- When Investigation Starts to Look Like Punishment: The Harder Questions in Ghana’s PDS Probe
To continue from where we left off in our first article which was titled “PDS Probe: Where Is the Crime If Ghana Has Not First Established the Debt?”, there is an uncomfortable paradox in every serious anti-corruption campaign.
The state needs powerful institutions capable of tracing money, freezing assets, compelling cooperation and preventing suspects from moving funds beyond the reach of justice, yet those same powers can inflict enormous punishment before anybody has been convicted of anything.
Ghana’s renewed PDS investigation is increasingly becoming a test not only of whether public money can be recovered but of how much coercive power should be deployed while investigators are still deciding what crime, if any, occurred.
EOCO’s statutory purpose necessarily gives it formidable tools. In April, it went to the High Court seeking confirmation of administrative freezing directives covering PDS accounts and accounts associated with two individuals, arguing that preservation was necessary to prevent further dissipation while its investigation continued.
Its affidavit said the agency was investigating the allegedly fraudulent payment guarantees and financial losses to the state and intended to prosecute if serious offences were ultimately established.
There is nothing inherently improper about freezing assets during a credible financial-crime investigation. Money can disappear faster than litigation can proceed, complex corporate structures can obscure beneficial ownership, and waiting for a criminal conviction before preserving suspected proceeds could make recovery impossible.
The question in PDS is therefore not whether EOCO should possess freezing powers; it is whether the scope, duration and evidential basis of those powers remain proportionate to what the agency can presently establish.
That distinction matters because an account freeze is not economically neutral. It can prevent a company from meeting payroll, servicing debt, paying lawyers, honouring commercial obligations or sustaining ordinary operations, while the freezing of personal accounts can affect individuals who have not been charged, tried or convicted.
An investigative tool can therefore acquire punitive consequences long before it is legally described as punishment.
PDS has challenged that exercise of power through judicial review. Its lawyers say the freezing extended beyond company accounts to personal accounts and businesses associated with officials, including accounts where they say no transfer from PDS has been identified, and they have asked that accounts lacking a reasonable connection to the investigation be released.
Those are allegations by PDS rather than judicial findings, but they directly raise the proportionality question the courts will have to confront.
The controversy became more serious when lawyers themselves entered the investigative net. Justice Kusi-Minkah Premo and Sophia Kokor of Minkah-Premo, Osei-Bonsu, Bruce-Cathline & Partners say they attended to represent Philip Ayesu and Viraj Bhat, only to be treated as persons of interest, questioned, arrested and detained.
Their firm says the allegations mentioned to them included dishonestly receiving and abetment of money laundering, and that each was subsequently granted bail of GH¢50m.
The mere fact that somebody is a lawyer cannot create immunity from criminal investigation. Lawyers can commit offences like anybody else, client accounts can be abused, professional structures can facilitate unlawful transactions and legal privilege does not transform criminal conduct into protected professional work.
If investigators possess evidence that a lawyer knowingly received criminal property or actively assisted money laundering, professional status cannot place that evidence beyond scrutiny.
But the reverse principle is equally important. Representing a client, receiving legitimate professional fees or moving funds pursuant to a lawful legal mandate cannot become criminal merely because the underlying client is under investigation.
The state must therefore be able to identify the act that moves the lawyer from counsel to suspect, particularly where legal representation itself may require access to precisely the transactions investigators are scrutinising.
That is why the absence of public clarity around charges matters. The Attorney-General’s spokesperson said in May that investigators were still at a preliminary stage and that no formal charges had been filed, explaining that the four individuals had been questioned and granted bail pending further work.
Recent reporting continues to describe the process as an investigation without a final judicial determination of criminal liability.
This does not mean investigators must publish their evidence prematurely. Financial investigations can be damaged by disclosure, witnesses can be compromised and suspects could adapt their conduct if authorities reveal everything they know.
But the longer severe restrictions continue without charges, the stronger the case becomes for transparent judicial supervision of whether those restrictions remain necessary and proportionate.
EOCO’s answer deserves to be stated fairly. Raymond Archer has rejected suggestions that the institution is behaving improperly, insisting that the PDS investigation is “professional and methodical” and guided by evidence and due process.
That assertion should neither be dismissed because critics distrust the agency nor accepted merely because the agency makes it; the proper test lies in what the evidence and courts eventually show.
