One Judgment Debt Too Many, Haba!

By Kwame Okoampa-Ahoofe, Jr., Ph.D.

It is almost a half-century since Ghana's first postcolonial regime was auspiciously pushed out of the old Osu Slave Castle and the Flagstaff House. And yet, our leaders have not come to the very basic appreciation of the fact that they cannot unilaterally and summarily abrogate contractual agreements entered into on behalf of the people without facing the payment of punitive damages. Oftentimes, the amounts involved are so humongous that about the only means of getting around a badly negotiated contract is to vigorously plead for re-negotiation with the concerned principal firm or organization in good faith. This simple commonsensical approach to contractual compacts and obligations was what Prof. S. K. B. Asante, the distinguished and internationally respected contract lawyer-arbitrator, recently had occasion to bitterly lament for the woeful lack thereof among many a key government operative nowadays.

We shall take up Prof. Asante's lament for further discussion in another column in due course. For now, let us focus our attention on the recent awarding of C 197.4 million in judgment-debt damages against the Government of Ghana for unilaterally abrogating a contract legitimately initialled by the erstwhile Kufuor-led government of the New Patriotic Party (NPP), with an information technology firm called Bankswitch Ghana Limited, for the supply of computer software aimed at enhancing revenue collection by the Customs Division of the Ghana Revenue Authority (See "Akoto Osei Dares Gov't Over Bankswitch Case: Take Me To Court If I Am Guilty" MyJoyOnline.com 4/19/14).

Bankswitch appears to be the Ghanaian subsidiary of a transnational corporation. The judgment-debt damages was also awarded by The Hague-, Netherlands, based Permanent Court of Arbitration (PCA). It could well have, of course, been awarded by any legitimately constituted civil court in Ghana.

As of this writing (4/19/14), Deputy Information Minister Ibrahim Murtala Mohammed had publicly hinted that the Mahama-led government of the National Democratic Congress was in the process of appealing the amount of debt owed in the judgment. We must also add the fact that Bankswitch had in its lawsuit against the Government initially sought the behemoth sum of 853 million cedis. And so in quite a real sense, the verdict from The Hague is a steal, as New Yorkers are wont to say.

What we are trying to suggest here is that regardless of the appeal reportedly being mounted by the Mahama government, Bankswitch is still likely to walk away with quite a decent sum of windfall money. And so this funny talk doing the rounds, about Attorney-General Marietta Brew Appiah-Oppong having saved the country the whopping sum of C 600 million, is just that - funny talk. What needs to be squarely highlighted here is the painfully inexcusable fact that our politicians in both major parties, namely, the New Patriotic Party and the National Democratic Congress, have done us a great ill and are still hurting our nation's interests catastrophically and apocalyptically as well.

It makes one wonder what all the killings by Monsieur Rawlings and his minions of the tandem governments of the Provisional National Defense Council and, now, the so-called National Democratic Congress were all about. In the Bankswitch Affair, what we are not adequately being informed about is the basis upon which the unilateral decision by the then-Atta-Mills-led government of the National Democratic Congress to abrogate the contract was taken and effected. Was it, for instance, based on the fact of Bankswitch's having breached or violated any aspects of the contract by not living up to expectations, or value-for-money, as Ghanaian politicians are fond of saying, ad nauseam, these days?

Or is it simply that somebody in the Finance Ministry in the erstwhile Mills-Mahama government decided that a contractual agreement initialled by the Kufuor government wasn't worth the paper on which it was drafted and ratified? Or simply because the Bankswitch contract had left in its wake no "fringe benefits" or payolas for the key operatives of the successor government? Whatever the reasons for unilaterally abrogating the Bankswitch compact, the Ghanaian taxpayer has a right to know. Then, also, some heads ought to roll!

But even far more significantly, an effective and lasting solution ought to be found for this nihilistic problem of the wanton bleeding of our national resources. This is where the crackerjack expertise and genius of Ghanaian statesmen and women, and legal mavens and first-rate economists, like the Asante-Asokore chief come to the fore.

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*Kwame Okoampa-Ahoofe, Jr., Ph.D.
Department of English
Nassau Community College of SUNY
Garden City, New York
April 19, 2014
E-mail: [email protected]
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