Gabby Asare Otchere-Darko's law firm, Africa Legal Associates (ALA) is seeking to tell a different story on its involvement in the Agyapa Royalties, as it claims the firm, has completed its engagement with the Southern Africa consulting firm Imara Corporate Finance on the monetizing of Ghana's gold Royalties Project.
Imara Corporate Finance and Databank owned by the Finance Minister Ken Ofori-Atta, have for years been in business partnership long before the advent of the Akufo-Addo administration, and that partnership has manifested in the scandalous Agyapa project in what is a clear a conflict of interest situation.
Both Gabby Asare Otchere-Darko and his cousin Finance Minister, have constantly told conflicting stories on the involvement of the Africa Legal Associates (ALA) in the Agyapa Royalties project.
The two now want Ghanaians to believe that Imara is a corporate finance consulting firm engaged by Ghana's ministry of finance as transaction advisor for the Agyapa agreement and had no relationship with the Databank.
Indeed, Mr Ofori-Atta, in a response to Martin Amidu's Corruption Risk Assessment report on the Agyapa Royalties deal late last year, mentioned some international companies, including JP Morgan, Goldman Sachs, Citi Bank, Morgan Stanley, Barclays Bank, Standard Chartered Bank and Rothschild & Co and IMARA Corporate Finance Limited (Pty), (Imara) as those involved in the deal.
On Friday, September 4, 2020, the same Mr Ofori-Atta, told Accra-based Peace FM that "Bank of America (Merrill Lynch) is the main advisor and they have their own law firm. Usually, these international law firms have an affiliate in Ghana and that's where Gabby's firm came in."
However, in his statement to President Akufo-Addo, "Bank of America (Merrill Lynch) did not feature as he had told Kwami Sefa-Kayi, rather it was the South Africa-based IMARA Corporate Finance Limited (Pty), (Imara) which runs a partnership with Data Bank owned by the same Ken Ofori-Atta, which he claimed rather worked on the Agyapa Royalties deal.
On the same Kokrokoo Morning Show with Sefa-Kayi, Mr Ofori-Atta, who is expected to be questioned intensely on the Agyapa deal during his second vetting as Finance Minister when he appears on Tuesday, February 16, 2021 when he appears before the Appointments Committee, was emphatic that; "I will tell you to rest at ease, because the republic is always first in everything we do," but that claim was disputed by the Special Prosecutor's Corruption Risk Assessment report.
According to Martin Amidu, "...In an analysis of the risk of corruption, and anti-corruption assessment, this is a fundamental issue of individual interest, greed, lack of ethicality and morality in public office, and not simply of conflict of interest merely."
On August 29, 2020, Gabby Asare-Otchere Darko, also told Philip Osei Bonsu on the Ekosiisen on Asempa FM, that he got involved in the Agyapa transactions based on his law firm's partnership with the UK-based White and Case, where Joshua Siaw is in-charge of the African Desk.
Earlier, the same Gabby had told The Herald in his Cantonments office that he got involved in the deal through White and Case after the UK company, won the legal advisory contract, and at no point did he mention Imara of South Africa.
But many attempts by The Herald to get White and Case's Joshua Siaw to speak on the matter, has been unsuccessful.
Another striking thing about Ken Ofori-Atta's response to Martin Amidu's report is that, the Akufo-Addo government had in previous statements said that the Agyapa transaction started in 2018, but now in his response dated October 30, 2020, the Finance Minister said, that "the approval of Public Procurement Authority (PPA), dated 16 November 2017, MoF initiated the engagement of a transaction advisor for the Transaction using the restricted tendering procurement process".
"MoF shortlisted eight (8) reputable international financial firms, with the requisite expertise in advisory, capital markets and investment banking transactions, especially in the mining and natural resources sectors, and in Africa. The firms were:1. JP Morgan, 2. Goldman Sachs, 3. IMARA Corporate Finance Limited (Pty) (Imara), 4. Citi Bank, 5. Morgan Stanley 6. Barclays Bank, Standard Chartered Bank, and, 8. Rothschild & Co.
According to the Finance Minister, "On the 22nd of December, 2017, MoF invited the firms directly by Request for Proposal (RFP), to tender for the transaction. Out of the eight shortlisted international firms, only two (2), being Imara and Morgan Stanley, responded by the deadline".
He claimed that "the RFP had provided that collaborations with eligible Ghanaian firms with complementary capabilities would be favorably considered, and as such, Imara submitted its proposal with local partner Databank Financial Service Limited (Databank), and Morgan Stanley with Boulders Advisors, as its local partner".
He stated that "The stipulation in the RFP for bidding entities to collaborate with local firms or present a "consortium" to bid for contracts is not alien or offensive to procurement practice or the Procurement Act, adding "Following an evaluation on 12/01/18, of the Technical Proposals submitted by the two sets of firms, by a duly constituted evaluation panel, Imara/Databank (Imara TA) emerged the winners".
