Leaked report details why EC Boss was sacked
Immediate past Chair of the Electoral Commission, Charlotte Osei,
breached procurement laws in the award of several contracts, prior to
the 2016 elections, a report by the committee that investigated her has
indicated.
Mrs Charlotte Osei and her two deputies, Amadu Sulley and Georgina
Opoku Amankwaa have been removed from office following a recommedation
by the committee constituted by the Chief Justice, Sophia Akuffo which
probed allegations leveled against them.
According to a government statement issued Thursday and signed by
Information Minister, Dr. Mustapha Hamid, the three top officials of the
country's election management body have been removed for misbehaviour
and incompetence.
Exerpts from the 54-page document which has been leaked to the media
noted: "In all, the Chief Justice made prima facie case against the
Chairperson on six of the allegations contained in the said petition."
Below are extracts from the report:
IN THE MATTER OF A PETITION BROUGHT UNDER ARTICLE 146 OF THE 1992
CONSTITUTION FOR THE IMPEACHMENT OF MRS. CHARLOTTE OSEI CHAIRPERSON OF
THE ELECTORAL COMMISSION OF GHANA FORSON AMPOFO & OTHERS } PETITIONERS VRS MRS. CHARLOTTE OSEI }
RESPONDENT REPORT OF THE COMMITTEE
IN THE MATTER OF ARTICLE 146 OF THE 1992 CONSTITUTION OF THE REPUBLIC
OF GHANA AND IN THE MATTER OF THE PETITION FOR THE REMOVAL FROM OFFICE
OF THE CHAIRPERSON OF THE ELECTORAL COMMISSION PURSUANT TO ARTICLE 146
OF THE 1992 CONSTITUTION.
BETWEEN FORSON AMPOFO & OTHERS PETITIONERS AND CHARLOTTE AMA OSEI RESPONDENT REPORT OF THE COMMITTEE APPOINTED TO INVESTIGATE THE PETITION AGAINST
MRS CHARLOTTE AMA OSEI, THE CHAIRPERSON OF THE ELECTORAL COMMISSION.
In November, 2017, the Honourable Chief Justice of Ghana established a
prima facie case on some of the allegations made against the
Chairperson of the Electoral Commission as contained in the petition
submitted to His Excellency, the President of the Republic.
In all, the Chief Justice made prima facie case against the Chairperson on six of the allegations contained in the said petition.
The petition seeks the removal of Mrs. Charlotte Osei, from office as
the Chairperson of the Electoral Commission of Ghana. This Committee
was thus established under Article 146 (4) of the 1992 Constitution to
further investigate the allegations for which prima facie case had been
established by the Chief Justice. The mandate of this Committee
therefore is to investigate only the allegations for which prima facie
case had been established.
The six allegations against the Chairperson which this Committee had the constitutional mandate to investigate are as follows:-
Allegations
On this allegation, Mrs. Charlotte Osei testified that the funds for
the two contracts were provided by the USAID and she was unaware that
the Commission was to seek the approval of the Public Procurement
Authority, before awarding the contracts.
FINDINGS ON ALLEGATION NO. 5
There is evidence on record that before the 2016 general elections
the Electoral Commission secured donor support from the USAID through
the Ministry of Finance.
The support was for the sum of US$2,367,500.00 which the Electoral Commission was to apply to improve its ICT environment.
In October 2016, the Chairperson, the Minister of Finance/Designate and the Mission Director of USAID signed a grant document titled 'Implementation letter Number 641-Ai0-FY14IL#03 under DOAG No. 641-001 Strengthened Responsive, Democratic Governance for support to the Electoral Commission of Ghana for a New Activity: Enhancing Inclusive in Ghana's Electoral process'(hereinafter referred to as the Grant Document).
In October 2016, the Chairperson, the Minister of Finance/Designate and the Mission Director of USAID signed a grant document titled 'Implementation letter Number 641-Ai0-FY14IL#03 under DOAG No. 641-001 Strengthened Responsive, Democratic Governance for support to the Electoral Commission of Ghana for a New Activity: Enhancing Inclusive in Ghana's Electoral process'(hereinafter referred to as the Grant Document).
In a bid to procure the services of a contractor for the said
project, three (3) quotations were received by the Commission for
consideration. Indeed, according to the Chairperson, she personally
recommended Dreamoval Ltd which was a group from the Ashesi University.
The Chairperson testified that the Director of Finance submitted the
names of two other companies, namely Premium Tech & Business
Consultancy Services and Change Investment (Ghana) Ltd. From these three
companies, the Chairperson, the Director of Finance and the Head of the
Donor desk selected Dreamoval for the contract. As a result an initial
contract for the sum of US$32,510.00 was awarded to Dreamoval Ltd. to
re-design a website for the Electoral Commission.
Further evidence is that after the completion of the initial contract
of re-designing the web site of the Electoral Commission, Dreamoval had
to offer extended technical services to the Electoral Commission in
order to protect the website which was under cyber-attack.
