‘document’, is usually on a paper or scroll orother material in which information is written which is tampered with. Therefore the types of conduct thatcan be criminalized are visible physical records that can be falsified. The present situation however isdifferent. These days ‘accounts’ are kept on computers. The problem is if one gains unauthorised access to acomputer network by entering a password or a number into a computer, given the definition of a document
which apparently does not cover material visible on a computer screen which is tampered with; can he beeffectively tried under this law?
The offence of falsification of accounts may also be committed in respect of acts involving the flotation ofcompanies, or securing fresh investment for an existing company. Usually the motive for tampering with or
making false entries with books of accounts is to give such a favourable impression of the financial status of
the company, as would make potential investors take the bait. Therefore, the law provides that it is anoffence to publish any account, statement or prospectus relating to the affairs of such partnership, company
or corporation which he knows to be false in any material particular. There is thus criminal liability for
fraudulent misrepresentation in respect of accounts or other documents related to investments.

C. State Revenue Related Frauds
Invoicing/Vat Frauds
One of the frauds we have been contending with and believe will grow in importance relates to alteringand falsification of bills of lading and invoices, manifests, receipts or other documents, evidencing quantity,
character or condition of any property, or the receipt or disposition of or the title of any person to any
property. This is because not only do customs and excise duties depend on them, but also the appropriate
Value Added Tax (VAT) payable or refundable on such goods. Since there are refunds for such goods there isbound to be an increased possibility for fictitious documents evidencing such transfer.
D. Fraud by Agents
In Ghana this is an area with great potential for abuse of power and corruption. Agents could be officersof the state or employees of private persons. Agents of the state are usually entrusted with a lot of power
because they either do not have adequate rules to work with or have extensive discretion in granting
exemptions from the application of rules. In Ghana these officials are usually grossly underpaid thus creating
both opportunity and motive for extortion, corruption and abuse of office. I believe that the officials or
agents’ will to resist extortion and corruption must be shored up by our criminal law.
In Ghana the offence is provided for under section 145 of the code and covers financial inducements
offered by third parties to agents or taken by them in order that they might show favour to that person or
they would forbear to do what they are required to do by their principal. In our context, agents cover thosein the private sector, servants of the state such as civil servants and officers of the District Assemblies. As
the provision goes (section 145):
Any agent who dishonestly accepts or obtains or agrees to accept or attempts to obtain, from any person,for himself or for any other person any gift or consideration as an inducement or reward for doing orforbearing to do or for having done or forborne to do any act in relation to his principal, affairs or business orforbearing to show favour or disfavour to any person in relation to his principals affairs or business shall be
guilty of a misdemeanour.
From the provision, a civil servant who takes or demands a ‘kick back’ (or the usual 10% commission) inorder to grant a contract to a particular contractor is guilty under the law. Turning a blind eye to an infraction
or not taking appropriate sanctions because of the gift or consideration given is also punishable under theprovision. Third parties are equally guilty and punishable under the law. The reason for including themstems from experience that third parties sway agents from their duties with tempting offers.
The making of such offers or the agreement to give consideration must therefore be tackled as a potent
contribution to the offence of fraud by agents.

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The following are typical happenings in Ghana in the contract business that the various categories of
agents handle.
(a)
(b)
(c)
(d)

Contract sums are usually padded up.
Receipts which evidence payment are sometimes lower than the sums stated therein.
Receipts which reflect payments which have not been made.
Accounts that reflect services that have not been contracted and paid for, even though the services
may not have been performed.
(e) Goods paid for that may not have been delivered.
Financial appropriations made for goods and services never yield value for money because they are either
misapplied or used for shoddy jobs, which soon require re-doing.
The provision relating to frauds by agents cover these offences even though the designation of some ofthem as misdemeanours only attracts lighter criminal sanctions compared with the harm that could becaused to the economy. In Ghana the list of such acts, which amount to corruption, may be endless.

E. Special Offences
In the light of the foregoing considerations and the apparent lighter punishments for these crimes, a new
breed of offences known as the ‘SPECIAL OFFENCES’ were enacted in the middle of the 1980s. These
offences, largely economic in nature, were lifted from a group of offences under the same name in a previous
legislation as our response to the increasing world of economic crime. These special offences are considered
so serious that they are punishable by a fine not less than five million cedis and or imprisonment notexceeding ten years. The text of the provision is as follows:
1.
2.
3.

