Fixing The Country Part Sixteen – Open Letter To The President On Stoppage Of Anti-Investment Matters Hence Against The Development Of This Country
Dear President
As you are fully aware, a nation gets developed when more produces and services are established and as populations increases, the rate of unemployment also increases. Consequently, further development through investment including by private persons or organizations is necessary to help sustain the economy. So, I am of the strong view that it must be a national goal to ensure each person in the country working (laboring) at what they are good at to sustain the development of the nation. So, the National Executive of a Nation with you as the Head of the National Executive with your subordinates (including the Office of the Special Prosecutor must act nationalistically (loyally to one’s country) and professionally at all times to ensure to sustain the National economy by supporting business leaders with high moral fiber to sustain their businesses, so that if possible they expand or develop new projects in order to generate more revenue, create more employment and thus reduce poverty in the nation.
So, in a Country that levies VAT on good and services, it sounds proper that the Customs laws of the country should grants incentives like tax waving, benchmark value or discount through advance ruling hence need for discretional powers as granted by law/regulations to the Commissioner of Custom Services of a Country to support investors to sustain their businesses cannot be over emphasized. Sir, it is important that Ghana taxes importers heavily to support the growth of local producers of similar items, but this will take time due to the huge investment required for transformation and modernization of the Agricultural sector and a strong will power by the President to reduce importation of goods Ghana has comparative advantage or good conditions for a good import substitution policy.
Mr President, I have been hearing some good or constructive citizens demanding to know why the rate of the devaluation of Ghana Cedis is faster than the currency of some other Countries especially Togo, Benin etc which experienced or are experiencing the casual effects of the COVID-19 Pandemic and the Russia—Ukraine War etc. Sir, logic or common sense or thinking outside the box will tell that among others the following may give a clue (a) fixing of their currency the CFA to the French Franc or the gold standard (this is my next article on fixing of the Ghanaian Cedis to the Dollar or gold standard as another measure to maintain a stable exchange rate). (b). differential in the integrity of the citizens of those countries and that of Ghana.
Hmm, Mr President do you know why the cost of one kilometer of road in Burkina Faso is less than the cost of one kilometer of road in Ghana and also the road is well prepared to make it durable than what is done in Ghana is purely an issue of attitude or integrity and fear of Allah or Almighty God by the citizens, and the good contributions by the citizens of those countries. Sir, it is undeniable fact that we Ghanaians including our Presidents (past and present) hence including yourself and our Finance Ministers (past and present), hence including Hon Mr Ken Ofori Atta are perceived as purely greedy and dishonest, pardon me sir for saying so, but it is a painful fact as indicated sir. This was one of the reason why Ex-President Mahama has to employ a Burkinabe Contractor from Burkina Faso to construct a road in Ghana as part his endeavour to study why so and find solutions. Sir, It was based on his experiences with the corrupt work by State Officials of the Ministry of Roads and Highways especially the Ghana High Authority. Pardon me to walk down the memory lane to refer you of the late President Mill’s seizure of a custom made Mercedes Benz car (type presidential) bought by a Contractor constructing a road which he gave to a road consultant or supervisor who was then a staff of the Ghana High Authority and the Wayomegate or Wayome scandal in which greedy State Officials disregarded the orders of a Court and the clear orders of the late President Mills and paid all the money totaling over GHC50Miiion to him. (Cry the beloved Country, with apology to Mr Alan Paton).
Mr President the differential in Custom laws (note maybe Benin and Togo enjoy the benefits of free Custom Duty port hence likely to have a reduction of imported inflation but damping of goods should be feared. Sir note that Ghana has a killing Custom duties hence high cost of imported good. For very good reasons, made the administration of His Excellency Ex-President Mahama and the sixth Parliament of the Fourth Republic to come out in 2015 with Customs Advance Ruling in the Customs Act at section 12 of Act 891 of 2015 subsequently amended by Customs (Amendment) Act, 2016 (Act 923); the Customs (Amendment) (No.2) Act, 2017 (Act 957). It details the circumstances for the issuance of Advance ruling, who may issue it, and who may apply for it. Sir, Customs advance rulings are issued in relation to tariff classification, customs value, country of origin of the goods or to any other activity to which customs laws apply. The beneficiary may be an importer, an exporter or a person or an authorized agent who has a demonstrable interest in the ruling. Please Sir, take note that the law did not indicate when to apply or a time bar.
