It has emerged that Finance Minister Ken Ofori-Atta practically arm-twisted the Ghanaian Parliament to agree to virtually hand multi-billion dollars of Ghana’s mining royalties in dodgy transactions through Agyapa/Asaase Royalties, a supposed Special Purpose Vehicle (SPV).
The deal will see the nation’s Sovereignty dashed to global US and UK banks and investment brokers alongside waivers on taxes and other privileges imbedded in the fictitious deal railroaded through the sleeping chambers of parliament.
The Finance Minister wants Agyapa Royalties which will be 49% owned by unknown private entities, to enjoy zero taxes from Ghana forever-even when Agyapa’s shareholding structure changes and Ghana happens to lose some of its shares from the Russian roulette deal.
“The Group will also, be exempted from taxes on the transfer of shares in Agyapa \, upon a change of ownership in either company or on the disposal of any interest in the Allocated Mineral Royalties,” the Finance Minister’s agreement with Agyapa Royalties Limited read in a memorandum steamrolled through the Ghanaian Parliament this month.
The Finance Minister’s “ingenious” plan will see big names such as Merrill Lynch International (BofA), J.P. Morgan Securities plc (JPM), BMO Capital Markets Limited (BMO), Peel Hunt LLP (Peel Hunt) and Tamesis Partners LLP, etc, feast on Ghana’s multi-million mining royalties in such a way that any potential loses would be borne entirely by Ghana.
In the bizarrely benevolent deal, the finance minister also recommended that these big companies alongside Agyapa’s unknown private owners will be indemnified indefinitely. “…Indemnify the Banks, their respective selling agents, affiliates, subsidiaries and associates, and hold them harmless (on the terms stated therein) from certain losses in connection with services to be provided by the Banks in respect of the proposed offering of shares in Agyapa (the Shares),” the agreement read.
The posture and some paper trails are increasingly linking the deal to the finance minister and President Akufo Addo’s family as a deal hatched to personally enrich their financial interests.
Through the Minerals Income Investment Fund passed in 2018, Act 978) the Akufo Addo administration had devised the hair-raising Special Purpose Vehicle (SPV) Agyapa Royalties to curiously collect some US$ 200 million of Ghana’s mining income and channel it through an opaque tax haven to trade with the funds on international capital markets such as the London Stock Exchange (LSE).
In the agreement sighted by Whatsup News, the Finance Minister proposed that Agyapa and its agents will suffer zero tax obligations to Ghana “…To the extent that they do not impose a disproportionate burden on ARG Royalties Ghana Limited when compared to other persons in the same category.”
These spine-tingling conditions drew the angst of the Attorney General Gloria Akufo who wrote a damning legal opinion about the deal.
Whatsup News has intercepted a copy of this legal opinion addressed to Mr. Ofori-Atta on July 22 2020.
“Further, it is noted that the terms and conditions of the agreement are onerous. The provisions are skewed against the interest of the fund and the Rupublic. Both the Fund and the Republic have swift obligations and liabilities with punitive consequences in the event of a breach or default, whilst the order contracting parties namely, RoyaltyCo and ListCo are to use their best efforts to ensure the execution of the transaction”, read the AG’s document.
The AG further noted that the MIIF Act was deliberately made to allow the Minister to execute a tripartite stability agreement with the Fund and the Agyapa/Asaase which sort to freeze anything legal including judicial orders and decisions.
“In effect no court can pronounce on any part of the agreement as being illegal, unconstitutionable, null and void or on any matter before the court which may or is likely to affect any part of the agreement” AG, Gloria Akufo stated.
In a follow-up review dated August 12, 202 the AG re-emphasized her anger at the share incongruous nature of the agreement Ken Ofori-Atta sort to be promoting.
Apparently, the Finance Minister had attempted to grant Agyapa Royalties sovereign immunity from lawsuits and any potential consequences, but the Attorney General vehemently protested against this provision being sneaked in. The intercepted legal opinion noted: “Sovereign Immunity and Waiver of Defences (B4.151- We maintain our position that Sovereignty resides in the State properly so-called and not in limited liability companies (even with the State being the majority shareholder) or statutory bodies. Although the Fund and Ghana Revenue Authority are statutory bodies, they are not sovereign and therefore cannot enjoy sovereign immunities in respect of “protected assets” .”
While seeking sovereign immunity for Agyapa/Asaase Royalties and MIIF, the agreement forced the Republic of Ghana to be perpetually liable for the mishaps that may arise during the dealing of Agyapa Royalties.
To this, the AG again protested. “We note that this is a new provision introduced into the Agreement which seeks to hold the Republic and the Fund jointly and severally liable for their respective obligations and undertakings. It provides that: “Except as otherwise expressly provided herein, the Fund and the Republic shall be jointly and severally liable for’ their respective obligations, undertakings, covenants, warranties and representations under this deed” It is suggested that since the Fund by its enabling Act is a body corporate, it should be responsible for its liabilities without necessarily joining the Republic,”
Whatsup News gathered that despite these protests, the agreement was still pushed through in its original form.
The Agyapa/Asaase Royalty deal is seen as the brainchild of a triangle of family members of President Akufo Addo, particularly the Finance Minister and the president’s cousin, Gabby Asare Otchere-Darko, who was in the thick of proposing some of the detrimental amendments to the MIIF Act.