- Establish The Debt Before the Crime, ACEP Chief Tells EOCO Over PDS Investigation
Benjamin Boakye, Executive Director of the Africa Centre for Energy Policy, has challenged the basis of the criminal investigation into Power Distribution Services Ghana Ltd, arguing that the state must first establish whether the company owes the Electricity Company of Ghana before deploying EOCO’s coercive powers.
Mr Boakye said the central issue was not whether suspected criminal conduct should be investigated, but whether the alleged financial liability had been properly reconciled before accounts were frozen and individuals subjected to bail, travel and reporting restrictions.
“The state cannot use the coercive machinery of criminal investigation to determine a civil debt,” he said in a post on X.
“The rule of law requires that we establish the debt before we establish the crime.”
His intervention adds to growing scrutiny of the Economic and Organised Crime Office’s handling of the PDS investigation, following concerns raised by OccupyGhana, lawyers connected to the company and other civil society actors.
EOCO’s investigation reportedly concerns the alleged transfer of GH¢850mn from a CalBank account which the state maintains belonged to ECG.
About 66 accounts associated with PDS and individuals linked to it have reportedly been frozen since April. Two company officials were initially granted bail of GH¢50mn each before the conditions were increased to GH¢100mn within a week.
No charges have been filed against the officials, according to information contained in a statement issued by OccupyGhana.
Mr Boakye said that if the state’s position was that money belonging to ECG had gone missing, it should produce a reconciliation showing the financial relationship between the two companies during PDS’s brief management of the electricity-distribution concession.
“On whose behalf is EOCO acting, and whose money is allegedly missing?” he asked.
“If the allegation is that money belonging to ECG or the state is missing, then where is the reconciliation establishing what was due to ECG, what PDS collected, what PDS paid, what remained outstanding and why?”
The question goes to the heart of the distinction between a commercial dispute and a criminal offence.
A disputed balance between ECG and PDS would not, by itself, necessarily amount to stealing or fraud. Establishing criminal conduct would require evidence showing not merely that money remained unpaid, but that it was dishonestly appropriated or transferred through conduct satisfying the elements of an offence.
Without an agreed reconciliation, however, the state risks using investigative powers to settle a question that may first require accounting, contractual interpretation and civil adjudication.
Mr Boakye said ECG should undertake the reconciliation envisaged under the Interim Protocol governing the relationship between the parties.
If that process identifies a disputed balance, the matter should initially proceed through the appropriate civil mechanism, he argued.
“If that process subsequently uncovers evidence of criminal conduct, EOCO can then do what the law empowers it to do,” he said.
Mr Boakye also cautioned against treating previous arbitration proceedings as having conclusively determined the financial position between ECG and PDS.
He said the arbitral tribunal did not answer the reconciliation questions because it lacked jurisdiction over the Interim Protocol.
This is significant because the collapse of the PDS concession and the subsequent arbitration have often been treated as though they resolved every legal and financial dispute between the parties.
But a tribunal’s findings are necessarily limited by the claims submitted to it and the jurisdiction granted under the relevant agreements.
If the Interim Protocol fell outside that jurisdiction, then the arbitration could not substitute for a full reconciliation of revenues collected, payments made, liabilities incurred and balances retained during the concession period.
That does not prevent EOCO from investigating credible evidence of criminal conduct. But it raises the evidential question of how the agency determined that GH¢850mn was stolen before the underlying accounts had been reconciled.
Mr Boakye described the broader conduct of economic-crime investigations as a source of growing public concern.
He said he was troubled by what he called “institutionalised lawlessness masquerading as the exercise of lawful authority”, where broad discretionary powers were applied in a “heavy-handed and abusive manner”.
“In some cases, bail conditions seem less about securing cooperation with an investigation and more about imposing continuing restrictions on individuals, almost as though guilt has already been established and the benefit of the doubt no longer applies,” he said.
His comments echo OccupyGhana’s warning that an investigation must not become a punishment before a court has determined guilt.
In the PDS case, company officials and lawyers associated with them have reportedly been required to report to EOCO three times each week since May. Two lawyers who accompanied their clients to the BNI were themselves detained and granted bail of GH¢50mn each, according to OccupyGhana.
The lawyers allege that their personal and law-firm accounts were subsequently frozen and that partners in their firm were placed on a no-fly watchlist.
The state is entitled to preserve suspected proceeds of crime and prevent the dissipation of assets. It is also entitled to impose lawful conditions reasonably required to secure co-operation with an investigation.
The constitutional difficulty emerges when restrictions become indefinite, disproportionate or detached from a clearly established offence.
“When accounts are frozen, private property is targeted and people are subjected to punitive reporting conditions before the underlying liability has even been reconciled, the process itself becomes punishment,” Mr Boakye said.
“Ghana should be very concerned about that precedent.”
EOCO’s challenge is now twofold.
First, it must demonstrate that its investigation rests on evidence capable of transforming an unsettled financial balance into reasonable suspicion of a criminal offence.
Second, it must show that the restrictions imposed on the affected persons are proportionate to the investigation and grounded in law.
The distinction is essential for Ghana’s business climate. Commercial contracts involving the state frequently generate disagreements over payment, performance, termination and liability.
If every unresolved balance can trigger account freezes, extensive bail requirements and travel restrictions before reconciliation, businesses may come to view contractual engagement with the state as carrying an additional criminal-law risk.
Conversely, describing every suspected diversion of public money as a commercial disagreement could provide cover for wrongdoing.
The appropriate sequence must therefore be evidence-led: reconcile the accounts, establish the nature of any outstanding liability and investigate criminal conduct where the facts justify it.
Mr Boakye’s intervention does not settle whether money was improperly taken from ECG. It asks a more foundational question: has the state first demonstrated what was owed, what was paid and what is genuinely missing?
Until that is answered, the boundary between investigation and punishment will remain at the centre of the PDS controversy.
