IN THE MATTER OF A PETITION BROUGHT UNDER ARTICLE 146 OF THE
1992 CONSTITUTION FOR THE IMPEACHMENT OF MRS. CHARLOTTE
—_—_—_—_ ser THE IMPEACHMENT OF MRS. CHARLOTTE
OSE! CHAIRPERSON OF THE
ELECTORAL COMMISSION OF GHANA
FORSON AMPOFO & OTHERS } PETITIONERS
VRS
MRS. CHARLOTTE OSEI } RESPONDENT
Se
REPORT OF THE COMMITTEEPEEREFESEEREEEREERELTLIIGE
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 invest e as follows:-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 "\mplementation letter Number 641-
Ai0-FY141L#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.
Page 37 of 54Further 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’.
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
Page 38 of 54procedures. 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
(1)(d) which provides as follows:-
“14 (1) This Act applies to
Page 39 of 54(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.
(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.
Page 40 of 54The 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 8" February 2016. There is a letter on record from
Dreamoval Ltd dated 3" August 2016 and received at the Electoral
Commission on 2210 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.
Page 41 of 54ALLEGATION NO. 6
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 USS$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
Page 42 of 5429" 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 3" 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 31° 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.
Page 43 of 54The 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.
The second contract awarded to Quazar to develop a new logo for
the Commission was funded by the Government of Ghana. The
Commission was obliged to comply with the Public Procurement Act.
It has been argued that at the time the contract was awarded, the
threshold of the Chairperson as head of entity for services was GHC
Page 44 of 54100,000.00, so she had the mandate to award the contract. We are
of the opinion that the evidence on record does not support this
argument. The letter requesting the Bank of Ghana to pay Quazar Ltd
for completing the work was dated the 8” of March 2016. This
presupposes that the contract was awarded to Quazar Ltd to develop
the logo before March 2016. We observed that as at March 2016,
the threshold of the Chairperson for services was GHCS5, 000.00. The
threshold of the Chairperson as head of entity for services was
changed to GHC100, 000.00 on the 1* of July 2016. That being the
case the Chairperson was required under the Public Procurement Act
to use tender process, such as national competitive tender,
restricted tender or sole sourcing subject to the approval of the
Public Procurement Board, to procure the services of a company for
the procurement activity. As the evidence showed, the contract to
develop the logo was sole sourced to Quazar Ltd without prior
approval from the Public Procurement Authority. The contract to
Quazar Ltd was thus awarded contrary to section 40 of the Public
Procurement Act, Act 663 as amended.
Assuming for the purposes of argument that the contract sum was
even within the threshold of the Chairperson, the law still required
her to request three quotations from three companies for one to be
selected after an evaluation. The evidence however is that the
Chairperson approved and awarded the contract to Quazar Ltd
without any competition whatsoever. We are of the opinion that the
second contract was also awarded contrary to the Procurement Act
and the Chairperson being the head of entity under the Act must be
held responsible.
In addition to the above infringements of the Public Procurement
Act, we further find that the Chairperson as head of entity breached
sections 45 and 46 of the Public Procurement Act, Act 663 as
Page 45 of 54amended which deals with international competitive tendering since
Quazar Ltd. was a South African company.
The conduct of the Chairperson in the award of contracts without
observing the Public Procurement Act appeared to be a pattern and
this can best be described as misbehaviour. As the head of entity and
the Chief Executive Officer of the Commission it was expected that
she will uphold the Procurement Law and Procedures to set a
standard as far as procurement activities of the Commission was
concerned. Evidence on record demonstrates the Chairperson’s
persistent breach of the Public Procurement Act. It is strange that
Mrs. Charlotte Osei failed to apply the same standard with which she
used to get the abrogation of the STL contracts, signed by Madam
Georgina Opoku Amankwa. After displaying the zeal to ensure that
Procurement activities are conducted in accordance with the law,
she fell into the same and more serious acts of infringing the
Procurement laws. The Chairperson, as head of entity, in several
ways breached the provisions of the Public Procurement Act and the
sequence for which the breach occurred proved an act of
misbehaviour and incompetence.
