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Contracts to 9 Spanish companies challenged at Supreme Court

BY: Samuel K. Obour

A Ghanaian citizen has brought an action in the public interest for the Supreme Court to declare as unconstitutional, contracts awarded to nine Spanish companies because those contracts did not receive parliamentary approval.

Mr Moses Ampem said he brought the action “in the public interest and for the specific public purpose of promoting and ensuring constitutional, democratic governance and the supremacy of the rule of law” and was, therefore, urging the court to order a refund of the 70 million euros received under the said invalid contracts which were awarded in 2006.

In the alternative, the plaintiff, who filed the suit on October 4, 2013, has implored the court to grant an order requiring the Attorney-General to take appropriate action to forthwith recover all the money received by the Spanish companies.

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He is, accordingly, invoking the original jurisdiction of the Supreme Court to declare the said contracts between the Government of Ghana and the said Spanish companies as not having received the formal approval of the Parliament of Ghana, in violation of the 1992 Constitution, and for that reason must be declared “unconstitutional and invalid in law”.

Article 181 (5) demands that international contracts be laid before Parliament for approval before they are executed, and per the plaintiff’s arguments, the defendants — Incatema Indemar, Elecnor, Sucomex, Schwartz-Hautmont Construcciones Metalicas, Makiber Grupo Dragbdos, Hildrombiente S. A., Schneider Electric (formerly Telvent), Technove and Ramon Vizcaino, all Spanish companies — must refund all the money received for the various contracts awarded them.

Also joined to the suit is the Attorney-General.

The Attorney-General has been joined to the suit because the Attorney-General has been mandated by Article 88 (5) of the 1992 Constitution to institute, conduct all civil cases on behalf of the state, as well as defend the government in civil actions.

Mr Ampem is praying the court to declare that the contracts between the government and the Spanish companies were international businesses or economic transactions within the meaning of Article 181 (5) of the 1992 Constitution which required mandatory parliamentary accent.

Consequently, the plaintiff is requesting for a declaration that the whole or partial execution or implementation of the said contracts is unconstitutional and invalid in law.

 Following formal approval in 2005, by the Parliament of Ghana of the second Ghana-Spain Financial Protocol, which is a bilateral project-funding loan agreement, the government, acting through its various responsible sector ministries, proceeded in 2006, to award various project-based contracts to several Spanish companies, including the contracts to the nine Spanish companies.

The financial protocol, per the plaintiff’s statement of case filed on his behalf by his solicitors, Baffour-Gyimah and Associates, included a project contract for:

• The supply of irrigation equipment (solar pumps, sprinkler, etc) for the sum of eight million euros awarded to Incatema Indemar by the Ministry of Food and Agriculture (MoFA).

• Solar rural electrification for the sum of five million euros awarded to Elecnor by the Ministry of Energy.

• The supply of medical equipment for the sum of 10 million euros awarded to Sucomex by the Ministry of Health (MoH).

• The supply of steel bridges for the sum of five million euros awarded to Schwartz-Hautmont Construcciones Metalicas.

• Feeder roads machinery supply for the sum of five million euros awarded to Makiber Grupo Dragbdos by the Ministry of Road Transport.

• The supply of a water treatment plant for the sum of 10 million euros awarded to Hildrombiente S. A. by the Ministry of Water Resources, Works and Housing.

• The supply of radio communication network equipment for the Police Service for the sum of five million euros awarded to Schneider Electric by the Ministry of the Interior.

• The supply of radio communication network equipment for the Immigration Service and the Prisons Service for the sum of five million euros awarded to Technove by the Ministry of the Interior.

• The supply of cold-room facilities for fishermen along the coast for the sum of seven million euros awarded to  Ramon Vizcaino by the Ministry of Fisheries.

Bringing the action under articles 2 and 130 of the 1992 Constitution of the Republic of Ghana, Mr Ampem is praying the court to grant his claims, since all those projects were awarded without parliamentary approval.

Article 2  (1) A of the 1992 Constitution states that any person who alleges that (a) an enactment or anything contained in or done under the authority of that or any other enactment; or (b) any act or omission of any person that is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.

Article 130 basically gives the Supreme Court the exclusive original jurisdiction to interpret all matters relating to the 1992 Constitution, as well as whether or not an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under the Constitution, among others.

By Mabel Aku Baneseh/Daily Graphic/Ghana

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