Agyapa Deal: ECOWAS court dismisses case filed by 3 anti-corruption bodies

A three member-panel of the Community Court of Justice (CCJ) of the Economic Community of West African States (ECOWAS), has dismissed an action filed in the court by three anti-corruption bodies in Ghana seeking an order of the court to restrain the government of Ghana (GoG) from implementing the Agyapa Royalties deal.

The ECOWAS court held that the three applicants did not provide any evidence to suggest, as alleged by them that the Agyapa deal will deprive the Ghanaian people of their common wealth.

The court further underlined the fact that the Minerals Income Investment Fund (MIIF) and the processes of setting up Agyapa Royalties as well as the floating of it shares on the London Stock Exchange (LSE) were all approved by Parliament in a transparent and legitimate manner.

The court also supported the government of Ghana position that Agyapa was 100% owned by the state and that the 49% intended to be floated on the LSE could not be misconstrued as depriving the people of Ghana of their common wealth.

The action was instituted on 30 December 2020, by Transparency International, a corporate body registered in Berlin, Germany, Ghana Integrity Initiative (GII), non-profit civil empowerment organization and Ghana Anti-Corruption Coalition (GACC), a civil society organization registered in Ghana.

The judgement of the panel which comprised Justice Dupe Atoki, Justice Sengu Mohamed Koroma and Justice Ricardo Claudio Monteiro Concalves, is dated 10 July 2023

Reliefs Sought

The three applicants according to the 34-page judgement, were seeking six (6) reliefs:

First, they (the three applicants) prayed the court for “a declaration that the Defendant’s (Government of Ghana) actions towards entering into a relationship agreement with Minerals Income Investment Fund (MIIF) and Agyapa Royalties Limited in respect of transactions surrendering the sovereignty of Ghana over its gold mineral resources in perpetuity constitutes an interference with the right guaranteed under Article 21(1) of the African Charter on Human and Peoples Rights as well as violation of Articles 2(1) And (2), 3(1), 16(1) and 17(3) of The Revised African Convention On The Conservation Of Nature And Natural Resources (revised Maputo Convention).

Secondly, the applicants also sought “an order restraining the Defendant from implementing the Agyapa deal, and cancelling/terminating the already existing contracts.

Thirdly, “an order mandating the Defendant, where it desires to raise immediate funds from gold royalties, to restart the planning, impact assessment, consultations and other preparations in line with its international human rights law obligations”.

Fourthly, “an order mandating the Defendant to undertake a thorough and impartial investigation into the alleged corruption offences and ensure that any alleged perpetrators are brought to justice and held accountable for any violations.

Fifthly, “an order mandating the Defendant to immediately review its existing relevant national laws and policies to:

a. Provide for adequate and effective safeguards against violation of the Right to Free Disposal of Wealth and Natural Resources by public officials and public bodies.

b. Follow Revised ECOWAS Treaty’s fundamental principles enshrined in Article 4 paragraphs (8) and (h) and ensure compliance with its article 31.

c. Ensure that any entity with the function of sovereign wealth fund complies with the best international standards, such as the Santiago Principles and lastly other consequential order(s) as the court may deem fit to grant in the circumstance”.

Preliminary objection

The judgment also captured the court’s earlier ruling in which it expunged the name of the first applicant, Transparency International, from the list of applicants on the grounds that it had not demonstrated its interest in the matter and was not a Member of the ECOWAS Community based on the preliminary objection of the respondent, the Republic of Ghana.

GoG response

The government of Ghana (Respondent) in its response to the contention of the applicants submitted “that the Parliament of the Respondent State (Parliament of Ghana) approved five agreements comprising of the Mineral Royalties Investment Agreement (Investment Agreement) and four other related agreements.

GoG also submitted that the MIIF was established by the MIIF Act 2018 (Act 978) as amended by the MIIF Act 2020 (Act 1024) and the mandate of the MIIF is to manage the equity interests of the Respondent in mining companies and receive royalties on behalf of the Respondent.

The Respondent further narrated that the MIIF is mandated to create SPVs in any jurisdiction and to procure listing of the same on a reputable Stock Exchange.

Government again stated in its response that the investment agreement provided the terms under which Agyapa Royalties Limited is to be incorporated as an SPV and that MIIF is to hold 5 1% of the shares in Agyapa on behalf of the Respondent and the people of Ghana and the remainder (49%) is to be listed on the London Stock Exchange and Ghana Stock Exchange simultaneously.

