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The Minister of Finance, Mr Ken Ofori-Atta, has responded to the queries of the Commission on Human Rights and Administrative Justice (CHRAJ) in the matter of whether or not he contravened provisions of the 1992 Constitution in the public offer of the $2.25 billion bond.
In a 15-paged letter written on behalf of the Minister of Finance by the Attorney General, Mr Ofori-Atta asked CHRAJ to dismiss the petition filed by the National Democratic Congress (NDC) Ashanti Regional Youth Organizer, Yaw Brongya Genfi.
Mr. Genfi had petitioned CHRAJ to investigate the bond arguing that Mr Ofori-Atta, promoted a personal interest for himself, as well as family and friends, which interfered with the objective exercise of his duties.”
Mr Ofori-Atta’s response, which was signed by the Deputy Attorney General, Mr Godfred Dame said, “there is no evidence of any act or omission on the part of either the Ministry or the Minister supporting an allegation of participation in a business transaction or activity for the benefit of friends or family.”
“Neither did the personal interests of either the Ministry of Finance or the Minister for Finance interfere with the performance of their duties and functions,” he added
Below is a copy of the response
Dear Sir,
RE: ALLEGATION OF CONTRAVENTION OR NON-COMPLIANCE WITH ARTICLE 284 OF THE 1992 CONSTITUTION BY MR. KEN OFORI-ATTA – A PUBLIC OFFICER: REQUEST FOR COMMENTS ANSWER OF RESPONDENT
We refer to your letter dated 5th May, 2017 headed as above by which you have invited the comments of the Minister for Finance, Mr. Ken Ofori-Atta on allegations of contraventions of article 284 of the Constitution contained in the petition of Yaw Brogya Genfi.
By his petition, Yaw Brogya Genfi seeks an enquiry into “conflict of interest in the recent US$2.25 Billion Bond issued by the Government of Ghana through the Ministry of Finance”, and yet fails to set out particulars of the alleged conflict of interest in the petition. The Ministry of Finance and the Minister for Finance, Ken Ofori-Atta (respondent) categorically deny the allegations and assert that
a. there has been no breach of any of the laws or rules governing the issue of bonds,
b. the allegations of the complainant are based on plain falsehoods, and
c. there has been no conflict of interest involving the respondent.
Even though no distinct particulars of conflict are made out by the complainant in his petition, in order to aid in an efficient determination of the claims by petitioner and to shed light on the full circumstances of the issuance of the Bonds in question by the Government of Ghana (GoG), this answer will be provided in the following order:
i. Rules governing the issue of Bonds in question
ii. Rationale for the issue of the Bonds in question
iii. Specific responses to allegations of petitioner outlined in the letter of the Commission dated 5th May, 2017
iv. Conflict of interest
The issuance of Bonds are governed by elaborate rules. Bonds are part of Government securities and constitute direct, unsecured and unconditional obligations of GoG. The purpose of issuing Securities is to
(i) finance Government shortfalls, and
(ii) redeem maturing Securities.
The Bank of Ghana on behalf of GoG issues all Bonds, and has devised rules dubbed GUIDELINES FOR THE GOVERNMENT SECURITIES MARKET FOR PRIMARY DEALERS, to regulate issue of all securities. Enclosed and marked “Exhibit 1” is a copy of the current Guidelines by the Bank of Ghana.
Issuance of securities in accordance with the regulations published by the Bank of Ghana, is in compliance with the financial laws of Ghana.
