Agyapa deal: Involvement of Data Bank poor judgement on the part of Ofori-Atta – Kpebu

Legal practitioner Martin Kpebu has said that Finance Minister, Ken Ofori-Atta exercised poor judgement by giving Data Bank, a bank he founded, a role to play in the Agyapa Royalties agreement.

He explained on the Key Point programme on TV3 on Saturday November 7 that the involvement of the bank in this agreement introduced a conflict of interest element in the whole transaction.

Mr Kpebu told host that “Bringing in Data Bank was poor judgement, we have to tell Ofori-Atta that when he saw Data Bank in he had to do something about it.

“Analysts say we are not happy about Data Bank being there, so the question should be what is being done about Data Bank is there. That should be the focus rather than asking who signed the report or didn’t,” he said. The Special Prosecutor (SP) Mr Martin Amidu has said Databank was smuggled into the Agyapa Royalties deal by Imara of South Africa as a “decoy”.

In the final report on the analysis of the risk of corruption and anti-corruption risk assessment of the process leading up to the request for approval on the Agyapa Mineral Royalties deal, Amidu concluded that “the whole of the fees for the bid purportedly won by Imara of South African with its decoy, Databank of Ghana, is to be paid in United States Dollars to Imara Corporate Finance Limited (Pty) of South Africa.

“The Mandate Agreement does not say how and when the decoy, Databank of Ghana, was to be paid by Imara for a contract purportedly won and performed jointly,” The SP’s report stated.

Martin Amidu continued: “This opaque arrangement in the contract negotiation process not arising out of the Public Procurement Authority approval is what made the analysis of the risk of corruption and anti-corruption assessment conclude that the process of the selection of the Transaction Advisor(s) disclosed a reasonable suspicion of bid-rigging and corruption activity including the potential for illicit financial flows and money laundering in the arrangement of how the fees payable to Databank of Ghana as the decoy which was not approved under the Public Procurement Authority Act, 2003 (Act 663 as amended) are to be made.”

He added: “There was thus a zero chance arising out of individual interests at the Ministry of Finance and Imara/Databank of expecting impartiality and neutrality on the party of the Transaction Advisor(s) in advising the Republic of Ghana as a national corporate entity representing the unitary interest of its Chiefs and people.”

Meanwhile, in his response to the Special Prosecutor, Mr Ken Ofori-Atta stated that the government was transparent with the Agyapa Royalties Agreement.

“Prior to initiating the Transaction, MoF ensured to undertake all the necessary pre-requisite action required by law, from the procurement of transaction advisors, to the submission of transaction documents to the AG and Parliament for their review, input and approval.

“This Ministry believes that it has been transparent from the onset. Once Government had independently assessed the potential value of the Transaction to Ghana, and Cabinet had approved the policy to monetize future gold royalties to support current developmental projects, MoF included in the 2018 Budget and Economic Policy Statement, Government’s intention to leverage the future wealth of Ghana’s gold resources to support current developmental needs.

“Following an evaluation on 12/01/18, of the Technical Proposals submitted by the two sets of firms, by a duly constituted evaluation panel, Imara/Databank (Imara TA) emerged the winners.

“On 6/8/2018, on my instructions, Deputy Minister for Finance, Charles Adu Boahen, signed a Mandate Agreement with Imara TA to exclusively advise and assist Government on the Transaction, as Transaction Advisor (TA). Imara TA was required to oversee all necessary transaction advice for the Transaction including engaging various professionals and/or consultants to assist in the drafting of any agreements or Bills that needed to be passed, due diligence, and the setting up of any corporate entities or vehicles for the Transaction.

“Since Imara bid for the transaction as a partnership, it was not in our place to provide separate fee payment streams for Imara and Databank in the Mandate Agreement. Additionally, Imara, being the principal of the partnership with Databank, and being a foreign entity, was entitled, as is normal, to be paid for the services in foreign currency.



