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Ghana’s Supreme Court says $3b Chinese loan properly acquired

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Ghana’s Supreme Court yesterday October 17, 2012 held that a $3 billion loan facility from the Chinese Government to the Ghana Government “is constitutionally sustain­able”.

The Centre for Public Interest Law (CEPIL) had prayed the court to declare that the President of Ghana acted in breach of his constitutional obligations when he caused to be submitted to the Parliament of Ghana for approval the agreement between the Republic of Ghana and the China Development Bank (CDB), known as the Master Facility Agreement (MFA).

The plaintiff sued the Attorney-General and argued that the President did not adhere to his constitutional obligation to act in the interest of the people of Ghana but the court held otherwise. ­

In a unanimous decision, the court, presided over by Mr Justice William Atuguba, said on the contrary, the President acted lawfully and further argued that it was impossible for the country to single-handedly raise the $3 billion loan facility.

Other members of the panel were Ms Justice Sophia Akuffo, Professor Justice S. K. Date-Bah, Mr Justice Julius Ansah, Mrs Justice Sophia Adinyira, Mr Justice Annin Yeboah,Mr Justice P. Baffoe-Bonnie, Mr Justice N, S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo.

According to the court, the facility would affect the country’s purchasing power, pointing out that the loan terms were favourable and beneficial to Ghanaians.

It submitted that there was no proof that the loan agreement would benefit only the Chinese.

On the plaintiff’s claim that the government breached the Petroleum Revenue Management Act through the agreement, the court held that that matter could best be handled by the lower court. ­

According to the court, its mandate was to interpret issues bordering on the Constitution and, for that rea­son, issues on statute could be handled through another cause.

Adding to the court’s judgement, Prof Date-Bah said it was important for the Judiciary to give the Executive room to operate.

He said it was only when the Executive’s action was perverse that the Judiciary could be roped in.

He said it was important that the Judiciary was not made to go on a collision course with the Executive, adding, “The Executive must be allowed to play its con­stitutionally mandated role.”

The plaintiff had sought, among others, a declara­tion that the President violated the. Oath of Allegiance and the Presidential Oath set out in the Second Schedule when he caused to be submitted to the Parliament of Ghana for approval the agreement between Ghana and the CDB, known as the MFA.

The plaintiff had also argued that Act 815 did not allow for the collateralisation of oil for debts for a peri­od not exceeding 10 years and yet the collateral for the Tranche A loan facility under the MFA extended to a period of 15 years, among others.

Source: Daily Graphic

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