Mr President, as usual, in response to your clarion call that we should be constructive citizens and not spectators, I once again write to you but this time with indignation on some pertinent national issues which I consider as anti-investment or against national development.
This is about the unprofessional (wrong etc) acts of character assassination of some citizens without good cause from the citizens, including the Office of the Special Prosecutor. Hence my indignation, so as part of the fixing the country bid, my take this time is for national deliberations and actions to ensure good professional work at all places including the Office of Special Prosecutor all times. Consequently, as the President, Head of State, Head of Government, Head of National Executive and the Commander-in-Chief of the Armed Forces of Ghana and per the Presidential Oath, which demands that you do right to all manners of people at all times, therefore you, His Excellency President Nana Addo have a very great responsibility on your shoulders to halt any action or an attempt to destroy the social fabric of this Country as well as the social fiber (honour) of well-meaning citizens who are providing good services including investment for the Nation.
So, I wish to bring to your notice of the pull him down (PHD) syndrome in the nation which must be halted otherwise it (the PHD) will continue to destroy the socio-economic development of this great nation especially at this hard time when the Nation is looking for investors (both local and foreign) with high moral fiber to invest in the economy. So, you and we the citizens must not allow the PHD syndrome which emanated or manifested in the PNDC era or the AFRC era when some people with high moral fiber especially the late Col Roger Felli who in 1979 refused a bribe from a Contractor by name Alhaji Dalandi of Bolga Fame and caused the arrest and prosecution of the said Contractor and instead of regarding or respecting him as a Senior Military Officer with high moral fiber was ironically ( unreasonably) executed (murdered) by firing squad in 1979 by the AFRC junta. He was executed just for honestly applied to his bankers for and was granted a loan (allegedly an amount lower than what was offered to him as a bribe about a month ago before he was murdered by some dishonorable citizens who rather became more corrupt than the persons they accused of corruptions and were punished for no crime.
Sir, the first PHD syndrome is the hollow (worthless) and unprofessional (wrong) conclusions from the findings of the investigations into the alleged commission of Corruption and Corruption-Related Offences involving Labianca Group of Companies as stated in the report of the investigations of the Office of the Special Prosecutor (OSP). I will also use this chance to deal with the wrong accusation of corruption against you, as reportedly by the OSP in 2020, then occupied by the former Special Prosecutor in the risk assessment on the Agyapa Royalties deal. Sir
Alleged Commission of Corruption and Corruption-Related Offences involving Labianca and CEPS
Synopsis of the findings of the report
Labianca Group of Companies.
(a). Labianca was/is a registered as a Limited Liability Company and commenced operations in 2014 and it is wholly owned and controlled by Ms. Eunice Asomah-Hinneh (b) .The Company, imports about two hundred (200) forty (40) footer shipping containers of frozen chicken parts, fish, pork and fries monthly primarily from Europe and the United States of America. So, it enjoys a substantial market share in the imported frozen foods industry. (c). Labianca and Rafano Frozen Foods Company Limited Submitted on 6 April 2021 to the Customs Division of GRA, a joint application for advance ruling on the values for frozen foods (d). The Labianca’s joint application requested for the acceptance by the Customs Division of GRA of a reduction of benchmark values between 50% to 80%. (e). The joint application from Labianca was made two (2) months after the appointment of one Mr. Adu Kyei as the Deputy Commissioner of the Customs Division in charge of operations.
Action by CEPs
a). Mr. Adu Kyei as the Deputy Commissioner of the Customs Division in charge of operations, initially declined the prayer of the applicant for reduction of benchmark values between 50%-80%, due to advice of the Technical Services Bureau of CEPS. But later on, Mr. Adu Kyei proceeded to render a customs advance ruling to the applicants by reducing the values of their intended imports between a ranges of 5% – 10% which is even very far below the legal or approved benchmark values for frozen foods. He claimed that he did so for a good reason for saving, more money for the State (Please take mental note that he was expected by law to grant 30% to 50% discount to Labianca but he gave a discount between 5% to 10%, therefore acted against the lawful interest of Labianca, who is an importer). I wish to state that the OSP did a risk assessment on benchmark value which was allowed by law, so common sense requires that he should rather recommended to CEPS to do the right thing as by the existing law that is apply the Customs Advance Ruling as in the Customs Act at section 12 of Act 891 of 2015 subsequently amended by Customs (Amendment) Act, 2016 (Act 923); the Customs (Amendment) (No.2) Act, 2017 (Act 957) by using the range between to grant 30% to 50% to Labianca, the permissible discount by law as passed by Parliament, hence the variance amount or sums to Labianca, qualified by law to apply for it.
