Novation and Amendment of Ameri Agreement

Background

It will be recalled that for years, starting from 2014, Ghana experienced severe power supply difficulties, resulting in planned load-shedding and unplanned black-outs throughout the country. In 2015, at the peak of what came to be known as the “dumsor crisis”^[1], the Government of Ghana, among other measures, concluded a “build, own, operate and transfer” (BOOT) agreement with a Dubai-based company, AMERI Energy, for the fast-track construction of a 230MW power plant in Takoradi, and its operation and maintenance for 5 years. This was to help relieve the power crisis by giving a rapid and substantial boost to electricity supply in the country.

The agreement was met with a huge public outcry against what was considered its overpricing of the power to be supplied by the plant. There were allegations, too, of fraud and corruption in the award of the contract. This notwithstanding, the plant was completed and began commercial operation in February 2016, generating and supplying power through the national grid without interruption till now.

The national elections held at the end of 2016 led to the replacement of the National Democratic Congress (NDC) government, under which the AMERI Agreement had been concluded, by the government of the New Patriotic Party (NPP), which had opposed it from the very beginning.  Not surprisingly, the new government immediately initiated a process for the review of the agreement. The outcome was a report (the Addison Committee Report)^[2], published in February 2017, which concluded that the agreement, as it stood, was “grossly unfair and … not … in the best interest of Ghana”. For which reason it was to be renegotiated with AMERI or repudiated if the latter “refuses to come to the table”.[3]

Not much further was heard about the agreement in public till the announcement in July 2018 that a Novation and Amendment of the AMERI Agreement had been concluded, replacing AMERI with another company, extending the term of the deal from 5 to 15 years, and altering the technical and financing terms.

Information initially presented to the public was as follows:

• a new agreement, the Novation and Amendment Agreement, had been concluded between Government and parties led by a Greece-based company, Mytilineos International Trading Company, which was to replace AMERI;
• the agreement was signed on Friday 20 July 2018 and approved by Presidential Executive Order[4] on Wednesday 25 July 2018; and
• the agreement was forwarded under a Memo dated Wednesday 25 July to Parliament for consideration and ratification.

Yet again, the news sparked a massive public outcry, this time led by civil society organisations, analysts and think thanks, but especially the opposition National Democratic Congress. The main grounds of objection were that the new agreement imposed greater costs on Ghana than the original, and, worse yet, extended to 15 years, a bad agreement that had but 2 and a half more years to run, after which the plant was to have been transferred to Ghanaian ownership!

Such was the sense of outrage that the Parliamentary Joint Committees of Finance and Energy, to which it had been referred by the Full House, refused to consider the agreement, asking for further information! When it is considered that the governing party, the New Patriotic Party (NPP), had comfortable majorities on both Committees and in the Full House, the gravity of the situation becomes evident.

To nobody’s surprise AMERI Energy denied any involvement whatsoever in the supposed renegotiation^[5] and, maintaining that the original agreement was fully in force, issued a notice of default against Ghana^[6], claiming an amount of USD82,660,560, as owed by Government under the agreement!

Following the debacle in Parliament, Government abruptly withdrew the new agreement from Parliamentary consideration and announced the dismissal of the Minister of Energy, whose Ministry had led the negotiations – all without a word of explanation!

Up to the time of this Lecture, there has been total official silence on the topic!!!

It is worth itemising the main issues brought up in the public discussion:

• Whether the Novation Agreement (2018)

– gave “value for money”, or not?

– was an improvement on the existing AMERI agreement (2015), or worse?

• Whether the timing of the “renegotiation” was right: with only two and a half years to the end of the agreement and the transfer of ownership of the plant to Ghana, what sense was there in extending the agreement to a 15-year deal?
• Whether there was fraud or corruption in the making of the deal?

The overwhelming public sentiment as well as expert opinion was that the new agreement was

• bad for Ghana – in not giving value for money: the position of most civil society groups and independent analysts;
• worse than the heavily-criticised 2015 agreement: the position of the opposition NDC and several analysts; and
• tainted by fraud and corruption: the position of the opposition NDC and most public commentators.

Finally, Parliament’s obvious dissatisfaction with it (despite the overwhelming government party majority), its unexplained withdrawal by Government, the peremptory dismissal of the Minister of Energy, and the loud silence of Government since then, make it difficult to escape the conclusion that the Novation Agreement sent to Parliament was, for whatever reason, irredeemably flawed!

These are all issues of vital national significance, worthy of analysis and consideration. However, they fall outside the main focus of my presentation for today, which is on two aspects of the story:

• The form and process of the negotiation of the Novation, and
• The management of the agreement, once concluded.