Any person who by a wilful act or omission causes loss, damage or injury to the property of any
public good or any agency of the state commits an offence.
Any person who in the course of any transaction or business with a public body, agency of the state
intentionally causes damage or loss whether economic or otherwise to the body or agency commits
an offence.
Any person through whose wilful, malicious or fraudulent action or omission:(a)
The state incurs a financial loss;(b)
The security of the state is endangered commits an offence.

From the provisions, it is difficult to get a clear picture of the specific acts, which the provisions seek toproscribe. However, it covers a wider ground of the categories of offences relating to fraud by agents. In
Ghana, however some human rights activists have argued that the provision offends the principles of the
Ghana Constitution and that even though the harm caused by economic crime is deeply appreciated theState in its desperation should not make such laws.

F. Investment Fraud
One other worrying crime that is emerging from globalisation, which can cause chaos to any country’s
economy, is investment fraud. Ghana experienced a sudden wave of this type of fraud in and around 1995.
The offence is growing in importance as people seek ways of investing surplus income without thenecessary familiarity with the complexities of the financial world. In Ghana people were willing to invest
money with some dubious financial firms, which promised them huge interest on sums invested. These socalled financial institutions then folded up within no time and it became also difficult to track the fraudsters
as they left either misleading addresses or no clues as to their whereabouts, leaving the investors with great
financial losses.
G. Securities Fraud
The recent emergence and growth of the securities market in Ghana would undoubtedly produce certain
economic offences. Market manipulation is known all over the world to be one of the more common forms of
securities fraud. This is a wilful conduct intending to deceive or defraud investors by controlling or
artificially affecting the price of securities. This is perpetrated by engaging in wash sales, matched orders or
rigged prices that merely seek to mislead investors.
The market manipulator goes through four main stages namely, accumulation, price appreciation,
promotion and sell off.

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In the accumulation stage, the market manipulator identifies a non-existent company except in name inthe stock market. He then acquires a lot of shares in that company by buying from private hands creating asituation where the public distribution of shares comes under his control. He then sets in motion, theappreciation stage, which also involves the false movement of shares into friendly hands in fictitious trading
such that the prices appear to be going up. Massive promotional acts are done with the view to arousing
investor interest in the shares. Advertisements are then made in attractive financial magazines andpromoters are hired to promote the company by issuing news releases and doing other promotional
activities. In this way more people are baited to buy into the company and the share prices go higher until
they reach a peak. The manipulator begins to sell off his shares making profits from the genuine investors.
In no time the profits are taken out, the company collapses and the real investors lose their money.
In Ghana, the Securities Industry Law in 1993 makes provision for some of these offences, but whether
anybody has been tried and convicted is another thing. The various stages of the practice are made criminalby the act.
“A person who creates or causes to be created, or does anything that is calculated to create a false andmisleading appearance of active trading into securities on a stock exchange in Ghana, or a false or amisleading appearance with respect to the market for or the price of such securities commits an offence.”
The law further provides that the person who by means of purchases or sales of securities that do not
involve a change in the beneficial ownership of those securities or by fictitious transactions or devices
maintains, inflates, depresses or causes fluctuation in the market price of any securities commits an offence.
Even though these economic criminal acts are not perpetrated on a large scale in Ghana, the laws havebeen made to protect the genuine investor. But again, are they deterrent enough to scare the economic
criminal?

H. Advance Fee Frauds
The use of modern communications equipment and advancement in technology, enable persons in far
distant locations on the globe to communicate and transact business without necessarily meeting. This hasbrought in its wake commercial frauds where goods ordered are not paid for because addresses used werefalse and letters of credit presented were forged. This type of fraud presents a real challenge to the world ofcommerce since the pace of life in the modern world does not permit extensive and thorough backgroundchecks on potential clients who operate thousands of miles apart. Two manifestations of advance fee fraud
are discernible - those that have an international flavour and those with domestic characteristics.
In maritime frauds, which are international by nature, persons who claim to be shipping agents contact
victim companies to transact business and to tranship commodities at an agreed fee. Some advances are thenpaid for processing so that the goods could be shipped. Once the fee is paid, the shipping agent disappears
and the goods are not shipped.
In Ghana, various forms of domestic advance fee frauds are perpetrated on a regular basis. The shortageof housing units in Ghana, have contributed to some extent to the increased spate of the crime. People, who
do not own buildings, purport to rent out non-existent buildings after making false representations andsucceed in taking monies from potential tenants. Others pose as estate agents, locate houses that are on therental market and under false representation succeed in stringing the victims along till they themselves giveup after having parted with good money. Others who do not have enough funds to complete their buildings,
put their building on the rental market, enter into an agreement with potential tenants by which they takerent advances of the equivalent of about two years rent to complete the building. Once the building iscompleted the owners rent them to other people at higher rates and refund the initial advance payment to
the disappointed party. Many people have been victims in this way who have been made to finance otherpeoples building, while they still remain homeless.
One common advanced fee fraud that has also become very popular but very disturbing in Ghana isrelated to gold transactions. Local Ghanaians purporting to be private businessmen often lure foreigners
from their home countries with attractive business connections in gold in Ghana and then defraud them. The
usual practice is for the so-called businessman to obtain samples of the gold which he shows to the foreignbusiness partner with the promise of buying greater quantities from small scale licensed miners or winners,