Complainant
On 16 November 2021, the Office of the Special Prosecutor (hereafter, OSP) received a written complaint from one Frank Asare against Labianca Group of Companies and its subsidiaries (hereafter, Labianca) and the Custom Division of the Division of the Ghana Revenue Authority accusing them for Corruption and Corruption-Related Offences acts .
Action by OSP on the matter
Mr President, you need to read this ensuing statement in the report twice. The clear indication by the OSP that had Mr Adu Kyei accepted the recommendations of the Technical Services Bureau of CEPS (herein coined as the subordinates of Commissioner of CEPs), it will have rendered the complaint to have had no substance and the OSP would have terminated the investigation at the preliminary stage. Further, the perplexingly audacious nature of the application would have been rendered of no moment. The findings of the OSP indicated that the Labianca Group applied on 06 April 2021 for benchmark values that is discount. (I am of the view that, this was to afford her a lucrative opportunity to sell at a low price to the consumer who will pay VAT etc and will also sustain her business thus maintaining the over 500 staff and not throw them into the unemployment sector, thus compounding a National Security problem). The big questions which the OSP need to answer are, (a) Is there existing law on custom discount and for what?. (b). who are the authorized applicants and is Labianca one of them? (c). So, the reported application submitted on 06 April 2021 by Labianca, was for what? (d). Was/is the Applicant qualified by law to apply for the discount and is it permissible by law to grant the request?, (e). Who (name and with appointment) granted her request and is the person authorized to grant it if not who should be blamable for approving a request that a poor person or applicant who the law allows him or her to apply for a discount.
Application of Common Sense in law to determine the case. Lord Wright (a British Judge/ initially a commercial barrister, who was a Justice of the British High Court from 1925 to 1932, and was promoted to the House of Lords as a law lord. Simply said that ‘’the choice of the real or efficient cause from out of the whole complex of the facts must be made by applying commonsense standards. So, applying common sense, I wish to say any wrong acts by a State Officials should not result in the character assassination of a qualified applicant (importer) whose action or Application is permissible by law. of Hence, the following questions and answers will render the issues of conflict of interest as allegedly associated with Eunice’s Company’s Application or the purported advance ruling by CEPS officials as in the report as signed and submitted by the Special Prosecutor as impotent or wrong. Hence the report is a garbage and must be thrown into a dustbin.
(QI). Has Labianca been registered as a Limited Liability Company for Business at the Port of Tema, when and for what?. (A1). Yes and per OSP report in 2014. It imports about two hundred (200) forty (40) footer shipping containers of frozen chicken parts, fish, pork and fries monthly primarily from Europe and the United States of America. So, it enjoys a substantial market share in the imported frozen foods industry as in the report. (Q2). Does CEPS grant advance Ruling? (A2). Yes. The regime of customs advance ruling is governed by section 12 of Act 891 of 2015 as amended by Customs (Amendment) Act, 2016 (Act 923); the Customs (Amendment) (No.2) Act, 2017 (Act 957). The law details the circumstances for the issuance of the ruling, who may issue it, and who may apply for it. Also in 2019, the Government reduced the benchmark values significantly – thirty percent (30%) for vehicles and fifty percent (50%) for all other goods. This was contained in a submission dated 29 April 2019 and numbered H/TAR/1 authored by the Commissioner-General as in the report. (Q3). Has Labianca done any wrong by applying for Advance Ruling or is permissible for Labianca to apply for Advance Ruling as per section 12 of Act 891 of 2015 as amended by Customs (Amendment) Act, 2016 (Act 923); the Customs (Amendment) (No.2) Act, 2017 (Act 957). (A3). No wrong action by Labianca for the submission of an application which was competent or permissible by law. The law is an incentive for Importers and Exporters. Labianca, as per the report by the OSP is an Importer, hence the application was competent and duly submitted to the appropriate Agency for the Authorized person to use the law to reject or approve within the law and it is the Commissioner General of GRA or his delegated Officer (Commissioner of CEPs etc) who are to verify and grant or approve.
