An analysis of the seven (7) year old relationship between the Government of Ghana (GoG) and the Ghana Power Generation Company (GPGC) from the 3rd of June 2015 to 30th of June 2021, which is the expected date to formally end the relationship, demonstrates that the Akufo-Addo administration has not been negligent.
Contrary to rife speculations, the Akufo-Addo-led government has taken steps to correct major challenges inherited from the previous (John Mahama) administration in the country’s energy sector.
The Government of Ghana’s relationship with GPGC began on the 3 June 2015 when GPGC and GoG entered into an Emergency Power Agreement (the EPA) and on the 23 July 2015, an agreement ratified by Parliament.
On the 18 February 2018 GoG, through the Ministry of Energy, purported to terminate the EPA. Unhappy about the plan of GoG, GPGC on the 26 February 2018, protested GoG’s purported termination by letter.
Subsequently, by notice of Arbitration, GPGC on 13 August 2018, commenced arbitration proceedings against GoG under Clause 28 (f) of the EPA and Article 3 of the UNCITRAL rules. GPGC was represented by Three Crowns LLP and Kimathi & Partners. GoG was represented by Amofa & Partners, as well as the Office of the Attorney General (OAG).
On the 5th of December 2018, GoG submitted its response to the Notice of Arbitration. After five months, GPGC on 31 May 2019, submitted a Statement of Claim and exactly three (3) months later, GoG on 30 August 2019, submitted a Statement of Defence.
GPGC exercised its right under the UNCITRAL rules and submitted a Statement of Reply to the GoG Statement of Defence on 13 March 2020. GoG on 22 May 2020 also took advantage of the rules of the tribunal and submitted a Rejoinder to the GPGC Statement of Reply.
Between 5 and 9 October 2020, the final hearing in the arbitration was held by video-conference and on the 26 January 2021, the Tribunal issued an award in favour of the GPGC. A 28-day time limit to challenge the award commenced, with a deadline of 22 February 2021.
On the 18 February 2021 the Attorney General instructed Omnia Strategy (Omnia) to file for an extension of time to challenge the award and in compliance, same was done on 19 February 2021 when Omnia filed a time extension application with the High Court of Justice in London, seeking an extra 56 days to file a challenge.
Justice Andrew Baker’s court on 22 February 2021 issued a Court Order extending the deadline for GoG to file a challenge to 8 March 2021 or make another application for more time by 5 March 2021, with evidence identifying the nature of the challenge and explaining why additional time was needed.
On the 25 February 2021, Graham Dunning QC was instructed alongside Omnia to represent the GoG and advise on the prospects of a challenge and on 27 February 2021 Amofa & Partners provided the Attorney General with a note on challenge of the award identifying possible facts and grounds for the challenge.
On 1 March 2021, the Attorney General received initial oral advice from counsel that a challenge to the award would fail and therefore recommended settlement efforts.
Again on the 3 March 2021, the Attorney General received written advice from Omnia confirming there were no viable grounds to bring a challenge to the award and on 7 March 2021, the Attorney General received a second written memo from Omnia advising that GoG was not in a position to file a credible challenge.
The 8 March 2021 deadline for filing a challenge passed. On 15 March 2021 Volterra Fietta LLP (VF) was contracted by GoG. On 30 March 2021, VF filed a notice of change of legal representative at the High Court and by 1 April 2021, VF filed an application for an extension of time to challenge the award and a claim form to set aside the award.
Oral hearing before Justice Butcher at the High Court was heard on 25 May 2021 and on 8 June 2021, Justice Butcher, delivered judgment refusing to grant an extension of time and finding that “the present [challenge] is, in my judgment, one of the relatively infrequently encountered cases in which the court can see on the present application is that the grounds of the proposed challenge are intrinsically weak”.
Flowing from the timelines above, the Akufo-Addo government from the 7th of January 2017 when it came into office till date, took steps to remedy an unavoidable contractual difficulty that the country found itself.
Clause 28(f) of the EPA the Government of Ghana signed with the GPGC was the basis on which the GPGC trigged arbitration proceedings at the United Nations Commission On International Trade Law (UNCITRAL) and the said contractual agreement is the grounds on which the UNCITRAL made its award against Ghana and in favour of GPGC.
Per the contract terms of the agreement between Ghana and the GPGC, even if the Attorney General, after the UNCITRAL award, had successfully filed an appeal within the time frame of the rules of the trade tribunal, there is no evidence to support any claim that the GoG would have been able to overturn the GPGC judgement debt award.
There is therefore need to take a comprehensive look at how international contracts are entered into by Ghana beyond the hiding behind the “securing of Parliamentary approval”.
The GPGC agreement with or without Parliamentary approval has been found not to have protected the interests of the country.
Clearly, the Attorney General’s Department would require an international transactions unit if not already existent to scrutinize all such contracts in the future to ensure that Ghana gets value for money from its international contractual agreements.
The call for criminal investigations into the conduct of those who conceived the idea of the GPGC emergency purchase agreement, drafted the contract and signed same is a welcome call that the Criminal Investigations Department (CID) of the Ghana Police Service must take up with a sense of urgency.
Wilberforce Asare
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