The problem of putting blame on young officers when traders commit offences against the customs laws, is quite disturbing.
Yes, I am disturbed about the calling of young officers to suffer for the misdeeds and indiscretion of past Ghana Customs administrations. I, in person, do not see the reason why officers who have processed a customs bond for the removal of goods in transit should be disgraced and humiliated like criminals. Please, why should they be invited to the BNI?
The question is if a policeman processes a bail-bond and the offender jumps the bail, is the policeman asked to report to the BNI or it is the bail-bond which is enforced for the principal and sureties to produce the offender or pay the bond-penalty?
In the case of the transit transaction in question, wasn’t there a bond, and weren’t there a principal and sureties? I know that one of the conditions in the bond in question was that if the principal failed to export/re-export the goods, the bond conditions would be enforced to recover the duties involved. Why is the Customs administration not interested in going to court to enforce the conditions in the bond if the goods have indeed been diverted?
The question again is that have the goods been diverted? Have they been discharged into local warehouses, or were they found on the original trucks? If the vehicles were intercepted off the approved route for the goods, then that is another matter.I want the world to know that the Ghana customs bond now cannot be considered in any court as a serious legal document.
Before 1986, the Customs bond was considered as “cash,” which could be used in lieu of cash deposit and served as security for the protection of the revenue. When the angels descended on customs in 1986, they listened to the agitations of the trading public and without discretion and without customs knowledge decided to simplify and over simplified all Ghana Customs procedures without regard to international norms and tested standard practices.
SIX STEPS TO CLEAR GOODS
One typical example was the “six steps” for the clearance of goods from the ports. Someone got up one morning and said he had dreamed that the clearance of imported goods could be done with only “six steps.”
Step 1. Put together your import documents. Step 2. Write an application to Customs for the issuance of a permit and attach all the relevant documents including a dud cheque. Step 3. After the issuance of the permit, get the consignment struck off the manifest. Step 4. Go to the port for the examination and release of the goods. Step 5. Take delivery and drive goods out of port. Step 6. You may then decide whether to perfect the permit or not.
Almost all imports at the ports were therefore cleared on permit and this gave traders and agents the opportunity to loot the revenue. More than 95% of permits used in clearing the goods were left unperfected till today; and millions and millions of cedis were lost to the state. Those in authority, if they are alive, should be tried for causing “financial loss to the state.”
One other indiscretion was the liberalisation of the bond system. Before 1986, customs bonds were processed and issued only by the banks and were considered as equally good as cash deposits. They were, therefore, kept in fireproof safes in the station officer’s office.
What happened? The sole responsibility of the banks issuing bonds was taken from them and liberalised for persons without enough financial background to process and issue bonds to cover all customs transactions for fees. The result is that, go to the bond-seats at Tema, Takoradi or Akanu and you will find that bonds issued only a week ago are filed in a jacket at the seats, perforated by pins, and giving a good and clever lawyer the opportunity to argue in court that the pin holes suggests that there were other conditions attached to the bond.
One may ask, is this how bail-bonds are handled by the police? An offender jumps a bail and the bond is swiftly put in force but in customs if a trader fails to export or diverts uncustomed goods into home consumption the attention is turned on the officers who processed the bonds and not on the principal or the surety. The poor officer/officers who did what was wrongly introduced and had been followed by other officers since 1986 will suffer when the goods have problems.
When in 1968 Moses Ahiabu diverted warehouse goods into home consumption, the customs administration was initially not disturbed because they knew there would be a bond in force, which could be used to recover the duties involved and it was because the bond seat was manned by the most trusted and most respected officer.
But when they called for the bond and realised that the officer had not secured sufficient penalty to cover the goods, he was immediately interdicted and subsequently dismissed from the service. All the goods in Moses Ahiabu’s warehouse were seized/confiscated, and Moses Ahiabu was put before court and given a long jail sentence.
Today, when a trader evades duties by diverting uncustomed goods, he is treated with kid’s gloves while the poor officers who worked on the documents are humiliated and disgraced. What an occupational hazard!! Tell your wife you are going to work, and in the evening, she hears that you are in BNI cells. Why? You have worked on a consignment for transit, and the trader has diverted the consignment into the home market.
