The Community Court of Justice (CCJ) of the Economic Community of West African States (ECOWAS) has dismissed the suit challenging the controversial Agyapa Minerals Royalties Investment Agreement.
The suit was by filed by three non-governmental organisations, namely Transparency International, Ghana Integrity Initiative (GII) and the Ghana Anti-Corruption Coalition (GACC).
The three NGOs dragged Ghana to the CCJ with a case that the Agyapa deal was susceptible to corruption, dominated by “politically exposed persons” and also violates the rights of Ghanaians to have permanent sovereignty over the country’s natural resources as provided under the African Charter on Human and People’s Rights.
They wanted CCJ to order Ghana to suspend the Agyapa deal and engage in proper consultation with Ghanaians in order to come up with a deal which, they said, would be in the public interest. Also, the applicants wanted the court to order Ghana to investigate all alleged acts of corruption associated with the deal, “and ensure that any alleged perpetrators are brought to justice” and also engage in proper consultations.
Ruling
The regional Court concluded that the claims put forth by the Applicants were premature and hastily put together. These claims lacked proper consideration for the essential elements required to initiate a case regarding the violation of human rights.
In its ruling dated July 10, 2023, the Court underscored the significance of maintaining democratic checks and balances. The Court emphasised that although the protection of human rights is of utmost importance, these rights must be safeguarded within the framework of established democratic processes.
The Court offered a cautionary note, asserting that any efforts to hold the Respondent accountable should only proceed when supported by substantial and uncontested evidence of breaches to these safeguards.
“Unless uncontroverted evidence establishes that these safeguards have been breached, any attempt to saddle the Respondent with liability will be discountenanced by the Court,” the Court stated in its ruling.
Concerns
The Applicants had raised concerns about the creation of Agyapa Royalties, a Special Purpose Vehicle (SPV) domiciled in Jersey, alleging potential illegalities and violations of Ghana’s laws.
They argued that the SPV’s conduct could be unlawful and pointed to doubts raised by civil society, parliament, and Ghana’s Anti-Corruption Special Prosecutor.
Particularly, the Applicants contested the establishment of Agyapa Royalties Limited, which was designed to hold 75.6% of Ghana’s royalties from 48 gold mining leases.
The Respondent, which is the government, however, maintained that the establishment of this SPV, as well as the related agreements, had received parliamentary approval and was in line with democratic processes.
The government also clarified that the Mineral Income Investment Fund (MIIF) Act of 2018 (Act 978), as amended by the MIIF Act of 2020 (Act 1024), empowered the MIIF to manage equity interests and receive royalties on behalf of Ghana.
The Respondent further stressed that the MIIF is authorized to establish SPVs in any jurisdiction and list them on reputable stock exchanges.
Contentions
Addressing the Respondent’s contentions, the Court concluded that the evidence presented demonstrated processes flowing from democratic institutions, including parliamentary approval, and no actual evidence of misappropriation that would deprive the citizens of benefit.
“The onus of proof is on the party who asserts a fact and who will fail if that fact fails to attain the standard of proof that would persuade the Court to believe the statement of claim,” the Court emphasized, referring to the requirement for substantial evidence.
Furthermore, the Court dismissed allegations related to politically exposed persons within the transaction, citing the need for substantiated claims.
The Court aligned with its earlier ruling that unproven allegations cannot be taken at face value and must be supported by evidence.
The ruling underscored the significance of safeguarding human rights within the democratic framework, upholding the established checks and balances. As a result, the Court dismissed all claims brought forward by the Applicant.
