Some 25 civil society organisations (CSOs) have called on the Office of the Special Prosecutor to investigate and prosecute any corruption unearthed in connection with the Agyapa royalty deal.
The Special Prosecutor, Mr Martin Amidu, in his corruption and anti-corruption risk assessment report on the Agyapa deal, said the Transaction Advisor(s) involved were susceptible to “nepotism, cronyism and favouritism”.
President Nana Akufo-Addo, following the Special Prosecutor’s report, directed that it be sent back to parliament for proper scrutiny.
But the CSOs disagree with the president’s directive.
In a statement, the CSOs described the specific cause of action directed by the president as “inadequate and not sustainable.”
According to the CSOs, a proper reading of the report of the OSP should lead to two conclusions, which are:
(1) that the deal is defective beyond repair
(2) that there are potential breaches of various laws – Public Procurement Act and the Public Financial Management Act.
The CSOs, therefore, want:
(1) the entire set of Agyapa transactions to be rolled back and the transaction agreements abrogated. Parliament cannot repair the defects
(2) that steps be taken to investigate and prosecute breaches of any law.
Meanwhile, Finance Minister Ken Ofori-Atta, who was involved in the Agyapa negotiations, has denied any wrong doing.
He said his ministry “has been transparent from the onset” and has “acted at all times, in good faith throughout the transaction.”
Find below the full statement from the 25 CSOs:
The OSP’s Corruption Risk Assessment of Agyapa – a call to return to the drawing board
A CSOs’ response to the findings of the report and its accompanying presidential directives
Good Morning, Ladies and Gentlemen of the Press,
We invited you here today, to share with you the response of the Alliance of CSOs working on Extractives, Anti-corruption and Good Governance, to the Special Prosecutor’s corruption risk assessment report on the Agyapa transaction, which has been a subject of intense public discussion over the past week.
You will recall that before the Office of the Special Prosecutor (OSP) announced its decision to intervene on the raging controversy over the monetization of Ghana’s mineral royalties, this Alliance had made clear its opposition to the transaction, calling for it to be suspended, and subjected to proper stakeholder consultations to arrive at innovative solutions for optimising the value of our mineral wealth. We at the time, raised grave concerns relating to technical defects and wrong assumptions, as well as lack of transparency surrounding the transaction. Some of the issues we highlighted are:
1. the $1 billion valuation of the mineral royalties to be assigned, representing Ghana’s right to 75.6 per cent of mineral royalty from 48 mining leases. We demonstrated that this represented a significant under-valuation that sells Ghana’s rights short. We raised questions about the basis of government’s valuation without answers.
2. the indecent haste to steamroll a complex set of agreements through parliament in 24 hours, a process that led the largest opposition party to walk out. We asked why such a monumental decision to commit Ghana’s risk-free resources to a risky venture was devoid of stakeholder consultation and consensus-building.
3. the impropriety of the decision to register a public company in an offshore jurisdiction that is famed for secrecy and for facilitating tax avoidance.
4. The impropriety of promoting the exemption of the profits and gains of a tax haven registered company from taxation based on a faulty notion that “taxes cannot be taxed”, a position which is in clear breach of section 28 (5) of the Mineral Income Investment Fund Act, which states that: “Income accruing to the Republic from minerals paid to the Fund by a mining company shall: a) not be classified as taxes paid by the mining companies and shall not be expended as conventional tax revenue paid to the Government.”
Ladies and gentlemen, the outcome of the risk of corruption and anti-corruption risk assessment by the OSP provides sunshine on the concerns that have been raised by us and several other groups and persons. The report of the OSP highlights serious irregularities, transactions that pose a high risk of corruption, and transactions that plainly breach the law.
The report raised various alarms including breaches of due process and illegal acts. The OSP found among others that:
1. The entire transaction is tainted with clear instances of conflict of interest and nepotism, especially around the involvement of Databank with Imara of South Africa in the key role of the Transaction Advisors, and the recruitment of Africa Legal Associates. These point to potential corruption and criminality which requires further investigation to establish culpability; and
2. The registration of Agyapa in a tax haven and other factors, risk exposing Ghana to money laundering and illicit financial flows.
