Lessons From Berko’s Conviction

The case of Asante Kwaku Berko, a former banker convicted of violating the U.S. Foreign Corrupt Practices Act (FCPA), highlights the importance of recognizing both the "briber" and the "bribee" in anti-corruption efforts. In the Berko affair, over $1 million in bribes were paid to Ghanaian government officials in connection with a power-plant project. Berko was recently convicted in a nine-day federal trial following a long-standing U.S. investigation into the alleged bribery scheme.

Ghana can learn from the Berko case that a robust anti-corruption system must address both sides of a corrupt transaction. While the FCPA traditionally focuses on the giver of the bribe – prohibiting U.S.-based individuals and companies from paying money to foreign public officials to secure business – the recently enacted Foreign Extortion Prevention Act (FEPA) extends criminal liability to the demander of the bribe, if they knowingly solicit, demand, or agree to accept a bribe from a foreign public official. This dual approach ensures that both parties involved in corrupt transactions are held accountable.

However, it is crucial to note that FEPA cannot be applied retrospectively to charges stemming from acts that were not punishable under the law at the time they occurred. Therefore, the criminal exposure for Ghanaian officials implicated in the Berko case may still depend on the specific evidence and circumstances surrounding the case.

Nonetheless, this development underscores the importance of strengthening Ghana's own anti-bribery laws to ensure that both foreign and domestic actors engaged in corrupt activities are held responsible for their actions.