To this end, the framers of the Constitution provided that anytime Government intends to enter into any agreement with any foreign entity that has economic or business interest,the agreement must be subject to prior parliamentary approval or ratification before it can have any legal effect.

So starting from the Faroe Atlantic decision, the Supreme Court has said that in view of the fact that the Power Purchase Agreement was not ratified by Parliament, no legal liabilities will flow from it.

This view of the Supreme Court in construing Article 181(5) was applied in the case of Balkan Energy in respect of another Power Purchase Agreement that did not receive parliamentary approval or ratification.

The Supreme Court unanimously said that the requirements of parliamentary approval or ratification is to ensure probity, transparency, and accountability as stated in the Preamble to the Constitution.

Hence,the Supreme Court in the subsequent decisions in Waterville and Isofoton ordered that payments made in respect of contracts or agreement made in contravention of Article 181(5) of the Constitution must be refunded except without interest.

That has been the posturing of the Supreme Court in dealing with such investment cases.

This posturing of the Supreme Court has been criticized by Lawyers and investors as very dangerous and unduly harsh against the innocent investor.

These agreements are signed by Government officials, who should know about the laws of Ghana.

The investor should not be the one to be made to suffer for the conduct of the public officer in failing to take the Agreement to Parliament for ratification.

It is important to emphasize that there is something called “sanctity of contracts”, which enjoins parties to a contract to act in accordance with same or observe the terms of the Agreement.

Such that failure to observe the terms of that contract has always resulted in damages against the offending party.
From 2017, the current administration under the Presidency of H.E Nana Addo Danquah Akuffo Addo has decided to criminalize or input criminality into agreements signed by the previous administration headed by then President John Mahama.

One of such agreement is the Ameri transaction.

In the midst of the dumsor or energy crisis that resurfaced from 2007 when the water levels in the Akosombo dam went so low.

The Kuffour administration initiated the Bui Dam project with Chinese facility to be paid partly with our cocoa.
That project was continued and completed by the Mills-Mahama administration without cancellation or renegotiation threats.

That project is now generating about 250-300 megawatts at an estimated cost of $700m.
Around 2014-2015, in order to fix the crippling power crisis, Government of Ghana decided to fix the problem on an emergency basis.

Based on this emergency situation, Government of Ghana went for the AMERI POWER PROJECT.

Government officials from the Volta River Authority, Ministry of Power, Attorney General Department, Public Utilities Regulatory Commission, Energy Commission and the Environmental Protection Agency among many others helped in putting the BOOT Agreement with the Ameri together to generate 250 megawatts emergency power plants to fix the dumsor problem.

Ameri was to build, operate, transfer of a 250 megawatts emergency power plants for the Government of Ghana through VRA.

Events under the transaction.
On the issue of the cost of the equipment.
•The agreement with AMERI is a Build, Own, Operate and Transfer (BOOT) agreement and not an outright purchase of generating plants.

• The Government of Ghana has not made ANY PAYMENTS to AMERI and will not be making any payments for the cost of the equipment.

• Per the agreement with AMERI, the Government of Ghana through the Volta River Authority (VRA) will only make payments to Ameri for power produced and supplied to the VRA just like any other Independent Power Producer (IPP).

This is how the due diligence was done on the Ameri Power Plants.

• The Government of Ghana has an agreement with AMERI Energy.

• His Royal Highness, Sheikh Ahmed Dalmook Al-Maktoum, Member of the Ruling family of Dubai is the Chairman of Ameri Energy.

• The Bank of Ghana before establishing the Standby LC conducted its own due diligence on AMERI Energy.

• The American firm, JP Morgan also independently conducted its own due diligence before confirming the Standby LC for the project.

• Government of Ghana represented by the Ministry of Power and the Attorney General’s Department also conducted due diligence on AMERI Energy and reviewed strenuously the project agreement before submitting to Parliament.

• Parliament, upon receipt of relevant documentation on the project and the agreement, also scrutinized and reviewed the agreement before approving it at the Committee Level unanimously and later by the House.

Government of Ghana through VRA only pays Ameri for electricity generated and given to VRA and transmitted to ECG. So VRA won’t pay Ameri unless they have vetted and approved of payment of power actually supplied. Also remember that Government of Ghana did not pay outright for the plants.

