ECOWAS court rules Ghana's Agyapa Royalties deal can continue

The Economic Community of West African States (ECOWAS) Court of Justice has ruled that there is nothing illegal with the Agyapa Royalties deal the Nana Addo Dankwa Akufo-Addo government is seeking to implement.

This comes after the ECOWAS court dismissed an application to stop the Akufo-Addo government from going ahead with the deal, on the grounds that it was not on the interest of Ghanaians.

The case was sent to the court by three anti-corruption agencies in Ghana - Transparency International, Ghana Integrity Initiative (GII) and Anti-Corruption Coalition.

According to the court, presided over by Justice Sengu Mohamed Koroma, Justice Dupe Atoki, and Justice Ricardo Cláudio Monteiro Gonçalves, ruled that the three anti-corruption bodies failed to provide evidence that the deal would deprive the people of Ghana of their common wealth.

The judges also reportedly stated that the Parliament of Ghana approved the processes of setting up the Agyapa Royalties deal by the Minerals Income Investment Fund (MIIF) and the floating of its shares in a transparent and legitimate manner.

The court also agreed with the argument of the Akufo-Addo government that Ghana owns 100% of the Agyapa deal and that the 49% it intends to be floated on the London Stock Exchange (LSE) could not be misconstrued as depriving Ghanaians of their common wealth.

The report indicated that a 34-page judgement from the court said that the three anti-corruption agencies were seeking six reliefs.

Below are the relief:

1. A declaration that the Defendant’s actions towards entering into a relationship agreement with Minerals Income Investment Fund and Agyapa Royalties Limited in respect of transactions surrendering the sovereignty of Ghana over its gold mineral resources in perpetuity constitute an interference with the right guaranteed under Article 21(1) of the African Charter on Human and Peoples Rights as well as violation of Articles 2(1) And (2), 3(1), 16(1) And 17(3) of The Revised African Convention On The Conservation Of Nature And Natural Resources (revised Maputo Convention).

2. An order restraining Defendant from implementing the Agyapa deal, and cancelling/terminating the already existing contracts.

3. An order mandating the Defendant, where it desires to raise immediate funds from gold royalties, to restart the planning, impact assessment, consultations and other preparations in line with its international human rights law obligations.

4. An order mandating the Defendant to undertake a thorough and impartial investigation into the alleged corruption offences and ensure that any alleged perpetrators are brought to justice and held accountable for any violations.

5. An order mandating Defendant to immediately review its existing relevant national laws and policies to:

(a). Provide for adequate and effective safeguards against violation of the Right to Free Disposal of Wealth and Natural Resources by public officials and public bodies.

(b). Follow Revised ECOWAS Treaty’s fundamental principles enshrined in Article 4 paragraphs g) and h) and ensure compliance with its Article 31.

(c). Ensure that any entity with the function of sovereign wealth fund complies with the best international standards, such as the Santiago Principles.

6. Other consequential order (s) as this honourable court may deem fit to grant in the circumstance.

Excerpts of the judgement of the court:

This Court, having considered the obligation in Article 21 (1) of the ACHPR and the provision in Article 256 (7) of the Constitution of Ghana, adjudges that the latter (Ghana) has complied fully with the obligation under Article 21 (1) of the ACHPR and dismisses the claim pertaining to Article 21 (1) of the ACHPR in this regard.

With respect to the issue that there are politically exposed persons within the transaction, the Court finds that the Applicant has failed to show how this has affected the exploitation of the common wealth for the benefit of the people of Ghana.

The Court finds instruction in the ratio in Mr. Ousmane Guiro V. Burkina Faso (2017) CCJELR at page 223 where it held that “The Court cannot take unproven allegations at their face value”.

It is necessary for applicants to substantiate the complaints they raise before the Court with evidence. The Court aligns itself with this ratio and dismisses this allegation of the Applicants as it has not been proved.

The court considers the claims of the Applicants a pre-emptive one which has been brought hastily without due consideration as to the rudiments of bringing a claim for the violation of human rights.

Whilst it is important that human rights are jealously guarded, the Court will admonish the Applicants that democratic pillars, like parliamentary approval, form checks and balances for the safeguard of human rights.

Unless uncontroverted evidence establishes that these safeguards have been breached, any attempt to saddle the Respondent with liability will be discountenanced by the Court.

Consequently, the Court dismisses all claims of the Applicants and so holds.

About the Agyapa Royalties Deal:

The deal started in June 2018 when Parliament passed the Minerals Income Investment Fund (Act 2018) to manage the equity interests in mining companies and also receive royalties on behalf of the Government of Ghana.

The Minerals Income Investment Fund is mandated to manage and invest these royalties and revenue it receives on behalf of Ghana and invest them for higher returns.

To do this, the law enables the Fund to establish Special Purpose Vehicles (SPVs) to appropriate these investments.

Amendment

In July 2020, the government introduced an amendment to the Act to ensure that the SPVs that the Fund would establish to manage investments get unrestricted independence.

On the back of the amendment and the original provisions of the act, the Minerals Income Investment Fund set up an offshore limited liability company known as Agyapa Royalties Limited (previously Asaase Royalties Limited).

The Agyapa Royalties Ltd is incorporated in Bailieick of Jersey in the UK, a tax haven. It has been incorporated in a tax haven to cut out the associated high tax charges to the returns that will accrue to the state from the investments.

Agyapa Royalties Limited is registered in Ghana as an external company.

How Agyapa Royalties will operate

- Agyapa Royalties Limited will trade shares on the Ghana Stock Exchange and the London Stock Exchange for the private market.

- Mineral Income Investment Fund will remain the majority shareholder.

- ARL will raise between $500 million and $750 million for government to use for developmental initiatives – the government has revealed the four key areas of investment will be education expenditure, primary capital, health and infrastructural development.

- Future resources from gold royalties will go to ARL shareholders instead of the Mineral Investment Fund and for that matter government. Essentially, the government is mortgaging expected royalties from gold in exchange for about $500 million – $750 million from ARL.

BAI/AE

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Ghana’s leading digital news platform, GhanaWeb, in conjunction with the Korle-Bu Teaching Hospital, is embarking on an aggressive campaign which is geared towards ensuring that parliament passes comprehensive legislation to guide organ harvesting, organ donation, and organ transplantation in the country.

Watch the latest episode of The Lowdown on GhanaWeb TV below: