Is Act 919 a 'Garbage Law'?

Fellow Ghanaians, please, I crave your indulgence and patience to read my personal clarification of the statement about Act 919, the Petroleum Exploration and Production Law 2016, passed under certificate of urgency, almost midnight of 4th August, 2016, as “garbage law,” which I inadvertently attributed to Harvard and Texas Energy Professors, instead of saying they agreed to it being tagged “garbage law,” at an event organised by Centre for Social Justice at the Ghana Law School, on the 28th August 2024. Tsatsu Tsikata got agitated about the use of the word “garbage,” and exploded at me in his response and made some unwarranted statements that I cannot leave unanswered.

I have had enough of that haughty and overbearing attitude from ignorant public officials and some NGO operatives who had to chew their words back later. One prominent one told me he could not look me in the eyes because of how ignorant and wrong they were, but his colleague was rude towards me after a JoyFM Morning Show programme hosted by Kojo Oppong Nkrumah; and my predictions have so far been borne out by events.

First, I withdrew my saying that we belong to the same clan and we speak the truth, and replace it with “I’d like to tell him the candid truth because we belong to the same clan,” as there are, indeed, many in our Royal Adzorvia Clan who do not tell the truth, and were or are parties to the current destroying of Anlo as Torgbui Adeladza II left it for us.

Now, as an accountant and knowing what I know about oil and gas laws and taxation and what has happened in Ghana so far, Tsatsu can never intimidate and bamboozle me with his legal background. When I left Texaco as a senior accountant in the late 1970s to lecture students in Nigeria on the subject, PNDC was not even in power, leading to the formation of GNPC, which he headed and thereby learned something about the field. The fact that he started his law education far back in October 1966 and has since been practising up to date does not make him the ultimate master and authority on oil and gas laws, with publications in his name in top foreign libraries, unlike me who has published a book and the several articles I had authored on the subject.

The issue is not about his renowned legal acumen and prowess, nor what Prof. Akilagpa Sawyerr had done negotiating with Valco, which agreement, by the way, was put aside by the Kufuor government. That appeal to authority falls flat on its face. Even those holding PhDs and active in the sector have exposed themselves as ignorant about oil fiscal regimes and what PSA means, just as even misled and lied to President Mahama also sadly did when he met the VR House of Chiefs a while back, and our patron, a retired marine engineer of several years’ experience in the industry in Canada, Togbe Nakakpo Dugbaza VIII, Paramount Chief of Tefle Traditional Area, put a question to him. He signed Act 919 because the gatekeepers such as he Mr Tsikata and Mr Pianim of the Petroleum Commission kept him ignorant, just as the various Councils of State members we met on different occasions who were equally misinformed.

I never said or insinuated that all of Ghana’s mineral laws were garbage, including what he, Tsatsu, did when at GNPC (though they all need complete overhauling, as recommended, for instance, in Prof. Atuguba’s Report which Mahama shelved), but that is another issue. The issue now is specifically about Act 919, which, I understand he had a hand in drawing, hence his defensive attitude. To be blunt, honest and truthful to him, I was not in the least impressed with his delivery on the upstream oil industry.

As he mentioned, some NGOs led by IMANI saved Ghanaians from a colossal debt of over $1bn Dr Prempeh (NAPO) nearly foisted on Ghanaians, but did not mention that the unrestrained powers given to the Minister of Energy in Act 919 to enter into contracts without even the weak Parliamentary oversight was to blame. Those who clapped for him reminded me of the uninformed and gullible Chairman and MPs of the Select Committee on Energy who clapped when they were deceived by representatives of the Petroleum Commission, speaking on behalf of the sector Minister, that Ghana would be earning 57% of the oil revenue. That was on 15 July 2015 when we appeared before the Committee again. Where is the money now? Enough of the tomfoolery and the “bigmanism” when all we are getting is the country going to the dogs!

On 12th January 2017, an International Ghana Oil Conference was organised at Labadi Beach Hotel by Lada Institute, Open Society Foundation and IBIS Education for Development, with the Harvard and Texas universities Energy Professors, others from S. Africa and Tanzania and some PhD. candidates in attendance.

Professor Raymond Atuguba delivered the keynote address on the new Petroleum Exploration and Production Law, Act 919, and concluded by saying, “hmm, the new law is garbage,” which the Harvard and Texas Energy Professors supported in the course of the discussions. Thus, declaring the law garbage was not directly coming from them, but from Professor Raymond Atuguba, the Dean of the Ghana Law School. Maybe, if I had expressed that properly, Mr Tsikata would not have responded as he did. So be it.