According to the Chairperson, Dreamoval Ltd had to work around the
clock to avoid break down of the web- site. After the extended work
Dreamoval submitted additional bill of US$76,000.00. The Chairperson
discussed the new bill from Dreamoval with the USAID, who agreed to pay
provided there was a contract for the additional or extra work done by
Dreamoval.
Accordingly, the Chairperson executed another contract with Dreamoval Ltd to enable USAID pay the extra bill of US$76,000.00.
The evidence on record is that both contracts awarded to Dreamoval
were not evaluated by the Tender Evaluation Panel, Entity Tender
Committee, and the Tender Review Panel, of the Electoral Commission. The
Commission also failed to obtain approval of the Public Procurement
Authority, for the restricted tendering method used, out of which the
service of Dreamoval Ltd was procured.
As indicated earlier the Chairperson testified that she was unaware that the Commission was required to apply the Public Procurement Act, for procurement activities funded by donors. This defence however, will not hold simply because the USAID Grant Document cited above, by its paragraph 'E' which is headed "Procurement" provides as follows; 'The Grantee is responsible for all aspects of the procurements necessary to implement the activity, in accordance with its own procurement procedures'.
As indicated earlier the Chairperson testified that she was unaware that the Commission was required to apply the Public Procurement Act, for procurement activities funded by donors. This defence however, will not hold simply because the USAID Grant Document cited above, by its paragraph 'E' which is headed "Procurement" provides as follows; 'The Grantee is responsible for all aspects of the procurements necessary to implement the activity, in accordance with its own procurement procedures'.
Indeed, by the above provision parties to the grant, including the
Chairperson, who signed the document, all agreed that the procurement
activity to be funded from the grant would be regulated or governed by
the local procurement laws and procedures.
The Chairperson therefore had no option than to comply or apply the
activity of contracting Dreamoval through the Public Procurement Act.
The Chairperson was obliged under the Public Procurement Act to have
applied for approval to use restricted tender for the procurement of a
contractor to re-design the website of the Electoral Commission.
The tender should have been evaluated by the Tender Evaluation Panel
and referred to the Entity Tender Committee and the Tender Review Panel.
From the evidence, Mrs. Charlotte Osei failed to adhere to the
procurement procedure sanctioned by the Public Procurement Act and the
Electoral Commission's own internal procurement structures.
In fact, beside the Grant Document referred to above; there is a
clear provision under the Public Procurement Act, Act 663 which required
the Chairperson to apply the local law to procurement activities funded
by donors. Section 14 of Act 663, which was the applicable law at the
time the first contract to Dreamoval was awarded provided among others
as follows:-
"14. (1) This Act applies to
(d) procurement with funds or loans taken or guaranteed by the State
and foreign aid funds except where the applicable loan agreement,
guarantee contract or foreign agreement provides the procedure for use
of the funds."
The above provision in Act 663 has been amended by the Public
Procurement (Amendment) Act, 2016, Act 914 with a new section 14 (l)(d)
which provides as follows:-
" 14 (1) This Act applies to
(d) procurement with public funds including loans procured by
government, grants, foreign aid funds and internally generated funds
except as exempted under section 96."
Even though the exception under section 96 does not apply to the
issue we are considering, we have decided to re-produce the said section
for purposes of sound reasoning. Section 96 of Act 914 provides as
follows:-
"96. (1) Despite the extent of the application of this Act to the procurement, procurement with international obligations arising from a grant or concessionary loan to the Government shall be in accordance with the terms of the grant or loan subject to the prior review and "no objection" of the procurement procedures by the Authority.
"96. (1) Despite the extent of the application of this Act to the procurement, procurement with international obligations arising from a grant or concessionary loan to the Government shall be in accordance with the terms of the grant or loan subject to the prior review and "no objection" of the procurement procedures by the Authority.
(2) Procurement arising from an external loan and commercial
facility, secured by Government, other than a concessionary loan and
grant which specifies particular procurement procedures shall be subject
to the prior review and "no objection" of those procurement procedures
by the Authority."
With the above clear provisions in the Public Procurement Act, there
was no justifiable excuse for the Chairperson's failure to comply with
the Public Procurement Act in awarding the two contracts to Dreamoval
Ltd. The non-compliance of the Public Procurement Act for procurement
activity funded by donor agencies by the Chairperson can only be
explained in terms of her incompetence in understanding the Grant
Document she executed with officials of USAID and the Ministry of
Finance and provisions of the Public Procurement Act.
The head of Donor Desk Unit of the Electoral Commission, Mr. Hamid
Kodie Fisa, testified that negotiations for the Dreamoval Ltd contract
started in November 2015 and the Chairperson awarded the first contract
on 8th February 2016. There is a letter on record from Dreamoval Ltd
dated 3rd August 2016 and received at the Electoral Commission on 22nd
August 2016, reporting the completion of phase 1 of the contract and
requesting for payment.
All these events occurred before the USAID grant since the 'Grant
Document' was signed in October 2016. Before this time, Dreamoval had
reported the completion of phase 1 of the Website project.
We find that the first contract to Dreamoval was awarded before the
USAID grant so the Chairperson should have resorted to national
competitive tender or restricted tender with the approval of the Public
Procurement Authority under section 38 of the Act 663 as amended.
