Eurobond, US-Ghana Defence Pact: Cases not meritorious – Supreme Court

The Supreme Court has dismissed two suits which challenged the constitutionality of two actions of the government.

The two cases were the Ghana-US Defence Pact ratified by Parliament in March 2018 and the $2.25-billion Eurobond issued by the government in 2017.

Defence pact case

In a unanimous decision yesterday, a seven-member panel of the court, presided over by the Chief Justice, Mr Justice Kwasi Anin Yeboah, declared the defence pact constitutional which did not violate any law.

It held that the suit filed by Yaw Brogya Genfi, a member of the opposition National Democratic Congress (NDC), challenging the agreement was unmeritorious.

The court, however, did not give reasons for its decision, saying the reasons would be filed at the court’s registry by May 20, 2020.

Members of the court’s panel were Justices Paul Baffoe-Bonnie, Yaw Appau, Gabriel Pwamang, Samuel K. Marful-Sau, Nene Amegatcher and Prof. Nii Ashie Kotey.

Eurobond case

With regard to the legality of the Eurobond, the apex court dismissed a suit filed by the Dynamic Youth Movement (DYMOG), a pressure group, which accused the Minister of Finance, Mr Ken Ofori-Atta, of conflict of interest during the issuance of the bond.

A seven-member panel of the court, also presided over by the Chief Justice, unanimously dismissed the suit as unmeritorious.

“Our decision is unanimous. The claims of the plaintiff are dismissed as without merit. The reasons for the dismissal will be filed at the court’s registry by tomorrow,” the Chief Justice said.

Members of the panel on that case were Justices Jones Dotse, Paul Baffoe-Bonnie, Yaw Appau, Gabriel Pwamang, Nene Amegatcher and Prof. Nii Ashie Kotey.

Defence agreement suit

The defence agreement allows US military and civilian personnel access to certain facilities in Ghana and provide them privileges, exemptions and immunities equivalent to those accorded to the administrative and technical staff of a diplomatic mission under the Vienna Convention on Diplomatic Relations of April 18, 1961.

Ghana is also expected to benefit from aid package in excess of $20 million from the USA in the areas of training and grant.

Right after its ratification, Genfi and Emmanuel Kotin, a security expert, filed two separate suits at the apex court, with a case that the agreement was unconstitutional.

Last year, the Supreme Court consolidated the two suits into one, since both were seeking similar reliefs.

Kotin, however, withdrew his suit, leaving Genfi as the only person challenging the agreement.

Genfi’s case

Genfi had argued that the defence agreement was unconstitutional because the President of Ghana failed to execute it, as prescribed by Article 75 of the 1992 Constitution, before sending it to Parliament for ratification.

Article 75 (1) of the 1992 Constitution states: “The President may execute or cause to be executed treaties, agreements or conventions in the name of Ghana.”

He, therefore, wanted a declaration from the Supreme Court that the Minister of Defence violated the 1992 Constitution when he laid an unexecuted draft of the agreement before Parliament for ratification.

Genfi was also seeking a declaration from the court that the agreement was not in the interest of Ghana because it excluded Ghanaian courts from adjudicating over its terms and conditions, while it also granted the USA unfettered access to Ghana’s borders and telecommunications infrastructure.

Brouhaha over agreement

Before and after its ratification by Parliament, the defence pact was criticised by opposition political parties such as the NDC and the People’s National Convention (PNC).

On the day of its ratification, hundreds of demonstrators marched to Parliament to protest against the endorsement of the agreement.

Some top opposition party officials stormed Parliament, wearing red armbands, to express their displeasure with the pact.

Despite assurances from the government that the pact would deepen defence cooperation between Ghana and the US and further enhance the security of the country, critics said it meant that Ghana had sold its sovereignty to the US.

Eurobond suit

In March 2017, the government, through the Ministry of Finance and the Bank of Ghana, issued five-year, seven-year, 10-year and 15-year bonds worth $2.25 billion.

According to the government, the proceeds of the bonds were to be used to re-profile the country’s domestic debt stock as part of its debt management strategy.

The issuance of the bonds was heavily criticised by the NDC.

In January 2018, DYMOG dragged the Finance Minister, the Attorney-General and the Commission on Human Rights and Administrative Justice [CHRAJ] to the Supreme Court over the $2.25 billion bond issuance.

The group accused Mr Ofori-Atta of conflict of interest during the issuance of the bonds.

The plaintiff contended that the minister, in issuing the bond to Franklin Templeton, had put himself in a conflict of interest situation because one of the directors of the US-based investment group, Trevor Trefgarne, was also a director of a company owned by the minister.

DYMOG, therefore, argued that upon a true and proper interpretation of Article 284 of the 1992 Constitution, the Finance Minister had breached the constitutional provision against conflict of interest.

It, therefore, wanted a declaration from the Supreme Court to that effect.

Article 284 of the 1992 Constitution states: “A public officer shall not put himself in a position where his personal interest conflicts or is likely to conflict with the performance of the functions of his office.”

Among other reliefs,  the group sought a declaration that by issuing or overseeing the issuance of the said bonds to Templeton without disclosing his relational interest with a director at Templeton, Trevor Trefgarne, the First Defendant had acted in contravention of Article 284 of the 1992 Constitution.

Health protocols

A noticeable thing in the Supreme Court yesterday was the strict enforcement of physical distancing and the mandatory wearing of nose masks as part of measures to contain the spread of the novel coronavirus disease (COVID-19).

All the Justices on the panel, as well as staff of the Judicial Service in the courtroom, were in nose masks, while the court users were also required to wear nose masks before they were even allowed entry into the court premises.

Also, the Registrar of the Supreme Court, Mr Matthew Antiaye, reminded the court users of the need to observe all the safety measures being implemented in the courtroom to prevent the spread of the COVID-19.