To highlight these aspects of the matter I pose questions on to two sets of issues:

1. Issues of form and process

• What were Ghana’s policy positions for the negotiations, and who was involved in setting up those positions? Were they a follow-on from the Addison Committee report? An initiative of the Minister of Energy? Who else?
• What preparation did we make for the negotiations? Apart from the Addison Committee report, what technical work did we do? What due diligence on the parties? What value-for-money assessment? What stakeholder consultations?
• How were the new contractors (Mytilineos) selected, and by whom – just the Ministry of Energy? Sole-source procurement?
• Who really are behind the parties on the other side (Mytilineos)? What, links if any, do they have with what interests in Ghana?
• How were the actual negotiations conducted – what process? What technical input?
• Who were “at the table” – on our side? on their side? Mytilineos?
• What process for final governmental approval prior to submission of the agreement to Parliament: what real input from the Volta River Authority? Ministry of Finance? Attorney-General’s Department? Public Utilities Regulatory Commission? Other government/public agencies with direct policy interest in issues of energy, tariffs, finance, conformance with the law and the Constitution – it needs to be emphasised that individual representation on a negotiating committee or team is not an adequate substitute for the institutional review and approval of key proposals as well as the completed agreement!^[7]
• What is one to make of the poorly written Memorandum, forwarding the unsigned agreement to Parliament for ratification!
• What is the basis for executive approval of the Novation Agreement by the President, by-passing his Vice-President, the Economic Management Team, and Cabinet? Why the headlong rush?
• What is one to make of media reports, uncontested, that the President “had been misled” into issuing the expedited executive approval for the agreement – a position too embarrassing to be taken seriously!
• What are the grounds for the removal of the Minister of Energy, a member of Cabinet and a senior figure in the ruling NPP?
• How about the likelihood of a challenge through the courts by AMERI (for unlawful termination of the old agreement) or by Mytilineos (for non-execution of the Novation Agreement), or by both companies? The familiar route to judgement debts?

2. Issues of communication and the right to information

• Apart from trading insults with the political opposition, and a rather feeble defence by its spokespersons, what information about the new contract (the whys and wherefores), or explanation of its subsequent actions (withdrawal of the new agreement, sacking of the Minister, etc.) did Government give – to Parliament? to an anxious and agitated public? None!
• What is the position of Government on the whole matter, as we speak today?^[8]
• In view of the unclear and inadequate official explanation/response, if there was any wrongdoing, as would appear from the removal of a Minister, or a system failure, how is it to be put right?
• How are concerned citizens expected to engage with this and similar matters of such public significance and concern?

This provides one more illustration of the secrecy and non-accountability that surrounds the processes and outcomes of contracts made by the state and its organs on behalf of the people, effectively shutting out critical, informed scrutiny and the exposure of wrongdoing, thereby promoting impunity of politicians and public officials at all levels, and deepening cynicism and popular alienation from the entire public system.

CONCLUDING REMARKS AND PROPOSALS

Over the course of these lectures, I have told the stories of three agreements which illustrate, in very simple terms, the deficiencies in capacity/competence, and in process and management that have so often led to the conclusion of public agreements manifestly disadvantageous to Ghana. Put simply, the stories reveal:

1. the frequent absence of a clear policy framework within which a particular public agreement is located;
2. inadequate preparation for and poor technical work in the negotiation of agreements;
3. failure of oversight by official agencies charged with the task of supervision and/or approval of executive action – agencies such as the Cabinet, the Attorney-General’s Department and, principally, Parliament; and
4. lack of transparency and a sense of accountability by office-holders, political and bureaucratic.

PROPOSALS

When we turn to what needs to be done about these shortcomings, we run into the problem of coming up with anything really new or radical, as several analysts have in recent times covered the ground and offered sound proposals. In Ghana, we can refer particularly to the writings of my colleagues, Nana S K B Asante and Justice S K Date-Bah, who have given much thought to this phenomenon and made cogent suggestions^[9] that have yet to receive the attention they merit in the right quarters. What I propose to do, therefore, is to sketch briefly my take on the problems^[10], drawing on previous work as necessary.

My proposals fall under three headings:

• strengthening our national negotiating capacity and processes;
• ensuring effective oversight and management of public agreements; and
• exploring the notion of Open Contracting.

