Dr. Dominic Akuritinga Ayine, the Attorney General and Minister for Justice, has given a thorough explanation of why criminal charges against former Finance Minister Dr. Kwabena Duffour and other directors of the now-defunct Unibank Ghana Limited could not be upheld, claiming that no evidence of theft or personal enrichment was found during investigations.
According to Dr. Ayine, the Duffour family’s notoriety has influenced public discourse surrounding the Unibank collapse more so than the real legal and evidentiary standards necessary to support criminal prosecution.
He claims that after reviewing the cases resulting from Ghana’s financial sector cleanup, it became evident that Unibank’s circumstances differed significantly from those of other banks, where criminal prosecutions were appropriately pursued.
The Attorney General used the prosecution of Capital Bank, where investigators found what he called “unmistakable evidence of criminal conduct,” to highlight the difference between the Unibank case.
In an interview with broadcaster Bola Ray on Starr Chat earlier this week, the Attorney General stated, “In the Capital Bank trial, there was evidence that whenever liquidity support was given by the Bank of Ghana, the former managing director dishonestly appropriated those funds.”
He clarified that prosecutors were able to track down the physical diversion of some of the central bank’s liquidity support for personal purposes.
He states that the prosecution provided proof that a portion of the liquidity support was physically moved in a car to a private garage at the managing director’s home, complete with geographic tracking of the monies’ transit.
He emphasised, “That is pure stealing.”
According to Dr. Ayine, the Capital Bank case could be prosecuted and distinguished from other cases resulting from the banking sector reforms because of the clear proof of dishonest appropriation.
The Attorney General turned to Unibank and warned against linking bank failure to criminal culpability, especially in cases when liquidity support was provided via regular banking channels.
“If liquidity support is applied in accordance with normal banking rules and the bank still collapses, you cannot criminalise the conduct of the owners or directors simply because the risk did not pay off,” he stated.
He pointed out that risk-taking is fundamental to banking and that, albeit being undesirable, loan defaults and company bankruptcies are not crimes in and of themselves.
“You cannot turn around and say that because a bank received liquidity support and later failed, its directors must be prosecuted for causing financial loss to the state. It doesn’t happen anywhere.”
According to Dr. Ayine, in the absence of dishonesty, fraud, or theft, bad business decisions cannot be punished by criminal law.
In response to frequent public allegations that the owners of Unibank embezzled depositor monies, the Attorney General was adamant that no such proof was discovered by investigators.
He declared, “There was no evidence that the Duffours stole money.”
Additionally, he rejected claims of fraudulent breach of trust, stating that a bank’s relationship with its clients is contractual rather than fiduciary under Ghanaian law.
“That is a fundamental principle of law. You cannot say there is a fraudulent breach of trust simply because depositors placed money in a bank and the bank extended loans that later failed,” he explained.
Dr. Ayine responded to complaints that Unibank had given loans to associated or related businesses connected to its shareholders by stating that although these transactions might be problematic from a governance or regulatory perspective, they do not always constitute criminal activity.
Criminal culpability, in his opinion, would only occur in cases where there is evidence of dishonesty, financial diversion, or personal enrichment.
According to the Attorney General, the state’s decision to drop criminal charges against Dr. Duffour and other Unibank directors was ultimately influenced by these legal facts.
However, he emphasised that the directors were still accountable even if the charges were dropped. Asset recovery is still a viable remedy, and civil lawsuits started by the bank’s receiver are still pending.
“I said they could either offer assets to cover part of the liability or go and stand trial. But I knew that eventually they would be acquitted because the evidence simply was not there,” he reiterated.
Despite criticism from the public, Dr. Ayine reiterated that the Unibank case was never about theft or personal enrichment.
The explanation offers a new viewpoint on the highly controversial cleanup of the financial sector, which resulted in the licenses of numerous banks and financial institutions being revoked and continues to spark discussion about justice, accountability, and the boundaries of criminal law’s ability to control financial failure.
Source: newsthemegh.com