When government doesn’t act in the interest of the people….

Dr Kwabena Donkor – former Power Minister

I’ve always wondered why the political class seem to be targeted in the event of a revolution , a coup d’etat or any violent disruption in the governance process . It’s not because I’m oblivious to their many atrocities such as misappropriating public money/trust and the many forms of corruption . No !

But this is mostly because they always seem to in addition to their many corrupt practices insult the intelligence of the people they govern . What I’ve realised is that politicians deliberately induce the difficulty that is faced by the people. They create policies and programmes that is skewed to benefit their ilk.

You may disagree with my observations but I challenge you to analyze and synthesize information regarding some of the government deals signed in the name of the people . It is my belief that if there is a positive will to bring progress to majority of the ordinary people , this country will be a better place . However the opposite is true .

What am I rambling about unend ? Ameri ! Yes Ameri ! One of the most fraudulent deals ever signed in the name of the Ghanaian people . Looking at the statements and analyzing the attempted justification by the erstwhile NDC government who signed the agreement makes my stomach turn .

Either our politicians consider us stupid and brain dead or they  were taken for a ride and perhaps stupid than they would give themselves credit for .I have every reason to believe the this shady deal was conducted to the benefit of both parties ( conspirators) who signed the deal . I was filled with rage after reading the expert analysis on the deal .
Below is the analysis of the terms and conditions of the Ameri deal culled from Bright Simmons Facebook wall. What crime has the ordinary Ghanaian committed to be burdened with such arrangements.

1. The terms of the contract were drawn up to inflict maximum damage on Ghana should any attempt to terminate the contract ahead of time be made.

2. Though the governing law is Ghanaian law, the Forum for arbitration is London, under UNCITRAL rules. Like most modern arbitration rule systems, UNCITRAL follows the common law approach of restraining attempts to go beyond the strict terms of the contract in order to achieve fairness (the so-called “amiable compositeur” approach). For an arbitration panel to move from strict interpretation of the contractual terms according to the applicable law into broader matters of equity, UNCITRAL requires that “aequum et bonnum” should have been expressly provided for in the agreement. In this case, it wasn’t.

3. That is not to say that common law arbitration frowns on equitable principles per se. Even that beloved muse of Ghanaian jurists, Lord Denning, emphasised as much in the case of “Star Insurance Ltd v. Yuval Insurance Co Ltd”. It is just that the grounds of equity should be unmistakable from the facts and the remedies applied consistent with the determinations of law.

4. Which makes careful attention to the terms of the contract paramount.

5. In clause 10 (f) of the agreement, AMERI makes it clear that at the end of the five years, after Ghana has paid the $510 million “contract price”, and the asset has nominally been transferred to our ownership, we shall still be paying them to run the plant. In fact, in annex G to the agreement they have provided the price we shall be paying per kilowatt-hour of power. (Remember, they simply cloned a rental agreement to craft the BOOT agreement).

6. 13 and 14 say that AMERI shall pay zero income tax and not be subject to any standards introduced into Ghana unless the government of Ghana is willing to pay for the conformance and compliance.

7. In 15, Government of Ghana (GOG) is tasked to provide insurance for the Ameri equipment, as well as provide land, security, utilities and accommodation for all Ameri staff.

8. 23 and 24 indicate that if the GOG fails to fulfill any of these obligations or default on the $9.9 million indicative monthly charge, or if conditions beyond Ameri’s control, such as political strikes, disasters or explosions, prevent Ameri from operating for 90 days or more, AMERI may terminate the agreement. Should Ameri do that, GOG must pay any amount still outstanding on the $510 million plus any accrued interest. If the termination is due to GOG defaults then on top of getting the money Ameri gets to keep the power plants. If however termination is due to circumstances beyond Ameri’s control persisting for more than 90 days then GOG can buy the plant for the total sum of $510 million.

9. In 30 it is made clear that GOG only gets access to the software used in managing the plant by way of a license from Ameri, which is provided at Ameri’s sole discretion. The transfer of the plants to Ghana after we have finished paying the $510 million does not affect Ameri’s continued ownership of the software.

10. According to 32: all disputes arising from the agreement not resolved through negotiations or by aid of an independent expert shall be determined through arbitration. No party shall take the matter any further to a law court. However if the situation implies a threat to Ameri’s property then Ameri or its agents is entitled to go to court.

11. It should be obvious by now that any attempt to renegotiate the agreement within the terms of the agreement itself would be futile. It is crafted deliberately to screw up chances for equitable redress.

12. Any engagement seeking a rebalancing of the agreement must, of necessity, take the following into account:

A. Ameri is in breach of the agreement for substantive subcontracting to third parties that do not fully qualify as “affiliates” within the meaning of the agreement and without the express approval of the government.

B. The former Minister of Power was clearly of the view that the balance of plant work brought the total EPC cost of the project to $350 million based on representations from Ameri and its subcontractors. This was patently false, creating grounds for overpayment due to mistakes of fact (cf. Kleinwort Benson Ltd v Lincoln CC [1999]). This position fortifies a claim for reliefs under the principle of “unjust enrichment”. The former Minister must enthusiastically prepare to serve as a Government of Ghana witness should Ghana be compelled to push for arbitration in London.

C. Since payment is monthly any arbitration must be commenced with a filing for provisional measures to reduce the monthly liabilities given Ameri’s general lack of evident financial capacity to provide restitution in the event of an eventual arbitral award in Ghana’s favour.

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