It also stated that it raised the Cedi equivalent of $1.12billion in five and 10 years bonds via a tap in arrangement. This means the total amount raised through the bonds as at 3rd April 2017 was $2.25billion.
On April 25, 2017, a citizen, Yaw Brogya Genfi petitioned the Commission on Human Rights and administrative Justice (CHRAJ) to investigate the bond transaction because he suspects that the Finance Minister was caught up in conflict of interest.
The Commission after its investigations gave wide-ranging directives in relation to bond issuance in order to ensure transparency and clarity.
Despite clearing the Finance Minister on the allegations of conflict of interest in the issuance of the bond, the Commission noted that several statutory regulations governing issuance of bonds were breached as well—a piece of disclosure the Minority believes is enough to warrant the resignation of the Finance Minister.
“It is our contention that based on these willful breaches of Ghanaian law, guidelines and processes in the bond issuance, the Finance Minister has made his continuous stay in office untenable and we hereby demand his immediate resignation or dismissal and subsequent prosecution,” the Minority demanded in a statement signed by the Minority leader Haruna Iddrisu.
MINORITY STATEMENT ON DAMNING
On 29th December, 2017, The Commission on Human Rights and Administration Justice (CHRAJ) released its report on the investigation conducted into a complaint brought by Mr Brogya Gyenfi (petitioner) in the wake of the issuance of the infamous US$ 2.25 million bond in March this year.
We note that, despite initial strenuous denials by the respondent, Ken Ofori-Atta (Minister for Finance), CHRAJ in its report agrees largely with the position we stated earlier on this saga. We had stated from the very beginning that the bond issuance did not follow due process and seemed hurried to accommodate special interests.
CHRAJ in its summary of key findings, at pages 133 and 134 of its report, noted several breaches of constitutional and statutory laws—as well as regulations and official guidelines—governing the issuance of bonds. . These findings include but are not limited to the following:
DENOMINATION OF THE BOND.
We questioned the denomination of the bond, given the events that are described in the report and the substantive interest of a single non-resident investor. The Minister had been emphatic about his denials of the issuance but CHRAJ notes that:
“The 5-year,7-year,10-year and 15-year bonds issued in March/April 2017, were domestic bonds (cedi-denominated) and opened for non-resident investors, but the statement issued by the Ministry of Finance on 3rd April,2017 misled the public into believing that the bonds were dollar denominated. The MOF, on realizing that the statement it issued on 3rd April, 2017 was inaccurate, removed it from its website but at the time of this decision, the MOF had not yet replaced it with the more accurate statement”.
IMPROPER USE OF ISSUANCE CALENDAR.
It is clear from the report that the attempt to rush the 2nd Quarter Calendar for Bond issuance to cover for inept issuance failed miserably. Was there an attempted cover-up? The Ministry of Finance (MOF) and Bank of Ghana (BOG) used the traditional BOG auction and tap-in (used for liquidity) methods instead of the book-building for medium term bonds. Moreover, the “tap-in” was used for bonds that did not exist. CHRAJ notes that:
“The issuance calendar for the 1st Quarter did not include the issuance of 7-year and 15-year bonds, the trading of which concluded on 31st March, 2017 which is within the 1st Quarter calendar period and NOT the 2nd Quarter calendar.”
“On receipt of the 2nd Quarter Issuance Calendar at 12:31 pm on 30th March, 2017, the BOG made announcements to the public on the reopening of 5-year and 10-year bonds, with an indication that Bids must be submitted electronically through the Auction Module not later than 2:00pm, on Thursday March 30, 2017 and settlement will be on MONDAY APRIL 03, 2017”.
“This contradicts the BOG’s own rules requiring the BOG to announce periodically but not less than a week before an auction, the amounts and specific details of the financial instruments available (in this case the 5-year, 7-year, 10-year, and 15-year bonds) at the next auction and their maturity profiles.”
BREACH OF PERIOD OF ISSUE.
Again, BOG and MOF breached the time required for notice—a lapse that we cannot excuse. We note that the two institutions as well as their joint book runners (JBRs), bond advisers and officials had been using the procedure since 2015. CHRAJ notes that:
“In terms of the 7-year and 15-year bonds, the BOG gave only one (1) day notice to the market on the availability of the 7-year and 15-year bonds prior to the commencement of trading, instead of two weeks required for new products under the BOG Guidelines”.
CHRAJ also ruled that the Minister did not comply with section 56(1) of the Public Financial Management Act, 2016 (Act 921). Besides the provisions of the new Act, the CHRAJ position is justified by the fact that the Prospectus and processes used in 2016 should not have been used to support the new categories of Bonds. CHRAJ notes that:
“The terms and conditions of all government borrowings shall be laid before Parliament and shall not come into operation unless the terms and conditions are approved by a resolution of Parliament in accordance with article 181 of the Constitution”.
