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In Dec 2023, an investigative report by the Fourth Estate revealed what many call a “shady deal” between the Ghana Revenue Authority, the Ministry of Finance, and Strategic Mobilization Ghana Limited (SML). The report revealed that the government was paying SML $100 million annually and cumulatively $1 billion over ten years to ensure revenue assurance in Ghana’s petroleum downstream sector. The report made several disturbing revelations. This includes a revelation that SML Ghana was awarded the contract through single sourcing without parliamentary approval, although they had no prior experience. Also, the report revealed that SML is an “offshoot of a timber company.”
The report’s revelations generated nationwide discussions on traditional and social media. In January 2024, a statement from the president’s office, signed by Eugene Arhin, the president’s director of communications, announced the suspension of the contract. The president continued to appoint KPMG to audit the transactions between SML, GRA, and the Ministry of Finance.
In a press release, the president directed the GRA and Ministry of Finance to suspend the “performance contract” pending the submission of the audit report. As part of their audit work, KPMG was tasked with assessing the contract’s appropriateness.
KPMG has completed and submitted an audit report on the SML—GRA contract. The office of the President has been pressured to make the report available for public perusal. However, the office of the president, at one point, denied public access to the report.
This forced the Fourth Estate to request the president’s release of the KPMG report through RTI.
In a press release on May 7, 2024, the Office of the President denied the Media Foundation for West Africa’s RTI request for access to the full KPMG report.
“Upon careful consideration and in accordance with section 5 (1) (a) and (b) (i) of the RTI Act, I regret to inform you that your request has been refused. Section 5 (1) (a) and (b) (i) states that information prepared for or submitted to the President or Vice President containing opinions, advice, deliberations, recommendations, minutes, or consultations is exempt from disclosure and that disclosure of such information would compromise the integrity of the deliberative process by revealing the thought process, considerations, and influence on decision-making reserved for the highest offices of the land,” the presser signed by H.M. Wood stated.
Many have expressed displeasure and concern over the president handling KPMG’s full report. Some have argued that it is contrary to what the Right To Information (RTI) Law stands for and infringes on the rights enshrined under the RTI.
Can a president refuse an RTI request on grave public interest? Even though the president belatedly released the report after incessant pressure from the media and civil society,
DUBAWA decided to highlight the RTI law’s aspects and explore if the president can refuse to release a report after an RTI request has been made.
The RTI Law and circumstances in which one’s request can be denied
In Ghana, individuals have the right to information, enshrined in the Right To Information Act of 2019 (Act 989). The act, which the president passed on May 19, 2019, promotes and fosters a culture of transparency and accountability in public affairs and related matters.
Section (2) of the Act states:
“The government shall make available to the public general information on governance without an application from a specific person.”
Section (3) of the RTI Act requires public institutions and organisations to publish “up-to-date information in the form of a manual.” Section (3)(c) provides that the manual should contain information that can be “accessed or inspected” for free and information that is available at a fee.
However, Section (5) to (16) of the act has provisions for information that is classified as “exempt information.” Exempt information is interpreted in section (84) of the RTI Act.
In discussing which type of information is exempted from access by the public, section (5) (1)of the Act states:
“Information is exempt from disclosure where the information
(a) is prepared for submission or has been to the President or Vice-President for consideration or
(b) contains matters the disclosure of which would reveal information concerning opinion, advice, deliberation, recommendation, minutes, or consultation made or given to the President or the Vice-President and is likely to
(i) undermine the deliberative process on the part of the President or of the Vice-President; or
(ii) prejudice national security.”
However, section 5 (2) indicates that “information which contains factual or statistical data is not exempt information.”
Does the SML/GRA Saga Audit Report Fall Under Exempt Information?
The president specifically requested KPMG audit SML/GRA contracts, and as a result, KPMG’s Audit report was presented or submitted to the president for his consideration. Per Section (5) (1), KPMG’s Audit report on SML/GRA contracts falls under “Exempt Information. “ This gives the president the right to deny public access to the report unless one can confirm that the report contains factual or statistical data, as stated in Section 5 (2).
