ECOWAS Court dismisses suit against Agyapa deal

ECOWAS court

The ECOWAS Community Court of Justice (CCJ) has thrown out a suit against the Government of Ghana (GoG) challenging the propriety of a Gold Royalties Monetisation Transaction arrangement, popularly referred to as the Agyapa deal.

Three anti-corruption groups Transparency International, Ghana Integrity Initiative (GII) and the Ghana Anti-Corruption Coalition (GACC) dragged the government to the CCJ in December 2020, seeking an order to halt the Agyapa deal.

It was said that Agyapa deal was dominated by “politically exposed persons” and also violated the rights of Ghanaians to have permanent sovereignty over the country’s natural resources as provided under the African Charter on Human and People’s Rights.

However, the court sitting in Abuja, Nigeria, last Tuesday upheld the defence of the government, and dismissed the case of the three civil society organisations.

The court said the detailed reasoning for its decision would be made available later.

The applicants had argued that the Agyapa deal violated many international conventions against corruption, and, if allowed to go ahead, would allow Ghana’s gold resources to be controlled by foreigners.

Apart from asking the CCJ to restrain the government from going ahead with the deal, the applicants also wanted the court to order Ghana to investigate all alleged acts of corruption associated with the deal, “and ensure that any alleged perpetrators are brought to justice”.

The government, in its defence, however, refuted the case of the applicants and argued that the Agyapa deal was not meant to cede the sovereignty of the country’s resources to foreigners.

“The proposed Agyapa transaction is intended as a means by which only a portion of the proceeds from the exploitation of natural resources of Ghana is invested to ensure that the people of Ghana obtain the benefit therefrom,” the Attorney-General (A-G), Godfred Yeboah Dame, submitted.

It was also the case of the government that the first applicant, Transparency International, had no capacity to be part of the action because it was a German organisation and, therefore, not a member of the ECOWAS Community.

Also, the government was of the contention that the argument by the applicants that the Agyapa deal was an interference on the right of Ghanaians to have sovereignty over natural resources was “not based on sound legal reasoning, and meritless”.

The government also made a case that the applicants failed to provide any evidence to back their allegations that the deal was dominated by “politically exposed persons” who “intend to misappropriate Ghana’s resources”.

Parliament passed the Minerals Income Investment Fund Act, 2018 (MIIF Act 978) with the key objective of maximising the county’s mineral wealth for the benefit of Ghanaians, while ensuring that receiving royalties from gold mining companies was sustainable.

The law was amended to enable it to incorporate subsidiaries and to use it as a special purpose vehicle to do business across the world.

The main subsidiary of the MIIF and holding company, Agyapa Royalties Investment Ltd, will be listed on the London Stock Exchange, while its subsidiary, ARG Royalties Ltd, will be quoted on the Ghana Stock Exchange, both through initial public offerings.

The company will be responsible for managing 75.6 per cent of the country’s royalty inflow from the 12 gold mining companies that currently operate in Ghana, with four more expected to come on stream.

That will enable the country to raise about $1 billion to finance mining concessions in Ghana and across Africa.

In November 2020, President Nana Addo Dankwa Akufo-Addo instructed the Minister of Finance to re-submit the agreements supporting the Agyapa deal to Parliament for the approval process to start all over again.

That followed the corruption risk assessment submitted by a former Special Prosecutor, Martin Amidu, to the President.