ORAL TEAM: LEGAL POWERS AND LEGAL LIMITATIONS

Operation Recover All Loot (ORAL) has become a household name or in modern terms, it has been trending, since H.E. John Dramani Mahama was announced as the winner of the 2024 Presidential Elections. This is because, one of the most popular campaign promises he relied on in the election was to recover all resources which he said had been looted by the former administration led by H.E. Nana Addo Dankwa Akufo Addo.

Even before he would be inaugurated as president, Mr. Mahama announced a five member committee which he called the ORAL Preparatory Team. The two Press Statements which were singed by the Hon. Felix Ofosu Kwakye, the acting spokesperson to the president, indicated that the team will be gathering all information and evidence of corruption and looting by persons who have been corrupt or otherwise looted state resources.

This has sparked several discussions. Whilst the president has earned praises from some Ghanains for walking the talk, others have questioned the legal basis of such a committee. In fact, the minority caucus in parliament has called on Ghanaians to boycott the ORAL team and decline any invitation from them.

In the next few paragraphs, I shall attempt to examine the legal issues surrounding this ORAL Preparatory Team and challenges, if any, that the team is likely to face in its work. 

CAN A PRESIDENT ELECT MAKE APPOINTMENTS?

At the time H.E. John Mahama announced the ORAL preparatory team, he was not yet the president of Ghana. He was the President elect. The answer to the question of whether a president elect can make appointments is YES. However, the Presidential Transition Act (2012) Act 845 mentions the specific appointments which a president elect can make and in this case, those specific appointments do not include ORAL preparatory team. Therefore, even though a president-elect has the power to make appointments, President Mahama did not have power under the Presidential Transition Act or any other law to appoint the ORAL Preparatory Team at the time the announcement was made.

IS THERE ANY LAW WHICH MANDATES THE CREATION OF THE ORAL PREPARATORY TEAM?

To this question also, the answer is a big NO. There is no law in our constitution, or passed by parliament or a subsidiary legislation which gives anyone or the president, the power to create  and appoint the ORAL preparatory team. However, nothing prevents the president, now inaugurated with full powers, from creating an office in the office of the president and giving them the powers to receive complaints on his behalf. So far, that has not been done and therefore the term ORAL can be said to be alien to the laws of Ghana in its current form as at today 19th January 2025.

IS THERE ANY LAW AGAINST THE WORK ORAL IS DOING?

The statement announcing and appointing the ORAL team said they are a preparatory team. It further said they are supposed to gather information on all looting done by persons within the previous administration. These are things that can be done by any ordinary citizen. For example, If Mensah has information that Adwoa has stolen John Dumelo’s V8 car given to him by parliament, Mensah can gather evidence on that stealing and submit it to John Dumelo, Submit it to the Police, Submit it to the Attorney General, or even Submit it to the Office of the Special Prosecutor. The fact that Mensah is not an officer of the state, will not make his gathering of the information and subsequent submission to the appropriate authorities an illegality.  Article 41 (f) of the constitution, 1992 says as follows “the exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations, and accordingly, it shall be the duty of every citizen to protect and preserve public property and expose and combat misuse and waste of public funds and property”.

To this end, I submit that the work that the ORAL preparatory team is doing, is not in violation of any law in Ghana. It can rather be said that the 5 members on the committee are performing their duties as citizens under Article 41 of the 1992 constitution of Ghana.  They are just there to gather information. As to what the President will do with that information, time will tell.

CAN ORAL INVITE/ COMPEL PEOPLE TO BRING EVIDENCE

The work the ORAL preparatory team is doing will require the voluntary participation of Ghanaians. The ORAL Team has no power to compel anyone to answer questions or produce evidence before them. They have no such powers and so if they invite anyone, the person can freely say to them that he/she will not honour that invitation. If however the person feels that going will help him or her to clear their name of any wrongdoing, and the person goes to ORAL to clarify information, that will also not be against any law since the person went there voluntarily.