The following relevant rules as per the Bank of Ghana Guidelines are applicable:
a. Securities issued in Ghana under the Bank of Ghana Guidelines are denominated in the local currency, and all payments are required to be made in Ghana cedis;
b. Only financial institutions licensed by the Securities and Exchange Commission (SEC) to deal in securities and authorised by Bank of Ghana as Primary Dealers/Joint Book Runners are eligible to participate in the auction of debt securities;
c. The Ministry of Finance is required to publish a quarterly calendar for the issuance of government securities;
d. For the issuance of Bonds, a Prospectus would be published by the Issuer, inviting bids for the Bonds to be issued, in advance of the auction;
e. Unless otherwise stated in a Prospectus for the issue of a Bond, auctions shall be set up on Fridays and made available to all Primary Dealers on the auction terminal for the input of bids, same day at 8.30 am;
f. Submission of bids through the auction system ends at 1 pm on same day, after which time the bidding screen is closed and made unavailable to primary dealers;
g. The auction is held on Fridays, between 3 pm and 4 pm, except where Friday is a holiday, in which case the auction shall be held on the preceding Thursday and submission of bids shall close at 1 pm on Thursday or the preceding working day;
h. In the case of medium term bond issues open to non-resident investors, the auction is required to be held on Thursday, between 3 pm and 4 pm. Where Thursday is a holiday, the auction is held on the preceding Wednesday or preceding working day;
i. Detailed results of any auction are, by rule, made available by 6 pm on the auction module and available to all primary dealers. The primary dealers are also notified by email or fax;
j. The Bank of Ghana also proceeds to publish a detailed report and analysis of each auction in a press notice and on both the Bank of Ghana and Ministry of Finance websites by close of business on the first business day following the auction date. This process is used for tap ins into existing Bonds.
The complainant has woefully failed to indicate which rule was breached in the issue of the Bonds in question. The reason is more than apparent - no rule was breached, and there was strict compliance. We respectfully request the Commission to reject this petition as conjectural, spurious and trumped up.
Prior to November 2015, there was only one methodology for auctioning government securities at the Bank of Ghana. On 11th August 2015, the Ministry of Finance announced a second auction methodology, the “book building” approach which is similar to the approach applicable for Eurobonds and for new bond issuances. In pursuance of this, three (3) financial institutions were chosen as Joint Book Runners through a competitive tendering processes.
It is respectfully submitted that the issuance of Bonds on 31st March, 2017 complied in every material detail with the tenets of the rules and regulations governing the issue of government securities, and followed in the tradition of previous issue of securities by GoG under the Bank of Ghana Guidelines. Perhaps, the only difference is the size of the recent issue.
As a solution to the inordinate budget deficit and in furtherance of government’s debt refinancing strategy, the Ministry of Finance in a letter dated 5th January, 2017 signed by the erstwhile Minister for Finance, Seth Terkper published the government’s issuance calendar for first quarter, January - March, 2017. This calendar bearing reference number mof/dmd.firu/cal/q1/2017/1 was prepared in accordance with the provision of the quarter one Expenditure in Advance of Appropriation in accordance with Article 180 of the Constitution.
The letter was addressed to the Bank of Ghana and the Managing Director of the Ghana Stock Exchange. Please find enclosed and marked “Exhibit 2” a copy of the said letter. Following this, the Bank of Ghana published notice to Primary Dealers, Banks, Stock brokers and General Public - Notice No. BG/TD/2017/02 on 13th January 2017.
A similar notice was published by the Bank of Ghana in respect of issue of Bonds for the second quarter, via Notice No. BG/TD/2017/15 on 30th March 2017. This second quarter issuance included 7-year and 15-year bonds. In accordance with the calendar, the 5 & 10-Year Bonds of April were reopening existing 5-Year and 10-Year Bonds. Please find enclosed and marked “Exhibit 3” a copy of the Notice by Bank of Ghana. The issuance of the Bonds in question was in furtherance of these measures referred to herein.
The 7-and 15-year bonds of April, 2017 were by book-building method since they were fresh issuances. In addition, the 15-Year Bonds had a callable option feature and for a bond exchange to convert existing 91-Day Treasury Bills. This happens to be the first time such a condition had been applied to a bond with the intention to providing the opportunity to buy it back after 5 years if conditions become more favourable.
It is pertinent to note that, by 3rd April, 2017, the Government of Ghana had to raise an amount of almost Six Hundred and Ten Million Ghana Cedis (GHC610,000,000.00) to service her domestic debt in the form of Treasury Bills as well as support budgetary expenditure.
Please find enclosed and marked “Exhibit 4” a breakdown of the outstanding Bills. Needless to say, the purpose for the issue of Bonds, as encapsulated in the Bank of Ghana Guidelines, was satisfied by the recent issue of the Bonds.
On 30th March 2017, the Bank of Ghana published notice to Primary Dealers, Banks, Stockbrokers and General Public - Notice No. BG/TD/2017/15 – Exhibit 3, which publication was also placed on the website of the Ministry of Finance.
