Special Prosecutor Martin Amidu
The Special Prosecutor (SP) must, regardless of how useless it finds leads and information provided to his office by informants and members of the general public, avoid criticising them so as not to dissuade others who may possess information relevant to his office from volunteer same, Ghanaian law professor, Kweku Asare, has said.
This follows the office of the Special Prosecutor’s response to a petition by STRANEK-AFRICA asking it to investigate details of the Agyapa Royalties deal, in which he described the petition as “opportunistic and populist.”
But Prof Asare popularly known as ‘Azar’, in a statement on Tuesday, 22 September 2020, noted that: “A good prosecutor should always welcome leads, information or complaints from the public, even if it turns out that they are not helpful, useful or redundant.
“This is because a prosecutor cannot or does not expect the public to know what information he has or does not have on crimes that have been or about to be committed.”
Prof Asare further stated that: “A prosecutor should not reveal its sources to the public. Nor should a prosecutor publicly slam an informant for providing information that turns out to be unhelpful. Doing so only freezes others who may have relevant information.”
According to the lawyer, this is the reason he finds Mr Amidu’s “latest epistle lambasting and shaming Mr Tetteh of Stranek for allegedly petitioning his office to investigate the Agyapa deal to be astonishing.”
He indicated that: “In the said epistle, the SP accuses the petitioner of being opportunistic and populist. I demur.
“Rather, I think the SP’s actions, obviously calculated to shame the petitioner, will have the negative effect of stopping others from filing such petitions or providing leads to the SP that may turn out to be very relevant.”
Prof Asare added: “There is corruption everywhere. The SP must welcome petitions, even if they turn out to be redundant, do more prosecutions and write fewer epistles.”
In his response to the group, Mr Amidu said STRANEK-AFRICA’s petition was geared toward taking credit for processes that have already commenced independently by its office.
According to the Office of the SP, the Agyapa Royalties Agreements and related issues have been matters of public interest since they were approved.
The SP stated that: “It is a notorious matter of public knowledge and notice that this office on 10 September 2020, invoked its mandate pursuant to Sections 2(1), 29, and 73 of Act 959 and Regulations 31(1) and (2) of L.I. 2374 to examine any issues arising therefrom.”
The letter continued: “It is further in the public domain that Parliament and other public institutions have already responded to this office’s request for information and documents.”
It added: “Your letter, therefore, appears to this office as an opportunistic and populist enterprise on your part to take credit for processes already independently commenced by this office. In any case, your letter containing mere speculations without more does not present any legal basis for this office to commit further resources to your request from the public purse.”
A group calling itself STRANEK-AFRICA petitioned the office of the Special Prosecutor (SP) to investigate the entity that valued Ghana’s gold royalties that were ceded to Agyapa Royalties.
STRANEK-AFRICA, which described the deal as “shrouded in illegality, secrecy and issues of conflict of interest” and, thus, inimical to the interest of Ghanaians, also called for a probe of the deal.
The group made the demands in a letter addressed to Special Prosecutor Martin Amidu and co-signed by its Executive Director Nii Tettey Tetteh and its Director of Policy Affairs on Tuesday, 22 September 2020.
The civil society organisation said: “We are by this letter petitioning your high office pursuant to the Special Prosecutors Act (Act 959), 2017, to invoke the jurisdiction of the Special Prosecutor to open investigations into alleged cases of corruption, nepotism, conflict of interest and a general lack of openness and transparency that have characterised the Agyapa Royalties deal of the ruling government”.
“This follows the widespread traction the deal has gained in both traditional and social media.”
It continued: “It will be recalled that last year, the Minerals Income Investment Fund Act, 2018 (Act 978) was passed, which created a Minerals Income Investment Fund into which a percentage of the annual revenues of the mining companies will be paid to Government as royalties.
“The government subsequently amended Act 978 to ensure that Special Purpose Vehicles established by the Fund get unrestricted independence.
It said on “Friday, 14 August 2020, President Akufo-Addo caused seven (7) agreements relating to the Minerals Income Investment Fund (“MIIF”) to be laid before Parliament for approval.
“The Agreements sought to mortgage Ghana’s future mineral royalties using a Special Purpose Vehicle (SPV) called Agyapa Royalties Ltd. in exchange for an upfront amount of US$500 million to US$750 million.
“Future resources from gold royalties will go to Agyapa Royalties Ltd. instead of the government, and the deal is structured such that it can run in perpetuity”, the petition said.
“Agyapa Royalties Ltd. was incorporated as an offshore company in a tax haven island in the United Kingdom called Jersey (Channel Islands).
“The SPV is wholly government-owned but 49% of the shares will be sold to private individuals, so that eventually, the SPV will be 51% government-owned and 49% private-owned.
“The SPV will trade shares on the Ghana Stock Exchange and the London Stock Exchange for the private market.”
According to STRANEK-AFRICA, “the agreements for this deal were indecently rushed through the parliamentary approval process”, adding: “Requests by the Minority for certain important details such as the prospectus, details of incorporation and justification of usage of a tax haven, for effective scrutiny were not heeded by the ruling government and the majority side of Parliament”.
“Requests that parliament be furnished with periodic reports on the activities of the Special Purpose Vehicle for accountability and transparency were also rejected.
“Requests by the Alliance of Civil Society Organisations working on Extractives, Anti-Corruption and Good Governance for a full complement of data and assumptions used in government’s valuation of the royalties being traded did not receive any consideration.”
“It is imperative that the Agyapa Royalties deal be thoroughly and immediately investigated by your office: The Special Purpose Vehicle lacks transparency as it was incorporated in a tax haven causing matters of corporate governance to be clouded in secrecy and making it difficult to provide proper oversight of the company. Mortgaging Ghana’s future mineral royalties in perpetuity runs contrary to the interest of the people of Ghana and Ghana stands to lose billions of dollars in revenue as a consequence of this deal. The deal is intended to monetise gold royalties to fund the budget and ought to have been reflected in the budget statements tabled for approval and subsequently enacted in the various Appropriation Acts for the 2020 Fiscal Year, but this was not so;
“The agreement makes it impossible for a future government to replace managers of Agyapa Royalties Ltd. The asset is grossly undervalued per current valuation. The deal is embroiled in conflict of interest issues and raises serious ethical concerns on what seems to be a classic case of ‘family and friends’ transaction: Africa Legal Associates (ALA) are the legal advisors. ALA is owned by Mr Gabby Otchere Darko, the cousin of both President Akufo-Addo and Mr Ken Ofori-Atta, the Finance Minister.”
It noted further: “Mr Kofi Osafo-Maafo, son of Senior Minister Yaw Osafo-Maafo, is the Chief Executive Officer of Agyapa Royalties Ltd. Mr Ken Ofori-Atta’s Databank is the Transaction Advisor for this deal.”
It added: “It is prudent that your outfit investigates how the value of the royalties being ceded to Agyapa Royalties was calculated and which entity did the evaluation. The owners of the Agyapa Royalties must be disclosed to the general public including their credentials and the shareholding