Mr Amidu had noted in his corruption and anti-corruption risk assessment of the gold royalty agreement that the Transaction Advisor(s) involved in the controversial Agyapa deal, were susceptible to "nepotism, cronyism and favouritism".
Additionally, he said in the 67-page report that the deal lacked "probity, accountability and transparency" in some aspects.
"All the parties to the Mandate Agreement are deemed to have known the law but ignored it with impunity in signing and implementing the Mandate Agreement, which is null and void ab initio as violating the Public Financial Management Act, 2016 (Act 921) and the Public Procurement Authority Procurement Act, 2003 (Act 663) as amended.
"This conduct, which appears to have been in furtherance of the suspected bid-rigging, in the assessment of this Office, severely lowered the risk of corruption, and rendered them a low-risk enterprise in the Agyapa Royalties Transactions process and their approval.
"It is with these new lenses that the analysis of the risk of corruption, and anti-corruption assessments of the legality of the engagement of the other services providers and underwriters on the recommendations of the Transaction Advisors acting as the Ministry of Finance's procurement entity tender committee contrary to Part VI of the Public Procurement Act, 2003 (Act 663) as amended, and Sections 7 and 25 of the Public Financial Management Act, 2016 (Act 921) afore-quoted were made", portions of the report said.
It continued: "It was further analysed and assessed that the Transaction Advisor(s) nonetheless, went ahead to identify and recommend services providers and underwriters to the Ministry of Finance for appointment by the Republic of Ghana.
"The Ministry acted contrary to the Public Procurement Authority Act and the Public Financial Management Act in delegating the power to appoint services providers and/or other underwriters to the unlawfully appointed Transaction Advisor(s).
"The Transaction Advisor(s), whose selection and appointment by the Ministry of Finance did not measure up favourably to the analysis of the risk of corruption and anti-corruption assessment that meets the fundamentals of probity, transparency and accountability was/were potentially susceptible to undue influence, favouritism, cronyism, nepotism, and all forms of discrimination abhorred under the 1992 Constitution leading to the suspected packing of the services provider and underwriters position with entities not chosen on merit."
Gabby's ALA now claims to have been engaged by Imara Corporate Finance, in May 2018 to provide legal services for the project, which sought to monetize Ghana's gold royalties. This it said was after Ghana's Ministry of Finance signed a mandate agreement with Imara Corporate Finance, appointing the Ken Ofori-Atta's partners as transaction advisor for the Agyapa project.
Citinewsroom reports that ''The scope of ALA's work included providing input on any draft legislation, including structuring, providing assistance with coordination of meetings and presentations which may be required for the approval of the project and liaising with various Ghanaian stakeholders and providing input throughout the transactions process''.
It claimed that ''The Accra-based law firm also assisted Imara, with the drafting of the documentation required for approval for the project including presentation and memorandums to cabinet, Parliament and other legal documentation''.
In a letter of notification of completion of engagement, the managing partner of ALA, Nana Adjoa Hackman Esq., thanked Imara "for the opportunity to have worked with the transaction advisor and other consultants in such a ground-breaking project for the African continent," noting that "the work of the Minerals Income Investment Fund (MIIF) would open a new avenue for Ghana and indeed Africa in the cross-generational search to secure greater value for our rich natural resources."
Jayne Backhouse, writing on behalf of Imara Corporate Finance, thanked ALA for "the hard work on the project over the last two and half years" and for their overall support, noting that "ALA has fulfilled its obligations to the project," expressing that hope that being in the final stages of the transaction, they accept the conclusion of their engagement on the project, and as a consequence, waived the final item in the scope of work, clause 1 (Vii), which essentially a continuing obligation that can be dispensed with through mutual consent.
ALA's work on the bill and the various agreements to do with setting up and operations of the Minerals Income Investment Fund was done in conjunction with other globally reputable law firms like White & Case- UK, Ogier- Jersey and Bentsi Enchil, Letsa & Ankomah- Ghana.
The Parliament of Ghana, passed the Minerals Income Investment Fund (MIIF) Act 2018 to establish the Fund to manage the equity interests of Ghana in mining companies and receive royalties on behalf of the government.
The Fund is to manage and invest these royalties and revenue from equities for higher returns for the benefit of the country.
The government of Ghana, through the MIIF, set up Agyapa Royalties Limited to securitize Ghana's gold royalties.
This was after Parliament approved the Agyapa Mineral Royalty Limited agreement with the government of Ghana amid a walkout from the Minority side in Parliament.
In exchange, the company plans to raise between US$500 to US$750 million for the government of Ghana on the London Stock Exchange to invest in developmental projects. This has however, been rejected by the many experts and civil society organizations calling the deal opaque, corrupt and a rip-off. Some international experts have also kicked against the transaction.