1. Strengthening national negotiating competencies and processes

To strengthen national negotiations capabilities generally, four sets of measures might be highlighted.^[11]

1. Assuring ready availability of relevant skills and competencies locally

Effective negotiation involves a combination of skills, judgement and attitude, acquired by study and honed by practice and experience. A first and obvious concern is, therefore, how to ensure ready access to the required range of such skills and competencies in all the critical areas of public business transactions. Beyond expertise in particular areas of specialisation – law, accounting, engineering, biomedical and environmental sciences, etc., depending on the subject matter of the negotiations – this calls for advanced skills in the preparation, conduct and management of negotiations. Particularly as to the leadership of the negotiating team, there is no substitute for experience – a seasoned negotiator, able to guide the team in the preparation, formulation of positions, as well as the conduct of negotiations, both at and, critically, away from the table.

To achieve this, we need to build up and sustain a cadre of negotiators with experience and a variety of relevant specialisations, in the public service as well as the private sector, available to participate in negotiations on behalf of government and its agencies, or make inputs into their preparation and management. This idea was mooted in the mid-1980s, following the successful renegotiation of the Valco Agreements by a team of Ghanaians, initially with limited experience of negotiations, but emerging from the lengthy and often gruelling negotiations with substantial experience, enhanced skills and deep commitment to the public project. Though the idea of building a cadre with that group as a nucleus was well received by government at the time, there was no follow-up.

Formal negotiations training, in the form of special courses, workshops, attachments, etc., represents a more direct approach to capacity development. This has been tried, to my knowledge, mostly by international bodies such as the Commonwealth Secretariat and the United Nations Conference on Trade and Development (UNCTAD), among others. I am aware of a considerable number of such initiatives currently supported by the United Nations and other donor agencies, as well as private commercial or pro bono enterprises. I can testify to the value of such initiatives from personal experience as a Resource Person/Instructor in a series of training workshops and seminars on negotiating with transnational corporations, organised by the United Nations Centre on Transnational Corporations (UNCTC) and the Commonwealth Secretariat in the late 1980s and early 1990s. More recently, with support from the International Senior Lawyers Project (ISLP), a private group that provides pro bono legal advice and support to emerging governments on negotiations training, I have organised and supervised training sessions in Ghana for senior public servants in government departments concerned with international business transactions.

Welcome as these initiatives are, they are no substitute for locally-organised and -owned programmes, run on a regular basis, with such external assistance as can be mustered. Sad to say, even though the sessions I have been involved in have been extremely successful in sharpening the awareness and negotiation skills of the public servants who participated in them, the uptake by heads of government departments has been less than overwhelming – even when the technical support is pro bono! Nevertheless, considering how much our competence in handling international business transactions stands to gain from such programmes, pressure should continue on government to give such programmes proper attention.

For the longer term, however, the answer lies in encouraging our universities, colleges and training institutions to run courses on international business transactions, including a component on international negotiations.

1. Developing guidelines and procedures

At the moment, there does not appear to be an established set of protocols guiding the undertaking of major public business transactions – each Ministry, department, or state agency apparently acting within its mandate, with such inter-departmental collaboration as it deems necessary – I am aware of, for instance, major agreements with substantial exchange control implications, negotiated without active involvement of the Bank of Ghana! Surely, there can be no dispute about the value of broad guidelines on such matters as the composition and leadership of government negotiating teams, agencies to be consulted/involved/kept informed, factors/elements to be taken into account, etc. There will, of course, be questions about the kinds and scale of transactions to be covered by the guidelines, the scope of discretion and the means of enforcement. But these are not beyond solution.

Of one thing I am clear: without denying the importance of political/policy leadership in the conduct of major business transactions or complex infrastructure projects, it is vital to allow technical people to lead on technical issues – from architecture to engineering, finance to law – and to let seasoned negotiators guide on strategy and tactics! Except in very special circumstances, or where the person is acting in a ceremonial capacity, a negotiating team should not be led by a Minister, Chief Director or other political leader, nor by the Chief Executive of a public corporation! My experience is that direct involvement of such political/institutional leaders, even with the best of intentions, tends to stifle the internal cut and thrust, knocking of heads, and innovation, that contribute so significantly to building the strength and cohesion of a team and the robustness of its positions on key issues^[12].

1. Providing for technical review

A third measure relates to ensuring proper technical review of concluded public agreements before they are taken up for approval and ratification. It will be recalled that for most of the 1970s and 1980s a Public Agreements Review Committee, established in 1972, provided a rigorous, professional check on major public agreements prior to their finalisation by the Executive and submission for Parliamentary approval. It was abolished in 1993, presumably to be replaced by Parliamentary oversight and ratification under Art. 181 of the Constitution. Given the rash of public agreements of questionable quality that have caught the public eye of late, and the obvious inability of Parliament to do the needful, I would strongly urge that such an intervention be promptly reintroduced. For, had there been such a body, it would, surely, have noted and pointed out some of the technical and policy infelicities that have caused such public anguish and embarrassment of late.^[13] Clearly, the mandate and membership of such a body and the conditions for its operation would have to be carefully rethought to fit it within the current constitutional framework.