As demonstrated above even when the USAID agreed to fund the activity
for which Dreamoval was engaged, the Chairperson was obliged to comply
with the Public Procurement Act, which she failed to do.
On the evidence, the method used by the Chairperson in procuring the
services of Dreamoval Ltd under the USAID funded project was a violation
of section 38 of the Public Procurement Act, Act 663 as amended. The
procurement of Dreamoval for the project by the Chairperson also
violated sections 14, 16, 17 and 18 of the Public Procurement
(Amendment) Act, 2016, Act 914. The procurement was also done contrary
to the 'USAID Grant Document', which as has been observed required that
the local laws on procurement shall apply to the activity being funded.
The Chairperson being the head of entity of the Electoral Commission
thus breached the Public Procurement Law as stated above and we find
that her conduct amounts to a misbehaviour.
The last of the allegations we were mandated to investigate relates
to the contracts awarded to Quazar Ltd, a South African company. The
allegation in the main was that the Chairperson unilaterally awarded a
contract of about US$25,000.00 to Quazar Ltd to change and redevelop the
logo of the Commission under the guise of rebranding without going to
tender contrary to the Public Procurement Act.
Evidence before this Committee indicates that in the year 2014, the
Electoral Commission sought the support of the UNDP to develop a new
five years strategic plan to guide the Commission and provide a new
corporate direction for the Commission's operations. The request of the
Commission was approved by the UNDP and a consultant, one Messrs
Theophilus Dowetin was contracted by UNDP to develop the strategic plan.
When the consultant completed the job, an exit conference was held at
which stakeholders agreed that the work of the consultant needed fine
tuning to meet the intended purpose. On the Commission's request, UNDP
agreed to fund the services of a consultant to do the fine tuning. The
Commission then requested for fresh proposals to repackage the strategic
plan to meet international best practices. The Commission then invited
fresh quotations from three companies. The companies were: Quazar Ltd
which quoted US$10,476.30; The Phoenix Group which quoted US$11,940.00;
and Fenik Ltd, which quoted US$12,600.00.
The Tender Evaluation Panel of the Commission chaired by the Director
of Finance evaluated the quotations and recommended the award of the
contract to Quazar Ltd to repackage the Electoral Commission's strategic
plan.
The Evaluation Report was dated the 29th March 2016. The Entity
Tender Committee and the Entity Tender Review Panel were not involved in
the procurement process that approved the contract award to Quazar Ltd.
There is also evidence on record that apart from the contract to
repackage the strategic plan for the Commission funded by UNDP, Quazar
Ltd was awarded another contract to develop a logo for the Commission at
a cost of GHC23,470.01. This contract was funded by the Government of
Ghana. On completion of the work, the Director of Finance and the Chief
Accountant wrote on the 8th March 2016 to the Bank of Ghana to transfer
US$6,080.31 being the equivalent of GHC23, 470.01 into the account of
Quazar Ltd at the First National Bank, Guateng.
FINDINGS ON ALLEGATION NO. 6
From the evidence, two contracts were awarded to Quazar Ltd. The
first was the contract to repackage the strategic plan of the Commission
which was funded by the UNDP. The second was the contract to develop a
logo for the Commission which was funded by Government of Ghana. It is
clear from the evidence adduced that the allegation that the Chairperson
unilaterally awarded contracts to Quazar Ltd is not true. The contract
to repackage the strategic plan was awarded after stakeholders meeting
held at the instances of the UNDP. The contract was awarded after three
quotations submitted by three companies had been evaluated by a three
man Evaluation panel, chaired by the Director of Finance of the
Electoral Commission. On the 31st of May 2016, the Director of Finance
of the Commission wrote to the Country Director of UNDP to effect direct
payment to Quazar Ltd for the work done.
The problem with the contract awarded to Quazar for the repackaging
of the strategic plan was the method used to engage Quazar Ltd.
The evidence disclosed that the Commission used the restricted tender
method of procurement, because three companies were identified to
submit quotations. In view of the fact that restricted tender was used,
the prior approval of the Public Procurement Authority was required
under section 38 of Act 663 as amended, for the procurement process to
be lawful.
As earlier stated in this report, the fact that the contract was
funded by UNDP did not exempt the Commission from complying with the
Public Procurement Act, Act 663 as amended. Under section 14 of Act 663
as amended it was required that the Chairperson comply with the methods
and procedures for procurement provided under the Act.
The Head of the Donor Desk Unit of the Commission, Mr Hamid Kodie
Fisa, who testified as DW 7 for the Chairperson, admitted under
cross-examination that with donor funded projects the Chairperson was
required to follow procurement procedures under the Public Procurement
Act. From the evidence therefore the Chairperson, as head of entity,
breached section 38 of the Public Procurement Act, Act 663 as amended
for her failure to seek approval from the Public Procurement Authority,
before using the restricted tender method of procurement. Under sections
17 and 18 of the Public Procurement (Amendment) Act, Act 914, Mrs.
Charlotte Osei, who is the head of entity, is responsible for this
breach of the law.
Credit: myjoyonline
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