Atuabo Freeport litigation rekindled

Information reaching BUISNESS GUIDE indicates that Maritime Dockworkers Union (MDU) of the Trades Union Congress (TUC) has officially notified the Attorney General of its intention to file a suit to stop the Atuabo Freeport project, which is currently under construction.

In July 2014, Parliament approved an agreement between the Government of Ghana and British company Lonrho Ports for the development of an oil and gas free port at Atuabo.

Interestingly, Clause 7 of the agreement barred Takoradi Port from further expanding its facilities for oil and gas until Lonrho builds its Freeport, recovers all its costs and makes enough profit.

This compelled five MPs namely Kwaku Kwarteng of Obuasi West, Hawa Koomson of Awutu Senya East Joseph Cudjoe of Effia, Kwabena Okyere Darko-Mensah of Takoradi and Kofi Brako of Tema Central to file a suit at the High Court to challenge the legality of the establishment of the Atuabo Free Port but it was dismissed by the court.

The five MPs described the clause as illegal and hoped the Accra High Court will intervene and stop the deal but Justice Peter Kwabena Ababio reminded the applicants that the country’s democratic process had adopted the separation of powers among the three arms of government with checks and balances.

The judge said Parliament, in approving the agreement, did not violate any constitutional provision, saying it went through the process according to the Standing Orders of the House.

An appeal against the ruling is said to be pending at the Court of Appeal.

In the process, the MDU entered the fray, expressing its reservations about the entire project and said it was ready to file a suit because the restrictions in the Oil and Gas Freeport Project Commercial Agreement for the Atuabo Freeport are inconsistent with the laws that set up the Ghana Ports and Harbours Authority (GPHA), which is the sole body to regulate ports.

A notice sent to the AG on November 3, 2015 by MDU’s solicitors Opoku and Associates said “I have been instructed by my client to serve this notice of civil action on you, the AG in accordance with section 10 of the State Proceedings Act, 1998 (Act 555).

It said that the President by a notice in the Ghana Gazette of June 26, 2013, declared some parcels of land as the Atuabo Freeport in accordance with section 7 of the Free Zones Act, 1995, adding “subsequently, the government of Ghana has proceeded to sign ‘Ghana Oil and Gas Freeport Project Commercial Agreement with Atuabo Freeport Ghana Limited to develop and operate the Atuabo Free Port.”

“It is only under the Ghana Ports and Harbours Authority Act, 1986 (PNDCL 160) that any port can be created in Ghana, once created, the port comes under the regulatory oversight of the GPHA.”

According to the MDU, “The Free Zones only allows the President to declare an existing port a Freeport, the creation of Atuabo Freeport under the Free Zones Act without first creating a port under PNDCL 160 is wrongful and illegal.”

The union said it would seek an order that the development and operations of the Atuabo Freeport be subjected to the oversight functions of the GPHA.

They also want a declaration that Clause 7 of the Oil and Gas Freeport Project Commercial Agreement is inconsistent with PNDC Law 160.