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usually, in the gold mining areas in the hinterlands. Usually the foreigner becomes satisfied once the initialsample turns out to be gold and becomes less cautious and parts away with huge sums of money in the belief
that his so-called businessman would supply the gold as promised. By the time he realizes that he has been
defrauded the fraudster has vanished into thin air. It is not only persons living outside Ghana who have fallen
victim to this sort of scam but other genuine foreign investors in the country who are not familiar with the
intricacies of the gold business. A number of foreign businessmen have sadly left the country after having
gone through this ordeal. The other common fraud which has also emerged on the scene is related to travel
documents. Ghana is a relatively poor country and it is a common practice for the unemployed youth to seek
to travel outside especially the United States, Western Europe and Japan among others for greener pastures.
The situation has produced another brand of the confidence trickster who parades as having contacts withthe various Embassies and High Commissions and then under false pretence of assisting in securing travel
documents notably visas for unsuspecting victims defraud them of the monies paid by them. Indeed in thepast few years the CID has been inundated with several of these cases.

I. Trademark and Copyright Fraud
Illegal infringement on trademarks and copyright is on the increase owing to international trade and thevast profits that are made if a scheme to copy other people’s products is successful. In consequence, big
markets have flourished for imitation goods, be it pharmaceutical, food and beverages or music. Initially, in
Ghana, these acts have been subject to civil actions at common law or action for damages under the Ghana
Trademarks Acts of 1965. However, civil remedies have been seen not to be enough of a disincentive
considering the vast amount of profits that the violator of trademark and copyright stands to gain.
The criminal law has thus had to enter the stage to control the extent of infringements on account of thedamage that these activities pose to the economy of the state or to the individual whose creativity andingenuity produced those commodities. Even though the copyright law of Ghana prescribes the criminal
sanction, these are merely ridiculous in light of the illegal profits that are made and the extent ofconsequential injury that may be inflicted upon the victims in particular and the economy as a whole.

IV. MONEY LAUNDERING
Illegal trade and activities, such as the narcotics trade that produce huge profit, engender money
laundering. The laundering involves not just individuals but sometimes major banks. The money accrued
from illegal trade is transferred into spurious or fake businesses so as to distance it from its source. The
illegal act of money laundering may be committed not just by private individuals but also usually with theconnivance of respectable banking or other financial institutions.
In Ghana it is an offence for anyone to engage in laundering of the proceeds of the narcotic trade. The law
states:“No person shall use, transfer the possession of, send or deliver to any person or place, transport,
transmit, alter, dispose of or otherwise deal with, in any manner, any property or proceeds or any property
with intent to conceal or convert that property or those proceeds knowing that all or part of that property
was obtained or received directly or indirectly as a result of … the commission of a drug offence”.
The provision is aimed not only at the acquisition of removable property but at all forms of property,
including money. Therefore all acts, that ensures the proceeds in the narcotic trade are concealed,transformed or converted within the economy with the intention of hiding the links with illegal narcotic
trade have been made criminal,
V. EFFECTS OF ECONOMIC CRIME
Economic crime in its various forms inflicts economic loss, sometimes serious loss on the victim, whileat the same time it provides an unjustifiable gain to the perpetrator. It can wreck whole economies and evenmake nations politically unstable. In Ghana, the various coup d’etats that our nation has experienced
beginning in 1966, have always been explained by the coup leaders as being due to the corrupt practices ofthe previous governments and their inability to stem the scourge. The scale of destruction that economic
crime can unleash makes individual victims suffer irreparable injury. Ghana’s traditional law uses monitory
penalties and imprisonment as the usual sanctions. These fines and or imprisonments are not adequate
compensation for the victim considering the scale of loss he may have sustained. Again a conviction must148

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first be obtained against the accused person who usually is wealthy enough to procure the best legal
representation against the charges, and sometimes comes out clean. The concerns are; the laws themselves,the enforcement mechanisms and whether the traditional methods of punishment, as in Ghana, are adequate
tools for effectively fighting this kind of crime?