PRIOR NOTICE GIVEN TO SOME NON- RESIDENT INVESTORS.
In our earlier intervention on the matter, we used the word “virtual” advisedly to describe what in our view looked like a Private Placement. The CHRAJ report found that the Bookrunners in the bond issuance sent information to some investors before the Ministry of Finance requested the Bank of Ghana to issue the bond notices to the markets.
More grotesquely, the report further noted that additional information about the bond issuance was sent to investors before the Ministry of Finance released the 2nd Quarter issuance calendar.
Who were the beneficiaries of the leak, prior to an auction that also curtailed the period of notice? Note also that JBRs and some advisers were excluded from the issuance of one of two parallel bonds.
Was there prior communication and discussion of terms and conditions, given that the communication may have been specific with respect to bond details?
CONFLICT OF INTEREST.
On the issue of conflict of interest, we are surprised that the Minister and surrogates continue to portray complete exoneration by CHRAJ when the Commission found that:
“the Finance Minister’s extensive interests in the securities market through shareholding in several companies that operate within the sector, some of whom were contacted by the Bookrunners on this particular bond, always raises the potential for conflict of interests.”
DECLARATION OF ASSETS
Of the gravest concern to the Minority, is the staggering revelation in the CHRAJ report that the Finance Minister, Ken Ofori Atta, concealed his interests in a number of financial institutions in his asset declaration forms filed after his appointment.
According to the CHRAJ report, documents from the Registrar-General’s department show clearly that Hon. Ken Ofori Atta was a shareholder in Data Bank Financial Services Limited, Data Bank Brokerage Limited and Data Bank Financial Holdings Limited. However, the Finance Minister failed to state in his asset declaration forms presented on 12th March, 2017 to the Auditor-General, that he had shares in the last three companies.
Specifically the Commission stated at page 120 of the report that;
“It is observed that the Respondent had other assets which he did not disclose in his Assets Declaration Form. They include his interests in Databank Financial Services Limited and Databank Brokerage Limited”
This constitutes a willful breach of Section 7 of the Public Office Holders (Declaration of Assets and Disqualification) Act, 1998 (Act 550).
The Minister’s actions also contravene Section 251 of the Criminal Offenses Act (Act 29, 1960) which deals with deceiving a public officer.
Government Securities (G-Secs)
The report quotes the meaning of Government Securities (G-Secs) from the Bank of Ghana (BOG) Guidelines as follows (page 11 of report):
“) G-Secs (bills, notes and bonds) constitute direct, unsecured and unconditional obligations of the Government of Ghana. The principal and discount/interest on G-Secs will be charged on the Consolidated Fund.”
The question is whether all the Bonds (5-year; 7-year; 10-year; and 15-year) that constitute the US$2.5 million in the two (2) issuances meet these conditions. The next 2 paragraphs will show why the Minority in Parliament continues to harbour and express some doubt in this regard.
DOCUMENTS SUPPORTING THE BOND ISSUANCE.
It will be recalled that the Minority requested that the Minister for Finance furnish the house with the terms and conditions for the issuance of the Bonds, as required by the Constitution. During his appearance before Parliament in 2017, he defiantly noted that this information was “market sensitive” and insisted that it could not be disclosed.
We now know from the CHRAJ report that the documents supporting the Bond issuance were (a) in respect of the so-called “tap-in”, the 2016 Prospectus issued under the auspices of the former Minister; and (b) BOG guidelines for its Auctions. Since these documents are already in the public domain—and more crucially satisfy the BOG definition for G-Secs—then what did the Minister mean by “market sensitive” information that could not be released?
TERMS AND CONDITIONS.
Immediately after the Bond issuances, we drew attention to allegations that some or all of the Bonds may have terms and conditions relating to issuance or maturity that could be unprecedented, harmful to public interest and, therefore, not likely to meet the BOG definition for G-Secs.
The Minority will like to call on CHRAJ to release any further documents that may be in its possession to satisfy or deny this public curiosity. In the absence of any such additional document or documents being in the possession of CHRAJ, Parliament or CHRAJ must compel the Hon. Minister, MOF, BOG or CSD to release them to the public.
VIRTUAL PRIVATE PLACEMENT
As noted earlier, we are of the view that the Petitioner and the Minority used the word “virtual” advisedly, its meaning being clear we did not seek to state categorically that there was a private placement. We will draw that conclusion or otherwise when we are assured that all documents relating to these public bonds are in public domain.
Nonetheless, we still stand by our cautious assertion that the Bond issuance to Franklin Templeton (and, most likely, others) was close to a private placement—as explained by MOF, JBR and BOG officials in the CHRAJ report.
As noted earlier, we know from the CHRAJ report that some investors had privileged knowledge of the Bond issuance before the official notice became public (page 135).
