Court of Appeal re-affirms injunction against Kelni GVG deal

BY: Emmanuel Ebo Hawkson
Ursula Owusu-Ekuful - Minister of Communications
Ursula Owusu-Ekuful - Minister of Communications

The government has suffered a major blow to the implementation of the $89m telecommunication revenue monitoring contract it awarded to Kelni GVG Limited.

In a unanimous decision yesterday, a three-member panel of the Court of Appeal reaffirmed an earlier injunction it placed on the deal following a legal challenge filed by Subah Infosolutions Ghana Limited.

Following an application filed by Subah, the court, on February 14, 2018, placed an injunction on the deal pending the full determination of a suit initiated by Subah.

The Ghana Revenue Authority (GRA) and National Communications Authority (NCA), the defendants in the legal action instituted by Subah, however, filed an application for stay of execution of the injunction.

Related: Kelni GVG: Two drag Communications Ministry, NCA, GRA to court

But in a ruling Wednesday, the Court of Appeal dismissed the application for stay of execution on the basis that the GRA failed to establish any special circumstances for the injunction order to be stayed.


The court further awarded costs of GH¢ 2,000 against the GRA.

“Having failed to establish any special circumstances why the order of February 14, 2018 should be stayed, this application for stay of execution is hereby dismissed,’’ the court held.

The three-member panel was presided by Mr Justice A.K Acquaye, with Mr Justice B. Ackah Yensu and Mr Justice Tanko Amadu as the other members.

Related: Ursula defends Kelni GVG contract in Parliament

Background

The $89m contract will allow Kelni GVG to operate a common platform that includes the NCA and the GRA by connecting the entire switch of the physical network nodes of the telecommunication operators in the country.

The programme is expected to improve revenue mobilisation for the government and also check simbox fraud.
Subah was, however, awarded a similar contract by the government in 2015, and the Kelni GVG contract led to the termination of the Subah contract by the government.

Not satisfied with the decision of the government, Subah, in December 2017, marched to court with a case that the termination of its contract was unlawful and, therefore, null and void.

It then followed up an application for interlocutory injunction seeking a halt to the Kelni GVG contract until the determination of its case.

Read also: Court orders Communications Ministry to make Kelni GVG contract available

Legal battles

The suit by Subah is not the only legal action challenging the Kelni GVG deal. There are about four other suits - one at the Supreme Court and three others at the High Court - seeking to annul the deal.

Last Tuesday, the Accra High Court, presided over by Mr Justice Anthony Yeboah, ordered the Minister of Communications to release the contract it signed with Kelni GVG to three individuals who filed the case in court.

Per the court order, the minister must hand over the contract on or before July 9, 2018 to Mr John Ato Bonful, Nana Ama Adom-Boakye Kanyi and the Citizens Ghana Movement.

The three applicants went to court to get access to the contract as part of their fundamental human rights.

The same High Court is also expected to rule an injunction filed by two other individuals which seeks to restrain the Ministry of Communications, Kelni GVG and other interested parties from implementing and operationalising the contract.

The two individuals – Ms Sarah Owen Asafu-Adjaye and Mr Maximus Amertogoh - want the court to halt the implementation of the contract until the final determination of their substantive suit.

In their substantive case, they argued that the implementation of the contract would allow KVG access to their private data, which was an affront to their fundamental human right.

Controversy

The Kelni GVG contract has become a subject of controversy between civil society groups and policy think tanks on one hand, and the Ministry of Communications on the other hand.

The President of IMANI Africa, Mr Franklin Cudjoe, has in several media engagements stressed that the $89 million contract was a careless duplication of jobs and a needless drain on the country’s scarce resources.

He has insisted that Subah and Afriwave were awarded similar contracts under the National Democratic Congress (NDC) administration to perform similar jobs, even though both contracts were needless.

The Minority in Parliament has also criticised the contract, describing it as a waste of money.

The Minister of Communications, Mrs Ursula Owusu-Ekuful, has, however, defended the contract, explaining that it would effectively deal with revenue losses in telecommunication industry and also check simbox fraud.

According to her, the contract also had greater value for money as compared to previous contracts.

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