Attorney General Gloria Akuffo rejected ECG’s request for exemption from procurement laws in 2020

It has emerged that a legal opinion issued by then-Attorney General Gloria Akuffo in a letter dated July 28, 2020, opposed the Electricity Company of Ghana’s (ECG) request for exemption from Public Procurement Laws governing state entities.

The letter, addressed to the Minister of Finance, Ken Ofori-Atta, examined ECG’s justification for the exemption and referenced Ghana’s Public Procurement Act, 2003 (Act 663), as amended by Act 914 (2016), concluding that ECG was subject to public procurement regulations.

Below are the key points from Gloria Akuffo’s legal opinion

1. ECG’s Request for Exemption
   ECG argued that it should be exempted from the Public Procurement Act because: 
   • It is a private company limited by shares, with the Government of Ghana as its sole shareholder. 
   • It operates as a commercial entity and is not a government-subvented entity. 
   • It competes with other businesses in the electricity sector and pays corporate tax and levies to local authorities. 
   • Similar exemptions had been granted to state-owned banks such as Ghana Commercial Bank after their conversion to limited liability companies. 
2. Attorney General’s Position on the ECG Exemption Request
   Akuffo rejected ECG’s request, stating that ECG still falls under the scope of the Public Procurement Act despite its structure as a limited liability company.
   
   She referenced Section 14(1) and (2) of Act 663, which applies procurement laws to: 
   • All government entities engaged in the procurement of goods, works, and services financed with public funds. 
   • State-owned enterprises to the extent that they use public funds. 
   • Institutions established by the Government for public welfare. 
3. Since ECG’s operations involve public funds and it is wholly owned by the Government of Ghana, Akuffo concluded that ECG must comply with procurement regulations like any other government-controlled entity. 
4. Public Funds and ECG’s Procurement Obligations
   The Attorney General further cited Section 96 of Act 663, which reinforces the requirement for prior review and “no objection” approval by the Public Procurement Authority (PPA) for procurement financed by external loans, grants, or concessionary funding obtained by the government.
   
   Since ECG benefits from government-backed financial arrangements, it must adhere to procurement oversight regulations. 

Akuffo’s position meant that ECG could not bypass competitive bidding and procurement rules, even though it operated commercially.

This opinion is significant in light of recent allegations that former ECG MD, Samuel Dubik Mahama, awarded contracts without competitive bidding, leading to excessive procurement spending and budget overruns.

The resurfacing of this legal opinion suggests that ECG’s management was aware of its procurement obligations under the law but may have failed to comply.

Read the for AG’s full opinion in 2020 below:

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