“An examination of the various transactions engaged in by Imara after the execution of the Mandate Agreement, shows a clear recognition that Imara is the principal partner in the consortium appointed as TAs. In fact in the Mandate Agreement, the retainer fee of $15,000 per month over the duration of the Agreement (initially set as 12 months), is payable to Imara.

“In order for Imara TA to successfully provide the services for which it was engaged, it was necessary for Imara TA to be able to directly engage other external experts and qualified technical and other advisors, to support the successful implementation of the Transaction. Per the Mandate Agreement, all such engagements were to be with MoF approval, and as is the norm in such transactions, the sponsor of the transaction, MoF in this case, bears the cost of such engagements. As such, advisors would be engaged as and when necessary, it would not have been feasible to determine their fees upfront at the commencement of the transaction. All the roles were advisory in nature.

“Imara engaged professionals and service providers namely White & Case, BELA and ALA to advise the Transaction Advisors on legal issues. Imara further engaged Korn Ferry to advise the Transaction Advisors on HR and the recruitment of board members and senior management for ListCo. Buchanan Communications Limited to assist with Branding, Communications and PR, as well as another firm, Ogier, to assist the Transaction Advisors with the incorporation of the ListCo in Jersey.

“This is consistent with other transactions of this nature. For example with Eurobond transactions the Lead Managers are responsible for procuring the services of other service providers and professional service firms including lawyers, auditors, brokers and logistics amongst others even though the cost for such services are ultimately paid for by GoG.

“Incorporating in Jersey, Channel Islands was to facilitate the listing of ListCo on the London Stock Exchange, one of the worlds most regulated markets and also in a tax efficient manner. It is important to note that 70% of the value of non-UK resident companies listed on the London Stock Exchange are incorporated in Jersey. UK listed companies incorporated in Jersey cannot be shrouded in secrecy.

“A listing on the LSE ensures that ListCo will be subject to the most regulated stock market in the world with the highest levels of corporate governance and reporting requirements and under the Financial Conduct Authority (FCA) of the UK and subject to the transparency rules of the LSE ie Transparency Directive (2004/109/EC). Companies listed on the LSE are required to comply with the UK listing rules and disclosure guidance and transparency rules.

“Imara is a leading independent asset management and investment banking firm in sub-Saharan Africa with a reputation for providing quality financial advice to governments in Africa going back over 60 years with extensive experience in the natural resources sector in Africa. The Imara team has executed over 200 transactions in 12 African countries and has over $550MM in fund under management.



“Mining sector transactions include project financing for the Geita Gold Mine in Tanzania owned by AngloGold Ashanti and the and the sale of the Govt of Zambia’s shares in ZCCM. The IMara team is led by Mr Tom Gaffney, with over 30 years experience in providing transaction advisory services primarily to the mining sector. Previously he worked for Robert Fleming and CO and JP Morgan Chase. Tom has advised on deals such as the Secondary offer of Metall Mining for Anglo American and the merger of BHP and Billiton. He also advised the French government on the acquisition and divestiture of gold mining interests globally.

“I co-founded Databank 30 years ago, which is now the leading investment bank in Ghana. Seven times winner of the Best Securities Brokerage Company in Ghana, Databank has been actively involved in virtually every initial public offering of state enterprises under all governments in the Fourth Republic.

“In 1994, Databank formerly advised the Rawlings administration during the liquidity crisis that threatened to cripple Ashanti Goldfields Company (now AngloGold Ashanti) and subsequent part sale of its interest in the Geita Mine in Tanzania. Databank had earlier served as a broker in the IPO of Ashanti Goldfields on the GSE in 1994.

“In 2007, Databank was co-Manager and dealer for the first-ever Eurobond by a Ghanaian government, amounting to $750m, Databank was also co-Manager in the 2014 Eurobond issue. In 2020, Databank was again part of the team that issued the highest ever tenure in Africa for a sovereign bond, the $750m 41-year Eurobond of February 2020. On the asset management side, Databank manages over $1 billion for some 500,000 Ghanaians and a third of all mutual funds in Ghana. I resigned as Executive Chair of Databank in August 2012 and resigned from all Databank Boards in Feb 2014.”