Lawyer Stephen Kwaku Asare
A US-based Ghanaian lawyer and a professor in accounting, Stephen Kwaku Asare says the Attorney General (AG) and the foreign law firms – Omnia Strategy and Volterra Fietta – should be held accountable for the $164million judgment debt awarded against Ghana.
“I just do not understand why we do these things to ourselves,” he bemoaned, blaming these entities for the ‘inexcusable’ delay.
“We have an Attorney-General Department. We have hired and paid two foreign law firms, Omnia Strategy and Volterra Fietta.
“Yet, we fell asleep and did not take advantage of the 28-day window afforded us to challenge the arbitration panel’s decision that we should pay $170M to GPCG for terminating a contract,” Prof. Stephen Kweku Asare said in a Facebook post on Wednesday.
A United Kingdom Court says it is too late for Ghana to appeal against a US $164 million judgment debt awarded against it for wrongfully terminating the contract of an independent power producer, Ghana Power Generation Company (GPGC) Limited.
The contract was initially worth US$ 24.9 million per annum over the contract period of four years, making US$99.6 million.
The government failed to apply and set aside the January 26, 2021 decision of the London-based United Nations Commission on International Trade Law (UNCITRAL) Tribunal.
Rather, it turned up at a London Commercial Court with two excuses as impediments–the country’s 2020 presidential and parliamentary elections and that some key officials in the Attorney General’s Office contracted COVID-19.
The verdict
The three-member arbitration tribunal chaired by John Beechey, a former President of the International Criminal Court’s Court of Arbitration, and co-chaired by Prof Albert Fiadjoe, a Ghanaian academic, sided with the power producer and awarded almost US$170 million, including interest.
Out of the total, U$134.35 million represents the early termination payment claim, which itself is made up of US $69.36 million as early termination fee, US$58.49 million for mobilisation costs, US$6.46 million as demobilisation cost and US$32,448 as preservation and maintenance cost.
The tribunal also awarded US$614,353.86 against the country as the cost of the tribunal, and costs of US$3 million against Ghana, being the legal fees expended by the GPGC during the arbitration.
Major highlights of the tribunal’s decision included the fact that the Ahenkora Committee which recommended the termination of the contract did not have sufficient ground in coming to the conclusion that the GPGC was entitled to only US$18 million in early termination fees.
The tribunal, in dismissing Ghana’s case, delved into the basis for terminating the contract, stating that the evidence before it indicated that “GPGC did have a building permit for the Blue Ocean Site issued by the Kpone-Katamanso District Assembly on August 15, 2017.”
“GoG [The government] has not been able to adduce any statute or regulation, including the Energy Commission Act, which addresses the requirement for any such additional construction permit,” the Tribunal ruled.
“On the basis of the record as it now stands, it is apparent that even as Dr. Ahenkorah [Energy Commission Executive Secretary at the time] was putting up further hurdles over which he required GPGC to jump in pursuit of its provisional generation license in November 2017, the Minister of Energy was about to seek the approval of the Ghanaian Parliament of a decision to terminate the EPA along with a number of other PPAs, based upon the Report of the PPA Committee chaired by Dr. Ahenkorah,” it said.
The delay in challenging the verdict
Under British law, the government had 28 days to challenge the tribunal’s decision. However, it went to sleep only to appear in court three days to the expiry of the deadline to ask for an extension.
Omnia Strategy, a British law firm, made the case for extension and asked for 56 days—twice the allowed grace period.
However, the court set March 8, 2021, for the Government to file the processes to challenge the Tribunal’s decision in January. But again, the government took a long nap until April 1, 2021, before filing. This time, another British law firm, Volterra Fietta, had instructions from the government to begin the process.
The law firm, which tagged itself as the only dedicated public international law firm in the world, explained that the new Attorney General, Godfred Yeboah Dame, had only been sworn in on March 5, and the firm received the directive to represent Ghana 10 days later.
But ruling on the matter on June 8, 2021, the court had no sympathies. It said the excuses were unreasonable and “intrinsically weak.”