(4).What did Labianca apply for, to whom, when and what range?
(4). Advance Ruling to CEPS for reduction of benchmark value and on 6 April 2021 for reduction between 50% to 80% as per report of the OSP. (5). Was or is a law and or regulation on an Advance Ruling or benchmark value or reduction before or by the 06 April 2021? (A5) Yes. Section 12 of Act 891 of 2015 with subsequent amendments. It details the circumstances for the issuance of the ruling, who may issue it, and who may apply for it. Customs advance rulings are issued in relation to tariff classification, customs value, country of origin of the goods or to any other activity to which customs laws apply. The beneficiary may be an importer, an exporter or a person or an authorized agent who has a demonstrable interest in the ruling. Also in 2019, the Government reduced the benchmark values significantly – thirty percent (30%) for vehicles and fifty percent (50%) for all other goods. This was contained in a mail dated 29 April 2019 and numbered H/TAR/1 authored by the Commissioner-General. (Q6) is there any documentary evidence from the Board of GRA that gives an evidence that the Commissioner for CEPS or his delegate Mr Adu Kyei did a good job? (A6). Yes. A crucial matter from the Board which the OSP woefully failed to take mental note of or state in his report and thus render the report as a garbage is when the new Board of Directors of GRA was inaugurated in August 2021, made the GRA (Authority) to take firm steps to deal with practices or procedures that had the potential of reducing or not giving maximum value to transactions at importation. One of such measures was to give a directive in December 2021 that with immediate effect no discounts or rebates are given on items or products at importation and to cancel all existing approved discounts, this was disclosed to the media or the public with an attached mail dated 14 August 2022 signed by the Commissioner-General to the Media or public after the rancor (bad blood) between the Commissioner CEPs namely Col Damoah (rtd) and the Special Prosecutor.
(Q5). So, did Labianca err or commit any wrong act by applying for the reduction and during the process that led to the reduction? (A.5). No wrong act by Labianca because it is permissible but left with the Commissioner General of GRA or his authorized delegate to grant or decline and there was no indication in the OSP report of a follow up by Labianca on her application or during the process that led to the granted discount. (7). Was there a concrete proof or an indication of physical acts of perceived Conflict of interest in the report of the investigation against Madame Eunice Hinneh’s (7). No, aside an unwarranted figment of the Investigator’s imagination, as the language of the report reveals.
(Q8). Did the Report prove beyond any reasonable doubt of any Offence which Labianca perse committed? (A8). No it did not. Labianca, formed in 2014 is competent by law to apply for Advance Ruling at any time it is conducting import or export and did exactly that on 06 April 2021 and it is at the Commissioner General’s discretion to grant Advance Ruling, which is a legal incentive to sustain business of good repute especially that could continue to be generating more revenue including through VAT, PAYE, withholding Tax etc to GRA or the State and sustain employment, herein of over 500 personnel and as part of poverty reduction by less cost of frozen food items to the public thus reduce inflation from food items. So nothing wrong with the application on 6 April 2021 by Labianca for the reduction or the benchmark value which was left to the CEPS Officials to verify and grant as directed by existing law or regulation. So punishing Labianca was unprofessional and should not be accepted by the good people especially you, the Head of State.
. (Q9). What error or wrong or aberration was found in the Report? (9). The benchmark value range of 5%-10% instead of 50% for frozen food items etc wrongly used by CEPS and thus made the State to cheat Labianca so Labianca is the victim of a wicked and wrong act by CEPS, so the variance of the charges must be refunded to her. (Q10) Is Madame Eunice Asomah-Hinneh still a member of any National Board? (A10). Not a member of the Board of a State Institution since August 2021 when a new Board was named and inaugurated.
