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Opinions Wed, 2 Aug 2017

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AMERI: An opinion of a chief whiner at-large

In 2015, at the peak of what I call the worst energy crisis in the history of Ghana, cabinet approved a deal with AMERI, under BOOT (Build Own Operate and Transfer) to solve the problem.

This agreement was sent to Parliament, as a requirement under the 1992 Constitution, for ratification. I do remember that the Energy ministry sent the agreement and all other options available to govt.

The select committee on Energy had several consultations with the ministry and experts and unanimously concluded that BOOT was the best option at the time. This was affirmed by the house at plenary without any objection. This empowered government to seal the deal with AMERI.

This notwithstanding, the largest opposition party, NPP raised all sorts of allegations why the deal was a bad one. Now in Government, Ghanaians are expecting NPP to as a matter of urgency, proceed to court with the evidences they had to prosecute the "corrupt" public officials who entered into the deal. Surprisingly, they are now at sea looking for evidence. This, in itself is not bad since it's always 'better late than never'.

However, some of the reasons this government is giving make one wonders whether governance has been reduced to a concert party.

A Motion for Parliament to Resend Its Approval.

First of all, I can't say on authority that Parliament has the right to relook at decision taking by an earlier Parliament. I will leave that to the lawyers.

My difficulty though is when this motion is being brought by a member of parliament on the ticket of the ruling party and most importantly on the basis of FRAUD. I'm not a lawyer and therefore, have no legal opinion to proffer.

However, making use of my Contract Law under my Advance Level Business Management (thanks to my BM teacher, the late Mr Asare who passed away just last month), I know that a contract is rendered VOID (note; not Voidable) if it's entered under any of the following; a) FRAUD b) DURESS and c) Lack of Capacity i.e. Minor.

I have been wondering if indeed the MP has chanced upon any fraud as he claimed, what prevent him to forward same to government to use as a basis to walk out of the agreement. After all, that has been their desire from day one. Won't that spare us from the excessively partisanship of our Parliament?

Ministerial Committee on AMERI.

One of the first major tasks of the current Energy Minister was to set up a ministerial committee, though at the blind side of Ghanaians, to look into the AMERI deal. We were later told and indeed confirmed by the chairman of the committee, Mr Addison, that as part of their investigation process, they went to Dubai at the expense of AMERI, a company they were tasked to investigate.

At the end of the investigation, one of the outstanding recommendations in the unsigned committee report was that the deal should be renegotiated because it was overpriced.

I then asked myself a question that what if the company AMERI, refuses to renegotiate, what was going to be government's next cause of action? I knew that government was at a disadvantage in law since in contracts, 'Consideration Need Not Be Adequate'.

In other words, under a contract, the objects of exchange doesn't necessarily have to be equivalent in value. For instance, If I sell my 2015 Toyota Corolla for $1,000, I cannot go back and claim that the value of the car is more than a $1,000 and therefore, the agreement should be set aside. The opposite is also true. If the buyer agreed to pay a $100,000 for same, s/he cannot later come back to set the agreement aside simply because the car doesn't worth that much.

The interesting aspect of the committee's recommendation is the basis of the claim that the deal was overpriced. They compared the current factory price of the equipment if we had bought it outright, to the amount Ghana would have paid by the end of five (5) years.

Again, isn't this laughable?

There are three ways by which one can possess a car;

a) outright purchase. This is the most desirable but if one doesn't have ready cash, then he or she has to decide on the next two options.

b) leasing. Here, the individual is expected to be paying a predetermined monthly amount (with a mileage limit). At the end of the leasing period, the car goes back to the dealership. The leasee doesn't own the car.

c) financing/ high purchase. I equate the AMERI deal under this option. The buyer pays a predetermined price over a period. The buyer owns the car. The problem under this option is that the amount the buyer would have at the end of the period could be as much as twice that of outright purchase. The reason being that the bank that is financing the car for you will besides adding interest, will also express the future value of what they are paying today.

Since a "dollar today is worth more than a dollar tomorrow", the bank wouldn't want to lose the value of the money they are paying today by the time you finished paying. Therefore, if somebody look at the amount you would have paid by the end of the period and compare it to how much you would have paid if you had paid cash, and tells you that the financing bank is cheating you, then either the person is kidding or is ignorant and I wouldn't want the 'competent' people we elected, to fall in either category.

Conclusion

I believe strongly that the noise about AMERI deal is much ado about nothing. The motion before parliament is just a continuation of political posturing of NPP in opposition. If NPP actually meant business, they would straight away use the evidence of Fraud to repudiate the agreement as they desired. Again, the BNI investigations are also just to play to the gallery.

I doubt if a governmentt appointee could be charged with 'Willfully Causing Financial Lost to the State' when she/he just carried out an agreement that emanated from cabinet and approved by Parliament, except she/he went outside the terms and conditions under the contract.

On the ministerial committee report, I won't hesitate to say that it's a joke. If indeed they authored such a report, then its proper place is the dust bin. The only benefits we can boast of about the Addison committee is that some Ghanaians (committee members) benefited from the largess of AMERI. The per diem AMERI gave to them will certainly be spent in Ghana.

Columnist: Justice Tettey

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