The Ministry of Finance deals with only financial institutions licensed by the SEC to deal in securities and authorised by Bank of Ghana as Primary Dealers/Joint Book Runners, to act as Transaction Advisers. These are Barclays Bank, Stanbic Bank and Strategic African Securities. At no point in time in the process does the Ministry of Finance communicate with any investor in any way. This remained the same in the case of the Bonds in question.
Any prospective investor acts through their Primary Dealers who in turn submit their offers through the Transaction Advisers who build up a book of offers submitted to them by the Primary Dealers. The Ministry of Finance in issuing the Bonds in question, in accordance with rule and practice set out above, did not deal with any investor. Indeed, it is correct to say that, apart from the Primary Dealers, no other entity had capacity to participate in the auction of 31st March, 2017.
Respectfully, to meet the threshold of an investigable complaint, the complainant ought to have shown which of the procedures for the issuance of bonds was breached, and particularly, was breached as a result of conflict of interest between the Minister of Finance and the Primary Dealer/Joint Book Runner or Franklin Templeton Investment Limited. The complainant has been unable to refer to any entity that participated in the issue of the Bonds on 31st March, 2017 in violation of the processes highlighted above. To this extent, the instant petition is utterly frivolous and without basis.
In the light of the foregoing, we submit that the instant petition is unwarranted, specious and founded either on a lack of knowledge of the facts and circumstances of a Bond issue or mischief.
III. SPECIFIC RESPONSES TO THE ALLEGATIONS OF PETITIONER OUTLINED IN THE LETTER OF THE COMMISSION
i. The 7 year and 15- year Bonds were not on the issuance calendar
We submit that this allegation raised in the petition does not impinge on conflict of interest. Respectfully, the propriety or otherwise of the issue of 7 year and 15 year Bonds when same is allegedly not on the issuance calendar, does not fall within the jurisdiction of this Commission.
However, out of sheer desire to inform the Commission, we say that paragraph 6 of respondent’s Exhibit 1 – letter signed by former Finance Minister, Seth Terkper, clearly indicates that medium-term instruments may be reopened to create liquidity and benchmark securities. 7 year and 15 year Bonds fall into the classification of medium term Bonds.
The Bank of Ghana which has the sole mandate to issue Government securities, published a calendar for the second quarter and thereby issued notices to Primary Dealers, Banks, Stockbrokers and General Public - Notice No. BG/TD/2017/15 on 30th March 2017 of the issue of the Bonds in question. Refer to Exhibit 3 enclosed herein. The Bank of Ghana clearly indicated in Exhibit 3 that the Bonds in question would be done through the Book Building method for settlement to occur on 3rd April, 2017.
ii. The initial pricing guidelines of the Bond were issued around 5.37 pm on March 30, 2017, by email, which was after normal working hours.
This is a completely false and misleading allegation. We reject it outright and respectfully urge the Commission to reject it as well. The reasons are as follows:
a. Initial pricing guidelines are not issued by the Ministry of Finance. Under the regulations, they are issued by the Book Runners/Transaction Advisers licensed by the Bank of Ghana - Barclays Bank Ghana, Strategic African Securities and Stanbic Bank Ghana.
b. On the occasion of the issue of the Bonds in question, the Book Runners by a public announcement on 30th March, 2017 at 10.12 am, published details of the Bonds to be issued and sent invitations to all investors before the transaction opened. The initial pricing guidelines were issued on 30th March, 2017 at 12.04 pm.
c. The process used is the same as has existed since Nov. 2015 for the issuance of 3-15 year bonds. This was also published on the website of the Ministry of Finance on 30th March, 2017 ahead of the transaction.
d. Further, as is normal practice, there was a second publication during the period books were open (2 pm in this case), to inform investors about the acceptable price range and encourage those outside the range to submit new bids within the range if they so desired. Please find enclosed and marked “Exhibits 5” and “6” copies of the public announcement and the pricing guidelines.
