The Supreme Court says the Attorney General can represent Finance Minister Ken Ofori-Atta in the 2.25 billion-dollar bond case brought against them and the Commission on Human Rights and Administrative Justice (CHRAJ).
A youth group, Dynamic Movement of Ghana (DYMOG) in January this year took Mr. Ofori-Atta, CHRAJ and the AG to the Court, claiming CHRAJ in determining a petition on the bond, made some serious pronouncements, which in its view, contravenes aspects of the 1992 constitution.
In court last week, the lawyers for CHRAJ orally raised a preliminary objection to use of the AG by Mr. Ofori-Atta as his lawyers.
The lawyers argued before that the issue of conflict of interest is a personal matter which the state (represented by the AG) cannot answer for since not all activities of public officials form part of their public duties.
CHRAJ contended that the AG will be in conflict of its own duties per Article 88 of the 1992 Constitution if Mr. Ofori-Atta is pronounced guilty of conflict of interest, because the AG at that point will be responsible in prosecuting the same person.
Consequently, it prayed the court to order the AG to cease being lawyer for the finance minister so that he can find his own lawyers to represent him in the case.
But delivering a ruling on the matter Wednesday, the Supreme Court held though the concerns of CHRA were legitimate, they have not filed any substantive application challenging the representation of Mr. Ofori-Atta.
The court thus overruled the objection, and advised that if CHRAJ has any issues with the AG representing a public officer, it should file a proper writ to that effect, stating which constitutional provisions that are being violated.
It also granted leave to the AG to amend the statement of case jointly filed by it and Mr. Ofori-Atta. They have seven days to file the amended statement.
DYMOG had opposed the application claiming it was intended to to delay the case.
It argued last week in court that the AG cannot claim ignorance of the new information it was seeking to add to the original statement of case filed two months ago.
BackgroundDYMOG on May 8, 2017 petitioned the Securities Exchange Commission (SEC) to investigate the transparency of the bond, its classification and a claim of possible conflict of interest in the issuance of the said bond.
Prior to that, CHRAJ was on April 25, 2017 petitioned to investigate the issue of lack of transparency and a possible case of conflict of interest against Mr. Ofori-Atta in government’s issuance of the 2.25 billon-dollar bond.
In its findings, CHRAJ established the finance minister breached the Guidelines for the Government Securities Market for Primary Dealers” that regulate the issuance of Government Securities.
It also held that bonds are forms of government borrowing irrespective of the type, hence the issuance of the 2.25 billion-dollar bond ought to have gone through parliamentary approval as per Article 181 of the Constitution.
The finance minister, in CHRAJ’s view, breached that provision of the constitution.
CHRAJ further established Mr. Ofori-Atta’s interest in Databank and Enterprise Group Limited whose objects are linked to the securities industry, places him in a high conflict of interest situation.
It again claimed Mr. Ofori-Atta’s failure to declare all his assets in Data Bank Financial Services, Data Bank Brokerage Limited and Databank Financial Holdings Limited was a violation of Article 286 (1) (a) of the Constitution.
CHRAJ overstepped its remit
But DYMOG is accusing CHRAJ of going overboard to make some pronouncements on the matter that are outside its remit, something the group argued “constitute a blatant violation of our Laws”.
‘No issue for interpretation’
However the Attorney General and the Finance Minister in a joint statement of case filed at the Supreme Court said, “there is no single issue for interpretation or enforcement” of the 1992 constitution.
The two argued that CHRAJ did not err in anyway in making a determination on the case, which has formed the basis of the plaintiffs’ instant action.
The AG and the Finance Minister averred that CHRAJ acted within the confines of the law in determining the matter, adding “the case of the plaintiff is based on the report of CHRAJ which is mandatorily required by the constitution to do so.”
“Act 456 provides an avenue for redress, if the recommendations or the findings CHRAJ needing compliance is not satisfied within three months,” the two defendants stated.
For them, “whether or not Mr. Ofori-Atta was guilty of conflict of interest situation regarding the issuance of the issuance of the government bonds is a duty conferred on CHRAJ by the constitution, 1992 and not the Supreme Court”
They are thus praying the Supreme Court to dismiss the case as the plaintiffs are just abusing the court process.