Issues Surrounding the Arrest and Detention of Asabee by the BNI

Introduction

1. 
   
   Just like everyone else, I woke up to the news that the former Minister for Information, Mr. Asamoah Boateng (Asabee), had attended the offices of the Bureau of National Investigations (BNI) after he had been prevented from travelling outside the country on a second occasion. I interpreted Asabee's action as cooperation with the BNI to resolve whatever issue was outstanding. Later on in the day, I found out Asabee had been arrested and detained. Asabee was the former honourable Member of Parliament for Mfantseman West and given my ties to that area, I am much obliged to put pen to paper in attempt to educate the ordinary Ghanaian on the issues surrounding his arrest and detention.
   
   
   
   
2. Before jumping into any discussion of the issues, I refer readers to Article (Art.) 35(1) of the 1992 Constitution (the Constitution) where it is stated that "Ghana shall be a democratic state dedicated to the realization of freedom and justice; and accordingly, sovereignty resides in the people of Ghana from whom Government derives all its powers and authority through this Constitution". And most importantly, Art. 35(4) which provides that, "the State shall cultivate among all Ghanaians respect for fundamental human rights and freedoms and the dignity of the human person".
   

Facts

1. The facts leading to Asabee's arrest and detention can be read on the myjoyonline website. (See http://news.myjoyonline.com/news/200908/33960.asp). According to his lawyer, Peter Okudzeto, Asabee was forcibly hounded into the BNI cell on Thursday, 13^th August 2009 at 18:30 GMT without any formal charge. Asabee voluntarily handed himself to the investigative body on Thursday morning following media reports that he was a fugitive of justice. He is under investigation for alleged malfeasance in the award of a contract to his sister-in-law for the refurbishment of the Ministry of Information last year.
   
   
2. Mr. Okudzeto narrated that they had waited for hours to see the director of BNI, only to be told later afternoon that they, the lawyers, could leave because their client was going to be detained. They resisted, arguing it was against the Constitution and a breach of fundamental human rights to interrogate their client without his counsel. He said they demanded to know what charges had been preferred against their client, something the BNI officials were not ready to provide. According to him, a scuffle ensued between officials of the BNI and Asabee which led to the shoving of Zuleika Asamoah Boateng, wife of Asabee to the ground. Zuleika had insisted to be locked up together with her husband. The counsel said they will meet to consider the next line of action.
   

Arguments

1. One issue which should be discussed or at the very least, be addressed before discussing Asabee's arrest and detention is whether the BNI has been acting appropriately in carrying out its duties. This issue has popped up many times since former members of government begun receiving invitations to the BNI.
   

The BNI is not the appropriate government agency to deal with Asabee awarding the contract to his sister-in-law

1. The BNI is the internal intelligence agency of Ghana. Among the duties of the BNI are dealing with organized crime and providing intelligence to counter threats to security. The BNI is legally a creature of The Security and Intelligence Agencies Act (Act 526) 1996. Amongst other security agencies, the Security an Intelligence Agencies Act 1996 also recognized the existence of Ghana's Bureau of National Investigations and the research department (of the Ministry of Foreign Affairs) as 'the Internal and External Intelligence Agencies of the State, referred to in this Act as "the Intelligence Agencies"'. (See Kwame Boafo Arthur, Ghana: one decade of the liberal State, page 193) The wide range of responsibilities assigned to the intelligence agencies under the Act covered the following functions:
   
   
   
   1. Collect, analyze, retain and disseminate as appropriate information and intelligence respecting activities that may constitute threats to the security of the State and government of Ghana;
      
      
   2. Safeguard the economic well-being of the State against threats posed by the acts of omissions of persons or organizations both inside and outside the country;
      
      
   3. Protect the country against threats of espionage, sabotage, terrorism, hijacking, piracy, drug trafficking and similar offences;
      
      
   4. Protect the State against activities of persons, both nationals and non-nationals, intended to overthrow the government of Ghana or undermine the constitutional order through illegal political, military, industrial or other means or through any other unconstitutional method; and
      
      
   5. Perform such other functions as may be directed by the President or the Council. (Republic of Ghana 1996).
      
   
   
   
2. The reforms and adoption of a new security structure were seen as a fundamental priority in order to address and ensure the end of military coups. (See Higazi 2004, quoted in Security Sector Reform in Ghana, page 4). The intelligence agencies were intended to be political neutral. In light of the functions of the BNI set out above, I do not believe the BNI is the most appropriate government agency to determine whether Asabee was wrong in awarding the contract to his sister-in-law. The BNI's primary concern should be related and limited to intelligence concerning the national security of Ghana from within and without the Ghana. Awarding a contract to refurbish the Ministry of Information does not fall within this concern and as such the BNI cannot be the most appropriate body to deal with Asabee awarding the contract to refurbish the Ministry of Information to his sister-in-law.
   
   
3. The Commission on Human Rights and Administrative Justice (CHRAJ) and the Serious Fraud Office (SFO) constitute the two main anti-corruption bodies actively existing in contemporary Ghana. The CHRAJ has pretty much the same role as all other commissions of inquiry that have existed in the past, its role is to investigate deeply into all types of allegations of corruption and report their findings to the Attorney General who then takes a decision as what procedures should be undertaken under legal requirements. Nevertheless, it has a role that was not given to any other precedent commissions, that is a mission to educate the public on their human rights and freedom. Its jurisdiction is limited because it cannot investigate certain matters which are, overall, to prevent it to 'engage in unnecessary litigation and confrontation with the government of the day.'
   