CITIZEN ARREST

Some people, especially NDC Oriented communicators have been observed saying that we have a law on citizen arrest in Ghana and so ORAL can conduct CItizen arrest of persons it suspects of having looted state resources. The legal answer is that, it will be practically impossible for the ORAL team to effect any arrest without the help of a police officer. The Law provides only 5 situations where a private citizen can conduct an arrest and the ORAL team does not find itself in any of the 5 conditions to be able to arrest anyone.  Section 12 of the Criminal Procedure Act of 1960 (ACT 30)  says as follows: 

1. A private person may arrest without warrant any person who in his presence commits— 

1. any offence involving the use of force or violence;

2. any offence whereby bodily harm is caused to any person;

3. any offence in the nature of stealing or fraud;

4. any offence involving injury to public property; or

5. any offence involving injury to property owned by, or in the lawful care or custody of, that private person.

2. A private person may arrest without warrant any person whom he reasonably suspects of having committed any offence mentioned in subsection (1) provided that an offence of that nature have been committed.

The wording of Section 12 of Act 30, even though permitting citizens arrest, also places a lot of restrictions on citizens arrest. In summary, a citizen can only arrest another person, if any of the 5 crimes mentioned above were committed in his/her presence or if It actually took place whether he was there or not. This exposes pirate citizens to a suit in unlawful arrest where they make an arrest on suspicion and it turns out that the crime did not actually happen. 

In the light of all of these, The ORAL team cannot conduct any citizen arrest. 

CAN THE ORAL TEAM PROSECUTE OFFENDERS

Here the answer is NO. Oral team has no prosecutorial powers as of now. All the information they are gathering will have to be given to any of the following institutions to assist them in investigations and prosecutions if they so decide.

1. Police

2. EOCO

3. Attorney General

4. Office of Special Prosecutor ETC.

This however does not prevent the president from introducing a bill in parliament to give ORAL legal backing and prosecutorial powers.

CAN ORAL CONFISCATE  OR PRESERVE ASSETS

No. ORAL can only gather information on assets it considers as looted assets. But it cannot on its own confiscate any of such assets since it has not been given any such powers by any law in force. Neither can the ORAL team decide to preserve any asset which they believe is being dissipated. They have no such power..

CAN THE EVIDENCE GATHERED BY ORAL BE DEEMED AS TAINTED EVIDENCE?

The rules on evidence in Ghana is that, every relevant evidence is admissible in court. The rules do not however permit illegally obtained evidence to be used in court unless it is for the purpose of prosecuting a crime or for National Security sake.

Illegally obtained evidence includes confessions which were forced from the person either by threats or by harm. The position of law is that confessions must be given freely out of the volition of the person who is confessing. No one can compel anyone to give evidence against himself.

Secret recordings can also be declared to be tainted evidence and inadmissible unless it is for criminal prosecution or national security purposes.

To this end, the information being gathered by the ORAL team cannot be declared as tainted evidence simply because no law established the ORAL team. In fact, the oral team members can individually become complainants to make formal complaints to the Police for the police to investigate and ascertain the claims before deciding to either pursue or set the suspects free.

At the same time, the attorney general may choose to use information received from ORAL as an information received from citizens and use the same information to sue persons suspected of looting state resources in order to retrieve those resources.

CONCLUSION

ORAL Appears to be a project that this government wants to embark upon to recover what it considered as looted assets of the Nation. Much as it is not specifically backed by any law currently, the gathering of information also does not offend any laws of Ghana. Let me know what you think in the comment section as we all engage for the good of mother Ghana.

Written by

Richard Amarh ESQ

Private Legal Practitioner

Ghana

DISCLAIMER: Do not consider articles on this website to be absolute pieces of legal advices. They are only meant to raise public awareness of law but may not necessarily be an advice for your situation. Get in touch with a qualified lawyer whenever you need an advice. You may check the General Legal Council website for a list of Lawyers and Chambers near you. https://www.glc.gov.gh/ or the Ghana Bar Association website www.ghanabar.org.