Government could not buy it outright because there was no such funds available to do that immediately. Remember that the Ameri plants were deployed within 90 days,the shortest emergency power plants deployment in Ghana.

An emergency power plants deployment.

Extensive due diligence was done by both external and internal organizations.

From the reputed JP Morgan Chase,to Price Water House and others.

The tariff was independently approved by the Public Utilities Regulatory Commission.

Energy Commission gave the necessary statutory approvals.

The NPP Ranking Member of the Mines and Energy Committee of Parliament,Hon KT Hammond, on the floor of the house did not show any disapproval when Hon Yieleh Chereh move the motion for the adoption of the Committee

Report on the transaction.
The entire house approved it without objections.

The Supreme Court in the various decision in Faroe Altantic,Balkan Energy,Waterville among others held that the requirements of parliamentary approval for power purchase agreement within the meaning of international business transactions under Article 181(5) of the Constitution is to promote accountability,probity,transparency and due diligence.

Minister has signed the agreement,Parliament has the responsibility to independently conduct its own due diligence among others.

Same was done.

Parliament is always presumed to have acted right unless it is established that Parliament acted unconstitutional.

Before Parliament adopted and approved it? Parliament subsequently had the responsibility to independently review it.

Parliament had the power to reject the entire transaction.

Parliament satisfied itself that everything was right and approved it at the Committee and the House.

It is instructive to note that that the Ameri transaction was subsequently ratified by the Public Procurement

Authority Board pursuant to the Public Procurement Act as amended.

This is an agreement that has received the most vetting by statutory institutions.

Notwithstanding the fact that the Agreement was ratified by Parliament without objection(s),the current Parliament pursuant to a motion filed by NPP MP, Hon KT Hammond, to have the Ameri transaction varied or reviewed by Parliament.

Based on this motion,the Speaker of Parliament referred the matter to a Select Committee of Parliament to deal with it.

The question is,does Parliament have the constitutional authority to do deal with an agreement that it is not a party to?

Can Parliament review or set aside or abrogate an agreement it is not a party to?

To resolve this question,I need to first establish who are the parties to this agreement?

The answer to this question is readily apparent on the face of the Agreement.

It is strictly between the Government of Ghana represented by the Minister of Power and AMERI without more.

Parliament of Ghana is not a party to the Agreement.

The role of Parliament as provided for by the Constitution is found in Article 181(5) of the Constitution.

It is only in respect of RATIFICATION.

Has the Agreement being ratified?

The answer is in the affirmative.

When Parliament has ratified the Agreement,it’s role has ended.

It has become functus officio.

If you are not a party to an agreement,can you abrogate,review or set aside?

The answer is a big NO.

Basic contract law will tell you that it is only the parties to the Agreement that can terminate,review or set it aside.

In exceptional circumstances,where third party rights are reserved,it must be so done expressly.

I am fortified in this proposition by the decision of the Supreme Court.

The Supreme Court had this to say,

“I cannot see any direct role for parliament in the termination of the agreement in this case after it has approved the

same. Any undue interference with the operation of the contract will damage the commercial image of the government to the detriment of the public interest.

The purpose of requiring parliamentary approval of agreements or measures of critical national importance has been held by this court to be to ensure transparency, openness and parliamentary consent in the national interest, but this court has never attributed an overbreadth role to parliament in such matters beyond the parameters of the particular matter in regard to which such parliamentary approval is required. See Attorney-General v Faroe Atlantic Co. Ltd. (2005-2006) SC GLR 271, Amidu (No. 2) v A-G, Isofoton S A & Forson (No. 1) [2013-2014] 1 SCGLR 167, Klomega (No. 2) v A-G & Ghana Ports and Harbours Authority & Ors. (2013-2014) 1 SCGLR 581.

It must be emphasized that when parliamentary approval is given under article 268(1) the agreement in question remains an executive act and not the act of the legislature.”Atuguba JSC concurring opinion in the case of John Ndebugre v Attorney General&Aksa Energy.

From the above Supreme Court decision,Parliament has no business to look into the Agreement again.

As the respected Supreme Court Justice,Atuguba admonished in the case cited supra,
” Any undue interference with the operation of the contract will damage the commercial image of the government to the detriment of the public interest.”

That is to say any undue interference will DAMAGE the commercial image of the government.
Clearly,Parliament is acting unconstitutional in this needless and reckless interference with the Agreement and will have no legal effect on the Agreement.

It is important that Government of Ghana stop hiding behind Parliament for mischief.

It is not good for the image of the country.

It is curious to note that Government of Ghana has stopped paying Ameri contrary to the terms of the Agreement.

This is clearly contrary to the expressed terms of the Agreement and law.

Government of Ghana is setting itself up for serious damages should Ameri proceed to International Arbitration.

Interestingly enough,Government of Ghana is not alleging any breach of statutes or the Constitution.

Purely on unfounded allegations of fraud or corruption?The proof is on Government of Ghana and it is proof beyond reasonable doubt.

Political games fuel by perception can not stand any legal scrutiny based on strict proof.

It is even dead on arrival.

I am worried for the Energy Minister,Boakye Agyarko, who took that reckless decision to suspend payment to Ameri without seeking any legal opinion from the Attorney General.

Should Government of Ghana be made to pay damages from his reckless conduct,he must be made to pay it personally or be charged for causing financial loss to the State.

Do you know that after suspending the payment, Government now writes to the Attorney General for legal opinion on the suspension.

The Legal opinion from the Attorney General Department should be worrying to Boakye Agyarko,any administration can you it to prosecute him for causing financial loss to the State.

He took the decision before seeking legal opinion.

The State started incurring liabilities from that time of the suspension.
Interestingly enough,the Attorney General legal opinion is to the effect that the suspension is without legal basis.

In fact,the legal opinion further stated that by failing to pay Ameri,Government of Ghana has breached the Agreement.

Once,the Attorney General has stated that Government of Ghana has breached the Agreement,Ameri can simply move the equipment to another country and sue the Government of Ghana for damages.

Would Boakye Agyarko pay for the damages?No,the taxpayers money,as we say in Ghana.

Who is really advising Government officials?

I pray that any future administration examine this.

Government officials think they can operate with emotions and feelings.
As a State official,always ask,by what authority,am I acting?It will save you future troubles.

As at October,2017,Government of Ghana had no evidence of corruption or fraud against Ameri meanwhile,it has taken a decision to suspend payment to it.

Government is now fishing for the fraud or corruption. It is terrible commentary on our emotional democracy.

The fraud should have existed before the transaction and not after.
Complete afterthought.

I have seen officials under the current administration going abroad looking for investors.
At the same time,they are recklessly abusing the rights reserved under legitimately signed agreements.

On one front Government of Ghana harassing investors from Middle East and at the same time going back to them begging for more investment in their country what kind of hypocrisy is that?

The President of Imani Ghana,a respected think tank, Franklin Cudjoe rightly observed on Citifm current affairs political show,

“The best way to deal with the Ameri contract is to sit with the Ameri company and ask for reduction. The Ameri contract is so water tight that you will end up losing if you attempt going to court.”

My Lecturer at the Faculty of Law,University of Ghana,during our International Investment Law class,would always say that,international investment must always be protected against political interference.

Political interference has the potential of destroying not only the reputation of the government of the day but the image of the country.

That explains the existence of Bilateral Investment Treaties.

Now this is where I have a problem with the double standards of this administration.

As late as December,2017 under the Presidency of Nana Addo H.E,JP Morgan Chase wanted to know whether to extend the standby LC made in respect of the transaction.

Bank of Ghana responded to JP Morgan Chase to go ahead and confirm the standby LC which was done on the 2nd January,2018.

In fact,Bank of Ghana in December, 2017 okayed the Ameri transaction.

So as I write this article,the standby has been extended.

The danger is that Ameri can start drawing the standby LC because Government of Ghana has defaulted in paying them.

The greatest risk is now Ghana.

The commercial image of Ghana is going down because going forward,every foreign investor will require a guaranteed LC because another Government will try to interfere with their investments.

It increases the cost of doing business by the country.Our commercial image as a country will have no currency.

The conduct of this administration is not helpful.

I have seen how Yoofi Grant is trying hard to get investment into Ghana but where is the assurance that tomorrow,another government won’t act in this reckless manner.

We must guard against it.

Curiously,the Vice President,Dr Bawumia is billed to travel to Gulf states in March looking for foreign investment into our energy,health,railway and education sectors.

At the time,you your administration is playing dirty political games with Ameri?

