Graphic Online has seen some pages of the Chief Justice's Committee report that recommended that the Chairperson of the Electoral Commission,
Mrs Charlotte Osei and her two deputies, Amadu Sulley and Georgina Opoku Amankwaa should be removed from office .
Excerpts of the 54-page report seen by Graphic
"In all, the Chief Justice made
For all the six allegations, the committee found
“The findings we have made on the allegations made against Mrs. Charlotte Osei, the Chairperson of the Electoral Commission, clearly gives a
"The procurement activities include the engagement of Sory@Law and Associates for the Commission, the award of several contracts to STL, the two contracts for the partitioning and consultancy service of the new office block, the three contracts awarded for the construction of pre-fabricated district offices of the Commission and consultancy services thereof; the two contracts awarded to Dreamoval Ltd, and finally the two contracts awarded to Quazar Limited from South Africa. Evidence before the committee showed that all these contracts were awarded by Mrs. Charlotte Osei contrary to the Public Procurement Act” the report noted.
The Committee said
The Committee thus contended further that “if procurement of goods and services was not part of the core business of the Electoral Commission as argued by Mrs. Charlotte Osei, why did she take over the above roles directly when there was a Procurement Unit with a Head in the Electoral Commission? We are of the opinion that Mrs. Charlotte Osei always knew that procurement was a very important part of the core business of the Commission, and that was why she personally took over the above roles.”
“On the whole, Mrs. Charlotte Osei’s persistent violation of the Public Procurement
Read also: Charlotte Osei and two EC deputies sacked
Below are excerpts from the
IN THE MATTER OF A PETITION BROUGHT UNDER ARTICLE 146 OF THE 1992 CONSTITUTION FOR THE IMPEACHMENT OF MRS. CHARLOTTE OSEI CHAIRPERSON OF THE ELECTORAL COMMISSION OF GHANA
FORSON AMPOFO & OTHERS } PETITIONERS
MRS. CHARLOTTE OSEI } RESPONDENT
REPORT OF THE COMMITTEE
IN THE MATTER OF ARTICLE 146 OF THE 1992 CONSTITUTION OF THE REPUBLIC OF GHANA AND IN THE MATTER OF THE PETITION FOR THE REMOVAL FROM OFFICE OF THE CHAIRPERSON OF THE ELECTORAL COMMISSION PURSUANT TO ARTICLE 146 OF THE 1992 CONSTITUTION.
FORSON AMPOFO & OTHERS PETITIONERS
CHARLOTTE AMA OSEI RESPONDENT
REPORT OF THE COMMITTEE APPOINTED TO INVESTIGATE THE PETITION AGAINST MRS CHARLOTTE AMA OSEI, THE CHAIRPERSON OF THE ELECTORAL COMMISSION.
In all, the Chief Justice made
The petition seeks the removal of Mrs. Charlotte Osei, from office as the Chairperson of the Electoral Commission of Ghana. This Committee was thus established under Article 146 (4) of the 1992 Constitution to further investigate the allegations for which prima facie case had been established by the Chief Justice. The mandate of this Committee
The six allegations against the Chairperson which this Committee had the constitutional mandate to investigate are as follows:-
On this allegation, Mrs. Charlotte Osei testified that the funds for the two contracts were provided by the USAID and she was unaware that the Commission was to seek the approval of the Public Procurement Authority, before awarding the contracts.
FINDINGS ON ALLEGATION NO. 5
There is evidence on record that before the 2016 general elections the Electoral Commission secured donor support from the USAID through the Ministry of Finance.
The support was for the sum of US$2,367,500.00 which the Electoral Commission was to apply to improve its ICT environment.
In October 2016, the Chairperson, the Minister of Finance/Designate and the Mission Director of USAID signed a grant document titled 'Implementation letter Number 641-Ai0-FY14IL#03 under DOAG No. 641-001 Strengthened Responsive, Democratic Governance for support to the Electoral Commission of Ghana for a New Activity: Enhancing Inclusive in Ghana's Electoral process'(hereinafter referred to as the Grant Document).
In a bid to procure the services of a contractor for the said project, three (3) quotations were received by the Commission for consideration. Indeed, according to the Chairperson, she personally recommended Dreamoval Ltd which was a group from the Ashesi University.
