Attorney-General and Minister for Justice-designate, Mr Godfred Yeboah Dame has stated that the Agyapa transaction, which is intended to monetize a portion of Ghana’s gold royalties for the development of the country was done in accordance with the laws of the land.
Appearing before the Appointments Committee of Parliament last Friday for vetting to be appointed as a minister of state, the nominee assured Ghanaians that the deal is in the national interest.
With over two hours of his marathon six hours and 45 minutes of the vetting devoted to the Agyapa deal, Mr Godfred Dame argued that the Finance Minister, his Deputy and promoters of transaction were unfairly criticized in the controversial report of Special Prosecutor Martin Amidu.
Minority Leader in Parliament Haruna Iddrisu who is also the Ranking Member on the Committee and a lawyer by profession, appeared visibly surprised when the nominee stated that the Special Prosecutor did not interview Ken Ofori-Atta and his deputy Charles Adu Boahen as well as other people involved in the transaction before issuing his incriminating report on the deal in October last year.
Mr Godfred Dame told the 26-Member Committee that at every stage of the transaction, government through the Ministry of Finance put the interest of the nation first and not the interests of individuals, organizations or group of persons.
“Mr. Chairman, with all respect, I don’t see any vitiating factor with regard to the transaction,” he reiterated.
Amidu’s Opinion Has No Legal Effect– Dame
The Attorney-General and Minister for Justice designate argued that the corruption assessment risk done by the former Special Prosecutor Martin Amidu on the Agyapa deal was just his opinion.
According to him, Mr Amidu misconstrued the President’s suggestion that persons mentioned in the report be given a fair hearing as interference leading to his resignation.
Among other things that led to Mr Amidu’s resignation, the former Special Prosecutor cited interference by the President Akufo-Addo after he conducted the corruption risk assessment on the deal.
Mr Amidu had claimed that the reaction he received for daring to produce the Agyapa Royalties Limited Transactions anti-corruption report convinced him beyond any reasonable doubt that he was not intended to exercise any independence as the Special Prosecutor in the prevention, investigation, prosecution, and recovery of assets of corruption.
He insisted that his “position as the Special Prosecutor has consequently become clearly untenable”, apparently warranting his resignation.
However, Godfred Dame disagreed, saying the former Special Prosecutor misunderstood the president’s suggestion to him to give members of the Finance Ministry whose names had been mentioned a fair hearing.
Gloria Akuffo never opposed Agyapa deal
Mr Godfred Dame informed the Committee that former Justice Minister and Attorney-General, Gloria Akuffo never opposed the Agyapa Royalties deal.
The former Deputy Attorney-General said he was also “not opposed at all to anything she (Gloria Akuffo) did.”
“Secondly, I am indicating for the record that the former Attorney-General (Gloria Akuffo) was never opposed to the transaction and that is clear in all the documents available to me”, Mr Godfred Dame stated.
He maintained that that he stands “in all respect with what she did in respect of the Agyapa Royalties transaction”.
Signing Authority
Then Special Prosecutor Martin Amidu had, on his own volition, called for documents covering the transaction and completed, what he called an anti-corruption risk and risk of corruption assessment on the deal done under the mandate of the Minerals Income Investment Fund, which was set up by an Act of Parliament passed in 2018.
However, Mr Godfred Dame, a former Deputy Attorney-General under President Nana Akufo-Addo’s first term, urged the lawmakers to ignore the indicting aspects of the report.
He argued that the whole exercise was undertaken not as a criminal investigation but an “assessment”, insisting that it breached the basic natural justice rule of allowing the one under scrutiny to be heard.
The Attorney-General and Minister for Justice-designate also described Mr Amidu’s report as a mere “opinion” of no direct legal effect.
He took time to address one of the observations in the report, which has to do with whether or not the country’s laws were breached because the Deputy Minister for Finance then, Charles Adu Boahen signed for and on behalf of government, instead of the substantive Minister, Mr Ofori-Atta.
Quoting from relevant laws, Mr Godfred Dame explained that the law gives authority to the Finance Minister to allow his deputy or any other person not below the rank of Director that the Minister may authorize.
“The capacity to execute a financial agreement, has been indicated in the Public Financial Management Act. In there, you find that Mr. Chairman, the capacity is given to the Minister for Finance or any person that the Minister for Finance may authorize.
