Attorney-General and Minister for Justice, Godfred Yeboah Dame, has advocated renewed commitment among public sector lawyers to safeguard Ghana’s national interests, particularly through reforms in arbitration and contract management.
He stressed the need for collaboration and coordination among legal professionals across all public sector agencies to address inefficiencies such as poor record-keeping and limited access to essential documents.
Addressing the opening ceremony of the first-ever Conference of Public Sector Lawyers on Tuesday, November 5, 2024, Godfred Dame shared insights on the challenges facing public sector lawyers and argued the conference is long overdue.
Dame’s remarks come amid a series of high-stakes international arbitration cases involving Ghana, with claims in recent years exceeding $9 billion.
He cited notable examples, including a claim by ENI/Vitol initially valued at $7 billion and emphasized that any of these sums could have collapsed the Ghanaian economy and underscored the potential economic risk posed by such disputes.
The three-day conference attended by legal experts from Ghana and abroad, will focus on enhancing the capabilities of lawyers serving the state.
Below is the full text of the address
REMARKS BY GODFRED YEBOAH DAME THE ATTORNEY-GENERAL & MINISTER FOR JUSTICE AT THE OPENING CEREMONY OF THE CONFERENCE OF PUBLIC SECTOR LAWYERS
HIS EXCELLENCY NANA ADDO DANKWA AKUFO-ADDO, PRESIDENT OF THE REPUBLIC OF GHANA,
REPRESENTATIVE OF THE CHIEF JUSTICE, His Lordship Justice Tanko Amadu
MINISTERS OF STATE,
THE PRESIDENT OF THE GHANA BAR ASSOCIATION, MRS EFUA GHARTEY,
DISITNGUISHED HEADS OF PUBLIC INSTITUTIONS herein present,
FRIENDS OF THE MEDIA,
LADIES AND GENTLEMEN.
I am delighted to welcome you to this event.
In many ways, this conference is long overdue. It is the product of my experiences at the Office of the Attorney-General and Ministry of Justice so far.
At the end of July, 2023, after a week’s hearing in Paris of one of the most important arbitration claims the Republic of Ghana defended, relaxing to a few drinks one evening, I discussed with Prof. Kofi Abotsi, who had testified on behalf of Ghana as an expert witness on our local laws, the necessity to hold a meeting of all lawyers in the public sector in Ghana. The discussion was informed by occurrences at the hearing and observations of the potentially far-reaching impact on the nation of the work of lawyers in the public sector.
In April this year, after conclusion of the hearing of one arbitration matter in London filed against Ghana by GCNet Company Limited, the value of a conference as this dawned on me. The direct conduct of Ghana’s defence of that case by the Office of the Attorney-General led by my humble self, brought to the fore many of the bottlenecks and difficulties that militate against a proper functioning of not only the legal service but the Public Service in general. These include:
-Inefficient record keeping;
-Failure of state institutions with roles in the Public Service of Ghana to coordinate effectively;
-Difficulty in accessing relevant documents and information required for the conduct of an efficient defence on behalf of the Government of Ghana;
-Failure to take prompt and sound action when there are breaches by persons (juristic and natural) transacting with the State, with the result that such defaulting persons rather end up taking advantage of the lapses by the government.
As terse as article 88 of the Constitution may read, it provides the framework for the establishment of a public legal service to the Republic fully equipped and vested with authority to be the catalyst for social and economic progress of the country and affecting many components of justice. On the face of it, article 88 requires the Attorney-General to litigate on behalf of the State in the courts, provide advice and opinion to the President, Ministries, Departments and other organs of the government bordering on all matters within the mandate of the institutions referred to, drafting the relevant laws proposed for every facet of national life, enforce the laws of this country by prosecuting crime – a role which preserves the safety of the environment in which we operate.
A few of the matters that lawyers acting for the State ordinarily deal with include but are not limited to:
i.Negotiating loans and credit transactions with international financial groups (the World Bank, IMF, European Bank, African Development Bank, etc).
ii.Negotiating the restructuring of Ghana’s external indebtedness.
iii.Drafting and review of international cooperation and other agreements on behalf of the Government and agencies.
iv.Prosecution of crimes.
v.Review of local agreements.
vi.Advising on defence and security arrangements affecting the State.
vii.Preparation of laws for every sector of the national economy.
viii.Action to protect state property.
It goes without saying that the scope of functions to be performed by the Office of the Attorney-General requires that they cannot by themselves live up to the expectations of the nation without acting in synchrony with other legal departments of various public institutions working on behalf of the Government. State attorneys cannot operate like they exist on an island removed from the peculiar needs and demands of the institutions for whom they work. There ought to be regular coordination and comparing of notes with personnel of legal departments in all agencies of the State.
