$400 million judgment debt looms

• Posted on April 8, 2014
• by Nana Kwesi Coomson
• Comment

In a case before the Permanent Court of Arbitration (PCA) in The Hague, Netherlands, which could be determined in a matter of days, a consortium of companies, led by Bankswitch Ghana, is seeking an amount of GH¢831 million ($400 million) plus interest over the termination of the Ghana Customs Secure Document Management System (GCSDMS) contract.

Checks by the Center for Investigative Reporting Ghana (CIRGHA), an investigative NGO affiliated to the Global Investigative Reporters Network, based in the United State, have revealed that the Permanent Court of Arbitration has concluded its work and could make its decision in a matter of days, subject to both parties in the arbitration depositing €125,000 each into a bank account linked to the PCA.

As at last Monday, only Bankswitch Ghana had complied with the court’s directive, further checks by CIRGHA have revealed.

Sources confirmed to CIRGHA that a notice to this effect had been circulated to both parties since February this year.

Until 2012, Bankswitch Ghana was the lead agency in the implementation of Ghana’s first fully integrated electronic platform used in the processing of imports at the ports.

As at Monday this week, only Bankswitch Ghana had complied with the court’s directive, further checks by CIRGHA have revealed.

Sources confirmed to CIRGHA that a notice to this effect had been circulated to both parties since February this year.

In the case before the Court of Arbiration, Bankswitch Ghana claims its contract to manage the GCSDMS was wrongfully abrogated by the government of Ghana and as a result, it had not been able to recoup its investments.

However, Dr. Clement Apaak, who insists, Bankswitch is not entitled to any such claim is praying the Supreme Court of Ghana to declare the purported contract null and void because it lacked Parliamentary approval pursuant to Article 181 (5) of the 1992 Constitution.

In a writ filed before the Supreme Court, the Presidential Staffer is also seeking an order requiring the 2nd and 3rd defendants to indemnify the Government of Ghana against any loss, claims, arbitral awards, costs and/or any other liability whatsoever that the Government may be exposed to by reason of any person, institution and/or body relying on or giving effect to the provision of the said illegal agreements.

“A declaration that the agreement dated the 12th day of December, 2007 and entered into between the Government of Ghana acting through the Ministry of Finance and Economic Planning and Revenue Agencies Governing Board on the one part and the 2nd and 3rd Defendants on the other part, is an international business or economic transaction, and thus null and void for want of Parliamentary authorisation pursuant to 181 (5) of the 1992 Constitution”.

Article 185 (5) of the 1992 Constitution states: “This article shall, with the necessary modifications by Parliament, apply to an international business or economic transactions to which the Government is a party as it applies to a loan.”

Ghana consortium include Get Holdings, a company incorporated under the laws of Cyprus, Get Technologies, a company incorporated under the laws of Cyprus, Get Group, a free zones enterprise registered in Dubai, (UAE), Faberkner Corporation, a company established under the laws of Panama and Intertek International Limited, a company organized and existing in accordance with the laws of England and Wales.

In spite of the case ongoing at the Supreme Court, legal pundits share the view that per international law, if the Permanent Court of Arbitration decides to uphold the claims of the consortium of companies led by Bankswitch Ghana, Government would be obliged to pay.

The Attorney-General and Minister of Justice, Mrs Marietta Brew Oppong Appiah, is in the heart of government’s effort to stem the tide of judgment debt payments deemed dubious.

-Daily Guide