It is clear that the basis of this accusation is factually false, and we respectfully urge the Commission to reject it.
iii. The transaction was opened at 9.00 am on March 31, 2017
As demonstrated, no provision of the Bank of Ghana Guidelines was breached in the manner in which the transaction was opened.
iv. Public announcement of the transaction was sent by email at approximately 9.09 am on March 31, 2017, which meant that the transaction was opened before the announcement was made to the public
This is palpably false. As shown above, public announcement of the transaction was at 10:00 a.m. on 30th March, 2017 and not at 9:09 a.m. on 31st March, 2017. In any event, this announcement was made by the Book Runners, not the respondent or the Minister for Finance.
v. The issuance summary was issued on March 31, 2017, at about 4.20 pm by email indicating that the Bond transaction had been closed and announcement made to the public
This is an irrelevant allegation. An Issuance Summary is prepared by the Book Runners/Primary Dealers licensed by the Bank of Ghana upon close of the transaction. It is the final summary of the transaction issued to investors in the nature of an acknowledgement. Neither the Ministry of Finance nor the Minister for Finance respondent hereto, played any role in the preparation of the Issuance Summary. In any event, the Issuance Summary complied with the regulations governing issue of Bonds of this kind, as well as the practice before 2017. Please find and marked “Exhibit 7” a copy of the Issuance Summary.
vi. April 3, 2017, was the Settlement Date and not the closing date of the Bond
Bank of Ghana Guidelines stipulate that Settlement Date for medium to long term Bonds shall be 2 days after issue of Bonds. No breach occurred in the settlement effected on 3rd April, 2017, pursuant to the issue of the Bonds on 31st March, 2017.
It would be noted that 2nd April, 2017 being a Sunday, the next working day that the Bonds could have been settled in accordance with the Bank of Ghana Guidelines was 3rd April, 2017
vii. One single investor, Franklin Templeton Investment Limited (an American global investment organisation founded in 1947), purchased almost 95% of the Bond issued by the Minister for Finance.
The Ministry of Finance, in the matter of the issue of Bonds, does not transact with any investor. All transactions are carried out by Book Runners designated by the Bank of Ghana as Primary Dealers.
Further, there is no law or regulation that imposes a limit on the amount of an investor’s offer. The transaction processes for this issuance did not deviate from previous issuances, as to lead to a finding that Franklin Templeton was favoured.
The records will show that Franklin Templeton has always, through primary dealers licensed by Bank of Ghana, invested in Ghana’s bonds in a way no different from the instant one in dispute.
viii. The Virtual “private placement” approach that was used was opened in the morning and closed in the evening of the same day March, 31, 2017.
There was no virtual “private placement” approach deployed in the issue of the Bonds. Private placement is done with one financial institution or a selected group of investors and this is not made public. As indicated above, a public announcement was made in a manner sanctioned by the Bank of Ghana Guidelines and approved by the Transaction Advisers.
The transactions complied with the tenets of the same book building approach that the Ministry of Finance had used since 2015, when Ministry of Finance adopted that method to issue domestic bonds. The order books were opened to all interested investors and closed to all at the same time, and were managed by Transaction Advisers approved by Bank of Ghana, as they always have been.
The discretion for books to be opened and closed in one day is one to be exercised by the Transaction Advisers taking into account relevant financial factors which could impact on the Bonds to be issued. There is no domestic law or regulation that prohibits closing the books on the same day they are opened. As a matter of practice, Book Runners may choose to close the books anytime they are satisfied with orders received. Further the issuance invitation put investors on notice that the transaction would close on short notice.
ix. In an audited semi-annual report of Franklin Templeton Investment dated December 31, 2016, Mr. Trevor G. Trefgarne (also described as the Chairman of Enterprise Group Limited) was named as one of the Directors of Board of Franklin Templeton Investment Limited.
x. Enterprise Group Limited is a company partially owned by Data Bank Limited, a company in which the Finance Minister is known to have significant interest.
xi. From the points above, a reasonable person has cause to believe that there is a relational interest between Hon. Ken Ofori-Atta and Mr. Trevor G. Trefgarne, who have been described as “great friends”.
xii. The clear link between the Finance Minister and his friend Trevor Trefgarne, and the sub-links with the Finance Minister’s family and business associates, leads to legitimate questions like:
a. Did the Finance Minister issue the bond in a manner that would favour his friend, family, associates and/or business partners, and
b. Was the deal influenced by cronyism, nepotism and corruption?
xiii. There is no record available to the effect that the Finance Minister disclosed his relational interest in the transaction.
The above issues are interrelated and we will thus address them together.
