He was of the view that the collapsed banks during the banking sector clean-up exercise should have been allowed to remain in business while the directors were punished for their actions that made the banks defunct.
According to Professor Gatsi, the central bank’s mandate to protect the banks required it to ensure the banks did not collapse.
“That is separate from the collapse of the bank because the regulator is under a special duty to make sure that the bank lives while those who offend the bank by acting criminally towards the banks are punished.
“So, I think that this justice that we are talking about should be directed towards the bank but the bank is no more to experience the justice that has been given to the officer in question.”Professor John Gatsi
He emphasized that the banks were separate entities from the directors who led the banks into trouble. Professor Gatsi however agrees that the process of the prosecution could be held up as justice served.
“So long as they went through the process of prosecution one would not say justice has not been served.
“But in the scheme of things regarding the bank, the officers of the bank hold fiduciary duties to the bank. They must act in utmost good faith towards the bank. The bank is a separate legal entity and that is distinct from the officers, so when the officers offend the bank we expect the regulator to come to get the people who offended the bank punished.”Professor John Gatsi
Attorney-General “Predates” On “Predators” Of Section 35
At the outcome of the first predator amongst the Chief Executives of defunct banks of SECTION 35, the Deputy Attorney-General, Mr. Alfred Tuah Yeboah, has fairly urged the other Chief executives and/ or founders of defunct banks to explore SECTION 35.
These Chief Executives include Unibank’s Dr. Kwabena Duffuor, UT Bank’s Prince Kofi Amoabeng (Middle) UT Bank and Beige Bank’s Michael Henaku.
He however emphasized that the state is focused on the prosecution of the directors.
“As we speak we have other cases in court, Beige Bank is in court, and we are hearing the matter. UT is also in court, we have other banks, like Duffuor’s bank (Unibank) all in court, and we are doing them one after the other. If the money that we have lost they are ready to refund the money, we will look at section 35 and go by that and we can have the same agreement.
“Our preoccupation is to ensure that justice is done. This can be done; either we get the money or if we don’t get we go to the law court and get the judgment, and if they are convicted so be it. So if any of the others facing trial think that they want to use Section 35, nobody stops them because it is not limited to Ato Essien. It is open to all other people but we are still prosecuting our cases in court.”Alfred Tuah Yeboah
On their banks going defunct, Chief Executives officers, have to resort to Section 35 of ACT 459 to “seemingly” buy time, hoping they would pay off their debt to the state or spend significant years in jail.
Having attempted to take advantage of the “mercies of the law” in Section 35, Chief Executive Officer of the defunct Capital Bank, William Ato Essien, preyed on until his accounts fell short of a whooping GHS 53 million.
Having been unable to follow timelines to clear the outstanding debt of GHS 53 million out of a total debt of GHS 90 million to the state, he has been jailed to a total imprisonment term of 95 years for multiple counts of stealing and money laundering. These sentences are to run concurrently. Thus, Mr. William Ato Essien will be spending 15 years in jail.
Section 35 of ACT Courts Act, 1993 (Act 459) deals with an offer of compensation or restitution, to negotiate for payment. It allows for plea bargaining in cases relating to the commission of an offense that has caused economic loss, harm, or damage to a state agency. Upon agreement with the Attorney-general, the Attorney-General will announce it to the Judge in court.
If the judge finds the deal satisfactory, it holds.
However, if the deal is defaulted thereafter, according the SECTION 35 (7) “the Court shall proceed to pass a custodial sentence on the accused. [As substituted by the Courts (Amendment) Act, 2002 (Act 620)”.
Despite the seeming failure of ACT 35 for the defunct Chief Executives and/or Founders, the Presidential Pardon may be the only light, twinkling at the end of tunnels of their prison cells.
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