Aryeetey Turns Against Legon … In $64m Academic Facilities Deal He Negotiated On Varsity’s Behalf

“In all of this, the 4^th Defendant's sympathies have clearly been in favour of the 3^rd Defendant against the 2^nd Defendant, in respect of whom the 4^th Defendant remains a strident critic.”

By Emmanuel Akli .
Samuel K Andrews, an alumnus of the University of Ghana, who has gone to the Supreme Court to challenge the $64 million agreement that the premier university has signed with a private company to build academic facilities on campus, says the former Vice Chancellor, Prof Ernest Aryeetey, failed to ensure and guarantee value for money for the university. This, he argues, is tantamount to “waste and misuse of public funds.”

Andrews regretted, as contained in his affidavit, that instead of Professor Ernest Aryeetey siding with the university in the hullaballoo over the contract, he is rather sympathising with CPA 18 Integras Ghana Investor Limited, the company that won the contract being disputed.

He (Aryeetey) has also become a strident critic of his former institution.

According to Andrews, CPA 18 Integras Ghana Investor, the third defendant, was complicit in teaming up with the University of Ghana (2nd Defendant) to grant to themselves unjustified waivers of mandatory provisions of law and Ghana Government Policy directives with intent of benefiting from it at the expense of public funds.

“The Plaintiff will at the trial contend that the 4th Defendant, as Vice Chancellor of the 2nd Defendant and an Economist of known repute, failed to secure the best interest of the 2nd Defendant when he failed to ensure strict compliance by the 2nd and 3rd Defendants, with the 2nd Defendant's FRG, the Ghana Government PPP policy and Act 663 among others, to ensure and guarantee value for money for the 2nd Defendant, a conduct tantamount to “waste and misuse of public funds,” he said in his statement filed on his behalf by Paintsil, Pantsil and Co, an Accra based legal firm.

The following is the continuation of the plaintiff's statement published yesterday;

The Ghanaian media scene has for some time now been awash with allegations and counter-allegations, with alarming doomsday predictions on how the Concession Agreement has wreaked or is likely to wreak havoc on the Government or the Consolidated Fund of Ghana, including, in particular, a recent news item or interview granted by the Deputy Minister of Education to the effect that even if all the assets of the 2nd Defendant were sold, it would not suffice to offset the liability that can potentially be unleashed on the 2nd Defendant, arising out of a default of its obligations under the Concession Agreement.

In all of this, the 4th Defendant's sympathies have clearly been in favour of the 3rd Defendant against the 2nd Defendant, in respect of whom the 4th Defendant remains a strident critic. (Exhibits J, J1, J2, and J3 refer)

The Plaintiff will at the trial contend that the 4th Defendant, as Vice Chancellor of the 2nd Defendant and an Economist of known repute, failed to secure the best interest of the 2nd Defendant when he failed to ensure strict compliance by the 2nd and 3rd Defendants, with the 2nd Defendant's FRG, the Ghana Government PPP policy and Act 663 among others, to ensure and guarantee value for money for the 2nd Defendant, a conduct tantamount to “waste and misuse of public funds”.

Further, or in the alternative, the 3rd Defendant was complicit in teaming up with the 2nd Defendant to grant to themselves unjustified waivers of mandatory provisions of law and Ghana Government Policy directives with intent of benefiting from it at the expense of public funds.

The Plaintiff would at the trial rely on the general mood in the country against the unrestrained acts and conduct of public officials which regularly occasion waste and misuse of public funds as evidenced, inter alia, by writings of some academics of repute and editorials of some of the major government newspapers, requiring that the Supreme Court shall intervene to abate the canker. (Exhibits K and K 1 refer)

The menace complained of: a re-statement of the problem

The instant action has been provoked by what appears to be the fall out or likely fall-out, with possible grave financial implications for the Ghanaian tax payer, arising out of the execution by the 2nd and 3rd Defendants of a so-called “Concession Agreement”, alleged by the parties to be a Public Private Partnership (PPP) policy which has, at the time of the commencement of the instant action, run into massive problems between the contracting parties.

Even though the Plaintiff does not presently know the details of the brouhaha between the two, the feuding parties have at all material times prior to the execution of the Concession Agreement been aware of the statutory and regulatory regime in the form of the 2nd Defendant's FRG, the Ghana Government PPP policy and Act 663.

It is further undisputed that all three and others had one common objective, namely, ensuring value for money through procurement process for procurement entities like the 2nd Defendant and, by necessary implication, the public purse.

Notwithstanding that, there is no evidence that both parties complied with the said mandatory requirements of law and policy and, as we say in Ghana, the 2nd and 3rd Defendants went ahead and “did their own thing”.