CONCLUSION
All the six allegations levelled against Mrs. Charlotte Osei for which
prima case was established by the Honourable Chief Justice relates
to breaches to the Public Procurement Act, Act 663 as amended by
the Public Procurement (Amendment) Act, Act 914. The Honourable
Chief Justice in her prima facie determination observed as follows:-
“ The Public Procurement Act is an enactment which, one may say,
is made in pursuance of the principles of probity and accountability
expressed in Article 37(1) of the Constitution. It envisages that in
the procurement of goods and services with public resources, there
Page 46 of 54must be standard practices which are aimed at fairness and value
for money so as to strengthen the national economy. It is for this
reason, in my view, that the Act is so detailed and specific in the
process and procedures it prescribes.”
The Public Procurement Act imposes a high standard of responsibility
on the Chairperson of the Electoral Commission who was the head of
entity. The provisions of the Act re-produced below shows some of
the responsibilities which the Act has conferred on the Chairperson,
as head of entity.
Section 16(2) Procurement decisions of an entity shall be taken in a
corporate manner and the internal units concerned shall contribute
to the decision making process.
Section 17 (1) of Act 914 provides that the head of entity and an
officer to whom responsibility is delegated are responsible and
accountable for action taken and for instructions as regards the
implementation of the Act.
Section 18 (1) of Act 914 provides that the head of entity shall ensure
that provisions of this Act are complied with.
Section 18 (2) of Act 914 provides that the concurrent approval by a
tender review committee shall not absolve the head of entity from
accountability for a contract that may be determined to have been
procured in a manner that is inconsistent with a provision of the Act.
Section 18 (3) (f) provides that the head of entity shall refer to the
entity tender committee for approval, a procurement above the
approval threshold of the head of entity.
The above provisions in the Act among others demonstrate that
much was expected from the Chairperson of the Electoral
Commission and was expected to apply the standards and
Page 47 of 54procedures set by the Act. Again the Chief Justice in the prima facie
determination observed and stated as follows:
“ The crucial importance of the standards prescribed by the Act is
seen in the fact that, by virtue of section 92 thereof, contravention
of the Act is an offence attracting a penalty of a fine not exceeding
one thousand penalty units or a term of imprisonment not
exceeding five years or to both the fine and imprisonment.
Consequently, breach of the requirements of the Act is serious
enough, in my view, to amount to misbehaviour under Article 146.”
We observed that the above provision had been amended by Act
914 such that a contravention of the Act is an offence now
attracting a penalty of a fine not exceeding two thousand five
hundred penalty units or a term of imprisonment not exceeding
five years or to both.
The findings we have made on the allegations made against Mrs.
Charlotte Osei, the Chairperson of the Electoral Commission clearly
gives a catalogue of breaches she inflicted on the Public Procurement
Act. In all the procurement activities which we had to investigate, the
findings have been that Mrs. Charlotte Osei failed to comply with the
Public Procurement Act. The procurement activities include, the
engagement of Sory @ Law as Solicitors for the Commission; the
award of several contracts to STL; the two contracts for the
partitioning and consultancy service of the new office block; the
three contracts awarded for the construction of Pre-fabricated
District Offices of the Commission and consultancy services thereof;
the two contracts awarded to Dreamoval Ltd and finally the two
contracts awarded to Quazar Ltd from South Africa. Evidence before
the Committee showed that all these contracts were awarded by
Mrs. Charlotte Osei contrary to the Public Procurement Act.
Page 48 of 54We find these breaches of the Public Procurement Act very serious in
view of the fact that the Chairperson of the Commission and head of
entity, Mrs. Charlotte Osei, was expected to show good leadership,
as far as procurement activities of the Commission were concerned.