The difficulty is that coercive power creates its own facts on the ground. A person whose accounts are frozen, whose liberty has been restricted, whose professional reputation has been damaged and who must repeatedly report to investigators experiences consequences even if the state ultimately files no charge.
A company whose operations are paralysed can suffer irreversible commercial damage even if a court later concludes that no criminal offence occurred.
This is why due process is not an inconvenience created by lawyers to frustrate anti-corruption agencies. It is the mechanism through which the state distinguishes a constitutional investigation from punishment by administrative discretion.
A government serious about recovering public money should be especially interested in that distinction, because cases obtained through lawful, reviewable and proportionate processes are more durable than those that depend on spectacle or public presumption.
The PDS case creates a further complication because the underlying commercial picture is unresolved.
The tribunal found the demand guarantees void and validated ECG’s termination, but it also found no actionable misrepresentation by PDS and declined jurisdiction over the financial counterclaims arising from the Interim Protocol.
That leaves investigators trying to determine criminal responsibility in a financial relationship where one of the key accounting questions was never adjudicated by the arbitrators.
This is precisely where investigators must be careful about language. Money in a PDS-controlled account does not become “ECG money” merely because ECG says it should have been remitted, just as PDS cannot establish ownership merely because the account bears its name.
Ownership and entitlement must be proved by the contractual arrangements, reconciliation records, payment instructions, bank documentation and evidence of the actual purpose for which each sum was held.
The transaction schedule reviewed by NorvanReports makes that evidentiary burden obvious. It records approximately GH¢1.562bn in cedi transactions across the period displayed, including very substantial entries described as ECG transfers, retained-account receipts, bulk generation costs, transmission-service obligations and lease-related payments.
Before any person is accused of dishonestly receiving or laundering an alleged ECG balance, investigators need to show where that balance emerges after those movements are reconciled.
This does not require EOCO to conduct a civil trial before opening a criminal investigation. Investigators are entirely entitled to follow suspicious transactions and can proceed in parallel with contractual or accounting processes where independent evidence of criminality exists.
The important test is whether the suspected offence can be articulated without assuming the answer to the unresolved contractual question.
The treatment of lawyers makes that requirement even more pressing. If an amount received by counsel was a professional fee authorised by a client from money lawfully available to that client, the size of the fee may be controversial without being criminal; if investigators can show the lawyer knew the money represented unlawfully diverted ECG funds, the analysis changes completely.
That knowledge element cannot simply be inferred from association with PDS or participation in the arbitration.
This is not an argument for investigative timidity. If public money was stolen, those responsible should face prosecution regardless of wealth, political affiliation, professional status or corporate influence, and the state should use lawful asset-preservation powers to stop recoverable funds from disappearing.
But the strength of an anti-corruption system is measured not only by its capacity to act against the guilty; it is also measured by its restraint toward people whose guilt has not been established.
The PDS affair therefore presents Ghana with a choice about institutional culture. It can allow arrest, bail conditions and freezing orders to become the most visible evidence that something is being done, or it can insist that the centre of the case remain the evidence itself: the reconciliation, the transaction trail, the legal entitlement to the funds and the specific conduct attributable to each individual. The latter may be slower and less theatrical, but it is also harder to dismiss as political or arbitrary.
That matters because financial-crime institutions depend heavily on credibility. A freezing order is powerful because banks obey it; an invitation is powerful because citizens believe non-compliance has consequences; an arrest is powerful because the state controls liberty.
Every time those powers are deployed, the institution is spending a portion of the public trust that makes them effective.
There may yet be compelling evidence that justifies the actions EOCO and other agencies have taken. The public has not seen the entire investigative file, and fairness requires leaving open the possibility that investigators know more than the documents currently available show.
But the burden created by state power is precisely why “we may know something you do not” cannot indefinitely substitute for demonstrable legal process.
The larger question is therefore not whether Ghana should investigate PDS. It should investigate any credible allegation that hundreds of millions of cedis belonging to a public utility were unlawfully diverted, and it should prosecute wherever the evidence supports prosecution.
The question is whether the methods used before that evidence reaches court preserve the basic distinction between being investigated for a crime and being punished as though the crime has already been proved.
When that distinction disappears, the cost is bigger than one company or four individuals. Businesses begin to price institutional unpredictability into transactions with government, lawyers become more cautious about controversial clients, citizens become more willing to see every prosecution through a partisan lens and investigators themselves lose the benefit of the doubt.
Ghana cannot build durable accountability by weakening the procedural legitimacy on which accountability ultimately depends.
To Be Continued…