Also, not being privy to the Concession Agreement or alternatively, the 2nd and 3rd Defendant, having deliberately refused the Plaintiff a copy of the Concession Agreement, and the 5th Defendant having played dumb about the most basic information about the Concession Agreement, the Plaintiff is severely handicapped to talk or comment about the terms or the substance.

Similarly, the Plaintiff is severely handicapped from talking or commenting about any particular loses or dangers that the 2nd Defendant has presently been exposed to or likely to be exposed to any liability with the possibility of the same being passed on to the tax payer through the Consolidated Fund, save only as to what is swirling in the gossip and speculation mill as evidenced by some of the publications in the Ghanaian media, snippets of which have been exhibited herein.

However, it is submitted that when there exists mandatory and clear statutory provisions and government policy on public procurement in Ghana, which contains adequate safeguards to deliver or ensure value for money for a public entity, it will be far-fetched and a play on the tax payer's intelligence for either the 2nd and/or the 3rd Defendant to ignore those procedural as well as substantive mandatory provisions and still argue that they have nonetheless achieved the same objective.

Indeed, their effort, or any effort would be quite needless, as long as the same was not in compliance with the statutory and regulatory regime.

Having failed to comply with the mandatory statutory provisions that are guaranteed to ensure value for money for the public entity, it is legitimate for any reasonable observer to contend, as the Plaintiff does, that the parties' own creation or the creature they have christened “Concession Agreement”, was crafted in a manner that could only result in “misuse and waste of public funds”, contrary to the letter and spirit of those binding regulations (FRG), statute (Act 663) and Government policy (PPP), thus making it impossible to compel the 2nd Defendant to comply with the as-yet unseen terms in the Concession Agreement.

Further, while the Plaintiff's case may, in an appropriate circumstance, be greatly enhanced and facilitated by the adduction of hard evidence in support of the allegation of misuse and waste of public funds, either appearing in an agreement or likely to result from compliance by a public entity with the agreement, we submit, with respect, that it is not necessary or a pre-requisite for the institution and maintenance or proof of that allegation in an action pursuant to Article 41(f) of the 1992 Constitution.

On the contrary, it suffices for our present purpose that the one whose action is premised on such a contention is able to demonstrate that the culprits, the 2nd and 3rd Defendants herein, are guilty of non-compliance with and/or have violated the mandatory statutory and regulatory regime in the procurement procedure which have been laid down to ensure money for value.

Further, since the Plaintiff cannot as a matter of law prove a negative of a contention, it is open to the 2nd and 3rd Defendants who assert the positive to lead clear and cogent evidence to demonstrate their strict compliance with the statutory and regulatory regime in place at the time of the execution of the Concession Agreement, failing which they have no option, but to concede the Plaintiff's case or be presumed to do so.

It is our submission that requiring the 2nd and 3rd Defendant's to show compliance with the mandatory statutory requirements, both procedural and substantive, which have been put in place to ensure value for money for the public body can never be said to be unreasonable or onerous. In addition to all other requirements, the 2nd and 3rd Defendants cannot satisfy the Court without availing the Court and the Plaintiff a true copy of the Concession Agreement.

For now, with leave of the Court, we proceed to show the breaches or basis of the breaches complained of by the Plaintiff to found this action.

The 2nd Defendant's mandatory requirements which both parties should have had in contemplation at the time of the execution of the Concession Agreement.

Section 8 of the 2^nd Defendant's Statutes states:

(1)The University shall be managed and administered in accordance with sound and internationally acceptable practices, benchmarks, principles and ideas on university management and administration, including the principles of academic and financial integrity, confidentiality, accountability, transparency, fairness and equality of opportunity;

• All officers and University bodies, whether permanent or ad hoc shall in accordance with the policy directions of the Council, manage and administer the affairs of the University in their various capacities in strict adherence to these principles;

Further, the Financial Regulations and Governance of the University of Ghana established under section 53 of the University Statutes deals with the 2nd Defendant's policies and procedures relating to financial management, control and reporting.

It is said to have been assembled with reference to the Financial Administration Act, 2003 (Act 654); the Public Procurement Act, 2003 (Act 663), among others, with a purpose “to provide a framework and guidelines to ensure control over the totality of the University’s resources and provide management and stakeholders with assurances that these resources are properly applied for the achievement of the University’s Vision and Mission”.

Finally, all officers and University’s bodies were charged to act “in accordance with the policy decisions of the Council, manage and administer the affairs of the University in their various capacities in strict adherence to these Financial Regulations,” and that “any employee who contravenes these Regulations will be considered to be in breach of their duties towards the University and Council and will be considered open for disciplinary action to be taken against them. This will also apply to employees who are aware of deliberate deviations from these regulations by others and become complicit by not reporting their concerns or knowledge to the relevant University Authorities or any member of Council”.