VI. INVESTIGATIVE AND REGULATORY AGENCIESIn Ghana, the agencies tasked with investigation, prevention and detection are the police, the serious
fraud office and securities regulatory commission. Indeed, as the nature and complexity of economic crime inits modern form has widened, so the battle to confront it needs to be intensified. Since many of these crimes
depend on manipulation of figures and financial transactions, so has the need arisen to jointly use law andaccountancy in solving these crimes. It has therefore become necessary, for more professionals with anaccounting background to be roped into the investigations of economic crime. Consequently, instead of usinga group of police investigators, it is now accounting experts that may be required to investigate theeconomic criminal. As a result certain agencies have been established in the criminal justice system, otherthan the traditional ones like the police, with a view to effectively and efficiently investigating economic
crimes. In Ghana, even though agencies such as the securities regulatory commission, serious fraud office
and regulatory arms of national banks have all been established and operate alongside the traditional police,
the perpetrators of economic crime are undeterred and are keeping up the momentum.
In terms of international economic crimes, such as securities fraud, it is always better to nip in the bud
the commission of the crime before it occurs or grows. Therefore these investigative agencies and otherregulatory bodies have been mandated to investigate economic crime or monitor the conduct of dealers inthe stock market so that potential manipulators and other fraudsters can be kept at bay. In spite of all thesesecurity, investigative and regulatory apparatus that have been introduced into the criminal justice system,
the courts remain the potent weapon to deal the final blow to the perpetrators of the crime.

A. Securities Regulatory Commission
The securities regulatory commission was established under the securities industry law with extensive
administrative, monitoring and investigatory functions. Among the many functions of the commission, set
down in section 10, the ones that are of interest for the purposes of this paper are:
1.
2.
3.

To maintain surveillance over activities in securities to ensure orderly, fair and equitable dealings insecurities;
To formulate principles for the guidance of the industries; andTo protect the integrity of the securities market against any abuses arising from the practice ofinsider trading.

The commission has extensive powers to inspect goods of various persons and organisations that operate
in the financial market. It can also procure a warrant from the court to inspect any premises on which books
that have been ordered to be produced may have been hidden. These powers appear to be necessary on the
grounds that there is really a thin line between legitimate activity and illegitimate conduct in financial
dealings. Thus many of the activities that could be twisted to perpetrate a fraud could also be innocently
done in the course of normal activity on the securities market. The commission’s role is telling them apart,and bringing the weight of the law hard on to the potential fraudsters. Therefore, if the commission is to beeffective in preventing the commission of securities fraud, then the watchword should be vigilance but thecommission lacks the machinery to maintain the necessary level of vigilance.

B. The Serious Fraud OfficeThis investigative agency was established in 1993 to investigate “serious fraud”. Apart from the generaldifficulty in defining exactly what serious fraud is the agency’s functions revolves around investigations into
acts that cause serious financial or economic loss to the state as well as political corruption and other acts
calculated to defraud or affect the economy. This really means that unless there is a state-connected fraud,
the agency would have no interest in interpersonal fraud, however great the extent, or ingenious themethod. This is indeed a limitation that affects its ability to make a proper impact on the system.
The agency itself has had a credibility problem right from the start. It is unclear whether it is not justanother state agency founded on the principle of political patronage and whether the officials have the149

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necessary expertise in the areas in which they are required to operate. Internal wrangling founded uponpolitical differences, which have sometimes made front-page news, has not helped its situation. In addition, it
has not as yet completed an investigation that has resulted in a successful prosecution, in all of its years ofexistence. Since, even the efficacy of its investigative methods has not as yet been tested by the courts, it isuncertain whether it is a toothless bulldog or sleeping giant, or neither. Consequently, it is not possible now
to assess its contribution, if any, to the war on economic crime.

