$2.25bn bond: Supreme Court to decide if Ken Ofori-Atta can use AG as his lawyer

The Supreme Court will on Wednesday decide whether the Finance Minister Ken Ofori-Atta can use the Attorney General (AG) as his lawyer in the 2.25 billion-dollar bond case filed against him and others by the a youth group, Dynamic Movement of Ghana (DYMOG).

DYMOG in January this year took Mr. Ofori-Atta, CHRAJ and the AG to the Supreme Court, claiming CHRAJ in determining a petition on the bond, made some serious pronouncements, which in its view, contravenes aspects of the 1992 constitution.

In court last week, the lawyers for CHRAJ raised objection to use of the AG by Mr. Ofori-Atta as his lawyers.

The lawyers argued before the seven-member justices of the Supreme Court that the issue of conflict of interest is a personal matter which the state (represented by the AG) cannot answer for since not all activities of public officials form part of their public duties.

CHRAJ contended that the AG will be in conflict of its own duties per Article 88 of the 1992 Constitution if Mr. Ofori-Atta is pronounced guilty of conflict of interest, because the AG at that point will be responsible in prosecuting the same person.

Consequently, it prayed the court to order the AG to cease being lawyer for the finance minister so that he can find his own lawyers to represent him in the case.

Meanwhile, DYMOG has opposed an application by the AG to amend its statement of case and that of Mr. Ofori-Atta.

In its view, the AG is obviously seeking to delay the case with the application, arguing that the AG cannot claim ignorance of the new information it is intending to add to the original statement of case filed two months ago.

CHRAJ also opposed the application. The court after hearing the submissions on the application to amend the statement of case fixed July 11 to rule on the matter as well as whether the AG can represent Mr. Ofori-Atta.

Background

DYMOG on May 8, 2017 petitioned the Securities Exchange Commission (SEC) to investigate the transparency of the bond, its classification and a claim of possible conflict of interest in the issuance of the said bond.

Prior to that, CHRAJ was on April 25, 2017 petitioned to investigate the issue of lack of transparency and a possible case of conflict of interest against Mr. Ofori-Atta in government’s issuance of the 2.25 billon-dollar bond.

In its findings, CHRAJ established the finance minister breached the Guidelines for the Government Securities Market for Primary Dealers” that regulate the issuance of Government Securities.

It also held that bonds are forms of government borrowing irrespective of the type, hence the issuance of the 2.25 billion-dollar bond ought to have gone through parliamentary approval as per Article 181 of the Constitution.

The finance minister, in CHRAJ’s view, breached that provision of the constitution.

CHRAJ further established Mr. Ofori-Atta’s interest in Databank and Enterprise Group Limited whose objects are linked to the securities industry, places him in a high conflict of interest situation.

It again claimed Mr. Ofori-Atta’s failure to declare all his assets in Data Bank Financial Services, Data Bank Brokerage Limited and Databank Financial Holdings Limited was a violation of Article 286 (1) (a) of the Constitution.

CHRAJ overstepped its remit

But DYMOG is accusing CHRAJ of going overboard to make some pronouncements on the matter that are outside its remit, something the group argued “constitute a blatant violation of our Laws”.

‘No issue for interpretation’

However the Attorney General and the Finance Minister in a joint statement of case filed at the Supreme Court said, “there is no single issue for interpretation or enforcement” of the 1992 constitution.

The two argued that CHRAJ did not err in anyway in making a determination on the case, which has formed the basis of the plaintiffs’ instant action.

The AG and the Finance Minister averred that CHRAJ acted within the confines of the law in determining the matter, adding “the case of the plaintiff is based on the report of CHRAJ which is mandatorily required by the constitution to do so.”

“Act 456 provides an avenue for redress, if the recommendations or the findings CHRAJ needing compliance is not satisfied within three months,” the two defendants stated.

For them, “whether or not Mr. Ofori-Atta was guilty of conflict of interest situation regarding the issuance of the issuance of the government bonds is a duty conferred on CHRAJ by the constitution, 1992 and not the Supreme Court”

They are thus praying the Supreme Court to dismiss the case as the plaintiffs are just abusing the court process.