Further, I hold the view that if state attorneys represent the State in such serious matters as stated already and their work touch and affect the core of the life of the ordinary Ghanaian, then their intellectual capacity must be of the highest ilk and indeed there ought to be continuous training on matters of contemporary significance. Issuing formal opinions constitute the bread and butter of the Office of the Attorney-General. Thus, an opinion by a state attorney on the toughest legal issues must, subject of course to the infallibility of man, be unquestionably reliable and first-class. In court and in international tribunals, the brief of the State must compare favourably with those filed by any lawyer and the State must hold its own no matter the adversary. It is thus not surprising that the US Attorney-General whose breadth of functions and manner of operations, is in many ways, similar to that of the Attorney-General under the Constitution of Ghana, has, in addition to the offices of the Deputy Attorn
ey-General, Assistant Attorney-General, Associate Attorney-General, Solicitor-General and Principal Assistant Attorney-General an Office of the Legal Counsel dedicated to analysing, researching and drafting of opinions on important legal questions. The Office of Legal Counsel is like the ivory tower of the US Department of Justice, filled with the exceptionally intelligent and knowledgeable minds in the Service.
Mr. President, we may not have an Office of the Legal Counsel in Ghana’s Office of the Attorney-General and Ministry of Justice yet. However, in the spirit of the intellectual development of state attorneys, I considered it very imperative to hold this conference in order to serve as the building block for continuous training of the lawyer in public service, whether they are with the A-G’s Office or another state organisation.
Another factor that informed the organisation of this conference is that the law governing the contractual affairs of the State are quite different from what regulates private contracts. So different it is that, I think, in addition to regular contract law taught in the universities, there ought to be a special branch of the law described for instance as public contract law or state contract law, etc. In the procurement of goods, works and services for the state, the state and officials purporting to exercise public power, are not at liberty to do as they please (as pertains in the case of private individuals). Inspired by the principles of public accountability, public officers are bound by specifically designed laws on public procurement, state property and contract, criminal procedure, private-public partnership, public financial management and department specific laws (energy, agriculture, health, sports, finance, etc.). The constant evolution of the public service and the expansion in the Ghanaian econom
y enjoin a regular examination by lawyers operating in the public sector of emerging trends and matters that can potentially affect the interests of ministries, departments and state-owned enterprises they work in.
Distinguished guests, the spectrum of topics carefully selected for this 3-day conference focuses on arbitration because as we know, arbitration has become the principal means for resolving disputes between the government, its agencies and persons they do business with. With the rapidly evolving business climate in Ghana and the frequent reference of disputes to arbitration by force of provisions in private agreements and specific statutes enjoying same, the impact of arbitration on our economies cannot be underestimated.
There are certain glaring dangers that I think arbitration portends for Ghana and the developing world which seem to be overlooked. Whilst arbitration is touted to assure neutrality, privacy and efficiency in the adjudication of disputes, arbitral claims filed against the Government, if not diligently managed, have the tendency to collapse the entire Ghanaian economy. A single arbitral claim, if successful can bring the economy of a developing country like Ghana, to its knees. In point of fact, over the past four years, the value of arbitral claims against the Republic has been over US$9Billion. I cite a few examples to illustrate the point:
a.The financial claim by ENI/Vitol against Ghana was initially US$7Bn and subsequently reduced to US$915Million after a challenge in the course of the proceedings by Ghana. Any of these amounts (US$7Bn or US$915Million) could have collapsed the Ghanaian economy. By the Grace of God, this financial claim was recently dismissed in its entirety by the international arbitration tribunal.
b.Cassius Mining Ltd’s claim against the Government of Ghana has a value of about US$300 million.
c.GCNet’s arbitral claim involves a claim of over GHC4Billion (the equivalent of about US$250Million)
d.The recently filed Eland arbitration claim against Government of Ghana involves a claim for a minimum US$320Million.
These are just a sample of a few of the international arbitration claims against Ghana. Domestically, there have been claims in excess of over GHC10 Trillion successfully defended by the Office of the Attorney-General against the State.
I know this conference will be a seminal step in improving the legal framework within the public sector and their interactions with private-public partnerships. We have the rare privilege of benefiting from the rich insight of distinguished and accomplished speakers from a variety of jurisdictions around the continent – from United States, Canada, Mauritius, Nigeria, Tanzania, Ghana, etc. and on a broad array of topics.
A reflection on the pursuit of these claims against the State leads me to conclude that we must reform the laws governing arbitration and the institution of civil claims against the State, whilst taking a critical look at contracting and contract management on behalf of the State.
Be that as it may, litigation is ultimately unavoidable in some situations even in the most perfect of human environments. The need for reform of the laws regulating the conduct of arbitration involving the State has become more imperative because as I recently noted at the African Regional Forum at the International Bar association Conference held in Mexico City, Mexico, we cannot discount the prejudice Ghana and the whole of Africa, in general, often suffers in international arbitration fora. It is quite curious that in some instances, companies which fail to make out any claim in domestic courts of African countries succeed in extremely huge international arbitration actions, sometimes mounted on the back of contracts which have failed to receive the relevant statutory and constitutional approvals of the countries in which they operate. This phenomenon is not because of a weakness of the judicial systems of African countries, or indeed Ghana’s but simply because of the nature of international arbitration,
particularly the secrecy of proceedings, flexibility of rules and the finality or non-appealability of awards, which I have just alluded to.