The Chairperson testified that the Director of Finance submitted the names of two other companies, namely Premium Tech & Business Consultancy Services and Change Investment (Ghana) Ltd. From these three companies, the Chairperson, the Director of Finance and the Head of the Donor desk selected Dreamoval for the contract. As a
Further evidence is that after the completion of the initial contract of re-designing the
According to the Chairperson, Dreamoval Ltd had to work around the clock to avoid break down of the
Accordingly, the Chairperson executed another contract with Dreamoval Ltd to enable USAID
The evidence on record is that both contracts awarded to Dreamoval were not evaluated by the Tender Evaluation Panel, Entity Tender Committee, and the Tender Review Panel, of the Electoral Commission. The Commission also failed to obtain approval of the Public Procurement Authority, for the restricted tendering method used, out of which the service of Dreamoval Ltd was procured.
As indicated earlier the Chairperson testified that she was unaware that the Commission was required to apply the Public Procurement Act, for procurement activities funded by donors. This
Indeed, by the above provision parties to the grant, including the Chairperson, who signed the document, all agreed that the procurement activity to be funded from the grant would be regulated or governed by the local procurement laws and procedures.
The tender should have been evaluated by the Tender Evaluation Panel and referred to the Entity Tender Committee and the Tender Review Panel. From the evidence, Mrs. Charlotte Osei failed to adhere to the procurement procedure sanctioned by the Public Procurement Act and the Electoral Commission's own internal procurement structures.
"14. (1) This Act applies to
(d) procurement with funds or loans taken or guaranteed by the State and foreign aid funds except where the applicable loan agreement, guarantee contract or foreign agreement provides the procedure for use of the funds."
The above provision in Act 663 has been amended by the Public Procurement (Amendment) Act, 2016, Act 914 with a new section 14 (l)(d) which provides as follows:-
" 14 (1) This Act applies to
(d) procurement with public funds including loans procured by
Even though the exception under section 96 does not apply to the issue we are considering, we have decided to
"96. (1) Despite the extent of the application of this Act to the procurement, procurement with international obligations arising from a grant or concessionary loan to the Government shall be in accordance with the terms of the grant or loan subject to the prior review and "no objection" of the procurement procedures by the Authority.
(2) Procurement arising from an external loan and commercial facility, secured by Government, other than a concessionary loan and grant which specifies particular procurement procedures shall be subject to the prior review and "no objection" of those procurement procedures by the Authority."
With the above clear provisions in the Public Procurement Act, there was no justifiable excuse for the Chairperson's failure to comply with the Public Procurement Act in awarding the two contracts to Dreamoval Ltd. The non-compliance of the Public Procurement Act for procurement activity funded by donor agencies by the Chairperson can only be explained in terms of her incompetence in understanding the Grant Document she executed with officials of USAID and the Ministry of Finance and provisions of the Public Procurement Act.
The head of Donor Desk Unit of the Electoral Commission, Mr. Hamid Kodie Fisa, testified that negotiations for the Dreamoval Ltd contract started in November 2015 and the Chairperson awarded the first contract on 8th February 2016. There is a letter on record from Dreamoval Ltd dated 3rd August 2016 and received at the Electoral Commission on 22nd August 2016, reporting the completion of phase 1 of the contract and requesting for payment.
All these events occurred before the USAID grant since the 'Grant Document' was signed in October 2016. Before this time, Dreamoval had reported the completion of phase 1 of the Website project.
We find that the first contract to Dreamoval was awarded before the USAID grant so the Chairperson should have resorted to national competitive tender or restricted tender with the approval of the Public Procurement Authority under section 38 of the Act 663 as amended.
As demonstrated above even when the USAID agreed to fund the activity for which Dreamoval was engaged, the Chairperson was obliged to comply with the Public Procurement Act, which she failed to do.
On the evidence, the method used by the Chairperson in procuring the services of Dreamoval Ltd under the USAID funded project was a violation of section 38 of the Public Procurement Act, Act 663 as amended. The procurement of Dreamoval for the project by the Chairperson also violated sections 14, 16, 17 and 18 of the Public Procurement (Amendment) Act, 2016, Act 914. The procurement was also done contrary to the 'USAID Grant Document', which as has been observed required that the local laws on procurement shall apply to the activity being funded. The Chairperson
The last of the allegations we were mandated to investigate relates to the contracts awarded to Quazar Ltd, a South African company. The allegation in the main was that the Chairperson unilaterally awarded a contract of about US$25,000.00 to Quazar Ltd to change and redevelop the logo of the Commission under the guise of rebranding without going to tender contrary to the Public Procurement Act.