The government of Ghana in its response, refuted the allegation of the three applicants that the purported monetization of the royalties with respect to gold mining activities or extraction accruing to the citizens constitutes an interference with their rights.

By court

The court essentially reduced the case of the applicants to a threefold claim. The first being an alleged transaction that interferes with the enjoyment of the rights of the people of Ghana. The applicants’ claim in this regard was that the government of Ghana has put all machinery in place to misappropriate the common wealth of Ghana without taking the exclusive interest of the people into consideration.

The second was that Article 256 (7) of the Constitution of Ghana which states that “Every mineral in its natural state in, under and upon any land in Ghana, rivers, streams, water courses throughout Ghana, the Exclusive Economic Zone and any area covered by the Territorial Sea or Continental Shelf is the property of the Republic of Ghana and shall be vested in the President on behalf of, and in trust for the people of Ghana,” goes contrary to the provision in Article 21 (1) of the ACHPR which provides that: “All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.”

The the last was that certain persons involved in the transaction are politically exposed persons. The court concluded in its judgement that it “considers the general obligation of the state (Ghana) pursuant to Article 21 (1) of the ACHPR is for the member states to recognize the rights, duties and freedoms contained within the Charter and to implement legislation and other measures to give effect to same”.

“This Court, having considered the obligation in Article 21 (1) of the ACHPR and the provision in Article 256 (7) of the Constitution of Ghana, adjudges that the latter (Ghana) has complied fully with the obligation under Article 21 (1) of the ACHPR and dismisses the claim pertaining to Article 21 (1) of the ACHPR in this regard” the CCJ stated in its judgement.

“With respect to the issue that there are politically exposed persons within the transaction, the Court finds that the Applicant has failed to show how this has affected the exploitation of the common wealth for the benefit of the people of Ghana” the CCJ judgement read.

“The Court finds instruction in the ratio in Mr. Ousmane Guiro V. Burkina Faso (2017) CCJELR at page 223 where it held that “The Court cannot take unproven allegations at their face value.

“It is necessary for applicants to substantiate the complaints they raise before the Court with evidence. The Court aligns itself with this ratio and dismisses this allegation of the Applicants as it has not been proved” the judgment further read.

In its conclusion, the Court noted that it “considers the claims of the Applicants a preemptive one which has been brought hastily without due consideration as to the rudiments of bringing a claim for the violation of human rights.

“Whilst it is important that human rights are jealously guarded, the Court will admonish the Applicants that democratic pillars, like parliamentary approval, form checks and balances for the safeguard of human rights.

“Unless uncontroverted evidence establishes that these safeguards have been breached, any attempt to saddle the Respondent with liability will be discountenanced by the Court.

“Consequently, the Court dismisses all claims of the Applicants and so holds” the judgement of the Community Court of Justice (CCJ) of the Economic Community of West African States (ECOWAS) read in its conclusion.

Background

In 2018, Parliament passed the Minerals Income Investment Fund Act, 2018 which establishes the fund to manage the equity interests of Ghana in mining companies and receive royalties on behalf of the government. The purpose of the fund is to manage and invest these royalties and revenue from equities for higher returns for the benefit of the country.

The government then, through the Minerals Income Investments Fund (MIIF), set up Agyapa Royalties Limited to monetize Ghana’s gold royalties. This was after Parliament on August 14, 2020, approved the Agyapa Mineral Royalty Limited agreement with the government of Ghana despite the walkout by the minority.

In exchange, the company plans to raise between $500 million and up to about $1 billion for the government on the Ghana and London Stock Exchanges to invest in developmental projects.

The deal, however, has become a topical issue following concerns first by the opposition National Democratic Congress leading up to the December 2020 general elections.

On August 14, 2020, a few days after approving an amendment to the MIIF Act, the Minority walked out during the approval process of the very transaction agreements, the facilitation of which the amendment to the Fund’s statute was amended.

Civil society groups quickly added their voices to the opposition, describing the Special Purpose Vehicle (SPV), being created then, Agyapa Royalties of Jersey, as not being transparent, potentially corrupt, undervalued and that it must be suspended for greater stakeholder involvement, according to some of the dissenting voice.

The government has however insisted that the deal is in the best interest of the country. The President, in 2021, directed the finance minister and Attorney General to review the transaction agreements and make necessary adjustment to address some of the concerns raised by stakeholders, where appropriate.

Reporting by Wilberforce Asare in Accra

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