The High Court in Accra yesterday dismissed a request by the Special Prosecutor, Mr. Kissi Agyebeng to grant him the mandate to freeze the assets of the late Kwadwo Owusu Afriyie also known as Sir John, a former CEO of the Forestry Commission.
It had emerged in May this year that the will of Sir John supposedly contained some parcels of land at the Achimota Forest Reserve and the Sakumono Ramsar site.
The will was also reported to have contained four parcels of land in the Achimota Forest, which the late Forestry Commission CEO gifted to some individuals.
Consequently, in early June, the OSP froze all the assets of Sir John as part of investigations into the acquisition of state lands and properties that were contained in the will.
Section 38 of the Office of the Special Prosecutor Act, Act 959, empowers the Special Prosecutor to direct the freezing of assets if he holds the view that it is necessary for investigations.
However, he is required to apply to a court within fourteen days for a confirmation of the freezing order.
This was what led the SP filing the current processes.
But the High Court presided over by Justice Afia Serwaa Asare Botwe dismissed the request and indicated that the Special Prosecutor should have initiated the process under Section 54 of the Act.
Section 54 of the OSP Act is titled “Procedure against property where a person dies or absconds”.
It enables The Special Prosecutor to apply to the Court for a confiscation order in respect of tainted property if the person from whom the property was seized is on trial for corruption or a corruption-related offence or is convicted of corruption or a corruption-related offence but dies or absconds.
In dismissing the request, the Court pointed out that this procedure should have been used by the Office of the Special Prosecutor.
Disagreement
Meanwhile, the Special Prosecutor has disagreed with ruling and has served notice of challenging it, which he said was, “misapprehended the application”, at the Court of Appeal.
Mr. Agyebeng in a statement issued after his request was thrown out, contended that the procedure under Section 38 of the Act, which he used, was the appropriate one.
Read SP’s full statement below:
ESTATE OF KWADWO OWUSU-AFRIYIE ALIAS SIR JOHN
On 30 May 2022 the Special Prosecutor directed the freezing of the Estate of Kwadwo Owusu Afriyie alias Sir John (deceased), the former Chief Executive of the Forestry Commission.
On 9 June 2022 the Special Prosecutor applied to the High Court for a confirmation of the freezing order.
On 12 July 2022 the High Court, presided over by Her Ladyship Justice Afia Serwaa Asare Botwe, inexplicably dismissed the application.
The judge, with respect, totally misapprehended the application for confirmation of the freezing order and misdirected herself by characterizing the application as that of a confiscation order, which regimes are governed by different considerations. The regime for an application for confirmation of a freezing order is designed to facilitate an investigation or a prosecution to avoid dissipation of the property in question. While a confiscation order is designed to permanently deprive the owner of the property. The Special Prosecutor asked for the freezing order to be confirmed to facilitate the investigation into the circumstances of the purported acquisition by the deceased of protected lands in the Achimota Forest enclave and the Sakumono Ramsar site. The Special Prosecutor did not apply for confiscation of the estate of the deceased.
On this reckoning, the Special Prosecutor has directed the filing of an appeal against the ruling of Her Ladyship Justice Afia Serwaa Asare Botwe. The net effect of the ruling of the High Court is that a person may, in his lifetime, gleefully acquire property through corruption and then upon his demise happily pass on the corruptly acquired property to his beneficiaries for their benefit and by so doing, extinguish all scrutiny as to the propriety or otherwise of the acquisition of the property because his corrupt activities were not discovered during his lifetime. If this decision is left to stand, the Republic will lose the fight against corruption in unimaginable ways. The investigations into the estate of Kwadwo Owusu Afriyie alias Sir John will still proceed.
