Special Prosecutor clears former President Mahama, others of Airbus bribery allegations

The Office of the Special Prosecutor (OSP) has cleared former President John Dramani Mahama and several other individuals of any wrongdoing in the Airbus bribery scandal.

The Special Prosecutor, Kissi Agyebeng, during a media briefing on the matter in Accra said the investigation, which spanned over four years, found no evidence to support allegations made against the high-ranking Ghanaian officials in the United Kingdom and United States court decisions.

According to the OSP, investigation was triggered by a referral from the President of the Republic following the approval of a Deferred Prosecution Agreement (DPA) between Airbus SE and relevant authorities in the UK, US and France.

The DPAs had alleged that Airbus employees made or promised success-based commission payments to Intermediary 5 – a close relative of a high-ranking elected Ghanaian official, in order to induce or reward improper favour in the purchase of three C-295 military transport aircraft by the government of Ghana between 2009 and 2015.

In its observations, the OSP stated that the direct involvement of former President Mahama and his younger brother Samuel Adam Foster (also known as Samuel Adam Mahama) in the Airbus-Ghana deal was the primary reason the case found its way into the UK and US DPAs.

The OSP noted that “the only reasons why the Airbus-Ghana deal found its way into the UK and US DPAs were the fact that former President Mahama and Samuel Adam Foster were brothers of the full blood; and that former President Mahama directly participated in commercial communications and meetings with Airbus officials”.

The Special Prosecutor emphasised that the OSP “found no evidence, circumstantial or direct, which suggest that Foster and his associates were actually paid bribes and those bribes were to be transmitted to former President Mahama and that said bribes were actually paid to former President Mahama”.

In fact, the OSP investigation revealed that an agency relationship existed between Airbus and Foster and his associates, through which they acted as business partners of Airbus in the Airbus-Ghana deal.

The commission-based payments made to Foster and his associates were found to be a typical arrangement instituted by Airbus to increase its international footprint and assist with winning sales contracts in numerous jurisdictions.

“It seems to the OSP that the nature and structure of Ghana’s statutory prohibitions and our jurisprudence on corruption and corruption-related offences do not lend themselves to finding criminal culpability in respect of the referenced individuals in the context of the UK and US outcomes,” the Special Prosecutor stated.

The OSP further noted that the UK and US DPAs did not include or cover the referenced individuals as the agreed settlements were reached with Airbus alone.

Explaining this, the Special Prosecutor said: “It appears that Airbus accepted criminal culpability for bribery for itself and also vicariously on behalf of the referenced individuals, including its employees, agents, business partners and Ghanaian public officials. And that the referenced individuals appeared not to have been direct subjects of the investigations by UK and US authorities and were not afforded the opportunity, if they were so minded to take it, to explain their actions and present exculpatory evidence, if any.”

Regarding the actions of former President Mahama, the OSP found that his direct participation in the communications and meetings with Airbus officials was “actuated by good intentions on the part of the former”.

However, the OSP acknowledged that: “It ought reasonably to have occurred to former President Mahama and the government of Ghana that the familial relationship between former President Mahama and Foster, and the direct participation by former President Mahama in the communications and meetings with Airbus officials, were bound to raise reasonable suspicions of improper conduct and dealings”.

The Special Prosecutor stressed that: “Such close proximity dealings by elected high officials of the Republic and their kin and close associates on behalf of the Republic should neither be viewed favourably nor encouraged – as they give rise to reasonable suspicion of influence peddling and conflict of interest, never mind any intended good faith”.

Additionally, the OSP found that the “concoction of a plan by senior leadership in SMO International and the Defence & Space Division to deliberately circumvent Airbus compliance rules by substituting Company D or the company owned by Consultant 4 and Consultant 5 with the Spanish Intermediary 8 or Organisation 1 to ensure payments to Foster and his associates was probably a well-intentioned adventure, though apparently misguided – as it rendered the payments seemingly of doubtful provenance”.

In light of these findings, the Special Prosecutor has directed the closure of OSP investigations and withdrawal of the arrest warrants and INTERPOL Red Notices issued for Samuel Adam Foster, Philip Sean Middlemiss, Leanne Sarah Davis and Sarah Furneaux.

“The OSP will not institute criminal proceedings against any person in respect of this investigation,” Mr. Agyebeng stated.