3. The report highlighted breaches of the Public Procurement Act and the failure to obtain Parliamentary approval for the contract for the Transaction Advisor, among others and concluded that these lapses undermine the legality of the work of the Transaction Advisors, and the resultant products.
4. The failure of parliament to do its oversight work diligently by allowing itself to be steamrolled by the Executive into approving complex transaction documents within 24 hours of submission, essentially by rehashing the “Minister’s memorandum to Parliament without any critical examination and analysis of the Transaction Documents … Surprisingly it listed not a single defect or anomaly in the Agreements in spite of the fact that the Attorney-General had raised queries over the propriety of the transaction.
Ladies and gentlemen, we take this opportunity to applaud the good work of the Office of the Special Prosecutor, even as we note that, constrained by various factors, the report was unable to address other important matters such as the valuation of the royalties. It also falls short in not recommending actions to cure the potential illegalities and process breaches outlined in the report.
Subsequent to the report from the OSP, the President of the Republic instructed that in the interest of transparency and accountability to the people of Ghana, the agreements supporting the transaction that were submitted to Parliament and approved by the house, should be resubmitted to Parliament for the approval process to start all over again.
He further urged the Ministry of Finance and the Minerals Income Investment Fund (MIIF) to take necessary steps to ensure that the feedback from their consultation with stakeholders are addressed to engender public confidence.
While we commend the President for acting on the report, we hold the view that the specific cause of action directed by the President is inadequate and not sustainable. A proper reading of the report of the OSP should lead to two conclusions:
(1) that the deal is defective beyond repair
(2) that, there are potential breaches of various laws – Public Procurement Act and the Public Financial Management Act.
Furthermore, the range of steps that the President has asked the Minister of Finance to take to repair the defects in the Agyapa transaction, objectively amount to there being deep seated fundamental flaws.
We also note that the Finance Minister, in his 30th October response to the OSP’s report, disputed some of the report’s findings, claiming for instance that, the Ministry “has been transparent from the onset” and has “acted at all times, in good faith throughout the transaction.”
This response, in our view, is at variance with the facts, as we have come to know them through our interaction with the Ministry of Finance on the matter.
Following from these conclusions, we call for:
(1) the entire set of Agyapa Transactions to be rolled back and the transaction agreements abrogated. Parliament cannot repair the defects
(2) that, steps be taken to investigate and prosecute breaches of any law.
In this regard, we challenge the OSP to take the next logical step to investigate and prosecute any evidence of corrupt acts, in accordance with his prosecutorial mandate.
The abrogation of the Agyapa transaction should lay the grounds for a more open and consultative process for options and solutions to getting the best value for our mineral resources.
We thank you all, for your continued support for our intervention.
1. Africa Centre for Energy Policy (ACEP)
2. Integrated Social Development Centre (ISODEC)
3. National Coalition on Mining (NCOM)
4. IMANI Centre for Policy and Education
5. Institute for Democratic Governance (IDEG)
6. Centre for Extractives and Development Africa (CEDA)
7. Civil Society Platform on Oil and Gas (CSPOG)
8. Public Interest and Accountability Committee (PIAC)
9. CSOs Open Licensing Monitoring Group
10. Ghana Anti-Corruption Coalition (GACC)
11. Centre for Democratic Development (CDD)
12. Centre for Public Interest Law (CEPIL)
13. Chamber of Petroleum Consumers Ghana (COPEC)
14. Citizens Movement Against Corruption (CMAC)
16. Oil Watch Ghana
18. Publish What You Pay Ghana (PWYP)
19. SEND Ghana
20. The People’s Project (TPP)
21. Women Aspire
22. Centre for Social Impact Studies, Obuasi
23. Friends of the Nation, Takoradi
24. TAMA Foundation
25. Ghana Integrity Initiative (GII)