THE LAW AND CONFLICT OF INTEREST: A MAJOR STAKEHOLDER IN OUR POLITICS (FIRST EDITION)

SAINT-AYISI SAMUEL

It is the failure to adhere to the prohibitions governing conflict situations that may amount to an infringement of the rules. A Conflict of interest situation arises when an office holder places himself in a position that results in a rivalry between his personal and official interests.

The rule derives its roots from the common law rule of natural justice, which postulates that no one should be a judge in his own cause. (Nemo judex in causa sua). The rules on conflict of interest have been given elaborate expression in all legislation, statutes, rules and regulations bordering on corporate governance.

The constitution of the republic of Ghana, The companies code, the Civil Service Act, and all other Acts of Parliament setting up Governmental agencies have provided room for the rules on conflict of interest. Conflict of interest is not an eccentricity or an aberration as known. It is the failure to adhere to the prohibitions governing conflict situations that may amount to an infringement of the rules.

The 1992 Constitution of Ghana makes provisions for Conflict of Interest in Chapter 24. The provisions are encapsulated in the “CODE OF CONDUCT FOR PUBLIC OFFICERS”.

Article 284 of the constitution states that “A public officer shall not put himself in a position where his personal interest conflicts or is likely to conflict with the performance of the functions of his office”.

Article 285 also state that “No person shall be appointed or act as the Chairman of the governing body of a public corporation or authority while he holds a position in the service of that corporation or authority.”

Fast forward, Article 286 Clause (1) states that “A person who holds a public office mentioned in clause (5) of this article shall submit to the Auditor-General a written declaration of all property or assets owned by, or liabilities owed by, him whether directly or indirectly.

Sub-section (a) states “within three months after the coming into force of this Constitution or before taking office, as the case may be, (b) at the end of every four years; and (c) at the end of his term of office”. This clearly provides the rationale behind the declaration of assets of Public Office Holders.

Under Ghana corporate law, an officer of a company or a corporate body may not be faulted for being interested or having an interest in a given case within the set-up of the corporate body.

However, in a consideration of a given case in which the official has an interest, the official is in duty bound to declare his interest. Such a declaration may lead to the officer being requested to excuse himself from all deliberations relating to the subject matter.

In some cases, where the company thinks that the presence of the officer will not affect the decision making process, he may be allowed to participate in the deliberations. Conflict situations may be mitigated by avoidance, third party evaluations and the adherence to a certified code of ethics. One main consideration in all cases of conflict of interest is the principle of “DISCLOSURE”.

There must be a full disclosure of interest by officers in all transactions in which they are interested. It is therefore an erroneous and fallacious conclusion to surmise that there is an automatic case of a conflict of interest anytime an issue about a company and its interested officers arise. If the rules on conflict of interest were that wide and restrictiveness in their application almost all public officers in Ghana will be caught in the web.

In the famous Sallah case, the Court of Appeal considered a preliminary objection which sought to disqualify a member of the panel of judges who presided over the case on the grounds that he played the game of tennis with the Plaintiff who was his friend and distant relative. The Court ruled that in Ghana where everybody is related to everybody else it would be inappropriate to disqualify a judge from sitting on a case merely because he is a distant relative of a party.

Many judges in Ghana will be ineligible to preside over several cases on that premise. There are examples of companies in Ghana where some directors are legal advisors or financial or management or tax consultants of the said companies.

A case of conflict of interest may be presumed in such cases but the defect is usually cured by the disclosure of interest by such directors. The only prohibition against dual office holding is the one who is both a director and an auditor of the same company. If you stretch the meaning of conflict of interest to the limit of perception only, lot of injustice, unreasonableness and absurd consequences will be reached by disqualifying several well-meaning persons who would otherwise be eligible to hold public offices in Ghana.

Conflict of Interest cannot be associated with an individual without unadulterated impeccable seven (7) pointers by Justice Atuguba of the Supreme Court in a judicial precedent.

In Okudzeto Ablakwa & Another v Attorney-General & Obetsebi-Lamptey (No 2) [2012] 2 SCGLR 845, the Supreme Court set down a seven-fold test for establishing conflict of interest against a public officer:

1. Under what law is the complaint brought?

2. What is the capacity of the decision-maker?

3. Did the decision-maker profit by the decision or action?

4. What is the capacity of the beneficiary/recipient of the decision/action? Example, Was there an unjustifiable preference over other applicants who were equally or better qualified but were bi-passed because of some oblique motives, obscene considerations, special favours or due to family, social or political connections (to provide the basis for establishing favouritism, nepotism, cronyism, etc.)?

5. What were the grounds or the basis for making the decision for that particular recipient?

6. Were the known or established procedures or processes for taking the action or making the decision duly complied with?

7. Did the decision or action conform to the audi alteram partem (hear all sides) rule or any other law relevant to that particular decision or action. With the amalgamation of these pointers and Chapter 24 of the 1992 Constitution, it would be plausible to look through the legal lens to determine what constitute Conflict of Interest.

Before we point out and make allegations of conflict of interest, it should be grounded on these principles. Anything in contravention to these would be declared null and void.