As Betty Storms Public Accounts Committee Today…
News Desk Report
Today, the chairman of the Public Accounts Committee (PAC) of Parliament, Hon. Albert Kan-Dapaah and another opposition New Patriotic Party (NPP) Member of Parliament (MP), Isaac Kwame Asiamah, are those going to benefit most, from “free lecture” to be given by a former Attorney-General and Minister of Justice, Madam. Betty-Mould Iddrisu, as she appears before the committee today.
Ghanaians will also learn a lot from the “free lecture”, so as to be more informed, that judgment debts were not paid by the President Atta-Mills administration as Kan-Dapaah and his colleague Isaac Asiamah wanted the good people of Ghana believes; but that of Rawlings and John Kufuor regimes.
As a result, the general public is expected to know more about how the Construction Pioneers (CP) judgment debt was accumulated and the immense role played by the former Attorney-General and Minister of Justice, to rather save Mother Ghana.
It would be recalled, that, the last time Madam Betty-Mould Iddrisu appeared before the committee, Hon. Isaac Kwame Asiamah was totally missing in action, unlike the previous times when Ghanaians use to hear from him, but glued to his seat, busily taking notes from similar tutelage, as regards the CP judgment and how the Attorney-General could intervene in such matters, to save the nation from losing millions of cedis.
We reproduce head-to-toe Madam Betty’s press statement, giving vivid accounts of how the said debt was accumulated and how her continuous appearance before the committee could be politically motivated.
PRESS CONFERENCE ADDRESSED BY HON. BETTY-MOULD IDDRISU(FORMER ATTORNEY GENERAL AND MINISTER OF JUSTICE) IN THE MATTER OF THE SETTLEMENT AGREEMENT BETWEEN CONSTRUCTION PIONEER CO. LTD (CP) & THE GOVT OF GHANA
Good Evening Ladies & Gentlemen of the Media,
As you are aware, we have just left the Public Accounts Committee. I am constrained to make this statement against a background of persistent and grave attacks by some members of the public on both my professional competency and my integrity. These attacks relate to my conduct as the Attorney–General and Minister of Justice of Ghana in settling claims arising out of the arbitral award between Construction Pioneer (CP) & the Government of Ghana.
For the record, I refute all such allegations and speculation that I may have acted improperly in negotiating the settlement of the arbitral award. Apart from exercising due care and skill, at all material times I had the benefit of the advice and recommendations of relevant Government officials including state attorneys and officials from the Ministry of Finance and Ghana’s accredited external counsel among others.
My statement will address two main issues re the conduct of the Hearings which have necessitated my coming out with this statement:
(1) Parliamentary Accounts Committee & the Hon Chair’s conduct of the PAC.
(2) The main issues raised by the PAC in the interrogation of the issues of the CP Agreement and the modus operandi employed by PAC in seeking to arrive at conclusions.
I. PARLIAMENTARY ACCOUNTS COMMITTEE CONDUCT OF PROCEEDINGS
1. The issue which the PAC was seized of ostensibly was the payment of 14MILLION EURO in 2009 which the Auditor General had queried in his notes to the 2009 Accounts and yet the Hon Chair then used this to launch an arbitrary inquisition into an Agreement that was signed in 2010.
a) There were persistent references throughout the PAC Hearings to a fraud enquiry carried out during the NPP’s tenure and yet there was little reference to the reasons why the NPP abrogated the contracts in 2001 & occasioned these liabilities in the first place;
b) The PAC investigation also glossed over the fact that the “fraud” case filed by the GoG in Ghana was never brought to trial & the fraud allegation was thrown out by the international arbitral tribunal & foreign courts as “unproven”. The PAC invitation & repeated attempts to get Mr. Theophilus Cudjoe, former Director SFO & former GHA officials to testify about fraud allegations that were never proven by the SFO in my view were also deliberately designed to revive the problematic agenda of the former Government.
c) There was also no reference to the fact that the former Government lost most of the actions brought against the GoG by CP;
d) There was also no investigation by PAC of the fact that the former Government persistently refused to pay the undisputed certified amounts for works actually carried out by CP resulting in the good people of Ghana having to pay colossal amounts in interest to a foreign company.