However, Section 17 of the RTI Act states:
“( 1) Despite a provision of this Act on information exempt from disclosure, information is not exempt from disclosure if the disclosure of the information reveals evidence of
(a) a contravention of, or a failure to comply with a law;
(b) an imminent and serious threat to public safety, public health or morals, the prevention of disorder or crime, or the protection of the rights or freedoms of others;
(c) a miscarriage of justice;
(d) an abuse of authority or neglect in the performance of an official function; or
(e) any other matter of public interest and the benefits of disclosure clearly outweighing the harm or danger that the disclosure will cause.”
Further, many advocates have argued that there is an abuse of the “Exempt Information “ clauses in the RTI Act.
Speaking on Joy News PM Express on May 13, 2024, Mr Sulemana Braimah, executive director of the Media Foundation for West Africa, argued that in the case of the SML/GRA Audit Report, Section 5 (1) of the RTI Act is not applicable. He further stated that since the president has put out his opinion of KPMG’s report on the SML/GRA contracts, the audit report cannot be under “considerations” as stated in Section 5 (1) (a).
What are the implications of the president’s initial RTI request refusal on democracy in Ghana?
Commenting on the implications of the president’s refusal to release the full KPMG audit report, Edem Senanu, Co-Chair of Citizen’s Movement Against Corruption and member of the African Union Advisory Board against Corruption reiterated that the president’s actions do not promote transparency and accountability.
Speaking on 3FM midday news on May 9, 2024, Mr Senanu asked the president to review his position.
“In promoting good governance, transparency and accountability are key pillars. The president can review his position on this matter, and if there are sensitive portions, they can be redacted,” he said.
He added that the GRA/SML deal is not of national security concern and is not to be released. He continued that refusing to release the full report raises red flags and suspicion.
He recommended that the president release the report because doing so would clear suspicions and serve the best interests of the president and the general public.
The President’s Response to call for transparency
In an interesting turn of events, the Office of the President announced in a press release on May 22, 2024, that the president has decided to waive his privilege under section 5 of the RTI Act.
“The President, in the interest of full transparency in governance, openness, and honesty with the public, has decided to waive the privilege under section 5 of the RTI Act and has directed the publication of the KPMG report in full,” the presser stated.
Key findings from the KPMG report
It is important to note that SML was initially known as Strategic Mobilisation Enhancement Limited (SMEL). It was incorporated on Feb 17, 2017, and changed its name to Strategic Mobilisation Limited (SML) on Nov 22, 2017.
According to the KPMG Audit report, six of the seven agreements/ contracts between GRA and SML were without approval by the Public Procurement Authority(PPA). Page 14 of the report reveals that the PPA rejected, on three occasions (specifically June 16, 2017, Aug. 1, 2017, and Sep. 14, 2017), the GRA’s request to award the single source contract to SMEL to provide “transaction audit services.” The PPA cited SMEL’s “lack of prior experience and capacity” as grounds for declining GRA’s request.
However, the GRA entered into six service agreements with SML without the approval of the PPA. Find the agreements on page 14, paragraph 2.4.1, or Table 5.1-1 on page 59 of the report. It is key to note that the agreements were all without Parliamentary Approval for the Award of Multi-Year Contracts as provided by Section 33 of the Public Financial Management Act, 2016 (Act 921). Also, procurement of SML services was not included in GRA’s procurement plans for 2018, 2019, and 2023. These are the years in which the GRA/SML contracts were signed.
It is also key to note that globally, the predominant pricing model used for similar services, like SML’s services, is a fixed price model. However, the GRA/SML agreements or contracts were priced fully at a “variable cost.”
Further, KPMG’s report revealed that from 2018 to 2023, GRA paid SML GH¢1,061,054,778.00 ($ 141,168,025.96) just as quoted in Nana Akufo-Addo Key findings and recommendations released on April 24, 2024. Table 2.6.2 on page 31 of the report further revealed a gross sum of GH¢ 1,400,202, 402. 56 ($186, 325, 997.6) which was omitted from the president’s earlier release. There was no payment for upstream petroleum and minerals audit services.
Conclusion
Section 5 (1) (a) of the RTI Act states that any information that has been to or submitted to the president or vice president is “exempt information.” However, Section 17 and Subsection 5 (2) of the RTI Act make provisions for situations where information presented to the president is not exempt from disclosure.
