Did the Attorney-General sleep on the job? – Kwabena Donkor on $111m judgment debt against Ghana

3 News

Wed 21st Aug, 2024 16:26

Former Minister of Power Dr Kwabena Donkor has questioned why the Attorney-General did not defend the government of Ghana in the $111 million judgment debt awarded in favour of Ghana Power Generation Company by the court in the United States.

What asked why the Attroney-Fgenef did not defend the government in the case?

“What was the Attorney-General’s Department and the Ministry of Energy doing? What were they doing? Did they sleep on the job or did they realise that, ‘look, the arbitration settlement was on such strong legal terms that it was not worth challenging’? That could also be an option.

“But I also know for a fact that even after the arbitration settlement, the Government of Ghana agreed to engage Trafigura with a settlement plan and one of the options that Ghana government explored at the time was even to pay for the plant and take over, but again, we went to sleep.

“And this is not the first of such issues that we have had where we go to arbitration, there is a judgement against us, we agree to a settlement and renege on it”.

The MP for Pru-East also gave assurances that a future NDC administration will probe all of such judgment debts with possible prosecution of public officers who caused financial loss to the state.

“My recommendation moving forward is that, whichever government comes into power in January 2025, and I believe the NDC will come to power by courtesy of the good people of Ghana, we must study all such judgement debts, find and establish culpability and public officials who let this country down should be asked to pay for it”.

Following the failure of the Government of Ghana to fully comply with an earlier tribunal decision from the United Kingdom, a District of Columbia Court in the United States has awarded a  $111,493,828.82 judgment debt against Ghana in favour of the Ghana Power Generation Company (GPGC).

The court, in granting the Motion for Default Judgment in favour of GPGC, also ordered Ghana to pay mandatory post-judgment interest.

It is recalled that a court in the United Kingdom in 2021 awarded a $140 million arbitral against Ghana for the termination of a power deal with GPGC.

In addition, the government was asked to pay the cost of the arbitration and the legal fees of GPGC, which amounted to over $3 million.

Trafigura, an oil trader was in the position to sell Ghana’s assets in the UK in other to raise the amount of money the government of Ghana owed it.

Deputy Attorney-General Alfred Tuah Yeboah said although part payment was made, the state was unable to meet the installment payment plan.

“Having failed to do so, the judgment creditor decided to execute the judgment. They attached property belonging to the Republic in the UK, and then they sought to serve us with that process. We then filed a motion trying to set aside the process through which we were served but the High Court in England said no, and that the service on us [state] was properly made. So now, the Ministry of Finance has been advised to once again approach the judgment creditors and make every effort to pay that money,” he is reported to have said.

Despite the ruling, Ghana only made partial payments totalling $1,897,692.40, leaving a significant outstanding balance.

After unsuccessful attempts to secure the remaining payment from Ghana, GPGC filed a case in the U.S. District Court on January 19, 2024, under the New York Convention and Chapter 2 of the Federal Arbitration Act, seeking to recover the compounding debt.

Court documents reveal that the U.S. court served Ghana with the petition on January 23, 2024, through Shirley Ayorkor Botchwey, Ghana’s Minister for Foreign Affairs and Regional Integration.

The documents were delivered in Ghana on January 29, 2024, with a signed confirmation of receipt.

However, Ghana failed to respond by the March 29, 2024 deadline and did not appear in the court proceedings.

The court determined that it had jurisdiction over the case, citing the New York Convention, which the U.S. has ratified, recognizing UK arbitral awards.

The court also noted that Ghana had expressly waived its sovereign immunity and committed to international arbitration under the power purchase agreement.

In his August 6, 2024, memorandum opinion, Chief Judge James E. Boasberg emphasized that the arbitral award between the non-U.S. parties arose out of a commercial relationship, which falls under the New York Convention.

The Convention requires that member states recognize and enforce such awards, regardless of the parties’ citizenship or domicile.

While the judge did not grant pre-judgment interest to GPGC, the court will award post-judgment interest at the rate specified in U.S. codes, adding to the financial burden on Ghana.

The post Did the Attorney-General sleep on the job? – Kwabena Donkor on $111m judgment debt against Ghana first appeared on 3News.