What is the principle here?

If I was not done by me,it is evil and bad.

What is the assurance that another administration based on your conduct not deal in the same manner,you are dealing with Ameri?

We must always resolve to respect the SANCTITY OF ALL CONTRACTS devoid of political gamesmanship.

It is not good for the forward march of Ghana.
But for the power from the Ameri plants,Ghana will still be in dumsor.

God bless our homeland Ghana

–

By: Godwin Tamakloe (Private legal practitioner)

The post Stop playing politics with foreign investors [Opinion] appeared first on Citi 97.3 FM - Relevant Radio. Always.

In August 2017, the Member of Parliament for Adansi Asokwa, K.T Hammond, filed a motion asking Parliament to rescind the earlier ratification of the deal with was signed by the Mahama administration.

[contextly_sidebar id=”gwek8t8ASkhFVwdr5ryQ88CCDG7x7NiB”]Prior to the investigation by the select committee, a 17-member committee which was set up in February 2017 and chaired by Philip Addison revealed an overpayment estimated at $150 million.

The Chairman of the select Committee, Emmanuel Kwasi Gyamfi indicated on Eyewitness News yesterday [Friday] that the delays in presenting the report to the House are justified, given how delicate the deal is.

“The committee report is not ready. This is not just a simple issue… We cannot just present the report without doing due diligence.”

Mr. Gyamfi, who is also the Chairman of Mines and Energy Committee in Parliament, stated that the Committee had already interrogated ‘key players’ including KT Hammond, representatives of PURC, VRA and AMERI, as well as Minister of Power at the time, Kwabena Donkor.

He, however, indicated that the Committee might have to invite these persons to reappear before it to provide some clarification before the report can be completed.

“We are still thinking of bringing some of the key players back to meet the committee because as I said there were issues by the key players that we have to consider. Let me assure you and our cherished listeners that the referral that was made in relation to the motion by K.T Hammond, has been deliberated on several times by the committee. What is left is the committee’s final report which will be submitted soon.”

‘Feet dragging’

On the same issue, Franklin Cudjoe also wondered why it had taken the committee six months for the committee to present its report.

He indicated that the Parliament’s Committee on Energy had to offer explanations on why the Committee had delayed in submitting its report.

“I suspect that there is some other issue related to this matter. Otherwise why will it take six months to actually review and keep the contract under wraps. In whose interest is this report actually coming out? I think the Parliament Committee on Energy owes us an explanation.

“This is coming on the back of some claims that have been made by the presidency that some of the contracts under the Mahama administration were inflated. I think this offers a perfect opportunity to let everyone exactly what levels of inflation they were and this report will signal that particular behaviour. This is feet dragging. Otherwise people will still be questioning the validity of the deal. I wonder why we waited so long.”

‘Fraudulent deal’

K.T Hammond had requested in 2017 that the deal be withdrawn, claiming he had received information indicating that the deal was fraudulent.

Mr Hammond had revealed on Eyewitness News in August that, Ghana stands to lose $150 million to AMERI in the deal.

‘Cancelling AMERI deal not prudent’

The former Minister of Power , Kwabena Donkor, had however warned that investments into Ghana’s economy will be greatly affected if the AMERI power deal is cancelled.

“The impact on future investment, if approvals by parliament can be rescinded, when a new government comes in with a new parliament because they have the numbers they rescind it, what will be the impact on Ghana’s investment climate?” he asked.

“Already, for developing countries, there is a political risk of investment, and therefore we pay a premium for investment because of perceived political risk. If we aggravate this by rescinding decisions properly approved, because one government is in power, and has numbers to push it through, it will be short-term and it will not be in the national interest, and in my opinion, it will be misleading, I think a rescission will be a disservice to Ghana,” he added.

The deal received parliamentary approval on 20th March, 2015, but subsequent details suggested that, the government may have been short-changed by AMERI as they presented an overpriced budget.

–

By: Marian Ansah/citifmonline.com/Ghana

The post Report on AMERI deal not ready – C’ttee Chairman appeared first on Citi 97.3 FM - Relevant Radio. Always.

Testifying before the Mines and Energy Committee of Parliament, Boakye Agyarko said immediately after the ratification of the deal by Parliament in August 2015, some already agreed terms were changed which should have gone back to Parliament.