Earlier on in 2016, Professor Raymond Atuguba wrote and published an article in the Daily Graphic of 27th July, 2016 titled “DO NOT PASS THE PETROLEUM EXPLORATION AND PRODUCTION BILL”. He appealed to Parliament not to pass the bill into law, but this rather triggered the hasty passage of the law under the certificate of urgency, with the inducement of some hefty dollars allegedly paid to the MPs.

Mr. Tsikata came after Professor Raymond Atuguba’s presentation, took his turn briefly. He criticised some aspects of the Act 919 that capped Ghana’s sovereignty and ownership rights over the oil and gas resources, a feature of the Concession system, unlike PSA. Mr. Tsikata’s criticism was a confirmation that Act 919 was inimical to the interests of Ghana in that respect. Coming from someone reputed to be the legal brain of the NDC and privy to the bill, one wonders how those clauses were incorporated into the bill.

Mr Tsikata also told the participants that, Kenyans once asked him about what the Hybrid System was, and he told them to concentrate on their Production Sharing Agreement, showing clearly that Act 919 was a newfangled contraption which only he and a few knew about. We opposed to it had subjected it to available deeper analyses and fully agree with Prof. Atuguba and the American Professors that, it is, indeed, a garbage law. I am taking up Mr Tsikata’s challenge and dare him to respond to the tagging of Act 919 as such.

Mr Tsikata’s explosive response to my comments, referring to fiscal regimes as mere “labels,” and the “substance” of contracts should rather be our concern smacks of not only intellectual deceit, but lacks professional candour too. After all, they introduced the boondoggle “hybrid system” unknown in the upstream fiscal regime. PSA is not a newfangled label like that, but a major fiscal regime adopted by over 80 countries; all other African countries inclusive.

I am surprised Mr. Tsatsu Tsikata, who is touted as a legal luminary, does not know that fiscal regimes backed by law determine the contents or “substance” of Petroleum Contracts, and what accrues as “government take” to a host country. The US Government Accountability Office (GAO) defines “government take” as “the total percent of revenue taken from production, regardless of whether it is a tax, a royalty, a bonus or some other method of taking revenue”. The US sets the minimum Government take in the Oil and Gas Industry at 42% and it can rise above 60% under any form of contract. Ghana is, currently, earning under 21% of total revenue generated from the 3 production fields under the Hybrid System garbage law Act 919. Countries on the continent of Africa that have adopted PSA earn between 44% to 85% of total production revenue without contributing to the exploration, development and extraction of the oil and gas unlike Ghana. Can Mr. Tsikata or anyone name a single country on the African continent that has the hybrid system?

Before production started on 10th December 2010, workshops were held across the 10 regional capitals to solicit views from Ghanaians as to how the first US$5 billion from the Jubilee Fields from the first 5 years would be spent. Surprisingly, Ghana did not earn the US$5 billion after 10 years of production at the Jubilee Fields, despite the fact that Jubilee Fields generated US$23.304 billion within the 10 years period. Ghana, instead, earned US$4.735 billion representing 20.31% of the total revenue of US$23.304 billion because Act 919 is obnoxious, and with cost implications to Ghana. Can Mr Tsikata explain why this to Ghanaians?

On the other hand, Ghana would have earned US$14.005 billion from the Jubilee Fields under PNDC Law 84, which supported PSA. US$6.55 billion was earned from the 3 production fields - Jubilee, TEN and Sankofa - in 10 years.

Ghana would not be facing the current economic and financial crisis had our governments not entered into agreements which turned our oil and gas boon into cash cows for foreigners and a few Ghanaians, backed by a garbage law passed retroactively.

From the posture of Mr. Tsikata, what is motivating him to be defending an exploitative and economic slavery law, Act 919, over the progressive PNDC Law 84 which supported PSA? Is it because he has discovered Christ and is now a committed neo-colonial petty bourgeois, instead of a revolutionary socialist?

FPSO Kwame Nkrumah MV21 and MODEC

Or, is it the US$5 million contract awarded to his company, Strategic Oil and Gas Resources, by MODEC, the company that supplied FPSO Kwame Nkrumah to Ghana? It would interest Ghanaians to know that FPSO Kwame Nkrumah was a single hull, very large crude oil carrier tanker (ex Tohdoh) which was delisted out of service and to be scrapped, but was bought by MODEC for US$46 million, converted into the FPSO at the cost of US$160 million totalling US$206 million to acquire; insured at MIGA for US$225 million as the cost. It was leased to Ghana for two years at US$226 million and later sold to Ghana for US$750 million. That was a mighty rip-off because the Act 919 governing the upstream oil industry is truly garbage.

the Act 919 is truly garbage, the Ghana Revenue Authority is finding it difficult to collect over US$3 billion the Jubilee Fields partners have evaded in their 10 years of operations. Is Mr Tsikata or Ghanaians aware of this? He should be, being well connected.

