I have long been concerned about the legal framework governing the confirmation of freezing orders obtained by the Economic and Organised Crime Office (EOCO). I suspect I am not alone.
I shared that concern with a learned colleague on August 3, when news broke that NPP’s Dennis Miracles Aboagye’s assets had been frozen by EOCO.
In fact, I believe Parliament itself recognised the shortcomings of the EOCO regime when it enacted the Office of the Special Prosecutor Act, 2017 (Act 959), which adopts a markedly different approach. I’ll explain why.
Both the Economic and Organised Crime Office Act, 2010 (Act 804) and the Office of the Special Prosecutor Act, 2017 (Act 959) empower investigators to freeze property suspected to be tainted by criminal conduct.
Under section 33 of Act 804 and section 38 of Act 959, the Executive Director of EOCO and the Special Prosecutor respectively may direct the freezing of property and are required to apply to the High Court for confirmation of that freezing order within fourteen (14) days. You may call this an interim order.
The divergence lies in how that confirmation is obtained.
Section 34(1) of the EOCO Act provides: “An application for confirmation of a freezing order may be made without notice to the respondent and shall be accompanied by an affidavit.”
By contrast, section 39 of the OSP Act provides: “An application for confirmation of a freezing order shall be made on notice to the respondent and shall be accompanied by an affidavit sworn to by the Special Prosecutor…”
The distinction is far from cosmetic. A freezing order can immediately deprive a person of access to bank accounts, prevent dealings with property, disrupt businesses, and significantly affect one’s reputation and livelihood.
The OSP Act recognises this reality by requiring that the affected person be notified before the Court decides whether the freezing order should continue. This procedure preserves the Court’s ability to safeguard potentially tainted assets while simultaneously respecting the constitutional principles of natural justice and the right to be heard.
The EOCO Act, however, permits the Court to confirm the continued freezing of property without first hearing from the affected person. In practical terms, a person may leave home in the morning only to discover that access to bank accounts has been frozen or dealings with property have been restrained without ever being afforded an opportunity to address the Court prior to the order being confirmed.
An important caveat is that the Supreme Court has upheld the constitutionality of the EOCO regime. In Republic v. High Court, Financial and Economic Crime Division (Court 2), Accra; Ex parte Ibrahim, the Court held that the ex parte confirmation procedure under the EOCO Act does not violate the right to a fair hearing because an affected person may subsequently apply to set aside the freezing order and be heard.
Respectfully, however, there remains room for debate as to whether a hearing after the confirmation of the order is an adequate substitute for the opportunity to be heard before the Court decides whether the order should be confirmed.
To be clear, I fully appreciate the need for strong measures to combat economic and organised crime. Investigative agencies must have effective tools to preserve assets that may ultimately be liable to confiscation. However, once the matter comes before a court for confirmation, the argument for excluding the affected person becomes considerably weaker.
It is perhaps no coincidence that, seven years after enacting the EOCO Act, Parliament chose a different model in the OSP Act by making confirmation proceedings one that must be conducted on notice. That legislative shift is, in my view, worthy of serious reflection.
The fight against corruption and economic crime must be uncompromising. Equally, our commitment to due process and procedural fairness must remain unwavering.
It may well be time for Parliament to revisit section 34 of the EOCO Act and consider aligning it with the more balanced approach adopted under the OSP Act.
By Denic Wedam Pwaberi