Evidence before this Committee indicates that in the year 2014, the Electoral Commission sought the support of the UNDP to develop a new five years strategic plan to guide the Commission and provide a new corporate direction for the Commission's operations. The request of the Commission was approved by the UNDP and a consultant, one Messrs Theophilus Dowetin was contracted by UNDP to develop the strategic plan. When the consultant completed the job, an exit conference was held at which stakeholders agreed that the work of the consultant needed
The Tender Evaluation Panel of the Commission chaired by the Director of Finance evaluated the quotations and recommended the award of the contract to Quazar Ltd to repackage the Electoral Commission's strategic plan.
The Evaluation Report was dated the 29th March 2016. The Entity Tender Committee and the Entity Tender Review Panel were not involved in the procurement process that approved the contract award to Quazar Ltd.
There is also evidence on record that apart from the contract to repackage the strategic plan for the Commission funded by UNDP, Quazar Ltd was awarded another contract to develop a logo for the Commission at a cost of GHC23,470.01. This contract was funded by the Government of Ghana. On completion of the work, the Director of Finance and the Chief Accountant wrote on the 8th March 2016 to the Bank of Ghana to transfer US$6,080.31 being the equivalent of GHC23, 470.01 into the account of Quazar Ltd at the First National Bank,
FINDINGS ON ALLEGATION NO. 6
From the evidence, two contracts were awarded to Quazar Ltd. The first was the contract to repackage the strategic plan of the Commission which was funded by the UNDP. The second was the contract to develop a logo for the Commission which was funded by Government of Ghana. It is clear from the evidence adduced that the allegation that the Chairperson unilaterally awarded contracts to Quazar Ltd is not true. The contract to repackage the strategic plan was awarded after stakeholders meeting held at the instances of the UNDP. The contract was awarded after three quotations submitted by three companies had been evaluated by a
The problem with the contract awarded to Quazar for the repackaging of the strategic plan was the method used to engage Quazar Ltd.
The evidence disclosed that the Commission used the restricted tender method of
As earlier stated in this report, the fact that the contract was funded by UNDP did not exempt the Commission from complying with the Public Procurement Act, Act 663 as amended. Under section 14 of Act 663 as
The Head of the Donor Desk Unit of the Commission,
The second contract awarded to Quazar to develop a new logo for the Commission was funded by the Government of Ghana. The Commission was obliged to comply with the Public Procurement Act. It has been argued that at the time the contract was awarded, the threshold of the Chairperson as head of entity for services was GHC100,000.00, so she had the mandate to award the contract.
We are of the opinion that the evidence on record does not support this argument. The letter requesting the Bank of Ghana to pay Quazar Ltd for completing the work was dated the 8th of March 2016.
This presupposes that the contract was awarded to Quazar Ltd to develop the logo before March 2016. We observed that as at March 2016, the threshold of the Chairperson for services was GHC5, 000.00. The threshold of the Chairperson as head of entity for services was changed to GHC100, 000.00 on the 1st of July 2016.
That being the case the Chairperson was required under the Public Procurement Act to use tender
As the evidence showed, the contract to develop the logo was
Assuming for the purposes of argument that the contract sum was even within the threshold of the Chairperson, the law still required her to request three quotations from three companies for one to be selected after an evaluation. The evidence
In addition to the above infringements of the Public Procurement Act, we further find that the Chairperson as head of entity breached sections 45 and 46 of the Public Procurement Act, Act 663 as amended which deals with international competitive tendering since Quazar Ltd. was a South African company.
The conduct of the Chairperson in the award of contracts without observing the Public Procurement Act appeared to be a pattern and this can best be described as
As the head of entity and the Chief Executive Officer of the
It is strange that Mrs. Charlotte Osei failed to apply the same standard with which she used to get the abrogation of the STL contracts, signed by Madam Georgina Opoku Amankwa.
After displaying the zeal to ensure that procurement activities are conducted in accordance with the law, she fell into the same and more serious acts of infringing the procurement laws. The Chairperson, as head of entity, in several ways breached the provisions of the Public Procurement Act and the sequence for which the breach occurred proved an act of
All the six allegations
"The Public Procurement Act is an enactment which, one may say, is made in pursuance of the principles of probity and accountability expressed in Article 37(1) of the Constitution. It envisages that in the procurement of goods and services with public resources, there must be standard practices which are aimed at fairness and value for money so as to strengthen the national economy. It is for this reason, in my view, that the Act is so detailed and specific in the process and procedures it prescribes/'
The Public Procurement Act imposes a high standard of responsibility on the Chairperson of the Electoral Commission who was the head of entity. The provisions of the Act re-produced below shows some of the responsibilities which the Act has conferred on the Chairperson, as head of entity.
