ECOWAS Court dismisses suit against Agyapa Royalties deal

The Economic Community of West African States (ECOWAS) Court of Justice has dismissed the suit against the Agyapa Royalties deal filed by the Ghana Integrity Initiative and Transparency International Ghana.

This means that the court would not be ordering the government of Ghana to stop the sale of the country’s gold royalties through the Agyapa deal.

The court dismissed all the reliefs of the plaintiff; Transparency International, and its subsidiary the Ghana Integrity Initiative, during a virtual hearing held on July 11, 2023.

The court is however yet to give the reason for its judgment.

Transparency International, Ghana Integrity Initiative and Ghana Anti-Corruption Coalition sued the Ghanaian government over the Agyapa deal at the ECOWAS court.

Below are the reliefs Transparency International was seeking:

1. A declaration that the Defendant’s actions towards entering into a relationship agreement with Minerals Income Investment Fund and Agyapa Royalties Limited in respect of transactions surrendering the sovereignty of Ghana over its gold mineral resources in perpetuity constitute an interference with the right guaranteed under Article 21(1) of the African Charter on Human and Peoples Rights as well as violation of Articles 2(1) And (2), 3(1), 16(1) And 17(3) of The Revised African Convention On The Conservation Of Nature And Natural Resources (revised Maputo Convention).

2. An order restraining Defendant from implementing the Agyapa deal, and cancelling/terminating the already existing contracts.

3. An order mandating the Defendant, where it desires to raise immediate funds from gold royalties, to restart the planning, impact assessment, consultations and other preparations in line with its international human rights law obligations.

4. An order mandating the Defendant to undertake a thorough and impartial investigation into the alleged corruption offences and ensure that any alleged perpetrators are brought to justice and held accountable for any violations.

5. An order mandating Defendant to immediately review its existing relevant national laws and policies to:

(a). Provide for adequate and effective safeguards against violation of the Right to Free Disposal of Wealth and Natural Resources by public officials and public bodies.

(b). Follow Revised ECOWAS Treaty’s fundamental principles enshrined in Article 4 paragraphs g) and h) and ensure compliance with its Article 31.

(c). Ensure that any entity with the function of sovereign wealth fund complies with the best international standards, such as the Santiago Principles.

6. Other consequential order (s) as this honourable court may deem fit to grant in the circumstance.

About the Agyapa Royalties deal:

The deal started in June 2018 when Parliament passed the Minerals Income Investment Fund (Act 2018) to manage the equity interests in mining companies and also receive royalties on behalf of the Government of Ghana.

The Minerals Income Investment Fund is mandated to manage and invest these royalties and revenue it receives on behalf of Ghana and invest them for higher returns.

To do this, the law enables the Fund to establish Special Purpose Vehicles (SPVs) to appropriate these investments.

Amendment

In July 2020, the government introduced an amendment to the Act to ensure that the SPVs that the Fund would establish to manage investments get unrestricted independence.

On the back of the amendment and the original provisions of the act, the Minerals Income Investment Fund set up an offshore limited liability company known as Agyapa Royalties Limited (previously Asaase Royalties Limited).

The Agyapa Royalties Ltd is incorporated in Bailieick of Jersey in the UK, a tax haven. It has been incorporated in a tax haven to cut out the associated high tax charges to the returns that will accrue to the state from the investments.

Agyapa Royalties Limited is registered in Ghana as an external company.

How Agyapa Royalties will operate

– Agyapa Royalties Limited will trade shares on the Ghana Stock Exchange and the London Stock Exchange for the private market.

– Mineral Income Investment Fund will remain the majority shareholder.

– ARL will raise between $500 million and $750 million for government to use for developmental initiatives – the government has revealed the four key areas of investment will be education expenditure, primary capital, health and infrastructural development.

– Future resources from gold royalties will go to ARL shareholders instead of the Mineral Investment Fund and for that matter government. Essentially, the government is mortgaging expected royalties from gold in exchange for about $500 million – $750 million from ARL.