The following incontrovertible facts are relevant to a resolution of the issues. We will entreat the Commission to carefully consider them.
a. The investor in the Bonds, Franklin Templeton Investment Limited is a corporate person, and not an individual. Neither the Ministry of Finance nor the Minister for Finance respondent hereto, has any interest in the said corporate body. Respondent has, at no point in time, held any shares or directorship in the company Franklin Templeton.
b. The transaction in issue, as abundantly demonstrated above, was conducted by Transaction Advisers licensed by Bank of Ghana to carry out the function, not the Ministry of Finance or the Minister for Finance. It is correct to say that at no point during the transaction did either the Ministry of Finance or the respondent deal with any investor including Franklin Templeton Investment Limited.
c. Trevor G. Trefgarne is not a shareholder in Franklin Templeton Investment Limited, the company which acquired some of the Bonds in question.
d. It is claimed that Mr. Trefgarne is a director in Franklin Templeton Investment Limited. Assuming without admitting that this were true, the purchase of Bonds by Franklin Templeton Investment Limited does not result in any benefit to Mr. Trevor Trefgarne.
e. Prior to 2017, Franklin Templeton had acquired Bonds issued under the same Bank of Ghana Guidelines. If Mr. Trevor G. Trefgarne is indeed a director of Franklin Templeton, he must have been a director when all of those Bonds were acquired. He had no personal benefit from those purchases, and no such benefit has been proven or established by the complainant in respect of the Bond issue in question.
f. Enterprise Group Limited played absolutely no role in the transaction in issue. There could thus not have been any benefit to Enterprise Group Limited from this transaction.
g. It is claimed that Enterprise Group Limited is owned by Databank Limited, a company in which the Minister for Finance owns shares. However, the records will show that neither Databank Limited nor Enterprise Group Limited acquired any of the Bonds in question. There could not have been any benefit to either of these companies. The reference to Enterprise Group Limited and Databank Limited is bizarre, irrelevant and purely motivated by an uncanny desire to mislead the nation.
h. Whoever the directors of Enterprise Group Limited may be or may not be has no bearing on the issuance and purchase of the Bonds in question. Neither Enterprise Group Limited nor its directors played any role in the transaction and did not in any way benefit from it.
It is amply clear that the assertion of a “relational interest” between the Minister for Finance and the said Trevor Trefgarne is an imaginary one. The complainant, knowing that there is no basis to assert "conflict of interest," now conjures a facile, baseless and contrived notion of a “relational interest” between the Minister for Finance and the said Trevor G. Trefgarne. Whatever contrivance the complainant comes up with, he is simply unable to show that the respondent had any interest in the transaction that required disclosure. The respondent had absolutely no interest in the transaction in issue to disclose. The transaction was an open market transaction carried out in accordance with Bank of Ghana Guidelines, and not designed to benefit any particular investor in anyway.
xiv. The Bond transaction seems to have been shrouded in secrecy – the process was limited to one day, unlike past bonds where the “book-building” method had been used and the process was opened for a minimum of three days to ensure optimal participation.
This allegation is also founded on untruths. The transactions followed the same book building approach that had been used since 2015 to issue domestic bonds. The opening and closing of the order books did not offend any law or regulation in Ghana and was based on the instructions of the Transaction Advisers.
It is worthy to observe that the Transaction Advisers have a fiduciary obligation to seek the best interest of Government of Ghana, and are subject to reputational risk in the market and potential Security Exchange Commission’s sanctions in the event of a departure from professional and contractual obligations of professionalism and fairness in the transaction. The complainant has woefully failed to show how the Ministry of Finance engineered the issue of the Bonds to be “shrouded in secrecy”.
IV CONFLICT OF INTEREST
We rely on the incontrovertible facts set out in sub-paragraphs (a) to (h) in resolution of issues (ix) to (xiii) above, in vehement denial of the allegation of conflict of interest against the Minister for Finance in the issuance of Bonds by the Government of Ghana. A conflict of interest allegation arises in the light of clear facts which support a conclusion that a public officer’s personal interest conflicts with or is likely to conflict with the performance of the functions of his or her office. The interest ought to be financial or otherwise, direct or indirect, which must ultimately be clearly proven.