C. The Bank of Ghana
The Bank of Ghana has statutory power to licence financial institutions and operations whether of thebanking or non-banking sector. Its functions cover those who seek to operate as a bank by taking in deposits
and lending out money. Such deposit-taking therefore seems to be a potential route for investment fraud.
The work of the Bank, among others, is to ensure that potential investors are not deceived into depositingmonies into financial “scams”. It also has the responsibility of ensuring that the operations in the financial
sector are conducted so as not to be harmful to the economy. However, the Bank failed its major public testof protecting the public from financial scams when one of the biggest investment frauds occurred in Ghana inor around 1995 with the ‘Pyram’ and ‘R5’ schemes. The “scam” occurred when two companies emerged on
the financial scene with investment schemes that promised about 30% interest a month on any sums
invested. These companies did not comply with any of the official rules for operating investment schemes,
but the Bank of Ghana did not react to the operations. Many people invested heavily in the schemes andthey were even dubbed “wonder banks” in the local press. When the Bank of Ghana finally woke up to its
responsibility and moved in to enforce the regulations, the companies folded up because they could notcomply with the regulations. Most people lost their money when the scheme collapsed. The Bank itself,caught flat-footed, could only rake up such tame charges against the local Directors as “operating a nonbanking financial institution without a licence”. In the meantime, the fraudsters had left the country with
their money intact. It is not surprising that the ire of the investors, who had been left holding the empty can,turned on the Bank officials.
Clearly, the Bank was caught napping. Officials who were naïve enough to sit and watch what was
happening even though the news about these “wonder banks” was common knowledge realised too late thatthey had been negligent. Should the Bank not have offered better protection to the general public than this?
Did this event not bring the entire financial system of Ghana into disrepute? Will an institution that sits andwaits for a formal complaint against a company that operates as a financial institution before moving its
regulators in, be capable of protecting the public against investment frauds? Yet, if the Bank of Ghana cannot
do this, then who can?

D. The Police
The Police are a much-maligned institution, but it is currently the most effective barrier against all typesof crime. It has traditionally operated in an area where ordinary police skills of detection can be usefully
employed. However, in the world of high finance, there are no bloodstained clothes or weapons, neither are
there fingerprints or other telltale signs of interference. A sound understanding of financial operations aswell as accounting and other forms of expertise are the requisite tools for investigation. The regular Ghana
Police are indeed not familiar with the world of the sophisticated modern criminal or even equipped with thenecessary skills needed to investigate the sophisticated economic crime.
E. The Courts
It is the courts that are going to have to come down hard on securities fraud and other economic crime.
Obviously diligent prosecution and aggressive sentencing is a necessary deterrent to manipulation, as it iswith other forms of economic crime. However, the efficacy of the traditional approaches to the processing of
criminals has been called into question. The major issue then is whether our courts are equipped to deal
effectively with the phenomenon of economic crime.
VII. PUNISHMENT/SANCTION
Fines and or imprisonment have been the traditional sanction systems employed by the criminal law in
Ghana. However, in economic crimes they do not seem to serve the situation appropriately. Where a person
fraudulently misappropriates another’s money imprisonment and heavy fines are usually the options that are
imposed. However, none of these compensate the victim for the loss he has suffered. The fine when paid ispaid into the consolidated fund. Therefore the victim has to live with the loss. Even though the courts may

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impose heavy fines there are many occasions the court cannot exact a penalty as heavy as the loss, which
has been caused. For example a person whose acts defraud another to the tune of one billion cedis could
never be fined that amount. It is also noteworthy that the criminal law is strictly governed by statutes. And
for many of these offences their current designation as felonies makes the perpetrators liable toimprisonment but not a fine.
Even though, imprisonment may be ordinarily a severe sanction and discourage potential criminals it
appears inadequate for the purposes of the criminal law as well as the needs of the victim. This is because
financial benefit illegally acquired by the criminal if properly invested could be doubled or trebled after theperiod of imprisonment. Having already been punished for the crime the criminal could return from prisonand live in affluence on the illegally acquired wealth while the victim languishes in poverty. It is in the lightof these concerns that other mechanisms have to be made, and be made available to the courts, to ensurethat penalties imposed offer relief for the victim.