Mrs. Charlotte Osei has argued that the core business of the
Electoral Commission is not procurement of goods, services or
works, so if she is found wanting in the practice of procuring goods
and services for the Commission, that per se should not constitute
grounds for her removal under Article 146 of the 1992 Constitution.
On this point, we disagree with Mrs. Charlotte Osei, because we are
convinced that procurement forms an important part of the core
business of the Electoral Commission. Indeed, without procuring
relevant goods and services, the Electoral Commission would find it
difficult, if not impossible, to independently conduct free and fair
elections in the country. In fact, procurement is so important to the
Electoral Commission, that was why no less a person than the
Chairperson is made the head of entity of the Commission. In this
investigation we found the following:-
a. That the Chairperson herself was writing directly to seek approval
from the Public Procurement Authority to do restricted tender.
b. That the Chairperson herself wrote directly to companies to notify
them of contract awards.
If procurement of goods and services was not part of the core
business of the Electoral Commission as argued by Mrs. Charlotte
Osei, why did she take over the above roles directly when there was
a Procurement Unit with a Head in the Electoral Commission? We
are of the opinion that Mrs. Charlotte Osei always knew that
procurement was a very important part of the core business of the
Commission and that was why she personally took over the above
Page 49 of 54roles. On the whole, Mrs Charlotte Osei’s persistent violation of the
Public Procurement Act, showed misbehaviour and in some instance
incompetence as found in this report.
RECCOMENDATION
By Article 44(2) of the 1992 Constitution, the Chairman of the
Electoral Commission shall have the same terms and conditions of
service as a Justice of Court of Appeal. Accordingly, the removal of
the Chairperson of the Electoral Commission shall be governed by
Article 146 of the Constitution dealing with the removal from office
of Superior Court Justices. The article provides as follows:
“146
(1) A Justice of the Superior Court of Judicature or a Chairman of
the Regional Tribunal shall not be removed from office except for
stated misbehaviour or incompetence or on ground of inability to
perform the functions of his office arising from infirmity of body or
mind.
(2) A Justice of the Superior Court of Judicature or a Chairman of
the Regional Tribunal may only be removed in accordance with the
procedure specified in this article.”
In this report we have demonstrated through evidence before the
Committee that the Chairperson, Mrs. Charlotte Osei breached the
Public Procurement Act in all the procurement activities for which
she was accused. She blatantly breached the Public Procurement Act
without any justification, a conduct which amounted to
misbehaviour. The Honourable Chief Justice in her prima facie
determination defined misbehaviour as conduct based and is
generally understood to connote conduct which falls below the
Page 50 of 54accepted norms or stipulated standards of morality, propriety and
or legality.
The Chief Justice still discussing what amounts to misbehaviour
stated as follows:-
“Furthermore, Halsbury’s Laws of England, 4" Edition, in Vol. 8,
Para 1107, states as follows- “Behaviour” means behaviour in
matters concerning the office... Misbehaviour as to the office itself
means improper exercise of the functions appertaining to the
office, or non-attendance, or neglect of or refusal to perform the
duties of office.”
The Honourable Chief Justice concluded thus “to my mind, this
means that if a person is required by law to perform a certain
official function or duty in a particular way but fails or neglect to
do so, then the person may be said to have misbehaved in that
regard”.
From the above exposition on what constitutes misbehaviour and
the implication of such conduct pertaining to an office such as the
Chairperson of the Electoral Commission, we cannot but agree with
the opinion expressed by the Chief Justice above and conclude that
the conduct of Mrs. Charlotte Osei that violated the Public
Procurement Act as demonstrated in this report, constitutes
misbehaviour.
With procurement activities funded by donor agencies, Mrs.
Charlotte Osei claimed she was not aware that the Commission was
obliged to apply the Public Procurement Act, notwithstanding the
clear provisions of section 14(d) of the Public Procurement Act, Act
914, With regard to the contract awarded to Dreamoval which was
funded by the USAID, the very document she executed with USAID
Page 51 of 54