He thus supports any move by Parliament to review the decision it took two years ago.

[contextly_sidebar id=”RTKO37IbzaqEOx0V8yCOe3CRyL9WOwiq”]Making his case before Parliament, Mr. Agyarko said: “the key highlights if I may determine or if it is within my province to determine, will be the choices that we made. I think whether we buy outright, whether we lease or whether we go into a build operate and transfer (BOT), of interest also is the question of pricing, and the quality of the financial and economic analysis that is weighed in this matter of such gravity. The nation’s money of over 500 million dollars is being put in an asset. One would have wished that it will attract the highest quality of investigation in terms of its financial and economic analysis. The synopsis also tracks a number of flip-flops.”

“In my mind, if Parliament approves or ratifies a document, and there are major changes to the document, It stands to reason that it goes back to Parliament for a review, otherwise Parliament will approve a document only to find out that changes, amendments have been made without their consent . That is something that must lend itself to investigation” he argued.

AMERI in its agreement with Government dated February 10th, 2015, reportedly charged Ghana significantly higher than what it was charged by the Turkish registered company, PPR, which financed and executed the project.

The Turkish firm pegged the total cost of the project at a maximum of $360 million.

However, in the Build Operate Own Transfer (BOOT) agreement signed between the government and AMERI, the deal was pegged at a minimum of 510 million dollars leaving Ameri with a commission of $150 million.

The company was to provide Ghana with 300MW of energy to help improve the country’s energy situation.

Withdraw AMERI deal – K.T Hammond

Although the Energy Minister backs calls for the deal to be reviewed,  the Adansi Asokwa Member of Parliament, K. T Hammond, who was the ranking member of the Energy Committee of Parliament when the deal was signed, filed an urgent motion in Parliament to have the deal rescinded.

According to him, this was because of fresh information he had received concerning the agreement which showed that the deal was fraudulent. K.T Hammond revealed on Eyewitness News in August that, Ghana stands to lose that $150 million to AMERI in the deal.

Cancelling AMERI deal will be disservice to Ghana – Donkor

The former Minister of Power , Kwabena Donkor, has however warned that investments into Ghana’s economy will be greatly affected if the AMERI power deal is canceled.

“The impact on future investment, if approvals by parliament can be rescinded, when a new government comes in with a new parliament because they have the numbers they rescind it, what will be the impact on Ghana’s investment climate?” he asked.

“Already, for developing countries, there is a political risk of investment, and therefore we pay a premium for investment because of perceived political risk. If we aggravate this by rescinding decisions properly approved, because one government is in power, and has numbers to push it through, it will be short-term and it will not be in the national interest, and in my opinion, it will be misleading, I think a rescission will be a disservice to Ghana,” he added.

The deal received parliamentary approval on 20th March, 2015, but subsequent details suggested that, the government may have been short-changed by AMERI as they presented an overpriced budget.

Parliament has been reconsidering the deal to possibly reverse it if evidence of the state being shortchanged is found.

–

By: Marian Ansah & Duke Mensah Opoku/citifmonline.com/Ghana

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The leader of the Committee, Philip Addison, is thus of the view that, there’s no way the committee’s work could have been influenced as suggested by critics, because the firm only took care of their airfare and hotel bills, and did not give them per diem as alleged.

The Committee has come under criticism after it emerged that its trip to Dubai was funded by the power company.

[contextly_sidebar id=”Di8iHlxo9AoQHXPPzJuULnU97tvbJNIF”]The Minority in Parliament had argued that the findings of the committee on the deal were not objective, given that it had engaged in what has been described as shady deals [including a fully funded trip to Dubai] with Ameri.

But speaking on Metro TV’s Good Evening Ghana, Philip Addison, who is Chairman of the Committee, denied these claims, clarifying that the committee traveled to Dubai to only negotiate with Ameri for better terms and not to investigate  the firm.

“I keep reading and hearing that they were supposed to investigate Ameri, no, we were not going to investigate Ameri. We were going to have negotiations, not investigation. There was no antagonistic relationship so they freely offered to pick up the bill. So I don’t understand when so much noise is being made about this,” he said.

