Official documents are beginning to emerge painting former Attorney General Madam Gloria Akuffo as the person to carry the burden of blame for the rising US$170 million judgment debt for the cancellation of the Emergency Power Agreement (EPA) between the Government of Ghana and the Ghana Power Generation Company (GPGC).
The dismissed ex-Energy Minister, Boakye Agyarko and Gloria Akuffo’s one time deputy, Godfred Yeboah Dame, appear to be working on this enterprise that’s getting the ex-Attorney General credited with torpedoing the AMERI Novation agreement which got Mr Agyarko sacked, dirty.
Same Ms. Akuffo, had been credited with a dissenting opinion on the Agyapa Royalties deal in which some unknown faces were going to assume charge of Ghana’s royalties from its natural minerals which are into hundreds of millions of dollars, disguise as proper management of the nation’s natural resources to raise loans and others for national development.
However, while making Ms. Akuffo, to look bad on the termination of the GPGC agreement, Mr Agyarko is getting President Nana Akufo-Addo and his first term cabinet looking bad in the eyes of the public, as rather negligent and irresponsible in the abrogation of the agreement on a project which was 90 to 95% complete.
But while chasing and indicting Ms. Akuffo, Mr Agyarko, has not produced the cabinet memo recommending the termination of the GCPC agreement.
The cabinet memo was critical at the London-based United Nations Commission on International Trade Law (UNCITRAL) Tribunal. Although the Akufo-Addo government, was asked about the cabinet memo during arbitration, witnesses failed to provide the document.
However, in circulation is a letter dated April 12, 2018 in which Mr Agyarko wrote to the then Attorney General Ms. Akuffo, saying “As you are aware the Ministry of Energy by a letter dated 13th February 2018 terminated the Emergency Power Agreement (EPA) between the Government of Ghana and the GPGC Limited (GPGC) dated June 3, 2015.
“In its response dated 26th February 2018, GPGC rejected the basis for our termination and insisted that the GoG continue to fulfil its obligations under the EPA.
“After careful consideration, the Ministry is contemplating the deferment of the project, rather than its termination, because it appears the termination of the EPA may prove costly to the government of Ghana than was originally anticipated.
“It is expected that the GPGC will be called back to the negotiation table to discuss the terms of the deferment, and in the process, attempts will be made to obtain terms other than those currently contained in the EPC.”
In a response to this letter was another letter dated June 11, 2018 and signed by Madam Gloria Akuffo.
It said “Reference is made to your letter numbered ZA53/243/10 dated 12th April 2018 requesting the advice of the Attorney General on the Ministry’s decision to negotiate for the deferment and for better terms of the above-mentioned Emergency Power Agreement.
“We are of the opinion that the agreement having been abrogated cannot be negotiated for improved terms, as it is no longer in existence. “The parties may, however, negotiate another agreement which must be submitted to cabinet for approval. You may revert to us if you require any further clarification.”
Interestingly, Mr Agyarko, who has never spared any media platform to speak on the matter on Accra-based Net 2, rejected claims that he unilaterally terminated the contract between the country and the Ghana Power Generation Company (GPGC) that has landed the country into $170million judgment debt.
He insisted that it was a decision by cabinet to abrogate the contract and that he only adhered to the recommendations by cabinet.
He disclosed the procedure that led to the truncation of the contract and insulated himself of any blame, as far as the GPGC deal was concerned.
“Let me be emphatic that as a minister, I never had the power to terminate any contract. If you don’t understand these issues, you’ll be confused.
“Cabinet approved and the cabinet secretary wrote to me to implement the decision by cabinet. I wrote to ECG pointing out some of the issues and asked them to negotiate with the Attorney-General to decide on the terms of termination.
“I hear people say that I caused the judgement debt, how did I do that? How can you blame me? I followed the cabinet decision. I followed the opinions of the Attorney-General, the advice of the Energy Commission and acted in accordance with those. The fact that you are part of the cabinet doesn’t mean you are bigger than the president. You are still under the president so once the cabinet takes a decision, you have to abide by it,” he said.
Boakye Agyarko, has come under attack in recent times after a London-based United Commission on International Trade Law tribunal awarded a $170m judgement debt against the state. Boakye Agyarko called for a thorough probe into the issue and recommended prosecution where necessary.
He also proffered solutions to curbing the issue of judgment debt in the power sector.
He called for an end to take or pay contracts. “One big lesson we should take from this is to stop signing take or pay contracts and rather sign take and pay contracts. If you look at the history of take or pay, the British were overwhelmed with the North Sea issue. So, they wanted a contract that meant that once you commit them, you have to pay.
“British Thermal rushed and signed all kinds of contracts then Russia released their gas offer which was cheaper than Britain. British Thermal nearly collapsed. That is when the world learnt their lesson that take or pay is not the best,” he said.
A London-based United Nations Commission on International Trade Law tribunal, has ordered the government of Ghana to pay a contractually defined “early termination payment” of more than US$134.3 million plus interest and costs.
This follows the termination of the contract between the government of Ghana and an independent power producer, GPGC in 2018.
This has resulted in accusations and counter accusations among officials of the present administration and the previous Mahama administration.
For instance, Former Power Minister, Dr. Kwabena Donkor told Attorney General, Godfred Yeboah Dame, had said that the $170million judgement debt to the GPGC, was as a result of wrongful termination and not wrongful signing of the agreement.
The Pru East lawmaker told Dzifa Bampoh on the First Take on 3FM Wednesday, June 23 that the agreement went through due process before it was signed. Mr Dame, had said the decision by the signatories to sign such an agreement was uninformed.
“The fundamental question that we asked is why the agreement was entered into in the first place? Why did John Jinapor and his former boss execute the signatory of this agreement and afterwards set up a committee to review those agreements?
“It is because you yourself had realized that this was going to result in excess capacity,” he said.
“Indeed, the cost was very, very monumental. As per the report of the PPA Committee, if all the agreements signed by John Jinapor and his former boss had been allowed to run, each year, the nation was going to be exposed to payment to the sum of $586 million.
“Cumulatively, between 2013 and 2018, the nation was going to pay as much as $1.76 billion,” he told Joy News.
Reacting to his comments, Dr. Kwabena Donkor told Dzifa that “The award was given for wrongful termination, not for wrongful signing. I am therefore surprised that the Attorney General does not deem it fit to confirm that whoever terminated will also be referred to the CID.
“The Ghana Power Generation Company (GPGC) was sent to cabinet, it had cabinet approval. Indeed, the Secretary to Cabinet wrote to Parliament on the 3rd of July 2015, and parliament approved the agreement. “It went through the constitutional process set out for these agreements.
“This agreement had the lowest tariffs of all the emergency power purchasing agreements. It had the shortest duration, four years and that agreement did not require any financial security from the state of Ghana and therefore it was one of the agreements negotiated.”