Mr. William Nyarko, Executive Director of the Africa Centre for International Law and Accountability (ACILA) is cautioning the NPP government to “tread cautiously on the AMERI deal”.
His comment is coming on the heels when the NPP majority in parliament is making moves to abrogate the $510m dollar power deal on the basis of fraud at the part of the previous NDC government that signed the deal to end the close to 3 years power crisis ‘dumsor’.
When the new NPP government took over power, a committee was constituted and charged to review, restructure and recommend areas of amendment of the Ameri power deal. The committee has recommended that the deal be re-negotiated or abrogated on grounds of fraud, after it emerged that Ghana was made to pay 150 million dollars extra in commission to Africa & Middle East Resources Investment Group LLC (Ameri Energy) for the construction of the power plant.
But Mr. Nyarko was of the view that the parliament is not following the proper process to council the contact since it is an international transaction which cannot only be subjected to domestic laws.
This is an international business transaction which was ratified by Parliament and all conditions precedent to the coming into force of the agreement were met and or Ghana had the option to cancel the agreement under Section 3(b) of the agreement.
This agreement being an international business transaction, a finding of fraud and subsequent rescission by Parliament (Parliament is not even following the proper process, it is the judiciary that should be looking at the alleged fraud) will not invalidate the Ameri agreement. Ghana will still be bound by the agreement.
The Addison report didn’t address the fact that this is an international business transaction and that it is more complicated than merely using a domestic law approach to tackling the alleged issue of fraud. For fraud to stick on Ameri, it must have been perpetrated by Ameri, not Ghanaian officials…
Section 2(c) of the Ameri agreement (click on the link below for the full agreement, courtesy Ghana Business News) requires Ghana to pay a hefty early termination charge in accordance with Section 25(b) of the agreement (See Section 25(b) available in the link below).
Also, Ghana should be mindful of the standard arbitration clause in the agreement, which provides a dispute settlement process starting with one Expert review and determination, failing which the matter will be decided by three experts who will sit on the matter in London, applying UNCITRAL Arbitration Rules.