1. Keeping proper records/archives

Finally, under this heading, there must be an insistence that proper records and archives of all material relating to the preparation, conduct and follow-through of major public negotiations be developed and preserved. This will include background documentation; policy directives; instructions to consultants and their reports; all studies conducted for the team (due diligence, value-for-money, etc.); team position papers; notes of internal team discussions; documents exchanged between the parties; a full record of proceedings, etc. To protect the integrity of negotiations, much of this will have to be kept strictly confidential to the negotiating team and supervising authority during the course of the negotiations, and a limited number, particularly the internal negotiation documents, for an appropriate waiting period thereafter. But subject to this reservation, all the material should be available for public access after the conclusion of the negotiations. Appropriate provision will, of course, have to be made for determining what should remain restricted and for what period, provided it is remembered that the default position should be full availability.

Why do competent record keeping and public availability matter? Major public agreements are never isolated events. They are part of a chain – arising from particular circumstances, seeking to address particular issues, involving much consultation, documentation and reasons for choices made, as well as expected outcomes. Without a proper grasp of this complex chain, the terms of a complicated agreement can neither be fully appreciated nor optimally implemented or enforced. Again, for those who seek to draw out the agreement’s full benefits or to challenge aspects of it, the absence of such background material represents a very real handicap.

Beyond this functional dimension, this background of material and information constitutes an invaluable store of knowledge and lessons for the future. Potential beneficiaries include

• those who seek to understand the broad social and economic circumstances of the period of the agreement – years, maybe, decades after the event;
• those who seek to draw lessons for making similar agreements – what to do/how to do, or not do;
• those who seek to understand the negotiation process – how circumstances, choices, seemingly unrelated factors shape the outcomes and specific terms that end up in the agreement; and
• historians and social scientists, conducting research on any number of issues.

Finally, availability and access to this material makes it possible to appreciate the agreement in context, facilitating assessment of the adequacy of preparation and support, as well as the competence and judgement of the negotiators, their honesty and commitment, or lack of it!^[14]

While all this may seem noncontroversial, the public would be shocked to learn how often our negotiators fail us here – including cases in which, years after the signing of a major agreement, our government and its agencies have no record of the negotiation process^[15], worse yet, no copy of the agreement they signed, spelling out the rights and obligations of the parties!^[16]

1. Improving oversight and management of public agreements

To help ensure that major public agreements concluded by the executive arm of government advance the public interest, the Constitution of Ghana empowers two constitutional bodies – Parliament and the Council of State – among others, to provide oversight and advice.

1. Parliament

The Constitution of Ghana provides that any transaction involving the grant of a right to exploit any mineral resources in Ghana shall be subject to ratification by Parliament.^[17] Put another way, no such transaction can become effective and binding in law until it has been considered and ratified by Parliament. This oversight function of Parliament constitutes a vital check on the potential abuse of executive power, whether through error, incompetence or corruption. Indeed, it provides the final opportunity to defend the public interest in the particular case.

For the effective discharge of this function, one would expect Parliament, through the appropriate Committees, to subject proposed agreements to close enough scrutiny to ensure, at the very least, that proper procedures have been followed in each instance and that every such agreement, by and large, advances the public interest.

Regrettably, as illustrated by the cavalier manner in which the Gold Fields agreement was rushed through – and one can cite dozens of recent instances, involving, especially, a raft of oil and gas agreements – Parliament frequently falls far short of the mark here. For a start, Parliamentary Committee hearings in relation to public agreements do not provide effective platforms for input by stakeholder groups, civil society organisations, think thanks, etc. This is compounded by what is nothing less than an abuse of process, namely, the routine waiver of Parliament’s own Standing Order requirement for a 48-hour wait between tabling and consideration of any motion to approve a Committee report on such important matters.

