The Court of Justice of the Economic Community of West African States (ECOWAS) has ruled against a suit challenging the Agyapa Royalties deal, filed by Ghana Integrity Initiative and Transparency International Ghana.
The sub-regional Court declared the claims of the Applicants to be pre-emptive and hastily compiled, lacking due consideration for the necessary elements to bring a claim for the violation of human rights.
The Court’s ruling of 10th July, 2023 emphasized the importance of democratic checks and balances, highlighting that while human rights are crucial, they should be guarded within the framework of established democratic processes.
The Court cautioned that attempts to hold the Respondent liable should only proceed with substantial, uncontroverted evidence of breaches to these safeguards.
“Unless uncontroverted evidence establishes that these safeguards have been breached, any attempt to saddle the Respondent with liability will be discountenanced by the Court,” the Court stated in its ruling.
The Applicants had raised concerns about the creation of Agyapa Royalties, a Special Purpose Vehicle (SPV) domiciled in Jersey, alleging potential illegalities and violations of Ghana’s laws.
They argued that the SPV’s conduct could be unlawful and pointed to doubts raised by civil society, parliament, and Ghana’s Anti-Corruption Special Prosecutor.
Particularly, the Applicants contested the establishment of Agyapa Royalties Limited, which was designed to hold 75.6% of Ghana’s royalties from 48 gold mining leases.
The Respondent, which is the government, however, maintained that the establishment of this SPV, as well as the related agreements, had received parliamentary approval and was in line with democratic processes.
The government clarified that the Mineral Income Investment Fund (MIIF) Act of 2018 (Act 978), as amended by the MIIF Act of 2020 (Act 1024), empowered the MIIF to manage equity interests and receive royalties on behalf of Ghana.
The Respondent further stressed that the MIIF is authorized to establish SPVs in any jurisdiction and list them on reputable stock exchanges.
Addressing the Respondent’s contentions, the Court concluded that the evidence presented demonstrated processes flowing from democratic institutions, including parliamentary approval, and no actual evidence of misappropriation that would deprive the citizens of benefit.
“The onus of proof is on the party who asserts a fact and who will fail if that fact fails to attain the standard of proof that would persuade the Court to believe the statement of claim,” the Court emphasized, referring to the requirement for substantial evidence.
Furthermore, the Court dismissed allegations related to politically exposed persons within the transaction, citing the need for substantiated claims.
The Court aligned with its earlier ruling that unproven allegations cannot be taken at face value and must be supported by evidence.
The ruling underscored the significance of safeguarding human rights within the democratic framework, upholding the established checks and balances. As a result, the Court dismissed all claims brought forward by the Applicants.
Download the ruling below:
