The Special Prosecutor Kissi Agyebeng has provided explanations on what goes into undercover journalism and sting operations.
A sting operation is defined as an opportunity or enticement to commit a crime, either created or exploited by police; a targeted likely offender or group of offenders for a particular crime type; an undercover or hidden police officer or surrogate, or some form of deception.
In its report on the former Minister of State at the Finance Ministery Charles Adu Boahen who was captured in a documentary dubbed ‘Galamsey Economy’ compiled by Tiger Eye PI, owned by investigative journalist Anas Aremeyaw Anas, the Office of the Special Prosecutor (OSP) noted after its investigation of corruption and corruption-related offenses that the allegations against Mr. Adu Boahen were situated in the context of an undercover investigative journalistic type of sting operations.
Typically, the OSP further explained, a sting operation takes the form of the creation of a platform or opportunity for persons believed or suspected to be disposed to or involved in the commission of a crime to actually commit the crime, thus providing hard evidence for their successful prosecution and punishment.
“In the context of undercover investigative journalism, sting operations are usually characterised by the feigning of interest in a matter by undercover agents and the provision by them of opportunities for the commission of prohibited acts by the person of interest through winning the confidence of the person of interest for the person of interest to reveal his or her criminal activities or for the person of interest to commit a crime. The undercover agents usually secretly audio-visually records the acts of the person of interest as evidence of their criminal culpability.
“Sting operations are controversial and divisive of opinion. This largely stems from the fact that the undercover agent never has a real intention of committing a crime and yet sets up the props and the platform for the commission of a crime by the person under investigation. In particular, the undercover investigative journalistic type evokes intense reaction from its critics,” he stated.
He added “The triggers of the consternation of the opponents of this type of evidence collection are summed up under three heads. First, the opposers of undercover investigative journalistic sting operations argue that unless sanctioned by the state, a private person has no business provoking and encouraging the commission of a crime by a person and proceeding to audio-visually record the person in the act of the commission of the crime without that person’s consent. In the estimation of the opposers, the audio-visual recording of a person without his consent violates that person’s right to privacy.
“The opponents of undercover investigative journalistic sting operations also argue that it amounts to entrapment. On this score, the opposers posit that the person caught on camera committing criminal acts had no intention of committing a crime from the onset but went along with the seed sown by the undercover agent and the suggestion and encouragement of the undercover agent. And that but for the poisonous seed sown by the undercover agent and his active suggestion and encouragement, the person caught in the act and on tape would not have committed the crime.
“Further, some opponents of undercover investigative journalistic sting operations label it as investigative terrorism. In their estimation, this type of evidence collection amounts to harassment of the person caught in the act on camera.
“Herein lies the problem. Or, is it? For the answer, we invite a reflection on the actions of three persons of interest in the following illustration. Let us name our first person of interest Kofi Mensah. Let us say that Kofi Mensah has no criminal record. Let us assume that Kofi Mensah is not criminally minded and he has no intention of committing a crime. Let us place Kofi Mensah at a quiet and deserted underground parking lot of an apartment building in Accra. Now, Kofi Mensah is happily whistling to himself as he leisurely strolls through the parking lot to his car. He notices a vehicle with its doors ajar. He draws closer and sees no one in the vehicle. He bends to inspect the interior of the vehicle and he sees an iPhone lying on the driver seat. Upon further inspection, he concludes that the owner of the vehicle must have purposely left the doors ajar to airdry the interior and in the process forgot to take the iPhone and left it unattended. Kofi Mensah has several courses of action.
“He could simply decide to mind his own business and walk away while pondering over the carelessness of the owner of the iPhone. Afterall, the law does not require him to be a Good Samaritan. He could also, community-minded, assure by whatever means that the owner would not lose the iPhone to a criminally minded person who chances by. There is yet a third choice. Kofi Mensah could pocket the iPhone and walk off without the intention of returning it or having it returned to the owner. If Kofi Mensah takes the third course of action, he commits the crime of stealing – since by so doing he has dishonestly appropriated the iPhone without the consent of the owner. Let us leave Kofi Mensah in his thoughts for a moment and introduce our second person of interest. Let us name our second person of interest Kwaku Kumi. Let us say that Kwaku Kumi has no criminal record. Let us say that Kwaku Kumi is not criminally minded and he has no intention of committing a crime.
“Let us say that Kwaku Kumi is an undercover investigative journalist. Let us say that unbeknownst to Kofi Mensah, Kwaku Kumi is the owner of the iPhone and the exposed vehicle. Let us say that Kwaku Kumi is carrying out an undercover investigative journalistic sting operation upon a tip off that burglars regularly break into vehicles at that parking lot. To verify the claims or otherwise, he intentionally arranged the scene of the unattended iPhone and exposed vehicle and hid nearby to observe the actions of passersby vis-à-vis his prop. Kwaku Kumi approaches the scene and he immediately senses Kofi Mensah’s moral conflict and dilemma. Kwaku Kumi suggests to a startled Kofi Mensah that they should sell the iPhone and split the proceeds. Kofi Mensah initially recoils from Kwaku Kumi’s suggestion. However, upon further prompting he agrees with Kwaku Kumi and he walks out of the parking lot with the iPhone upon proposing that Kwaku Kumi should meet up with him at an agreed rendezvous for the sharing of the proceeds.
“Let us say that Kwaku Kumi audiovisually recorded the entire encounter from the moment Kofi Mensah walked up to the opened-up vehicle till when he walked out of the parking lot with the iPhone. Let us say that upon a tipoff by Kwaku Kumi, Kofi Mensah is apprehended by the police as he attempts to sell the iPhone. Let us say that the relatives of Kofi Mensah are incensed that but for Kwaku Kumi’s suggestion and further prompting, Kofi Mensah would never have stolen the iPhone. And they further claim that Kwaku Kumi entrapped Kofi Mensah and actively harrased him to commit the crime and that Kwaku Kumi is not an investigative journalist after all but an investigative terrorist. They are particularly incensed that Kwaku Kumi audio-visually recorded the entire crime.
“Let us now introduce our third person of interest, Kwame Samson. Let us say that Kwame Samson has no criminal record. Let us assume that Kwame Samson is not criminally minded and he has no intention of committing a crime. Let us place Kwame Samson at the same parking lot and by the same exposed vehicle and iPhone. Upon seeing the iPhone on the driver seat, Kwame Samson quickly grabs the iPhone and runs out of the parking lot before Kwaku Kumi, who was hiding nearby, could approach him. Let us say that Kwame Samson is apprehended by the police as he attempts to sell the iPhone. Let us say that the relatives of Kwame Samson are utterly shocked by his actions. They had always known him as a quiet and gentle young man.
“If we are to collectively engage in objective detached reflection devoid of personal biases and interests, it would seem obvious to every reasonable person that Kofi Mensah is no special and certainly no different from Kwame Samson. They are both thieves – they stole the iPhone. They did not commit a crime of necessity driven by a justifiable or excusable desire to overcome a greater harm. The factors that motivated them to steal the iPhone may be different. However, they are both criminals of opportunity. True it is that they set off initially without previous deliberation or prior or advanced plans to steal the iPhone. Yet, upon being presented with the opportunity to steal the iPhone, they calculated that the benefit to them of stealing the iPhone would outweigh the risk of being harmed or apprehended in the process. Thus, they took advantage of the situation and stole the iPhone. They had several options. They did not have to steal, as no one compelled them to steal. They acted on their own free will. It makes no difference that in the case of Kofi Mensah he acted after the suggestion and further prompting by Kwaku Kumi. In the end, he willingly stole the iPhone. He was not under any form of force or duress exerted by Kwaku Kumi. The suggestion and further prompting to steal was not coercion. It was merely a test of moral resolve. It does seem to lie very ill in the mouths of the relatives of Kofi Mensah to assert that he would not have stolen the iPhone but for the suggestion and further prompting by Kwaku Kumi. Afterall, no one knows what is on a person’s mind. The devil himself does not know what it is on man’s mind – it is said.
“Then again, it does seem to lie very foul in the mouths of the relatives of Kofi Mensah to claim that he was entrapped by Kwaku Kumi to steal the iPhone. Entrapment entails tricking an unwary person to commit a crime. The person so tricked is, by his lack of caution or prudence, unaware that he is engaged in a criminal enterprise, and he is led in that unwitting state to commit a crime. It does seem clear that Kwaku Kumi did not trick Kofi Mensah to steal the iPhone. He presented Kofi Mensah with the opportunity and suggested the benefit of the crime to him and offered him a cut of the proceeds. Kofi Mensah was not unaware that he was engaged in a criminal venture. Indeed, he knew at all times from the moment Kwaku Kumi approached him that he was being invited to a criminal adventure. In this illustration, Kofi Mensah’s actions show that he would seize the opportunity to commit a crime if presented with one – especially where, as in this case, the benefits far outweigh the risks. And it beggars belief that the opponents of undercover investigative journalistic sting operations blame not the perpetrator of the crime but rather placate them as victims of undercover agents. And upon that perplexing altar of appeasing the evildoer, they proceed to chastise undercover agents as though they were the scourge of the earth.
“Persons like Kofi Mensah are not victims of circumstances caught in a web they are unable to extricate themselves from. They are not luckless victims who unknowingly walk into a criminal den. If they are victims, then they are victims of their own begetting and their inability to willingly walk away from crime. The responsibility for the crimes they commit should be laid fully on them and not on any suggester or encourager or provider of opportunity. On another score, it does seem to do much violence to language for the relatives of Kofi Mensah to claim that Kwaku Kumi terrorised and harassed him to steal the iPhone. Kwaku Kumi did not coerce or by any means compel Kofi Mensah to steal the iPhone. It was not akin to the gunman situation writ large – steal the iPhone or I shoot you. Kwaku Kumi’s suggestion merely emboldened Kofi Mensah and steeled his resolve. If we will not commend persons like Kwaku Kumi, certainly we should not condemn them. They are underserving of our reproach.
“The persons deserving of condemnation and the stamp of opprobrium are persons like Kofi Mensah. On every level, it does seem clear that the only reason why the relatives of Kofi Mensah would complained is that the morally conflicted Kofi Mensah got caught stealing an iPhone – and on camera too. The issue of invasion of privacy may forever feature in the discourse – since the perpetrator of the crime is audio-visually recorded without his consent in sting operations. However, the Supreme Court has decided that better it is to trump a person’s right to privacy to unearth or expose the commission of a crime, especially where it is near impossible to detect the crime except by covert audiovisual recording. In any case, it seems abundantly clear that the insistence of the opponents of undercover investigative journalistic sting operations that the right to privacy of a criminal is invaded in a sting operation is akin to requiring undercover agents to disclose to persons being investigated that they are being investigated and to enquire from them whether they would consent to be audio-visually recorded in the process of the commission of the crime. Only an overenthusiastic legal system would insist on such bizarre requirements. In any case, which criminal worth his odious calling would agree or consent to be audio-visually recorded by undercover agents in the act of the criminal’s commission of a crime.
“We have deliberately taken pages to illustrate, in some detail, the arguments of the opponents of sting operations and the tenability or otherwise of such arguments. At the OSP, we do not find the arguments against undercover investigative journalistic sting operations attractive. In our gathered experience in investigating, prosecuting, and preventing corruption and corruption-related crime, it seems to us that the views of the opposers of undercover investigative journalistic sting operations go around in circles without any real utility except to provide inexcusable grounds for the benefit of persons who have a propensity to commit crimes when offered the opportunity. And the summation of the arguments of the opponents of sting operations is merely that the criminal got caught on camera in the act of committing a crime.
“The OSP welcomes and encourages sting operations, including the undercover investigative journalistic type. This is so especially because corruption and corruption-related activities are extremely difficult to detect and prove. The traditional methods of pen and paper investigations are attended by debilitating limitations in the fight against corruption and in gaining access to the operations of suspected corrupt persons as criminals become more sophisticated and develop obscure and intricate designs to avoid detection. Indeed, regulation 1(1)(d) of the Office of the Special Prosecutor (Operations) Regulations, 2018 (L.I. 2374) mandates the OSP to act on investigative journalism reports and sources. The OSP reckons undercover investigative journalistic sting operations output as investigative journalism reports and sources. Globally, the trend is significantly shifting toward the acceptance of unconventional techniques of detecting and fighting crime, including the embracement of sting operations. In the context of combatting corruption, Article 50 of the United Nations Convention Against Corruption encourages state parties to permit surveillance and undercover operations, and to allow for the admissibility in court of evidence derived therefrom within the limits of their domestic laws. To that admonishing must we pay fidelity?”
On the specific allegation against Mr Charles Adu Boahen, the OSP said he did not engage in corruption.
The special prosecutor indicated that though the conduct of Mr. Adu Boahen amounted to trading in influence or influence peddling, which is closely associated with corruption, there was no actual criminal prohibition of his acts.
It is recalled that President Nana Addo Dankwa Akufo-Addo sacked Mr Adu Boahen for being captured in a documentary dubbed ‘Galamsey Economy’, a documentary compiled by investigative journalist Anas Aremeyaw Anas.
“The President of the Republic, Nana Addo Dankwa Akufo-Addo, has terminated the appointment of the Minister of State at the Ministry of Finance, Mr. Charles Adu Boahen, with immediate effect.
“After being made aware of the allegations levelled against the Minister in the exposé, ‘Galamsey Economy’, the President spoke to Mr. Adu Boahen, after which he took the decision to terminate his appointment, and also to refer the matter to the Special Prosecutor for further investigations.
“The President thanked Mr. Adu Boahen for his strong services to his government since his appointment in 2017, and wished him well in his future endeavours,” a statement issued by the Director of Communications at the Presidency, Mr Eugene Arhin said on Monday, November 14, 2022.
The OSP accordingly investigated the matter.
In its report issued on Monday, October 30, the OSP said upon determining that the referral and complaint spoke to the same set of allegations against Mr. Adu Boahen and that they were within the mandate of the OSP, authorised the commencement of preliminary investigation into the matter in accordance with regulation 5(1)(b) and subsequently, a full investigation under regulations 5(1)(c) and 6 of the Office of the Special Prosecutor (Operations) Regulations, 2018 (L.I. 2374).
The investigation was conducted with as little intrusion into the privacy of persons as the circumstances permitted. The contents of the flash drive attached to the complaint filed by Tiger Eye P.I. were forensically verified as a true reflection of the events represented thereon. The investigation spanned a period of six (6) months. The identities of persons are disclosed where necessary.