Would it be too much to ask Parliament, master of its own procedures, as a measure of self-restraint, and truly in the public interest, to stop the arbitrary recourse to the manipulation of its Standing Orders to rush vital technical matters through, and set out for itself guidelines that embody standards for Committee hearings and Full House discussion, such as would ensure true vigilance in the handling of major public agreements? It is appreciated that, given the complexity and technical nature of some of these transactions, Parliamentary Committees may need capacity enhancement and research support to enable them discharge their functions effectively.^[18] But I am sure that, given the high cost to Ghana of underperformance in this field, it would be cost-effective to put some resources into both capacity enhancement for Committee members and access to expert assistance, as needed. Assuming a commitment to do right, such support, combined with the application of appropriate guidelines for the exercise of this power, should help give meaning to the unique oversight function given Parliament in this matter.

1. Council of State

For its part, the Council of State is vested with an extensive advisory mandate by the Constitution, which provides that

“The Council of State may, upon request or on its own initiative, consider and make recommendations on any matter being considered or dealt with by the President, a Minister of State, Parliament or any other authority established by this Constitution . . .” ^[19] (emphasis supplied)

In exercise of this broad mandate, the Council may summon any official or request for any document or information necessary for its deliberations, and, after careful consideration of the issues, give quiet advice to the President or other state agency on virtually any matter. Thus, in cases of clear and justifiable public controversy and agitation about, for instance, a major international business transaction, nothing stops the Council, in exercise of this mandate, from undertaking a confidential, dispassionate investigation and consideration of the matter, and offering advice, as appropriate. This is, admittedly, a mandate whose exercise calls for very careful judgment and circumspection, if the Council is to avoid any hint of undue interference with the exercise of executive power. At the same time, it provides an avenue for sober, well-informed, behind-the-scenes intervention in potentially explosive and costly ventures. In my humble view, the failure of the Council of State over the years to be proactive in situations where its quiet intervention and independent, confidential, counsel could have made a difference, constitutes a regrettable missed opportunity in the history of the Fourth Republic.^[20]

I conclude this section by observing, with the greatest respect, that the two leading Constitutional bodies – Parliament and the Council of State – have over the years not always performed to the required standard in respect of oversight of international business transactions. If we are to overcome the malaise of poorly conceived and managed agreements, our public institutions – led by Parliament and the Council of State – must take seriously the obligations imposed on them by the Constitution, and the faith and hope placed in them by the people of Ghana.

3. Open Contracting

As noted throughout these lectures, the secrecy that often surrounds public contracting – processes, terms and general outcomes – has been a key factor in such agreements escaping informed public scrutiny, with all the negative effects observed. It is the case that public disclosure of such agreements currently happens in many instances, nor is it the case that where that does not happen it is necessarily the result of a deliberate decision to keep it out of the public view. The point is that, whatever the cause of failure to make such contracts routinely public, on a timely basis, and in easily accessible form, the effect is the same – sketchy information in the public domain, most of the time attracting little interest or scrutiny, and providing cover for incompetence and misdeeds. In the few cases where a particular contract does attract attention, incomplete information and distortions of the story make it easy for partisan political finger-pointing and biasing of public discussion, with the result that the key issues are often drowned in party-political wrangling, and, with rare exceptions, wrongdoing goes unpunished. The bottom line is that, on account of the pervasive secrecy that attends public contracting, civil society, its organisations and the news media – assuming they show interest in the matter – have the greatest difficulty monitoring the quality of agreements; assessing value for money and effective, timely delivery of contracted services and products; or exposing and insisting on the correction of wrongdoing and the punishment of corruption.

It is the concern to address this phenomenon that drives the notion of open contracting, that is, a system that provides for transparency at all stages of public contracting – from planning, selection of partners, through procurement and execution, to budget, disbursement, and the identities of all parties to the contract. As it is, some countries and states^[21] are reported to have introduced regimes that require proactive publication of the text of all public contracts. Open contracting goes beyond that, insisting on full disclosure of the entire contract process.

The main elements of an open contracting regime are summarised and discussed in a report put out by the Center for Global Development in 2014^[22]. In order to save time, I shall present only a brief outline of the key aspects of the regime, and encourage further reading and consideration of what could be a game changer in the circumstances of Ghana today.

The defining feature of open contracting is the requirement for routine, proactive, and timely publication of full contracts, including all annexes, schedules, side letters, etc., at all levels of government. Thus, government and its agencies are required by law to make all completed contracts available to the public, promptly and without request, together with all the indicated background and accompanying documentation and other material.

This element of proactivity – routine and timely publication, without request – constitutes the principal distinction between open contracting and a freedom of information regime.^[23] As compared to the latter, the open contracting regime, from the perspective of a person seeking information, reduces/removes the cost in effort and resources, as well as the delay and residual discretion in public officials.

What limitations are there to such a regime, and how may they be resolved? How do we capacitate users to enable them take full advantage of the initiative? To these we now turn, briefly.