I should not be misconstrued as saying that Ghana or any African nation should shy away from international arbitration. However, the vulnerability of arbitration to abuse and fraud highlights the necessity for more robust safeguards in commercial disputes involving state parties, where the hard-pressed purse of the nation is at stake. We must boost the integrity of our legal systems by setting up fair and efficient mechanisms for commercial dispute adjudication and strengthening the systems for the conduct of arbitration in our various countries.
In this regard, the President recently launched the Ghana Alternative Dispute Resolution Centre. This Centre presents a viable venue for the resolution of multi-billion dollar commercial disputes and cases involving the use of the nation’s natural resources right here in Ghana. The skills of members of the Ghana Bar Association in the resolution of such disputes will also be sharpened.
However, I recognise that there is the need to make further reform to the pursuit of arbitration against the state. Thus, I recently presented to Cabinet a proposed amendment to her State (Property and Contracts) Act, 1960, to mandate all contracts involving the State and its agencies as parties, to not only stipulate Ghana law as the governing law but also to have Ghana as the seat of arbitration and with the ADR Centre in Accra being the venue for the arbitration. With this amendment, the practice whereby the State and Ghanaian lawyers travel to various jurisdictions – Paris, New York, London, Singapore, etc. for the conduct of arbitration involving the Government of Ghana and where arbitral awards are enforced all over the world at enormous cost to the State, and in jurisdictions with legal systems alien to Ghana’s, will cease and will be consigned to history.
I know a concern for the international experts in this room will be whether these measures we are taking in Ghana will mark the beginning of the end for their involvement in arbitration for Ghana. Far from that! You can still be involved in international arbitration in Ghana. As we all know, an arbitration is international not because of the forum or venue of hearing, but largely because of the parties involved and the underlying transaction. You can thus be still involved in international arbitration involving Ghana with Accra as the seat and venue of arbitration.
The proposed amendment is just to address situations like the ENI case in respect of which hearing was conducting in Paris. The contract was governed by Ghana law but Sweden was the seat of arbitration and the hearing was in France. So even though the contract was governed by Ghana law and the proceedings were in Paris, the procedural law for the arbitration was Swedish law and any award resulting from the proceedings would have had to be enforced in a Swedish court. This presented an incongruous situation!
Distinguished guests, even though contracting, contract management, delivery of civil opinions, and arbitration are the focus of this conference, the criminal division of the Office of the A-G is not left out. The DPP herself and the lead chief state attorneys from the Criminal Division have a session on reforms in the criminal justice system.
Mr. President, I cannot resume my seat without commenting on the need to enhance the capacity of the Office of the A-G to place it in the position to rise to the demands of the complexity of modern legal needs of the state. In a few days, the Office will complete the recruitment process for seventy new attorneys, bring the number of state attorneys appointed in your tenure, Mr. President, to about 190. This constitutes about half of the number of state attorneys currently on the roll – about 370.
We need about 1,500 state attorneys for a proper discharge of the functions of the Attorney-General under article 88 0f the Constitution. I envisage that every ministry, department, agency or district assembly ought to be serviced by at least one state attorney. The situation whereby some ministries, department, agencies or, metropolitan, municipal and district assembly employ their own lawyers does not augur well for proper harmony and synchronisation of government’s legal work. Thus, my vision is that in the near future, to ensure cohesion in the public service and avoid an uncoordinated approach which leads to inefficiencies, all lawyers working for each of these public institutions ought to be employed by the Office of the Attorney-General.
I must express my sincerest appreciation to you, Mr. President, for the earnest support you have extended to the Office by way of improvement of the conditions in which state attorneys work. The completion of the 12 storey edifice (10 storey above ground and a 2 tier basement for a car park) – the new Head Office of the Office of the Attorney-General and Ministry of Justice described as the Law House, which you commissioned on 10th June, 2024, stands as an imposing symbol of all your efforts to improve the conditions in which state attorneys work.
Towards achieving the vison of a modern public legal service, I hereby assure you that in the next NPP administration, every regional office of the Ministry of Justice will own its permanent office building.
Ladies and gentlemen, this conference could not have been possible without the yeoman’s effort of the Organising Committee led by the Director of Legal at the Ministry of Energy, Ms. Sarah Fafa Kpodo, Principal State Attorney, Yvonne Bannerman and co. who put it all together. We are immensely grateful. Our sincerest appreciation goes to the state institutions and enterprises which responded to the call for some funds for the programme – GNPC, COCOBOD, Ghana Revenue Authority, Consolidated Bank of Ghana, Ghana Gas Limited, Agricultural Development Bank and all.
I am of the fervent hope that the conference will come up with solutions to reduce the number of disputes arising from relations between state institutions and third parties and among themselves, whilst alleviating the significant financial burden on the Government and state-owned enterprises.
To the various distinguished guests and speakers who have joined us from all over the world, I say that Accra also has a vibrant and riveting socio-cultural life, which I am sure you will take the time to experience over the course of your stay. Fafa has the full low-down on where to go – Ace Night Club, Saint Pablo, Kozo, Shogun, Soho, Santoku, etc. I bet you will be spellbound and left in awe
I wish you all the best.
God bless us all!!!!
GODFRED YEBOAH DAME
ATTORNEY-GENERAL AND MINISTER FOR JUSTICE