“In the light of this, it becomes quite clear that the Deputy Minister for Finance, if he was authorized by the Minister for Finance, has full capacity to enter into the agreement,” Godfred Dame added.
Parliamentary Approval
A major subject of disagreement pertaining to the corruption risk assessment carried out by Mr Marin Amidu was his findings that the Mandate Agreement between the lead transaction advisor, Imara, and its local partner, Databank Group, was unconstitutional because it should be treated as “an international transaction” and, by that, required the approval of Parliament.
Mr Godfred Dame disagreed with this finding, arguing that the transaction advisory role was not the main transaction but an agreement to build the structure and building blocks towards the ultimate objective of listing the Agyapa Royalties company on both the London and Accra stock markets.
“I will submit finally that to the extent that Parliament had considered and approved the substantive agreement itself, the primary agreement being the Minerals Royalties Agreement, other agreements like the approval of a transaction advisor ought not to have come before this Honourable House for approval,” Mr Godfred Dame told the Committee.
The vetting spent time to exhaust the issues in the Agyapa deal with varying interpretations put on the Supreme Court decision that only “major international transactions” should come to Parliament for approval.
The Attorney-General and Minister for Justice-designate maintained that a contract to facilitate the main transaction cannot be viewed as a major transaction regardless of the fees.
Imara and its local partner, Databank, stood to earn a percentage of the amount raised for the listing as success fee capped at $4m to be shared between the two.
Imara is on a $15,000 monthly retainer, which the contract states will be deducted from the success fee at the end of IPO.
Databank’s partnership deal with Imara excluded the Ghanaian entity from the monthly retainer, and billed to be paid at the end of the floatation in success fee.
Mr Godfred Dame reminded the Committee that on a regular annual basis, the transaction advisors involved in Eurobond issuance or facilitators of loan agreements ordinarily get paid a percentage of the total amount, which can be easily more than the $4m involved here and yet it is accepted as not at all necessary to present such incidentals deals to Parliament.
The nominee who was also a member of the board of the Public Procurement Authority took issue with the Special Prosecutor, who resigned last November, for raising issues with the rfp (Request for proposal), which allowed any of the shortlisted companies approved by the PPA to have a local partner.
Mr Godfred Dame, who sat on the PPA board over the previous term, saw nothing irregular about it.
Fair Hearing
Mr Godfred Dame faulted the Office of the Special Prosecutor and its former Chief Prosecutor, Martin Amidu, for breaking the rules of natural justice, when it refused to give all persons implicated in his corruption risk assessment a fair hearing before he reached his conclusions in his report.
Databank’s track record/reputation
The nominee also defended Databank’s reputation and track record over the last 30 years and their ability to work with virtually all governments based on merit.
He made the submission when the issue of potential conflict of interest was raised because Ken Ofori-Atta is a co-founder of the investment bank and Ghana’s leading securities company.
Background
In 2018, Parliament passed the Minerals Income Investment Fund Act 2018 which establishes the fund to manage the equity interests of Ghana in mining companies and receive royalties on behalf of the government.
The purpose of the fund is to manage and invest these royalties and revenue from equities for higher returns for the benefit of the country.
The government then, through the Minerals Income Investment Fund (MIIF), set up Agyapa Royalties Limited to monetize Ghana’s gold royalties. This was after Parliament on August 14, 2020, approved the Agyapa Mineral Royalty Limited agreement with the government of Ghana despite the walkout by the minority.
In exchange, the company plans to raise between $500 million and up to about $1 billion for the government on the Ghana and London Stock Exchanges to invest in developmental projects.
The deal, however, has become a topical issue following concerns first by the opposition National Democratic Congress (NDC) leading up to the December 2020 general election.
On August 14, 2020, a few days after approving an amendment to the MIIF Act, the Minority walked out during the approval process of the very transaction agreements, the facilitation of which the amendment to the Fund’s statute was amended.
Civil society groups quickly added their voices to the opposition, describing the Special Purpose Vehicle (SPV), being created then, Agyapa Royalties of Jersey, as not being transparent, potentially corrupt, undervalued and that it must be suspended for greater stakeholder involvement, according to some of the dissenting voice.
The government has however insisted that the deal is in the best interest of the country.
The President, last year, directed the Finance Minister and Attorney-General to review the transaction agreements and make necessary adjustment to address some of the concerns raised by stakeholders, where appropriate.