Mr Tsikata enumerated in his speech a plethora of difficulties the Upstream Oil Industry is facing. The root of these can be traced to the Act 919. This is confirmed by Dr. Amos Ofori Quaah, also former CEO of GNPC. Speaking to Joy Business at the launch of his book, “My footprint in Ghana’s Black Gold,” he urged “Ghana to return to the Oil Production Sharing Agreement to accrue more revenue from hydrocarbon resources. According to him the country’s current contractual agreement for petroleum exploration is a bane to the development of the sector and the economy at large”. This is a complete indictment of Act 919 as not fit for purpose and yet some NGOs, CSOs and individuals are defending it because of the substantial and petty handouts they are receiving from the FOCs, much under the guise of corporate responsibility funding with nothing to show for them. They are simply Collaborators sustaining neo-colonialism and the exploitation of Ghanaians.

I urge and appeal to Dr. Sodzi Sodzi-Tettey, Chair of Council for the Centre for Social Justices, to organise a public debate between Mr. Tsatsu Tsikata and Professor Raymond Atuguba, who actually declared Act 919 as garbage, to which the Harvard and Texas professors agreed. Professor Atuguba will be the best person to tell Ghanaians why he declared Act 919 garbage.

I am also prepared to use my accounting knowledge in Petroleum Revenue Management Accounting and Profit Taxation to prove to Mr. Tsikata and all Ghanaians that Act 919 is truly garbage. Ghana would have earned well over US$72.156 billion from crude oil alone without participating in the project, that is, not contributing capital to it, by the end of the production life of the Jubilee Fields in 2036; as against the US$19 billion and US$20 billion projected by the World Bank and the IMF respectively under the Royalty System labelled Hybrid System.

Ghana is on the verge of losing over US$50 billion at the end of the production life of the Jubilee Fields alone, which holds close to 3 billion barrels of oil, valued at US$180 billion at long term base price of US$60 per barrel. Imagine the loss at higher price per barrel.

Ghanaians are being robbed by the Foreign Oil Companies, FOCs, aided by politicians of the two major political divide and the elite technocrats in charge of the upstream oil industry because of what they are cheerfully banking.

Mr. Kofi Wayo some years ago, was hopping from one media house to another across the country, telling Ghanaians we were not going to derive anything meaningful from the bad contracts our government was entering into. A former British diplomat to Ghana, Mr. Craig, also raised serious observations about the type of contracts Ghana was entering into.

Mr. Tsatsu Tsikata kept mute and never made any comments about the concerns raised by Mr Kofi Wayo and the former British Diplomat about the contracts not in favour of Ghanaians, for obvious reasons.

To conclude, before Ghana can rise from the ashes, the level of intellectual and political deceits and falsehoods from both sides of the major political divide and Think Tanks, CSOs and NGOs must cease and the truth be told.

The coalition of NGOs and CSOs in the extractive industries are rather protecting the interests of the foreign companies as against the interest of Ghanaians because the FOCs or surrogates, e.g., DFID, are funding them.

Finally, I wish to use this platform to tell Mr. John Dramani Mahama and Dr. Mahamadu Bawumia that, their Resetting Ghana or Rebranding Ghana Agenda are just political slogans and conjectures. Ghana’s mineral sector can only be reformed to give a boost to the economy, if only Ghana can be bold enough to redesign our laws to conform with the contents of the following UN Charters, which Ghana has been a signatory to all these years. They are:

1. The 1962 General Assembly Resolution on Permanent Sovereignty over Natural Resources (GRA 1803).

2.Charter of Economic Rights and Duties of State. GA ReS 3281 1974.

Unfortunately, our elite technocrats and legal experts who are in charge of our economic policies are completely ignorant about the existence of the above UN Charters. The excuses that it is not their field of specialisation are no longer acceptable.

Modern Ghana has risen to fame but should not be allowed to crash like ancient Ghana. Fellow Ghanaians, please read “Words of Admonition to Ghanaians” on GhanaWeb for further illumination on the subject.1