(Q11). Was it wrong for lady Eunice Asomah-Hinneh to be appointed as a member of the Board of Ghana Ports of Habour Authority? (11). To the best of my knowledge no, she is a major importer or stakeholder so she represented her Constituency who are the importers and exporters. It must be noted that as part of the transformation and the modernization agenda of Ex-President Mahama, the Ports were handed over by the Ghana Ports and Habour to MPS, a foreign Company on Built Operate and Transfer (BOT) policy effective 2015 for 35 years. So the complete management of the Port is by MPS and not Ghana Ports and Habour Authority. I am aware my brother and a friend Mr Raymond Anamoo who was the Director General or Chief Executive Officer in 2015 who handed over the management to MPS, instituted a Standard Checklist for employees and board members as a Clearance Certificate to ensure no deal of any wrong acts at the Ghana Ports and Habour Authority. This has been maintained by the current Director General of the Ghana Ports and Habour Authority namely Mr Lugujei, my brother from Navrongo.
(Q12). Did report indicate of transfer of any cash or reward by Labianca to CEPS officials or did it reveal that lady Eunice Asomah-Hinneh used any letter Head of the Council of State or Ghana Ports and Habour or pulled a gun over anyone’s head to give her a favour other than the application dated 06 April 2022 from Labianca that requested for the reduction of the benchmark value?. (A12). Nothing in the report that indicated so, aside the name of the Company was used for the authorized application. (Q13). Can a Stakeholder be allowed to be Board Member? (A13). Somehow yes. For the Company to use or enjoy the board member’s experiences and also to represent his or her constituency. Members of Boards of some Corporate institutions are required to declare conflict of interest including ticking a Standard checklist to clear or guide members, hence there are rules what should be done, some institutions suggest a meaningless or senseless resignation as director of the other Company that may have dealings with the company which the director is a member of the Board or the Service Provider.
But in the situation of Eunice, CEPS and GPHA duties are governed by law and regulations so the incentives like Advance Ruling by CEPS and clearing of goods at the Port are governed by law and regulations and no element of competition with her Company with GRA or GPHA for anything and she is not part of the day to day management of CEPS or GPHA or MPS (a foreign Company who are the management of the Ports. So it is envisaged that she was made a Board Member of Ghana Ports and Habour based on her experiences and her business Company being one of the major Stakeholders. But currently, she is no more. But Stakeholders like Mr Clement Osei Amoako, President of the Ghana Chamber of Commerce and Industry, Adam Imoru Ayarna, an Executive Member of the Ship Owners and Agents Association, Ghana (SOAAG) are members of the Board of Ghana presumably to represent their Constituencies, and no one has qualms about that, so Labianca MD being a member of GPHA Board should not be case for the citizen to run amok.
(Q14). How will a conflict of interest issue against Labianca and Madame Eunice arise?
(A14). If found not to meet the requirement as in the standard Checklist of the affected Organization.
(Q15). Then why and when did the Company pay some money? (A15). Based on the interim directive to Labianca by the Special Prosecutor on 21 March 2022 to pay an amount of One Million Seventy-Four Thousand Six Hundred and Twenty-Seven Cedis Fifteen pesewas (GHC1,074,627.15) into the Asset Recovery Account of the Office of the Special Prosecutor, allegedly representing the short collection or shortfall of revenue arising from the issuance of the customs advance ruling by the Deputy Commissioner for Customs in charge of operations, (Mr. Joseph Adu Kyei). Labianca Company Limited complied with the directive on 31 March 2022.
The legality or illegality of the payment is in doubt. The Board of the GRA or a Judge of Court (base on review of the law and regulations) should be final adjudicator. (Q16). Was the Commissioner General of GRA interviewed on the matter by the OSP? (A16). No. (Q17). Has the Commissioner General made a public disclosure related to the incident as at date? (17). Yes with a mail dated 14 August 2022. That with the inauguration of the new GRA Board of Directors in August 2021, the Authority took firm steps to deal with practices or procedures that had the potential of reducing or not giving maximum value to transactions at importation. One of such measures was to give a directive in December 2021 that with immediate effect no discounts or rebates are given on items or products at importation and to cancel all existing approved discounts.
(Q18). Was the directive from the Board on 21 December 2021 through the Commissioner General before or after the approval of the advance ruling granted to Labianca by CEPS? (A18). The Application by Labianca was on 06 April 2021 and the Complainant made his complain on 16 November 2021 so it can be deduced that the approval was done before 16 November 2021, hence before the new directive from the Board in December 2021. (Q19). So what deduction can be made from this directive? (A19).The directive cancelling the mandate for granting discount by delegated Officers was dated 21 December 2021. So, It suggest no wrong act by the Commissioner of CEPS (Col Damoah (rtd) or his delegate in granting the advance ruling before December 2021.
