It appears the cabal behind the shady Asaase/Agyapa deal were in so much a hurry to close the sweetheart arrangement that it had to shelve the opinion of the government’s legal adviser, the Attorney General, not to execute the transaction in its current state.
Whatsup News is in possession of exclusive documents from the Attorney General’s Department showing how frantically, the AG Gloria Akuffo protested against the state capture of Ghana’s mining royalties using the shady Agyapa/Asaase Royalties Limited as the vehicle.
The legal advice from Ms. Gloria Akuffo dated July 22, 2020 read in part: “It is noted from the nature and purpose of the Mineral Royalties Investment Agreement and the related agreements that, there would be a one-off payment of the sum of One Billion US Dollars. It is, however, unclear what other benefits would come to the Republic of Ghana and the Fund other than the one-off payment considering that this agreement runs in perpetuity with
stringent responsibilities of the Fund throughout its lifespan.”
The AG further raised red flags about the sweeping safety nets given to Agyapa/Asaase Royalties to the detriment and against the interest of Ghana.
The agreement basically subjugates Ghana’s judiciary and renders it completely powerless to make any legal intervention, noted Gloria Akufo.
“It freezes anything legal including judicial orders and decisions. In effect no
court can pronounce on any part of the agreement as being illegal,
unconscionable, null and void or on any matter before the court which may
or is likely to affect any part of the agreement. This will amount to executive
interference of the powers of the judiciary, which is a violation of the concept
of separation of powers as provided under the Constitution of Ghana.
Therefore, the executive arm of the government cannot enter into an agreement
that curtails the independence of both the Legislature and the Judiciary,” the AG wrote.
“…It is noted that the terms and conditions of the Agreements are very
onerous. The provisions are skewed against the interest of the Fund and the
Republic.”
The peeved AG in the 26-page legal advice intercepted by Whatsup News, pointed out how the questionable deal with Agyapa Royalties is “cast in stone” such that it give Ghana no chance whatsoever to evaluate the effectiveness of the deal to boosting the Ghanaian economy, particularly when the private shareholders of Agyapa will be receiving revenues from monetizing Ghana’s mining royalties risk-free, with Ghana bearing all liabilities.
The AG also noted illegal terms within the agreement. “It is noted that payments in respect of the Agreement will be made in US Dollars. This violates the Bank of Ghana Act, 2002 (Act 612)… which mandates that all transactions be made in the currency unit of Ghana which is the cedi or its equivalent,” Ms. Akuffo wrote to Finance Minister Ken Ofori-Atta, who is the main crusader of the questionable Agyapa deal.
Interestingly, the pushers of this contentious deal have cleverly protected the private investors by ring-fencing incomes to be received by the private investors of Agyapa, based on very high projections for gold prices, while leaving Ghana completely open to serious problems in the event of gold prices fluctuating.
“We note that the subject matter, i.e. monetizing royalties and investing such
income has been ring-fenced for ListCo and RoyaltyCo such that the Republic
is precluded from exercising any right over the 75.6% percentage shares as
referred to in the Agreement. However, we also note that the value of gold is not stable on the international market and likely to drop against the projection of high value which may have negative consequences on the royalties received. It is suggested that this agreement should be for a fixed term for the avoidance of doubt and sanctity of contract,” the AG stated.
In a rather convoluted move, the Akufo Addo administration set up the Minerals Income Investment Fund (MIIF) which curiously engaged a private Special Purpose Vehicle (SPV), Agyapa Royalties Limited, registered in a notorious tax haven on the British Virgin Islands used by corrupt politicians and companies to hide stolen funds.
Agyapa which is partly owned by the MIIF and an unknown group of “investors” has been tasked to “monetise some US$ 200 million of Ghana’s mining royalties annually amidst extremely generous terms that work to the detriment of Ghana.
Government has faced a barrage of criticism since the approval of the US $ 1 billion deal between itself and Agyapa Royalties Ltd some three weeks ago.
The investment agreement between the Government of Ghana and the Agyapa will allegedly make available US $500 million to Ghana immediately, after which a group of unknown private investors will take home some US$ 90 million annually forever as 49% shareholders of Agyapa.
These investors will enjoy complete and risk-free investment in Agyapa, while all the liabilities of the transaction will be piled on Ghana, the 51% shareholder.
Observers have pointed out the tell-tale link of the Jubilee House and President Akufo Addo’s two powerful cousins in the deal.
The transaction advisors to the eyebrow-raising deal included a law firm owned by Gabby Asare Otchere-Darko, who is President Akufo Addo’s cousin and right-hand-man at the Presidency.
There are also suspicions that Databank Financial Services Limited may be part of the beneficiaries of the scheme. Whatsup News is still investigating this allegation.
Civil society groups and a cross-section of the public are livid with the scope of the agreement that was clandestinely rushed through Parliament. They want the agreement scrapped immediately.