$2.25 bn bond: Attorney General can represent Finance Minister – Supreme Court

The Supreme Court has dismissed an interim application filed by Dynamic Youth Movement of Ghana (DYMOG) against the Attorney General’s decision to represent Finance Minister, Ken Ofori Atta, in a US$2.25 billion bond suit before the court.

The group had gone to the Apex Court following the decision of the Commission on Human Rights and Administrative Justice (CHRAJ) to clear the finance minister of conflict of interest which the group wanted to be investigated.

They contended that by going beyond investigations to make a pronouncement (of guilt or otherwise) on Ken Ofori Atta in respect of the allegation of breach of conflict of interest, the CHRAJ Defendant has contravened Article 287 of the 1992 Constitution.

Even before the merit of the case was determined, lawyers for the group filed an interim application challenging the capacity of the Attorney General (AG) to represent the finance minister.

According to them, the minister was being sued in his personal capacity and not in his capacity as a minister of state.

But the Apex Court presided over by a sole judge, Justice Gabriel Pwamang, dismissed the application saying the minister did not act in his personal capacity as far as the bond was concerned.

He held that the bond for which the minister was dragged before the court was issued by him in his capacity as a minister of state and not as a private person.

The court also held that per Article 8 of the 1992 Constitution, the AG can represent the finance minister and any contrary opinion that the AG cannot represent a public officer must be appropriately filed to challenge the relevant constitutional provision.

The court also granted the Attorney General’s request to amend their statement of case. They are to do so within seven days.

Background

The finance ministry last year announced the issuance of 15 and 7 years bonds with the coupon rate of 19.5% raising a total of US$1.13billion.

It also stated that it raised the cedi equivalent of US$1.12billion in five and 10 years bonds via a tap in arrangement. This means the total amount raised through the bonds as at 3rd April, 2017, was US$2.25billion.

Following the issuance of the bond, Ashanti Regional Youth Organiser of the opposition National Democratic Congress (NDC), Yaw Brogya Genfi, petitioned CHRAJ to investigate the transaction, saying Ken Ofori Atta failed to declare his interest in Databank Brokerage Limited and Databank Financial Holdings Limited before taking office.



He claimed in the petition that “the minister has attempted to promote a private or personal interest for himself or for some family members and business associates, and the promotion of the private interest has resulted in, or was intended to result in, or appears to have resulted in, or has the potential to result in an interference with the objective exercise of his duties and an improper benefit or an advantage by virtue of his position.”

CHRAJ after its investigation cleared the minister of any conflicts of interest saying these companies did not even participate in the sale of the bond, rendering claims that the bond was issued to favour family and friends of the minister false.

DYMOG then went to the Supreme Court seeking a declaration that by going beyond investigations to make a pronouncement (of guilt or otherwise) on the 1st Defendant (Ken Ofori Atta) in respect of the allegation of breach of conflict of interest, the 2nd Defendant [CHRAJ] has contravened Article 287 of the 1992 Constitution.

A declaration that the failure of the 1st Defendant to declare his shareholding interests in Data Bank Financial Services Limited, Data Bank Brokerage Limited and Data Bank Financial Holdings Limited to the Auditor-General before taking office as Minister of Finance, as found by the 2nd Defendant at page 120 of the report, contravenes Article 286(1) (a) of the 1992 Constitution, among others.