Asked why government did not foot the bill for the trip , he said “these are people who have expressed the wish to renegotiate the contract. The issue of payment of these tickets had nothing to do with us. I did not go and negotiate for payment of tickets. The way it is being said it is as if I went to Ameri and requested for money to buy tickets. I was sitting in the office and I got the ticket and I got the visa on my phone so I did not go and procure this. It was done under the Ministry of Energy…”

Offering further explanations on the said trip, Mr. Addison said : “I think a lot of noise has been made about this …The delegation that went to Dubai was a government delegation of three. We were suppose to be four but the Chief Executive of VRA who was supposed to be part of it could not attend because of pressing matters. “

“We did not even know the hotel until we got to Dubai and we were sent to the hotel. When we got to Dubai, I understood why they put us in the hotel because it was a walking distance from Ameri’s office,” Mr. Addison added.

–

By: Marian Ansah/citifmonline.com/Ghana
Follow @EfeAnsah

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A 17-member committee, set up by the Energy Minister, has disclosed that Ghana was made to pay an extra $150 million dollars in commission to the AMERI Group to deliver a power plant in the heat of Ghana’s power crisis.

[contextly_sidebar id=”zZXOt9vp2FcHssd5jTmyfpMFOXYUEJJL”]In an interview with Citi News, the Deputy Executive Director at ACEP, Benjamin Boakye, said the contract is already in full operation and will be nearly impossible to review it.

“They should blame those who negotiated the contract for not listening to Ghanaians and for causing this financial loss to us; and I think that is where our focus should be. At this point, Ameri will only be magnanimous to say that maybe I would like to continue doing business therefore I am willing to negotiate the contract, but we cannot compel them to renegotiate the contract because it was just based on our own negligence.”

Mr. Boakye indicated that, a cancellation will only be possible if there is evidence indicating that there were indeed some shady dealings that could cost the nation.

“Unless we get any fresh evidence that suggests that there was some underhand dealings that actually cost this country that money or there was some collusion  between  our officials and that of Ameri on which basis we can activate a renegotiation or a cancellation, it will be difficult. At this stage, I am afraid the contract is in force and we would have to abide by the terms of the contract.”

He wondered the feasibility of cancelling the contract, especially when both parties had agreed and met the terms and conditions.

“The contract that was signed, they have delivered on the contract, they have brought the turbines. The turbines are working and delivering power to the grid, so if you have to cancel it, then you have to face the penalties in the contract, which means you have to pay them the money.We will have to focus on how do we get answers from our own people.”

ACEP also cautioned the Akufo-Addo government to take a cue from the findings of the committee on power deals and be transparent in subsequent negotiations.

“We need greater transparency in the way some of these contracts are negotiated because they add up to the cost of electricity. If you poorly negotiate and the plant is so expensive, you have to pass it on the consumer and you are hurting businesses, you are hurting consumers because price volatility would have to go up and that will affect the entire economy. Once electricity is expensive,  productivity also goes down and therefore the number of taxes you expect to get you will not get it, so government should be mindful of that and  be transparent about how  we contract some of these power plants so we can get value for money.

–

By: Marian Ansah/citifmonline.com/Ghana
Follow @EfeAnsah

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James Sampa, charged with defilement, was found guilty at the end of the trial before the court presided over by Ms Sedina Agbemava.

According to the court Sampa after defiling the victim infected her with a vaginal infection for which the victim was treated.

The facts as presented by Prosecuting Inspector Kofi Atimbire, were that the complainant was a writer based at Maamobi in Accra.

According to the prosecution, the victim lives with the mother at Kawukudi, and that, Sampa also resides in the same area.

On August 21, 2012, at about 1630 hours, the victim was sent by her mother to collect a mobile phone from a friend.

On her way, Sampa, who was standing in front of his kiosk called the victim.

Based on Sampa’s request, the victim entered the kiosk and unknown to the victim; he (Sampa) pushed the victim on to his bed and had sex with her.

Prosecution said when the victim was entering the kiosk, some witnesses saw her and informed the victim’s mother and they all entered Sampa’s kiosk.

Inspector Atimbire said the victim and the witnesses, knocked at the Kiosk but there was no response and they forced open the door only to find Sampa and the victim.

Sampa was apprehended and sent to the Nima Police station where the victim was issued with a medical form to attend hospital.

Prosecution said the matter was later referred to the Domestic Violence and Victims Support Unit (DOVVSU), Accra.

Source: GNA

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