Secondly, given that some Primary Dealers (PDs) and also Joint Book Runners (JBRs) had prior undisclosed relationships with investors who put in bids, did any prior contact involve a discussion of terms and conditions for the issuance? For confirmation, CHRAJ needs to follow the trail of communications and movement of funds closely to settle this question.
APPEARANCE OF CONFLICT OF INTEREST
We have already quoted CHRAJ on the matter of likely conflict of interest by the Hon. Minister. In addition, we draw broader attention to some matters relating to this matter, as concerns continuing relationships between Trevor Trefgan or Franklin Templeton (FT) and Databank or Enterprise Group as well as staff of the latter who are now doing official government business.
- a) General
First, we note that CHRAJ relied heavily on FT’s website to come to its conclusions. We believe that a better option would have been the US and EU official securities bodies (e.g., US Securities and Exchange Commission or SEC) since another petition is pending before these bodies. Second, it is important to put the pieces together at this stage in order to take that broader view of the appearance of conflict of interest in dealing with Enterprise and Databank Groups. As noted, several ex-officials (or current?) of Enterprise or Databank Group are now deeply involved in Government business, including Bond issuances.
- b) Databank/Enterprise employees
It is now known that the Hon. Minister has about 16 ex-Databank/Enterprise employees who are firmly embedded in the Ministry of Finance and some of its agencies. Have all these officials resigned formally from their substantive posts in these private firms and do they intend to revert to post after they leave Government?
Of immediate relevance: were they involved in the Bond issuance since we are told in the CHRAJ report that some of the JBR/PDs, acting for the Ministry, issued an invitation to Enterprise/Databank? Were they beneficiaries of the communication that went out to some investors prior to the official release? We are not told whether CHRAJ interviewed any of these staff, some of who we are told are in Director Positions at MOF.
- c) The Sanlam Group transaction
Third, we noted some months back that, shortly after the Bond issues in March 2017—June 2017, to be precise—Sanlam Group of South Africa sold its insurance interest in Enterprise Group to Black Star Holdings Ltd. We are told in the Statement relating to the transaction that Sanlam will continue to have a presence in Ghana. We already know the involvement of the Hon. Minister in Enterprise, so we will not belabour the point.
However, we also know that a Deputy Minister of Finance had or has interests in Black Star Holding Ltd, also related to Leapfrog, another firm mentioned in the Statement. The Statement emphatically describes and quotes Trevor Tregfarne (of FT fame) as the Chairman of Enterprise Group. Further, no less a person than Mr. Keli Gadzekpo, then CEO of Enterprise Group and current Member of the Board of Bank of Ghana (BOG) was the one touting the deal on public media.
Does Mr. Gadzekpo recuse himself from government business involving the Enterprise and Databank Groups? This question is also relevant for the 16 or so Databank staff that the Minister has placed in strategic positions at the Ministry of Finance and its agencies.
- a) Minister must resign
It is our contention that based on these willful breaches of Ghanaian law, guidelines and processes in the bond issuance, the Finance Minister has made his continuous stay in office untenable and we hereby demand his immediate resignation or dismissal and subsequent prosecution.
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- b) Violation of CHRAJ Law
This would also be without prejudice to any other actions that can be taken pursuant to relevant sections of Act 550 which provide for a compliant to be made to CHRAJ in respect of violations of the Assets Declaration law.
We hope that despite President AkufoAddo’s practice of extreme nepotism and cronyism through the appointment of dozens of his family members, friends and known business associates into government, he would not allow familial considerations to hinder the performance of his sacred duty to the people of Ghana.
Rather, he will take appropriate action to ensure that his cousin and Finance Minister, Ken Ofori Atta, faces the full rigors of the law.
Failure to do this would completely invalidate his claims about fighting corruption.
We wish to serve notice that in the event that President AkufoAddo allows his judgment to be clouded by his blood relations with the Finance Minister and refuses to act in accordance with theGhanaian law to remove him from office within 14 working days from today, we shall invoke a motion of censorship in accordance with article 82 of the 1992 constitution of Ghana to remove him from office as soon as possible.
- c) Vindication
It is the considered view of the Minority that the adverse findings contained in the CHRAJ report vindicate our position that the US$ 2.25 Billion bond issuance was fraught with irregularities and did not comply with Ghanaian law.
We also demand that;
(a) the Government and its agencies (Flagstaff House, BOG, Securities and Exchange Commission (SEC), Public Services Commission (PSC), Head of Civil Service (OHCS) etc.) must take steps to curtail or eliminate the grip of Enterprise and /Databank Groups on Government business;
(b) CHRAJ must continue to follow some of the leads we present in our Statements; and
(c) Parliament must revisit the issue of its mandate in relation to making public, all the terms and conditions for this particular Bond issuance to close the chapter on this matter. Otherwise, we should not be surprised that it will continue to fester, not die.
Hon Haruna Iddrisu
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