Section 16(2) Procurement decisions of an entity shall be taken in a corporate manner and the internal units concerned shall contribute to the decision making process.
Section 17 (1) of Act 914 provides that the head of entity and an officer to whom responsibility is delegated are responsible and accountable for action taken and for instructions as regards the implementation of the Act.
Section 18 (1) of Act 914 provides that the head of entity shall ensure that provisions of this Act are complied with.
Section 18 (2) of Act 914 provides that the concurrent approval by a tender review committee shall not absolve the head of entity from accountability for a contract that may be determined to have been procured in a manner that is inconsistent with a provision of the Act.
Section 18 (3) (f) provides that the head of entity shall refer to the entity tender committee for approval, a procurement above the approval threshold of the head of entity.
The above provisions in the Act among others demonstrate that much was expected from the Chairperson of the Electoral Commission and was expected to apply the standards and procedures set by the Act. Again the Chief Justice in the prima facie determination observed and stated as follows:
" The crucial importance of the standards prescribed by the Act is seen in the fact that, by virtue of section 92 thereof, contravention of the Act is an offence attracting a penalty of a fine not exceeding one thousand penalty units or a term of imprisonment not exceeding five years or to both the fine and imprisonment. Consequently, breach of the requirements of the Act is serious enough, in my view, to amount to
We observed that the above provision had been amended by Act 914 such that a contravention of the Act is an
The findings we have made on the allegations made against Mrs. Charlotte Osei, the Chairperson of the Electoral Commission clearly gives a
The procurement activities include, the engagement of Sory (5) Law as Solicitors for the Commission; the award of several contracts to STL; the two contracts for the partitioning and consultancy service of the new office block; the three contracts awarded for the construction of Pre-fabricated District Offices of the Commission and consultancy services thereof; the two contracts awarded to Dreamoval Ltd and finally the two contracts awarded to Quazar Ltd from South Africa. Evidence before the Committee showed that all these contracts were awarded by Mrs. Charlotte Osei contrary to the Public Procurement Act.
We find these breaches of the Public Procurement Act very serious in view of the fact that the Chairperson of the Commission and head of entity, Mrs. Charlotte Osei, was expected to show good leadership, as far as procurement activities of the Commission were concerned.
Mrs. Charlotte Osei has argued that the core business of the Electoral Commission is not
On this point, we disagree with Mrs. Charlotte Osei, because we are convinced that procurement forms an important part of the core business of the Electoral Commission. Indeed, without procuring relevant goods and services, the Electoral Commission would find it difficult, if not impossible, to independently conduct free and fair elections in the country. In fact, procurement is so important to the Electoral Commission, that was why no less a person than the Chairperson is made the head of entity of the Commission. In this investigation we found the following:-
a. That the Chairperson herself was writing directly to seek approval from the Public Procurement Authority to do restricted tender.
b. That the Chairperson herself wrote directly to companies to notify them of contract awards.
If procurement of goods and services was not part of the core business of the Electoral Commission as argued by Mrs. Charlotte Osei, why did she take over the above roles directly when there was a Procurement Unit with a Head in the Electoral Commission? We are of the opinion that Mrs. Charlotte Osei always knew that procurement was a very important part of the core business of the Commission and that was why she personally took over the above roles.
On the whole,
(1) A Justice of the Superior Court of Judicature or a Chairman of the Regional Tribunal shall not be removed from office except for stated
(2) A Justice of the Superior Court of Judicature or a Chairman of the Regional Tribunal may only be removed in accordance with the procedure specified in this article."
The Chief Justice still discussing what amounts to
"Furthermore, Halsbury's Laws of England, 4th Edition, in Vol. 8, Para 1107, states as follows- "Behaviour" means
The Honourable Chief Justice concluded thus "to my mind, this means that if a person is required by law to perform a certain official function or duty in a particular way but fails or neglect to do so, then the person may be said to have misbehaved in that regard".
From the above exposition on what constitutes misbehaviour and the implication of such conduct pertaining to an office such as the Chairperson of the Electoral Commission, we cannot but agree with the opinion expressed by the Chief Justice above and conclude that the conduct of Mrs. Charlotte Osei that violated the Public Procurement Act as demonstrated in this report, constitutes misbehaviour.
With procurement activities funded by donor agencies, Mrs. Charlotte Osei claimed she was not aware that the Commission was obliged to apply the Public Procurement Act, notwithstanding the clear provisions of section 14(d) of the Public Procurement Act, Act 914. With regard to the contract awarded to Dreamoval which was funded by the USAID, the very document she executed with USAID.... more to follow