There are a number of legitimate concerns about the operation of an open contracting regime. These relate to issues of the cost of compilation and publication, on the one hand, and on the other, the risk of disclosure of proprietary commercial secrets of contracting parties, and sensitive national security information.

On the question of costs, evidence from jurisdictions where this has been tried would suggest that the extra costs are not as high as might be feared.^[24] In any event, in systems with Freedom of Information (FOI) or Right to Information (RTI) legislation^[25] the costs of routine publication would be moderated by the consideration that most of that material would, in any event, have to be made ready in anticipation of requests for disclosure under the FOI/RTI law.

The second set of concerns falls into three categories:

1. issues of privacy, such as the identity of non-signatories who might receive services under the agreements;
2. matters of commercial interest that require confidential treatment, e.g., proprietary designs and technologies, financial information, corporate strategic plans, etc.; and
3. agreements whose full disclosure would prejudice national security in some fashion.

Studies show that concerns on these counts affect only a small minority of contracts^[26] and, in any event, rarely justify total suppression of publication. In most cases, it is enough to redact, that is, blank out relevant portions from the published contract documents.

Particularly in the case of commercial confidentiality, it is necessary to establish general principles which, reflecting a balance between public and legitimate private commercial interests, help to identify matters that need not be in the public domain, and which can therefore be redacted without undue compromise of the public interest in openness. Where there is a Freedom of Information or Right to Information law, the situation is simplified, as exemptions from disclosure provided for under that law, could inform non-disclosure policy in respect of both privacy/commercial and national security concerns in the implementation of an open contracting regime.

To repeat, the particular attraction of the regime of open contracting is the relative ease with which it enables beneficiaries, mainly civil society and its organisations, particularly the media, to access and monitor public contracts for value for money and service delivery in real time, and without specific request or extra effort/expense. After all,

“Citizens pay for government contracts. It is time they knew what they are paying for.”^[27]

To ensure the full value of the initiative, necessary mechanisms, processes and facilities for effective implementation and enforcement must be put in place  – including adequate resources, facilities and capacity for record keeping; procedures for processing and responding, etc. It would be necessary, in addition, to mount a programme of familiarization and capacitation for legislators and other oversight bodies, as well as for civil society and its organisations, to equip them to exercise to the full the rights of access provided by the law.

Clearly, there will be many issues that will need clarification and resolution, many measures that have to be adopted and followed through, much fine-tuning to be exercised. It is my contention that, at the end of the day, given the serious consequences of failure to act in the current situation, the notion of open contracting is worthy of investigation and consideration for adoption by Ghana, with such adjustments and modifications as may be considered appropriate!

I cannot conclude this presentation without drawing to attention two factors that condition the likely success of any or all of the suggestions offered here.

First is the reality of powerful, entrenched interests that thrive on the current situation and will, directly, or more likely covertly, resist these measures, even if they are obliged to pay lip service to them in their public posturing.

Second is the recognition that none of these measures can be expected, by itself, to have a decisive impact on the phenomenon we have described. Nevertheless, it is reasonable to expect that the proposed measures, in combination, each reinforcing the others, could, at the very least begin to move us off the current trajectory of mediocrity, venality and impunity.

A well-intentioned duty-bearer – President, Minister, Senior Public Servant or Chief Executive of a public corporation – could take advantage of improved negotiation processes and capacity available to the public system to aim for and drive towards the best possible outcome of public contracting. Again, assured access to complete and timeous information about public contracts will reinforce the already commendable increase of critical think-tank analyses in recent weeks, calling out government and public officials on questionable public contracts. Finally, improved access to relevant information in real time, for all interested parties will provide a better-informed basis for the increasing civil society activism in this area.

What is still lacking are more broad-front engagement by organised labour and grassroots organisations, and more sustained, independent follow-through by the media.

Subject to these limitations, implementation of the measures here outlined can be expected to have the following, among other effects:

• Increasing awareness of politicians and public servants that their actions are subject to public scrutiny and informed challenge, shifting the inertia of impunity that currently characterises public life;
• Creation of a more conducive atmosphere for the exercise of rationality and technical competence in the selection, negotiation and execution of public agreements;
• Pressure on, but also capacitation of, constitutional oversight bodies such as Parliament and the Council of State to discharge their mandates in a more people-responsive, proactive manner; and
• Increased reliance on, and strengthening of, the pool of technical expertise and institutional preparedness advocated above.

The cumulative effect can be expected to be the erosion of the culture of mediocrity and impunity, and the nurturing of a counter-culture of professionalism, public awareness and vigilance, and accountability in the undertaking of major public transactions.

The final word is addressed directly to the President of the Republic of Ghana, President Nana Addo-Dankwa Akufo-Addo, who in a speech to the nation following the public outcry that greeted the disclosure of the Ghana/US security agreement (discussed in yesterday’s Lecture) made this profound observation:

“We are seeing being displayed before our very eyes, not the triumph of disorder, but the value of openness in governance, and of the need, the crucial need, for the people to be fully and accurately informed.

“You cannot claim to believe in democracy unless you have faith in the people, faith in their inherent goodness, faith in their capacity to make the right decisions, given the right information. It is this faith in the people that has shaped my entire political career, and it is this faith that propels me to lead an open and transparent government.” (Emphasis supplied)^[28]

Mr. President, you could not find a better opportunity for giving meaning to that faith, than by supporting a regime of open contracting and the other measures suggested in these Lectures!

^[1] Though the expression “dum sor”, meaning “off and on”, properly refers only to the phenomenon of unplanned and irregular power outages, it has come to be used to describe the combination of planned and unplanned outages that occurred during the period.

^[2] FINAL REPORT OF THE COMMITTEE TO RESTRUCTURE THE BUILD OWN OPERATE AND TRANSFER AGREEMENT BETWEEN THE GOVERNMENT OF GHANA (REPRESENTED BY THE MINISTRY OF POWER) AND AFRICA & MIDDLE EAST RESOURCES INVESTMENT GROUP LLC (February, 2017)

[3] Ibid. p.16.

[4] [4] Letter Ref No. OPS/82 Vol 5/18/964 dated July 25th, 2018 – executive approval to the Minister of Energy to proceed with the Novated AMERI agreement with Mytilineos – by-passing Cabinet.

^[5] In support of AMERI’s claim of non-involvement, it is noteworthy that, though the Novation Agreement names AMERI Energy as one of the four parties to the agreement, the unsigned document that was presented to Parliament for ratification, was initialled by three parties, not including AMERI Energy!

^[6] Letter Ref. No. : AME/LT/GHA/T10/12/014, dated July 31, 2018

^[7] It is noteworthy that one of the reasons for the refusal of the Parliamentary Committees to deal with the agreement was said to have been the absence of the signatures of the Attorney-General and the Minister of Finance!

^[8] In December 2018, months after the delivery of this lecture, a new Renegotiated and Enhanced Agreement, concluded with AMERI, with some improvements, was presented to, and ratified by Parliament, against strong objection by the Minority party. As before, there was no explanation of why the reversal of position; what had been done with the previous agreement with Mytilineos; and no resolution of the mystery surrounding the sacking of the former Minister for Energy!

^[9] See S K B Asante, “Reflections on the Constitution, Law and Development”, J B Danquah Memorial Lectures,

Ghana Academy of Arts and Sciences (Series 35), Accra, March 2002 (particularly pp. 79-87); S K B Asante and S K Date-Bah, “From Concession to Joint Venture Agreement: Restructuring Mineral Agreements – A case study from Ghana”, in 1983 Third World Legal Studies p.1; and S K Date-Bah, “The Ashanti Goldfields Negotiations, 1972-73”, in Peter Coughlin (ed.) NEGOTIATIONS MANAGEMENT: PREPARATION, STRATEGY AND TACTICS, London: Commonwealth Secretariat, 1989 (1989) p.45.

^[10] My own published contributions to this topic include: (i) “Techniques of Negotiating with Transnational Corporations: Tips for the Table“, in Peter Coughlin (ed.) NEGOTIATIONS MANAGEMENT: PREPARATION, STRATEGY AND TACTICS (above), chap. 4; (ii) “Some Legal Issues Arising from the Negotiation of the Valco Agreement“, in Fui S Tsikata (ed.) ESSAYS FROM THE GHANA-VALCO RENEGOTIATIONS, 1982-85, Accra: Ghana Publishing Corp, 1990, chap. 4; (iii) “Renegotiation of the Valco Agreement: Contribution to a Theoretical Interpretation”, in Victor Kremenyuk and Gunnar Sjostedt (eds.) INTERNATIONAL ECONOMIC NEGOTIATIONS: MODELS VERSUS REALITY, Edward Elgar: Cheltenham and Northampton, 2000, chap. 4.

^[11] While the focus is on negotiation of international transactions, including investment agreements, the proposals have generic implications for other kinds of negotiations.

