The Agyapa deal to monetize some of Ghana’s gold royalties was done in the national interest and in accordance with the laws of the land, the Attorney-General and Minister of Justice-designate, Godfred Yeboah Dame, has said.
According to Mr Yeboah Dame, the Ministry of Finance and, for that matter government, put the interest of the nation first at every step of the way, debunking notion that the deal was done in the interest of some individuals, organisations or group of persons.
Answering questions before the Appointment Committee on Friday during his vetting, the immediate past Deputy Attorney-General explained that the immediate past Finance Minister, his Deputy and promoters of the Agyapa deal were unfairly criticized in the controversial report of the former Special Prosecutor.
“Mr Chairman, with all respect, I don’t see any vitiating factor with regard to the transaction,” he said.
He said the former Special Prosecutor, Martin Amidu, on his own, 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 set up by an Act of Parliament passed in 2018.
Mr Yeboah Dame explained that Mr Amidu did not interview Ken Ofori-Atta, his Deputy, Charles Adu Boahen, and anybody else involved with the transaction before he concluded his damning report on the transaction in October last year.
His disclosure even came as a surprise to the Minority Leader, Haruna Iddrisu, who is also a legal practitioner.
He urged members of the Appointment Committee to ignore the indicting aspects of the report because the whole exercise was undertaken not as a criminal investigation but an “assessment” and one that breached the basic natural justice rule of allowing the one under scrutiny to be heard.
He described Mr Amidu’s report as a mere “opinion” of no direct legal effect.
On the issue of Mr Adu Boahen signing for and on behalf of the government, instead of the substantive Minister, Mr Yeboah 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 authorise to sign on his behalf.
“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,” he stated.
“In the light of this, it becomes quite clear that the Deputy Minister for Finance, if he was authorised by the Minister for Finance, has full capacity to enter into the agreement,” the Attorney General-designate added.
Mr Amidu, in his report, argued that the transaction required the approval of Parliament due to the Mandate Agreement between the lead transaction advisor Imara and its local partner Databank Group, and such should have been treated as “an international transaction”.
But Mr Dame disagreed, 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,” he said.
The vetting spent time to exhaust that issue, with varying interpretations put on the Supreme Court decision that only “major international transactions” should come to the House for approval.
Mr Yeboah Dame maintained that a contract to facilitate the main transaction cannot be viewed as a major transaction, regardless of the fees.
Imara and Databank
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.
He reminded the House 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 incidental deals to Parliament.
Mr Yeboah Dame took issue with the former Special Prosecutor for raising issues with the RFP, which allowed any of the shortlisted companies approved by the PPA to have a local partner.
He also defended Databank’s reputation over the last 30 years and its ability to work with virtually all governments based on merit.
This came in 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.
He faulted the former Special Prosecutor for breaking the rules of natural justice by refusing to give all persons implicated in his corruption risk assessment a fair hearing before he reached his conclusions in his report.