VIII. COUNTERMEASURES
Given the wealth and resources at the disposal of the economic criminal, the existing tools are inadequate
to counter the menace posed by him or her. The need has therefore been felt to improve the quality of crime
investigators, train adjudicators as well as improve the processes available for dealing with criminals. Indeed
there is the need for more specialization in terms of the personnel who will investigate economic crime andalso the structures of the court system.
Severe prison sentences remain significant even though not completely effective. Compensatory andconfiscatory orders as well as other mechanism of restorative justice obviously seem better prospects forcompensating the victim and creating a disincentive for the potential criminal. Although confiscations earned
a bad name in the 1980s in Ghana when it became associated with the strong arm tactics of the revolution, it
is now becoming an attractive weapon in generally fighting crime and drug related economic crime inparticular. Again our criminal justice system has had to realise that even though it was not meant to be a
debt collecting system the nature of modern economic crime is such that the system ought to be able toassist with the recovery of some of the money appropriated or misappropriated. Presently consideration is
on restorative justice which means various means by which harm that has been done may be repaired or thevictim adequately compensated. This consideration has become necessary because it is unrealistic to expectthat after losing a lot of money to the perpetrator the victim would find more money to bring a civil claim
against the perpetrator. Even in situations where this has been possible - delays in court processes result ina double victimization of the victim. Would it therefore not be more responsive to the needs of the time if anorder of compensation could be made upon a conviction. In Ghana compensatory orders have become
fashionable for physical injuries in assault cases. The courts have usually made compensatory orders when
imposing fines on others. This makes it unnecessary for the victim to incur the extra expense of bringing acivil action for damages.
The making of compensatory orders has been extended by statute to enable the high court or regional
tribunal to make such or other orders of reparation in situations where economic loss, harm or damage may
have been caused to the state or any of its agencies.
In the era of the international drug trade the need to marshal resources to fight it has opened up otherpossibilities in the arsenal of the criminal justice systems. The realization that it is the extraordinary wealthwhich is available to the drug dealers which acts as the attraction for new recruits has led to a change oftactics. Instead of merely imprisoning such persons for long periods leaving the illegally acquired properties
intact for enjoyment later there is now a worldwide trend to deprive them of their gains by confiscatingthese properties and other resources proven to have been acquired from illegal trade. In Ghana the property
of a person who has been convicted of a narcotic offence may be confiscated under section 13 of the Narcotic
Drug (Control) Enforcement and Sanctions Law 1990.

IX. PREVENTIVE MEASURESThe establishment of a commission on corruption with regulatory and investigative functions, as well as
receiving information and complaints relating to economic crime and creating the necessary awareness in
the Ghanaian society, is considered a pragmatic approach towards reducing the scourge. The media must151

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also be encouraged to give publicity and coverage to economic crime cases as a way of sensitising the publicagainst the various forms of economic crime. The various bodies, such as the securities regulatorycommission and the other regulatory arms of the Bank of Ghana, should be adequately resourced to maintaintheir levels of vigilance.

X. CONCLUSION
It must be stated that since criminality is a part of human existence, any development, whether
technological or otherwise, has implications for the criminal law and criminal justice system. As the capacity
for law enforcers has been increased by the use of technology so has it helped the criminal to improve
his/her capacity for crime as well as creating new opportunities for criminal conduct. Indeed it would appear
that it is largely technological developments that have succeeded in widening the gap between law breaking,lawbreakers and law enforcers. Consequently if economic crime and law enforcers are in an unequal struggle
then it is because the opportunities for the criminal have really improved, whilst the certainty of being madeto pay adequately for the crime has rather decreased. Therefore there is the urgent need to sharpen thetools that are currently available in order to hold its own or be ahead of the economic criminal. A good firststep towards confronting economic crime is to identify and deal with the difficulties inherent in the system.
There is the need to develop appropriate mechanisms and strengthen the requisite institutions. New
institutions with wide powers of investigation need to be established to combat some forms of criminality.
The capacity of existing institutions should be improved to enable them to adopt creative methods inhandling the issues and also to be able to adapt to the current circumstances of economic crime. The
personnel of these institutions need to be equipped both materially and intellectually to cope with the agile
mind of the economic criminal.
Operatives with accounting skills have become important in detection and investigation of economic
crime while lawyers and judges need to understand issues pertaining to the world of high finance. Clearly
there are implications for the training of law enforcers and other personnel in the criminal justice system in
the intricacies of modern technology, and in specialised areas such as management, accounting and stock
brokerage.
The criminal justice system is indeed in the battle, which is weighted against it on several fronts.
However improving its tools both in terms of capacity and logistics is the surest means by which the
purposes of the criminal law can still be upheld. The globalisation of crime has come to stay and live with us,
and it is up to the criminal law and the criminal justice system to brace up for the revitalised battle against
economic crime.

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