ECOWAS Court of Justice slaps Ghana with US$750 cost in Agyapa case

The ECOWAS Community Court of Justice (CCJ) has slapped Ghana with a cost of $750 for unduly delaying a case relating to the Gold Royalties Monetisation Transaction arrangement, popularly referred to as the Agyapa deal.

Four anti-corruption groups – Transparency International, Ghana Integrity Initiative (GII) and the Ghana Anti-Corruption Coalition (GACC) dragged Ghana to the CCJ in December 2020 seeking an order to halt the Agyapa deal.

It is the case of the applicants that the Agyapa deal is allegedly being dominated by “politically exposed persons” and also violates the rights of Ghanaians to have permanent sovereignty over the country’s natural resources as provided under the African Charter on Human and People’s Rights.

Ghana, in her defence, has however refuted the case of the applicants and argued that the Agyapa deal was not meant to cede the sovereignty of the country’s resources to foreigners.

“The proposed Agyapa transaction is intended as a means by which only a portion of the proceeds from the exploitation of natural resources of Ghana is invested to ensure that the people of Ghana obtain the benefit therefrom,” the Attorney-General (A-G) submitted.

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More time

The CCJ, which is currently sitting in Accra, was expected to hear the case Wednesday, but had to adjourn it after a Chief State Attorney, Dorothy Afriyie Ansah, requested more time to file a reply to the applicants’ response to Ghana’s defence.

She explained that the Attorney-General’s Office was asking for more time to file the reply because as the officer handling the case, she was unwell after suffering a post-COVID 19 complication.

Lead counsel for the applicants, Olumide Babalola, opposed the request and asked the court to slap Ghana with $1000 as cost in the event it adjourned the case for the A-G to file the reply.

According to him, his clients served the A-G with the response in July 2021, while he also flew into the country two days ago from the UK, and therefore it was prudent for the court to award cost.

A three-member panel of the CCJ, presided over by Justice Edward Amoako Asante, awarded cost of $750 and ordered the A-G to file the reply by Monday, March 28, this year.

Hearing continues on Wednesday, March 30.

The applicants are arguing that the Agyapa deal violates many international conventions against corruption and if allowed to go ahead would allow Ghana’s gold resources to be controlled by foreigners.

Apart from asking the CCJ to restrain Ghana from going ahead with the deal, the applicants also want the court to order Ghana to investigate all alleged acts of corruption associated with the deal, “and ensure that any alleged perpetrators are brought to justice.”

Defence

Ghana in her defence argues that the first applicant – Transparency International has no capacity to be part of the action because it was a German organisation and therefore not a member of the ECOWAS Community.

Also, Ghana is of the contention that the argument by the applicants that the Agyapa deal was an interference in the right of Ghanaians to have sovereignty over natural resources is “not based on sound legal reasoning and meritless” Ghana also makes a case that the applicants failed to provide any evidence to back their allegations that
the deal was dominated by “politically exposed persons” who “intend to misappropriate Ghana’s resources.”

Background

Parliament passed the Minerals Income Investment Fund Act, 2018 (MIIF Act 978) with the key objective of maximising the county’s mineral wealth for the benefit of Ghanaians, while ensuring that receiving royalties from gold mining companies was sustainable.

The law was amended to enable it to incorporate subsidiaries and use it as a special purpose vehicle (SPV) to do business across the world.

The main subsidiary of the MIIF and holding company, Agyapa Royalties Investment Ltd, will be listed on the LSE, while its subsidiary, ARG Royalties Ltd, will be quoted on the Ghana Stock Exchange (GSE), both through IPOs.

The company will be responsible for managing 75.6 per cent of the country’s royalty inflow from the 12 gold mining companies that currently operate in Ghana, with four more expected to come on stream.

That will enable the country to raise about $1 billion to finance mining concessions in Ghana and across Africa.

In November, 2020. President Akufo-Addo instructed the Minister of Finance to re-submit the agreements supporting the Agyapa deal to Parliament for the approval process to start all over again.

That followed the corruption risk assessment submitted by a former Special Prosecutor, Mr Martin Amidu, to the President.

Writer’s email: emma.hawkson@graphic.com.gh