GHC90m deal with Capital Bank is best for Ghana – says IMANI’s Kofi Bentil

Lawyer Kofi Bentil, Senior Vice-President of highly-reputable think-tank, IMANI Africa, has said the agreement between the Attorney General’s Department of Ghana and the founder of the now-defunct Capital Bank, William Ato Essien,  for the latter  to refund  an amount of GHS90 million to the state in place of custodial sentence makes perfect economic sense and is a brilliant agreement that is backed by and can be defended by the laws of Ghana.

Lawyer Bentil said contrary to a suggestion that the agreement for the accused person to refund the said amount would make crime attractive, this provision would rather make crime very unattractive as it would send signals that stolen monies would be recovered failure for which the suspect would weep in jail.

He said this agreement is better that the conventional scenario where persons on trial to have stolen millions of money are thrown into custody only for them to come out and enjoy whatever amounts they are found to have stolen.

Lawyer Bentil spoke on Joy FM’s Newsfile on Saturday:

“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 explained that while custodial sentences only create a delay in convicted individuals enjoying their stolen wealth, Section 35 forces them to cough up.

“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 … people have come to realise that, indeed, without [Section] 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 [Section] 35, you know that if you steal you can be asked to cough up the money. And in this particular case [the Capital Bank case], if you go through the numbers, what is being coughed up is quite substantial given what is being admitted,” he said.

Further Argument

Lawyer Bentil argued further that what the accused person is admitting is just about GHC27 million which he had agreed to  refund but the Attorney General’s Department rejected the offer.

He said the accused then proposed to offer about GHC50 million although it is GHC27 million he admitted to have been wrongly taken but again that amount was rejected by the state.

In his view, if the accused admitted to GHC27 million but the Attorney General’s Department has pushed him to agree to pay as high as GHC90 million, such an arrangement cannot be said to be a good reason for people to want to commit crime.

Lawyer Bentil noted further: “I just want to say for whatever it’s worth to the public that this is one of the cases where I think our state officials are doing a good job.

“Over ten witnesses were called, the details we are going through; you can’t just get up and then throw somebody in jail because you believe he has done this or that,” he noted.

“Sometimes you have to trust the people who you have elected to do the job. In this matter really, I will say that trust what the AG’s department is doing,” he told  the host Samson Lardi Anyenini on Newsfile and added: “I doubt if those criticizing the AG would have done better if they were in the same position in this matter.”

Back Ground

On Thursday, December 1, the Commercial Division of the Accra High Court rejected the agreement reached between state prosecutors and William Ato Essien.

Mr. Essien, per the proposed settlement, had agreed to pay GH₵90 million in total: GH₵30 million last Thursday and GH₵60 million in an agreed installment settlement with the state.

Meanwhile in the course of the trial at previous hearings, defence lawyers are on record to have requested permission from the court to engage the state on the basis of Section 35 of the Courts Act 1993.

During the trial, Justice Kyei Baffour did not raise any issues with the request by the defence team.