A-G WAS INVOLVED: SALE OF GHANA'S 4,883,426 SHARES IN ANGLOGOLD ASHANTI
LIMITED!
The controversy surrounding the sale of close to 5 million of Ghana's shares
in AngloGold Ashanti has taken a new dimension.
It has now been established that the Attorney-General was deeply involved in
the transaction and she discounted the need to seek Parliamentary approval.
A confidential correspondence obtained by “The Insight” shows that the
Attorney-General also waived Ghana's right of immunity in the transaction.
The full text of the correspondence signed by Mrs Betty Mould-Iddrisu,
former Attorney-General is published below;
Dear Sir/Madam
SALE OF 4,883,426 SHARES IN ANGLOGOLD ASHANTI LIMITED BY THE GOVERNMENT OF
THE REPUBLIC OF GHANA
I am the Attorney General of Ghana, the legal advisor to the Government of
the Republic of Ghana (Government). Having examined all the relevant laws,
regulations and documents, I hereby confirm in my official capacity that:
The Government has complied with all necessary requirements under the Ghana
(Constitution) of 1992 (the Constitution), laws and regulations in force in
Ghana, has full power, and all authorisations, approvals and consents
required by it have been unconditionally obtained and are in full force and
effect, in order to:
(a) sell 4,883,426 ordinary shares in AngloGold Ashanti Limited (Shares);
and
(b) enter into one or more agreements with Macquarie Capital (Europe)
Limited (Macquarie) mandating Macquarie to advise the Government, structure
the sale of, and sell the Shares (the Sale) on its behalf (together the
Mandate), including but not limited to the engagement agreement concluded by
the Government and Macquarie on 30 December 2010 and the placing agreement
concluded by them on 13 January 2011.
Pursuant to The Financial Administration Act 2003 (the Act) the Government
has full right, power and authority to conclude the Mandate with Macquarie.
Neither the Mandate nor the Sale conflicts or will conflict with or result
in a breach or violation of any of the terms or provisions of, constitute a
default under, any applicable law, statute, indenture, loan agreement or
other agreement or instrument known to me to which the Government is a party
and/or to which it and/or any of its property or assets is subject.
4. Neither the Mandate nor the Sale require approval from Parliament in
accordance with Article 181 (5) of the Constitution because they are not
transactions of such nature as would require such approval.
5. Dr. Kwabena Duffuor, the Minister of Finance and Economic Planning on
behalf of the Government, has been appointed to this office in accordance
with the Constitution and has authority to execute the instructions for the
Sale and all associated documents required for the implementation of the
Sale (together the Instructions).
6. All the agreements and other documents comprising the Mandate have been
duly authorised by and executed and delivered on behalf of the Government
and constitutes valid, irrevocable and binding legal obligations of the
Government enforceable in accordance with their terms. The Instructions will
constitute valid, irrevocable and binding legal obligations of the
Government enforceable in accordance with their terms.
7. It is not necessary-or advisable under the laws of Ghana, to ensure the
legality, validity, enforceability or admissibility in evidence of the
Mandate or the Instructions, that:
(a) any of them be filed or recorded or enrolled with any authority in Ghana
or any political subdivision thereof;
(b) any tax or duty whatsoever be paid; or
(c) any other action whatsoever be taken.
8. Neither the Government nor its properties, assets or revenues have any
right of immunity, on any grounds, from any legal action, suit or
proceeding, from set off or counterclaim, from the jurisdiction of any
court, from service of process, attachment upon or attachment in aid of
execution of judgment or from execution of a judgment, or other legal
process or proceeding for the giving of any relief or for the enforcement of
judgment in Ghana and England with respect of its obligations, liabilities
or any other matter arising out of or in connection with the Sale, the
Instructions and/or the Mandate.
The properties, assets and revenue do not include any diplomatic or consular
assets or properties, assets or properties belonging to the Ministry of
Defence, assets or properties specifically required for the protection of
national security, or the Consolidated Fund as defined in the Financial
Administration Act, 2003 (Act 654).
9. The choice of the laws of England as the governing law of the Mandate is
a valid choice of law under the laws of Ghana and courts of Ghana will
honour this choice of law. The Government has the power to submit, and
pursuant to the Mandate has legally, validly, effectively and irrevocably
submitted, to the jurisdiction of the. High Court of England and Wales. The
Government has the power and authority:
a. to waive and will waive any objection to the venue of any proceedings in
any such courts as provided in the Mandate;
b. to designate, appoint and empower and will legally, validly, effectively
and irrevocably designate, appoint and empower the Ghanaian High
Commissioner to the United Kingdom or such other person occupying this post
from time to time, to act as agent for service of process in any suit or
proceedings based on, or arising in connection with, the Sale or the
Instructions; and to waive and will effectively waive any sovereign immunity
it may have in respect of any judgement obtained in any English court
arising out of, or in relation to, the Sale or the Instructions.
I am not aware of any reason why the enforcement in Ghana of a judgement in
respect of the Sale, Mandate and/or Instructions would be contrary to public
policy in Ghana.
Yours faithfully
BETTY MOULD-IDDRISU (MRS)
ATTORNEY-GENERAL AND
MINISTER OF JUSTICE
Source: The Insight Newspaper:
http://www.insightnewspaper.com/content/g-was-involved