2. RESPONSES TO ISSUES RAISED BY PAC
I have endeavored to provide a summary of my responses to some of the allegations leveled against me. They include, but are not limited to the following issues:
• Allegations of unprofessional conduct re the “unsigned” & “undated” page of the Settlement Agreement
The Settlement Agreement of 18th March 2010 signed between Government of Ghana and CP Construction is being challenged as being “fraudulent and unprofessional” since a document (Final Award-Award by Consent) attached to the Settlement Agreement purportedly emanating from the Court of Arbitration of the International Chamber of Commerce, is not signed by the Arbitrator, nor does it bear a suit number of the International Chamber of Commerce and same is undated.
The document indeed as per the Settlement Agreement, Section 2(B) and Section 9 thereof is only a draft which may be signed, dated and filed at the International Chamber of Commerce upon default of payment by the Government of Ghana. I am unsure if the Government of Ghana has ever defaulted in payment to CP under the terms of the payment schedule. This legal tool as envisaged by this Draft is one which is well established in settlement agreements and acceptable at the ICC Arbitral Tribunal as the trigger for CP asserting its claim upon default by the GoG. It is unfortunate that the correct interpretation of this document was given only very far down possibly at the 12th hearing of the Committee by the Deputy Director of the Legal Unit of the Ministry of Finance by which time words such as “unprofessional & fraudulent” had been used by the Chair and the minority members of the PAC multiple times to brand the entire Agreement because the wrong interpretation had been given to this particular undated & unsigned document contained in the Agreement.
• Witnessing of the Agreement
Another issue raised during the PAC hearing was that the Agreement was not witnessed. I must state that this particular Agreement was drawn up by the accredited external counsel of the Attorney General in consultation with CP’s counsel & supervised at all material times by Ghana’s Solicitor General. The signatures of witnesses are not absolutely essential in an agreement of this nature. The document was signed as an agreement and not as a deed which must be signed, sealed, delivered and witnessed.
• Power of the AG to enter Settlement Agreements
Comments such as “I cannot believe that the AG has the power to bind Ghana by signing such an Agreement” by the Hon Chair of PAC had gained credence in the public perception thereby leading to my public ridicule. The PAC investigations veered in the direction of whether I had acted alone, whether I had obtained prior executive approval before signing the Agreement and scrutiny over the power of the AG & Ministers to enter such Agreements - all this further intensified attempts by the PAC to verify their seemingly already preconceived notion that the Agreement was in fact clandestinely and improperly obtained by me.
Under article 88 of the 1992 Constitution the responsibility for the institution and conduct of all civil cases on behalf of the state vests in the Attorney General. The conduct of a civil case includes the initiation, trial, execution or settlement on all matters related to the case. It is therefore indisputable that the Attorney General is clothed with the constitutional power to negotiate and settle all legal proceedings in which the State is involved.
• PAYMENT OF €13.1 MILLION
The original issue of the payment of 13.1 million Euro was what purportedly triggered this whole PAC investigation.
When I entered office, there were outstanding undisputed verified Certificates for works done by CP, Partial Awards & Final Awards made by the International Arbitral Tribunal as well as earlier documented admission of liability and recommendations for payment made by my predecessor, Mr. Joe Ghartey (former Attorney General) and Dr. Richard Anane the former Minister for Roads and Transport, It was brought to my attention by the Solicitor General that a prior warrant for payment had already been issued by the former Government. After appropriate consultations & briefings I then endorsed pre existing recommendations for the payment of the amount of €13,165,403.13 to C.P Construction as evidence of Government of Ghana’s commitment to the settlement arrangement. The advance payment of €13,165,403.13 was therefore necessary to stay threatened execution proceedings by CP since some of the debts had remained unpaid and undisputed for years. Based on this payment, CP Construction agreed to the Government of Ghana’s request for the balance of the negotiated amount of € 80 million to be spread over a period of 3years. C.P Construction by this Settlement Agreement was also to stay enforcement and execution of the awards obtained at the International Chamber of Commerce and to freeze interest.
Ghana’s non-payment over the years gave rise to actions by which Government of Ghana’s properties were being attached in execution of judgments in Belgium, France, England as well as an action to attach Ghana‘s United Nations Account in United States of America. This account includes payments received for Ghana’s Peacekeeping Missions.
On 2nd June 2008, in the course of executing an arbitral award which had been converted into a judgment of a UK commercial court, CP proceeded to attach Ghana Cocoa Board assets in London. These assets were released only after Mr. Joe Ghartey, my predecessor-in title, had recommended and the then Ministry of Finance had paid the sum of over Seven Million Pounds Sterling (£7 million) on or about the 13th of June 2008 to CP Construction to cover the outstanding indebtedness for completed works in Obuasi Township.
There was a critical meeting on 28th and 29th May 2009 in Accra, between the Government of Ghana and C.P Construction, towards trying to achieve a major breakthrough in the long standing negotiations of all C.P Construction claims against Government of Ghana amounting to nearly € 162 Million. The two negotiating parties eventually settled on a global figure of € 94 million after much wrangling and almost one year of negotiations and meetings.
• Power of the AG to settle, advise & bind the GoG
The 1992 Constitution empowers the AG beyond any reasonable doubt as the principal legal advisor to the Government. Section 88 states:
(1) There shall be an Attorney –General of Ghana who shall be a Minister of State and the principal legal advisor to the Government.
(2) The Attorney-General shall discharge such other duties of a legal nature as may be referred or assigned to him by the President, or imposed on him by this Constitution or any other law.
For the avoidance of doubt let me re-affirm that it is one of the functions of the Attorney General’s Department to receive and advise on judgments obtained against the Republic and to advise settlement where necessary. In any case, as per both Section 71-72 of the Courts Act and section 48(1) of the Code of Ethics of the Ghana Bar Association “it is the duty of a Lawyer to advice his Client to avoid or terminate litigation whenever the controversy would admit for fair settlement…” Indeed, a Lawyer commits misconduct if he fails to take an available opportunity in the clients’ interest by fair settlement out of Court instead of engaging in legal proceedings.
As the principal legal advisor to Government with further responsibility to defend all suits against the State, the Attorney-General like any other lawyer dutifully and honestly representing her client’s interest must exercise circumspection, prudence and good sense in the course of work.
I must state that at all the negotiations I ever undertook, the Ministry of Finance was fully represented. I find it personally distressing and unfortunate that some key officers who participated in this negotiation at various times are out of office while some of those who are still at post appear to be overly reticent and not forthcoming with explanation and or accepting legitimate roles played by them for whatever reason they may have.
I reaffirm that I acted prudently and in the national interest in securing a timely negotiation of the CP Construction claim of nearly €162 million down to €94 million and spreading the balance over three years, mindful of the fact that Government of Ghana’s indebtedness, was in fact attracting a whooping interest of about €12,700.00 a day from as far back as October 2002 when certified works done by C.P Construction were jointly accepted as being due and owing as borne out by letters duly authored by senior Government officials, including the then Minister for Transport, Dr. Richard Anane.
• Allegations of Fraud
The issues of fraud, jurisdiction, tax exemptions, mistake and capacity to sign raised by GoG, were argued, considered and roundly dismissed by the 2006 arbitral tribunal’s final award. Apart from the final award, I caused investigations to be instituted by the appropriate authorities. The then Head of the Serious Fraud Office revealed that their docket did not reveal evidence of fraud and that indeed the CP Directors had never been formally charged of any fraud.
• Allegations by PAC that the Settlement Agreement contained a waiver of Taxes
The PAC made several direct references to the fact that the Agreement contained a waiver of taxes and the AG should have known that it is only Parliament that can waive taxes. My response is as follows: The tax issue was an issue raised at the 2006 arbitration and a ruling went against the GoG. Notwithstanding this, I state emphatically that there is not one word or sentence in the Settlement Agreement under reference which exempts or grants remission of taxes or liability to CP. No full and complete reading of the Settlement Agreement by any lawyer can come to the conclusion that CP has been granted remission of tax.
After my 32 years of practice I know that by the laws of this country, an Attorney General does not have the capacity to waive any tax and none was waived in this case. In any case, if any tax is exigible, nothing stops the State from pursuing it if legitimate grounds exists so to do. Additionally, it is trite knowledge that the Attorney General is not the paying officer neither did she pay CP in this case.
I deny vigorously any wrong doing during my tenure as Attorney General and in particular in the settlement of claims against the Government of Ghana by C.P Construction. I want the good people of Ghana to know that I have acted professionally at all material times to protect the image of Ghana internationally and in the best interest of the State. I believe that my true role in these matters will not be established by the recent public hearings of the PAC which were fraught amongst other things with misinterpretations of the terms & effect of the Settlement Agreement, selective targeting of contentious issues, politicization of events, and arbitrary and capricious decisions by the Chair.
I am prepared to participate in any fair legal or judicial process to establish the truth of my role in this matter.
THANK YOU
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