SEC Petition Valid – ACILA

The Africa Centre for International Law and Accountability (ACILA) has stated that the Minority did not err by sending a petition to the US Securities and Exchange Commission (SEC) to investigate Franklin Templeton over the US$2.25billion domestic bond issued by the Government of Ghana.

ACILA Executive Director William Nyarko explained that “Franklin Templeton is a US corporation established under US law so the US SEC has supervision over it, even in its actions overseas”.

Mr Nyarko, who was a guest on Class FM’s World Affairs on Friday May 19, told show host Dr Etse Sikanku that the Dodd-Frank Wall Street Reform and Consumer Protection Act gives authority to US agencies to investigate Franklin Templeton in its involvement over the bonds.

The Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub L No 111-203, § 929P (b) (1) (2) states:

“(b) Extraterritorial jurisdiction:
The district courts of the United States and the United States courts of any territory shall have jurisdiction of an action or proceeding brought or instituted by the Commission or the United States alleging a violation of the antifraud provisions of this chapter involving:

(1) conduct within the United States that constitutes significant steps in furtherance of the violation, even if the securities transaction occurs outside the United States and involves only foreign investors; or

(2) conduct occurring outside the United States that has a foreseeable substantial effect within the United States.”

Mr Nyarko, therefore, did not agree with Dr Adu Anane Antwi, a former boss at Ghana Securities and Exchange Commission, who said that the Minority erred in its decision to petition the US SEC.

Deputy Minority Leader James Avedzi had said days earlier that the petition was successfully submitted on May 1, 2017. This was done after initial petitions to the Commission on Human Rights and Administrative Justice (CHRAJ) and the Ghana SEC.

The Minority is raising issues of transparency, conflict of interest, non-approval by parliament, and suspicion.

The Minority holds the view that Mr Trevor G. Trefgarne, a director at Franklin Templeton, is also a Director at Enterprise Group Limited, a company of which Ghana’s Finance Minister Ken Ofori-Atta is co-founder, thus raising issues of conflict of interest.

Explaining the process of investigations, Mr Nyarko observed that all US SEC investigations are conducted privately.

Facts are developed to the fullest extent possible through informal inquiry, interviewing witnesses, examining brokerage records, reviewing trading data, and other methods.

With a formal order of investigation, the Division’s staff may compel witnesses by subpoena to testify and produce books, records, and other relevant documents.

Following an investigation, US SEC staff present their findings to a Commission for review.

The Commission can authorise staff to file a case in federal court or bring an administrative action. In many cases, the Commission and the party charged decide to settle a matter without trial.

Common violations that may lead to US SEC investigations include misrepresentation or omission of important information about securities, manipulating the market prices of securities , stealing customers’ funds or securities, violating broker-dealers’ responsibility to treat customers fairly, insider trading (violating a trust relationship by trading on material, non-public information about a security) or selling unregistered securities.