Under Ghana law, the same concept of concept of conflict of interest applies in the realm of Company law. In the case of Okudzeto Ablakwa (No 2) & Another v Attorney-General & Obetsebi-Lamptey (No 2) [2012] 2 SCGLR 845, even though the pronouncement of the Supreme Court turned on abuse of discretion by a public officer, having declined jurisdiction on the issue of conflict of interest, the test opined by the Court may prove useful in establishing conflict of interest. The Supreme Court in dealing with the issues before it in general, laid down seven (7)-fold blanket test for establishing a claim against a public official under the Constitution. The court observed that it is essential to establish the following:
1. The law under which the complaint is brought to court. This law may be constitutional, statutory or legislative instrument. If the law is constitutional and it is brought under articles 23, 35(8) or 296, what follow must be established.
2. The capacity of the decision maker. He must be a public officer or administrative officer if the complaint is brought under article 23. No such requirement is necessary if it is brought under article 296.
3. Did the decision maker profit by the decision or action (to provide the basis for conflict of interest or economic gain)?
4. The capacity of the beneficiary or the recipient of the decision or action. Was the decision taken in his favour in unjustifiable preference to other applicants who were equally or better qualified but were bi-passed because of some oblique motives or obscene considerations or special favours or due to family, social or political connections (to provide the basis for establishing favouritism, nepotism, cronyism, etc.).
5. What were the grounds or the basis for making the decision for that particular recipient?
6. Were the known or established procedures or processes for taking the action or making the decision duly complied with?
7. Did the decision or action conform to the audi alteram partem rule or any other law relevant to that particular decision or action?
Thus, Brobbey JSC made the following observations:
“The plaintiffs’ reliefs failed in so far as they were based on cronyism, arbitrariness, capriciousness, discrimination or conflict of interest. I have had the benefit of reading in advance the opinion of my brother Atuguba CJ, the President of this panel. He dismissed the claims of the plaintiffs in respect of conflict of interest, cronyism, discrimination, arbitrariness, capriciousness and corruption. What that implies is that this panel is unanimous in dismissing the claims of the plaintiffs based on cronyism, discrimination, arbitrariness, capriciousness and conflict of interest… this is a Court of law, a court of equity and a court of justice. As a court of law we are governed by rules and regulation. For the purposes of this case, some of the rules are as provided in the 1992 Constitution, the Evidence Act, 1975 (NRCD 323) and the Lands Commission Act, 1994 (Act 483). Our rules and regulations mandate that people who invite the court to condemn others for wrong doing should be in the position to justify what they call on the courts to do.”
Similarly in Dikyi & Others v. Ameen Sangari Industries Ltd. [1992] 1 GLR 61, Kpegah J. (as he then was) held that conflict of interest and conflict of duties were objectionable, and that on account of a director of a company standing in a fiduciary relationship with the company and the duty to observe the utmost good faith in his dealing with the company or on its behalf, a director is not permitted place himself in a situation where his duty to the company conflicts with or may conflict with his personal interest or his duties to other persons.
What stands out from the above cases is that there was evidence before the court, on the bases of which a finding of a conflict of interest situation could be validly made. Respectfully, the law makes no room for mere conjecture, suspicion or imagination. The complainant has been unable to allude to, show or establish any facts relevant and contemporaneous to the transaction that has even the remotest potential to undermine the respondent's impartiality, in view of the possibility of a clash between the respondent's self-interest and professional interest or public interest. The Respondent had no responsibility to any of the investors and had no personal interest in the transaction beyond his professional interest as a Minister.
There is no evidence of any act or omission on the part of either the Ministry or the Minister supporting an allegation of participation in a business transaction or activity for the benefit of friends or family. Neither did the personal interests of either the Ministry of Finance or the Minister for Finance interfere with the performance of their duties and functions. Further, no personal or private benefit has been derived by the Minister of Finance through the issuance of the Bonds in question. Simply put, the respondent has not contravened article 284 of the Constitution.
To the extent that the allegations made by the petitioner had the real tendency to negatively taint an otherwise highly successful financial exercise of great import by the Government of Ghana, we deem the petitioner’s allegations as very deplorable, since same are clearly anchored on blatant falsehoods and manifest unfamiliarity with the regulations and procedure for the issue of Government of Ghana Bonds. We pray for the petition to be dismissed as grossly unmeritorious and frivolous.
Respectfully submitted.
GODFRED YEBOAH DAME
DEPUTY ATTORNEY – GENERAL AND
DEPUTY MINISTER FOR JUSTICE
For: ATTORNEY-GENERAL &
MINISTER FOR JUSTICE