^[12] Imagine my shock on seeing the record of the critical stage in the complex Ghana Telecom/Vodafone negotiations in 2007/08 (see footnote 28, below), showing the President of the Republic either as sole negotiator for Ghana, or with a handful of close advisors!

^[13] It not being suggested that the mere existence and work of such a body will guarantee sound outcomes in all cases – no more now than then. But to the degree it is allowed to work, it would provide the needed technical check and, in combination with some of the other proposals I make, facilitate monitoring of public agreements by interested parties.

^[14] This has great significance for the regime of Open Contracting, proposed below.

^[15] A committee set up in 2009 to review the agreement made the previous year for the sale of Ghana Telecom to Vodafone International Holdings, BV, finding no record of the discussions leading to the agreement, had to ask Vodafone – the other party to the agreement – for a record of the agreement. All the committee got from Vodafone was a one-page table, setting out no more than the list of meetings and participants (see footnote 25, above) – no agenda, no background documents or proposals exchanged, no itemisation of issues discussed – nothing!

^[16] I am yet to recover from my sense of utter incredulity when we found out late in 2009 that neither the representatives of Ghana, including the Attorney-General, nor the local officers of Valco had copies of a 2004 Sale and Purchase Agreement (SPA) by which the Government of Ghana was reported to have acquired the VALCO aluminium plant at Tema by buying out Kaiser Aluminum and Alcoa, the then owners. I still recall vividly the bizarre spectacle of the then Minister for Lands and Natural Resources and consultants working on a major study for government, chasing around desperately for a copy of the 2004 SPA so we could tell precisely what rights Ghana had acquired and what obligations. They asked representatives of VALCO in Accra, who had been part of the signing; they asked VALCO’s lawyers in London – all to no avail! As I speak now, I do not know if that 2004 agreement, the basis for our ‘ownership’ of the smelter at Tema, was ever found! Indeed, as late as 2011, a check of the Register of Companies at the Registrar-Generals Department showed that the Tema plant was still registered in the names Kaiser Aluminum and Alcoa – seven years after the purchase of the plant by Ghana! I would not be surprised it is still so registered today!!!

^[17] Constitution, Art. 268 (1)

^[18] The weight of this aspect of Parliament’s oversight function would be reduced in the case of agreements previously vetted by such as the Public Agreements Review Committee, mentioned above.

^[19] Constitution, Art 91 (3)

^[20] I recall during my tenure as a Member of the Council of State (2009-2013), trying unsuccessfully to get the Council to help with such weighty matters as the review of the Ghana Telecom sale agreement (mentioned in footnote 28, above), the Ex Gratia saga, the long-delayed Right to Information Bill and, most directly relevant to this discussion, the STX Housing Project – a $10 billion deal with a Korean firm for constructing 200,000 houses. On this last matter, my last words to my colleague Council members were: “You will have heard about the decision of Government, finally, to back out of the STX deal and recoup losses incurred by the State. I am sure you are as pained as I am by the wasted resources, dashed public expectations, embarrassment to Government, and loss of national credibility resulting from this debacle. Frankly, the ineptness with which this matter has been handled throughout is unbelievable. I feel that the latest Government announcement, while appropriate, could lead to further problems unless the next steps were very carefully considered, and public pronouncements reduced to a minimum. I am afraid, Council cannot escape part of the blame for our failure to be proactive in helping Government address decisively what was obviously a disaster waiting to happen.”(Email message to Chairman and Members of Council of State, 12 April 2012) (Emphasis supplied)

^[21] Colombia, the United Kingdom, Slovakia, and Georgia, as well as New South Wales and Victoria in Australia: Publishing Government Contracts, p.1 (below)

^[22] Publishing Government Contracts: Addressing Concerns and Easing Implementation: A Report of the Center for Global Development Working Group on Contract Publication, Center for Global Development: Washington DC, 2014 [http://www.cgdev.org/sites/default/files/publishing-government-contracts-report.pdf]

^[23] Since the Lectures, a Right to Information Act, has been passed (March 2019), to come into effect in January 2020.

^[24] For instance, contracts with confidentiality clauses in Australia’s federal contract database are reported to have accounted for only 2.2% of the total in 2012. (Publishing Government Contracts, p. 11)

^[25] Such as Ghana, with the recent Right to Information Act, 2019

^[26] Publishing Government Contracts, p. x.

^[27] Publishing Government Contracts, p.23

^[28] https://www.ghanaweb.com/GhanaHomePage/NewsArchive/Full-Speech-Akufo-Addo-s-address-on-the-US-Ghana-Military-Co-operation-Agreement-640739

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