(Q20). Any comment? (A20). The Company is a large tax payer by port charges to MPS and not Ghana Ports and Habour, pays huge Custom duties by CEPS valuation, collects VAT, and pays Statutory charges like withholding tax, PAYE and SSNIT contribution through the employment of over 500 personnel. So efforts must be made to support and protect local companies to develop and expand especially when the issues involve are not that very serious at this hard times to attract other investors. OSP to refund the money and render unqualified apology to Lady Eunice Asomah-Hinneh. The State should have a second look at the law that grants benchmark value or discounts and kills local businesses in the Agric Sector especially the poultry industry. So, the state should work on import substitution measures through transformation and modernization of Agricultural sector to save foreign currencies and support Lady Eunice Asomah-Hinneh and other importers to reduce their imports but maintain their staff and navigate to other Alternative Livelihood Projects.
Issues of the report of the Corruption risk assessment on the Agyapa Royalties deal by the OSP
The investigator (Hon Martin Amadu) made a good risk assessment report and found the risks associated with the processes of the Agyapa Royalties deal after the Parliamentary approval but awaiting for the assent by you, the President. So, as expected of a risk assessment report he came out with some of the control measures on the hazards of the executive actions on the Fund Bill 2020 (or the Minerals Investment Amendment Bill 2018 (Act 978) which was passed by Parliament on 14 August 2020 and the legislation by Parliament in order to improve matters at that time as well as matters in future in order to make corruption and corruption related offences very risky enterprise in Ghana.
But Sir, Article 90 and Article 106 of the 1992 Constitution are clear on how Bills are to be treated or considered. So, I envisaged the power to consider or review a Bill is not shared with the OSP. Hence, any law that mandated the OSP to consider or vary a bill passed by Parliament in his capacity as OSP was clearly unconstitutional. So the good novel action on the Fund Bill 2020 by the OSP was done in a capacity of a Risk Analyst on advisory role so to make recommendations to the Risk Owner (the President, as the Head of the National Executive who holds the minerals on behalf of and in trust for the people of Ghana as in section 6 of the 1992 Constitution is an appropriate act.
The Legal Advisory role in Ghana is by the Office of the Attorney General as mandated by the 1992 Constitution and not the OSP so the reason why he conducted a risk assessment. So you were right to ask him to liaise in the quite with the Finance Minister as directed with his risk assessment report. In the first place, per the constitutional requirements, the bill or the matter was submitted to Parliament for scrutiny before passage, which was duly passed by the then Hon Members of Parliament but without detailed scrutiny. But upon check by the OSP, he was able to identify some risks with the deal, we should be grateful to him for a good job as a citizen and shame the Minister for Finance for a bad job as observed by Hon Mr Martin Amidu.
Fortunately or unfortunately it did not receive Presidential Assents, so the OSP as an appendages of the National Executive under the Attorney General decided to do his risk assessment of a bill passed by Parliament but was waiting to receive Presidential assent or to be vetoed by the President. That gave a lucrative chance for the OSP to conduct his risk assessment for you the Risk Owner to address. So, the issue of the accusation of corruption against you, with regards to the Agyapa Royalty Deal was wrong because the Bill was not signed by you, hence was not and could not be implemented by the Finance Minister. Hon Martin Amidu should have rather pointed his accusation of likely corrupt acts to the Finance Minister and not you.
So, it was not proper by him (Hon Martin Amidu) to join the PHD syndrome holders and accused you, the President as the mother corrupt serpent under the innocent-looking flower simply because as stated or alleged by him, you (President Nana Addo) asked him to include a response from the Minister of Finance Ken Ofori-Atta in his report which he declined because he felt that would have compromised his independence as the Special Prosecutor.
I say so because the essence of a risk assessment is to identify the risks associated with a job, plan etc with the view to recommending control measures so as to mitigate the risks. Hence, the report must be submitted to the Risk Owner (Head of the National Executive) either through the Minister of Finance or through the Office of the President since the buck stop with the President. For resubmit to Parliament for the rectification of the issues raised by the OSP. So, he did a good job of a Risk Analyst, a novel one in our governance system bot not a job of a Special Prosecutor to invoke his Independence by acting wrongly to you the President.
By Major Mohammed Bogobiri (rtd)