IMPORTANCE OF CUSTOMS BOND
Here, I want to emphasise the importance of the Customs bond. If the customs bond is effectively used, no person can just get up and say that he is in the transit business. You can not just get up and say you are exporting goods with a duty liability of GHc 150 million. As stated earlier, the Customs bond is as good as cash deposit and must be considered as such.
Let us look at the important and powerful role the customs bond plays in the entry of goods by looking at the definition of the term “entered” under sec. 151 of Act 891. (Unfortunately, the essential points have been deleted for no apparent reason) It states, among other things, that the Customs bond could be used to secure the revenue and could also be used in the payment of duties.
CUSTOMS MANAGEMENT LAW 1993
Let us look at the proper definition of the term “entered” in the Customs Management Law 1993 and the Customs Ordinance 1947. Here, we must take cognisance of the use of information technology and factor it in the definition. The term “entered” becomes very important when, especially, we want to settle a dispute over the determination of the “time of entry” after budget reading.
If serious persons and companies are allowed to do the transit business only a few persons and companies with integrity would deal with customs, and there would be no need for escorts because a “human-customs” officer and not a “beast-customs” officer would be at the exit point to confirm that the consignment has indeed crossed to foreign.
The authorities at the destination of the goods would also issue a Certificate of Landing to indicate that the consignment has been duly received into their territory; and the bond would be cancelled only when the station officer or his deputy is satisfied that the goods have been duly exported.
Management should permit some of our old officers, particularly the lawyers and some old experienced officers to examine the bond which was used in the transaction and see if it could stand the test of time in the court. Who issued the bond and in what capacity? Was the bond not a mere document used to support goods as a requirement but as a legal document? Are these officers not unfortunate that they are being used for “damage control”?
Whenever customs decides to review the customs law, it should not just rush because it wants to insert a provision-of-interest as in the case of the review of the Customs, Excise and Preventive Service (Management) Law, 1993, which resulted in the enactment of Act 891.
There was a big rush in the review which main aim was to consign the enormous powers of the Commissioner (the Comptroller of Customs) to the Commissioner General and to make the Commissioner (Comptroller) a mere mate to the Commissioner General. Some of the important interpretations were not in the usual traditional customs language, and some were deleted.
I can say with certainty that the Customs Management Law, 1993 was the best among all the Customs legislations. It contains all the necessary provisions for the smooth and efficient administration of the Customs Service.
I am saying this because I was privileged to have been contracted together with one American consultant by the World Bank to draft the ECOWAS Common Customs Code. (With the support of Mr. Felix Kwakye).
I, therefore, had the opportunity to study all the Customs laws in the sub-region and other
European customs administrations and I found that the Customs Management law, 1993 was a perfect piece of customs legislation which should have been adopted in its entirety with the necessary insertion and deletions as it was a consolidated law. What should also have been done was to insert the relevant provisions for the use of information technology.
We drafted the code and presented it to the ECOWAS Secretariat for fine-tuning, and it was later sent to be translated into French and Portuguese. The Code was signed into law by the Authority of the ECOWAS on 16th December, 2017. (Your brother is therefore a proud co-author of the ECOWAS Customs Common Code) You may Google.
I will also suggest that any time the customs laws are reviewed, we should take cognisance of the provisions of the Revised Kyoto Convention on the Simplification and Harmonisation of Customs procedures. It sets out the framework on which all Customs laws should be drafted and the standard practices. Fortunately, I have read the Convention alongside our Customs laws and practices, and I realised that our laws are consonant with the Convention except two provisions:
The first one is that, in our laws, we say goods imported temporarily into the country should be re-exported within three months, but the Convention states that such goods should be re-exported within six months. I am happy to state that now, sec. 75 of Act 891 has taken care of this omission.
The second is that, in our law, we say good cleared on exemption could only be disposed of after two years while the Convention states that such goods could be disposed of after one year.
(To be continued).
Written by Kofi Danquah (ex-Assistant Commissioner, CEPS Tema); (Ex-Officer-in-charge, Training, James Town); (Ex-Commandant, CEPS Academy, Kpetoe)
