The plaintiff MPs and a traditional ruler in pose.
A Sekondi high Court yesterday refused an application by five Members of parliament (MPs) of the New patriotic party (Npp) to review Clause 7 of an agreement made between the Ghana government and British company, Lonrho ports, which imposes restrictions on Takoradi port as far as expansion is concerned.
On July 17, 2014, parliament approved an agreement made between the Government of Ghana and the British company for the development of an oil and gas Freeport at Atuabo in the Western Region.
However, the five MPs insisted that 'Clause 7 of the said agreement bars Takoradi
port from further expanding its facilities for oil and gas until Lonrho has built its
Freeport, recovered all its costs and made enough profit.'
According to the MPs, parliament had recently approved a loan of â‚¬ 197 million for the expansion of the oil and gas facilities at the Takoradi port and that the port was in the process of securing another $400 million to support the expansion programme.
They indicated, 'Imposing this restriction on the Takoradi port would make it impossible for it to repay these loans. This will collapse the port and render its workers jobless.'
The five MPs – Kwaku Kwarteng (Obuasi West), Kwabena Okyere Darko (Takoradi), Joseph Cudjoe (Effia), Mavis Hawa Koomson (Ewutu Senya) and Kofi Brako (Tema Central) – then took the government to court over the commercial agreement with Lonrho.
The five argued in their affidavit that the restriction offended Section 5 of the Ghana Ports & Harbours Authority Act and prayed the court to remove the restriction.
The interested party (Lonrho), moving its case at the court's previous sitting, maintained that the aforementioned clause, which the MPs were questioning its legality, was valid and consistent with Ghanaian laws and functions of Ghana Ports and Harbours Authority (GPHA) Act 160.
Counsel for Lonrho, D.K. Letsa, told the court that the clause did not restrict GPHA in the performance of its functions under Act 160, stressing that the project in question did not fall under GPHA mandate.
According to him, the project was declared as a Free port and, therefore, governed
by the Freezone Act and under the authority of Freezone.He added that parliament's approval of the clause did not constitute an illegality
as maintained by the applicants in their application.A state Attorney, Patience Klinogo, had earlier submitted that the court did not have the jurisdiction to hear the matter since it was a decision taken by parliament and that the five MPs exercised bad faith since they were part of
the decision making. She then prayed that the court throw out the applicants.
Giving its ruling yesterday the court indicated that it would be setting a bad precedent if it granted the applicants' request.
Justice Ababio explained that since the country's constitution guaranteed separation of powers, the court could not interfere with a decision taken by one of the arms of government – parliament.
He indicated that the fact that parliament had gone through its own processes in passing or approving the agreement, the court could not challenge it adding, 'Otherwise, it will open the flood gate for people to proceed to court to challenge decisions duly taken by parliament.'
To this end, the court refused to strike out clause 7 of the Lonrho agreement.
MPs To Appeal
In an interview with DAILY GUIDE, Alexander Abban, counsel for the five MPs who was visibly not enthused with the ruling, revealed that his clients would seek redress at the Appeals Court.
He underscored, 'The court has given its decision and we on our part have the right to appeal and we will exercise that right fully.
'We want the court of appeal to look into the matter and then come to a determination, so we are not perturbed at all, but we think this is a very bad precedent', he stated.
According to him, the processes of the agreement in Article 181 Clause 1 up to 5
were not legislative processes but administrative ones, and were amenable to the challenge of the court.
He mentioned that even when parliament had passed an act which was unconstitutional, a person could go to the Supreme Court to strike down that decision and could not fathom why that decision could be described as interfering with the work of parliament.
From Emmanuel Opoku, Takoradi
He stated, 'If an agreement which in its international nature finds itself in parliament and has been approved by it but has certain provisions which are inconsistent with an existing enactment by parliament itself, that portion of the agreement could be challenged.'
Kwaku Kwarteng one of the applicants remarked that per the ruling, it meant everything that parliament does is right as far as it follows due processes.
'The matter we brought was the fact that yes, parliament followed due processes, but the consequent decision conflicts with the law, but the court said it was unwilling to get into that matter so essentially, the court did not announce judgment on the real issue we brought,' he asserted.
The chiefs of the Eastern Nzema Traditional Area, led by Awulae Amihere Kpanyile, who were visibly elated by the ruling, indicated that the country has laws that protect all investors and hoped that jobs would be created for their people with the construction of the port at Atuabo.