Senior Vice President of IMANI Africa, Kofi Bentil, has argued that Section 35 of the Courts Act is serving as a deterrent to financial crimes.

A Justice of the Court of Appeal sitting as an additional High Court judge, Justice Kyei Baffour on Thursday, December 1, 2022, rejected an agreement between the founder of the defunct Capital Bank, William Ato Essien, and state prosecutors.

According to the judge, the agreement which was to see Ato Essien pay some GH¢90 million to the state as restitution under Section 35 had the potential to make crime attractive.

But reacting to Justice Kyei Baffour’s statement on Joynewsfile, Kofi Bentil argued that Section 35 is rather making crimes unattractive in the country.

“There is good reason in philosophy, in what is proper and practical for us to have a section 35, because there are people who actually steal state money and want to go to jail for five, even ten years come back and enjoy it,” he said.

He noted that while a custodial sentence may prevent a convicted person from enjoying their stolen wealth, Section 35 leads to the recovery of such funds.

“Yes I disagree with him because Section 35 is a very good provision for those of us who are in policy, who look at what goes on in this country, and the millions that we lose and the money we don’t recover. You see, over the decades, over the years people have come to realize that indeed without 35 it is lucrative rather to steal."

“So indeed the argument is counterproductive against what was said that because of 35 people are going to steal, it is without 35 that people steal. And we’ve seen some, I’ve seen some, I don’t want to go into the details.
“The point here is that with 35 you know that if you steal you can be asked to cough up the money and in this particular case if you go through the numbers what is being coughed up is quite substantial given what is being admitted,” Kofi Bentil explained.

Judgement in the trial of Ato Essien and two others who have been charged for allegedly stealing despositors' funds was scheduled to be delivered by the Accra High Court on Thursday, December 1, 2022.

Before the judge could proceed, lawyers for the accused and the prosecution informed the court that they had reached a GH¢90 million repayment agreement plan as restitution to the state.

The agreement, according to the accused, was pursuant to Section 35 of the Courts Act, 1993 (Act 459), which allows an accused person to plead guilty and pay restitution to the state in cases in which there has been a financial loss to the state.

However, the judge, in ruling on the said agreement, flatly rejected the plan, which would have seen Mr. Essien pay the said amount in various installments within the year.

Notwithstanding that the accused person has already made a payment of GH¢30 out of the total amount due to the state, the judge refused the agreement, according to a report by Starrfm.com.gh sighted by GhanaWeb.

According to the report, the court, in its own description, said the agreement, as it were, has the potential to make crime ''attractive'' considering the value of the amount in question in 2015 and today.

The presiding judge, Justice Eric Kyei Baffour further observed that Section 35 cannot actually be activated within the context as the monies involved do not belong to the state but rather to depositors and shareholders of the defunct Capital Bank.

Justice Kyei Baffour thus adjourned the case to December 13, 2022, asking that the prosecution and the accused come back with a better deal and a superior argument for their agreement to be admitted under Section 35 of Act 459.

Background

Ato Essien is facing trial with the Managing Director (MD) of the defunct bank, Fitzgerald Odonkor, and the MD of MC Management Services, a company said to be owned by Essien, Tettey Nettey.

The prosecution has accused the three persons of engaging in various illegal acts that led to the dissipation of a chunk of the GH¢620 million in liquidity support given to the Capital Bank by the BoG between June 2015 and November 2016.

The accused persons have pleaded not guilty to various counts of theft, abetment to stealing, conspiracy to steal, and money laundering.

They maintained their innocence all throughout the trial, with Ato Essien maintaining at all material moments that he had board approval for all the actions he took.

SGA/ESA