   
4. The other anti-corruption body that is active in contemporary Ghana is the SFO. The SFO was created by an Act of Parliament, the Serious Fraud Office Act 1993 (Act 466) as part of the Public Services of Ghana. It was established as a specialized agency to monitor, investigate and, on authority of the Attorney-General, prosecute any offence involving serious financial or economic loss to the State. The executive director of the SFO can decide from his own accord, and more importantly without any legal institutional control, to accuse that person of 'serious and complex fraud' and consequently deprive that person of freedom of movement and of access to his or her property.
   
   
5. Thus, these two bodies are appropriately set up to deal with Asabee awarding the contract to his sister-in-law. Given the limited financial autonomy of the CHRAJ and the extensive prosecution powers of the executive director of the SFO, the SFO would have been the most appropriate agency amongst all three agencies to handle Asabee's issue. It has been argued that the discretion the executive of the SFO has creates a presumption of institutional corruption. Nonetheless, the executive director's powers under the Serious Fraud Office Act 1993 (Act 466) would have been legitimately exhausted if the SFO had decided to prosecute Asabee under the Act.
   
   
6. Accordingly, it is my opinion that the BNI were not the most appropriate agency to investigate and/or prosecute any contract award by a former minister particularly in Asabee's case. This is because awarding a contract to his sister-in-law to refurbish the Ministry of Information, assuming the facts were proved against him, may potentially amount to an offence involving serious financial or economic loss to the State and as such the SFO was responsible for investigating and prosecuting Asabee. It must be proved that the financial or economic loss to the State was serious. What amounts to serious will be determined by the courts. However, case law gives a fair idea and in my opinion, it is less likely that awarding a contract to a sister-in-law will amount to serious financial or economic loss to the State.
   

The arrest and detention of Asabee were a breach of Asabee's fundamental human rights and freedoms under the Constitution

1. The fundamental human rights and freedoms of the Ghanaian citizen are entrenched in Chapter 5 of the Constitution. Art. 12(1) of the Constitution provides that "The fundamental human rights and freedoms enshrined in this chapter shall be respected and upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies and, where applicable to them, by all natural and legal persons in Ghana, and shall be enforceable by the Courts as provided for in this Constitution." Every person in Ghana is entitled to fundamental human rights and freedoms in Chapter 5 of the Constitution. (See Art. 12(2)).
   
   
2. According to Art. 14(1)(g), "every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law – upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana." Subject to argument one and assuming the BNI had the authority to investigate and prosecute Asabee, then upon reasonable suspicion that Asabee had committed a criminal offence or about to commit a criminal offence under the laws of Ghana, the BNI could deprive Asabee of his personal liberty in accordance with the procedure permitted by law.
   
   
3. Art. 14(2) further states that "a person who is arrested, restricted or detained shall be informed immediately, in a language that he understands, of the reasons for his arrest, restriction or detention and of his right to a lawyer of his choice." According to the facts as reported by the media (myjoyonline), the BNI failed to provide the reasons for Asabee's arrest, restriction or detention when asked by Peter Okudzeto, Asabee's lawyer. This is a breach of Art. 14(2). The clear and utter disregard for this fundamental human right and freedom – even after protests from Asabee's lawyer – raises serious issues of the rule of law and constitutionality in Ghana's growing democracy.
   
   
4. Under Art. 14(3)(b), "a person who is arrested, restricted or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana, and who is not released, shall be brought before a court within forty-eight hours after the arrest, restriction or detention." Thus, Asabee must be brought before a court within forty-eight hours of his arrest and detention. Forty-eight hours after his arrest and his detention will be Saturday, 15^th August 2009. If Asabee is not brought before the court on Friday, 14^th August 2009, he will have to wait until Monday, 17^th August 2009, to appear before court since the courts are not in session during the weekends.
   
   
5. Alternatively, he should be released without prejudice to any further proceedings that may be brought against him. (See Art. 14(4)). His release should either be unconditionally or upon reasonable conditions, including in particular, conditions reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial. (See Art. 14(4)).
   

Conclusion

1. The BNI was not the most appropriate body to handle issues concerning contracts being awarded to former minister's sister-in-law by the former minister as the BNI's primary concern should be related and where possible, limited to intelligence concerning national security. I further submit that the SFO is and should be the most appropriate agency to handle Asabee's issue as the issue falls within the SFO's authority and the SFO has extensive powers in dealing with the issue competently. In addition, the BNI breached Asabee's fundamental human rights and freedoms when the BNI failed to inform or provide reasons as to why Asabee had been arrested and detained. I reiterate the fact that this raises serious concerns regarding the turn rule of law and constitutionality is taking or has taken in Ghana. This is definitely not the State cultivating respect for the fundamental human rights and freedoms.
   
   
2. President Mills in his many speeches and interviews has not hesitated to inform Ghanaians and the world of his desire to ensure the rule of law is strongly upheld in Ghana. I suggest he lets his administration's actions do the talking instead of him repeating the theme in the preceding statement in his speeches and interviews.
   
   
3. Also, I should mention that I am not saying Asabee is innocent; nor am I saying he is guilty. Awarding a contract to a sister-in-law raises a conflict of interest issue. Therefore, Asabee was required and should have ensured that the conflict of interest issue did not impair, in anyway, his discretion in awarding the contract to his sister-in-law. Failure to ensure his discretion was not impaired by the conflict of interest issue is a breach of a fiduciary duty given the position he held and if he did cause financial loss to the State he should be rightly held accountable.
   

Written and Edited by

Kow A. Essuman Esq. LL.M. (Cornell);

Barrister-at-Law of Lincoln's Inn.

All comments, corrections and contributions should be sent to kaessuman@yahoo.com.

This opinion is based on the thoughts and observations of Kow A. Essuman Esq. Any attempt to reproduce all or any part of this article without the express permission of the above named person shall be an infringement of intellectual property laws; following which the author reserves the right to commence an action/suit against any such person (s) or body for breach of copyright and/or any other action/suit the author sees fit.