Setting the record straight on Alfred Agbési Woyome

For years, Alfred Agbesi Woyome has been portrayed in political discourse as a man who simply “stole GH¢51.2 million from Ghana.” That description is not an accurate account of what the courts actually decided.

First, Mr. Woyome was criminally prosecuted for defrauding by false pretence and for causing financial loss to the State. On 12 March 2015, the High Court acquitted and discharged him on both charges, holding that the prosecution had failed to prove that he had fraudulently obtained the GH¢51.2 million.

That distinction is fundamental. A court order requiring repayment of money is not the same thing as a criminal conviction for stealing, fraud or defrauding the State.

The Supreme Court did separately order Mr. Woyome to refund the GH¢51.2 million. However, the legal basis of that decision was that the underlying international contractual arrangements had not received the parliamentary approval required under Article 181(5) of the Constitution of Ghana and were therefore unconstitutional and invalid. In other words, the Supreme Court’s repayment decision should not be rewritten as a criminal conviction for theft.

There is another important part of the history that is frequently omitted.

The international arbitration proceedings conducted under UNCITRAL did not establish that Mr Woyome was a party to the 2006 Waterville contract.

Mr Woyome’s position was that his entitlement arose from the 2005 procurement process, which had received concurrent approval from the Central Tender Review Board, and that his contractual arrangement was subsequently terminated by the Government in 2005.

The 2006 Waterville contract was signed subsequently.

This distinction is important because Mr Woyome has consistently maintained that he should not be legally or factually linked to the 2006 Waterville contract merely because both matters concerned the broader CAN 2008 stadia project. The Court of Appeal, in the criminal proceedings, also treated Mr. Woyome’s claim as distinct from the money paid to him by Waterville. It referred to evidence that Mr. Woyome’s claim arose from the 2005 tendering process and the concurrent approval involving his partners.

One of the most important pieces of documentary evidence in understanding the history of the Woyome matter is the Cabinet memorandum authored by Hon. Yaw Osafo-Maafo, who was then Minister responsible for Education and Sports under the NPP Government of President John Agyekum Kufuor.

Importantly, Hon. Osafo-Maafo subsequently became a prosecution witness in the criminal proceedings brought by the NDC Government against Mr Woyome.

The Cabinet memorandum was tendered as documentary evidence in the proceedings.

The significance of this document is that it recorded the position of the Government itself at the time the original procurement process was being considered.

According to the memorandum, the procurement process had proceeded through the appropriate governmental machinery and had been considered and ascertained by the Central Tender Review Board.

The memorandum also addressed the financing arrangement.

It stated, in substance, that financing of more than €1.2 billion had been made available by Bank Austria for the Government to access, subject to the necessary confirmation by the Bank of Ghana, including confirmation through Van Lare Dosso in relation to the financial arrangements.

The memorandum therefore provides important contemporaneous evidence concerning the Government’s understanding at the time of:

– the procurement process;

– the Central Tender Review Board’s involvement;

– the proposed financing;

– the availability of the financing from Bank Austria;

– the steps required for the Government to access the financing; and

– the question of whether the procurement process should be maintained or terminated.

This is important because it shows that the original procurement arrangement cannot fairly be reduced to the later political narrative that it was simply an illegitimate arrangement created for Mr Woyome.

THE CABINET MEMORANDUM’S RECOMMENDATION

The memorandum is particularly significant in its conclusion.

It recommended that the existing process be maintained.

However, the political circumstances had changed.

President Kufuor subsequently travelled to China with Dr. Amoah, and a decision was made to pursue Chinese contractors for the stadia project instead.

The Cabinet memorandum anticipated precisely this possibility.

In its concluding paragraph, the memorandum stated:

«“If however, it is decided to abrogate the contract in favour of the Chinese, we must marshal all our forces internally in Ghana and externally to defend the decision…”»

That statement is highly significant.

It demonstrates that the issue of terminating the existing procurement arrangement in favour of Chinese contractors was not presented within the Cabinet memorandum as a routine administrative matter.

The memorandum expressly contemplated the need for the Government to defend the decision “internally in Ghana and externally.”

That contemporaneous Cabinet record therefore deserves to be considered when assessing what actually happened to the 2005 procurement arrangement and why it was terminated.

It is also important because the author of the memorandum subsequently appeared as a prosecution witness in the criminal proceedings against Mr Woyome.

The evidence should therefore be assessed from the document itself, rather than through later political descriptions of what happened.

The chronology surrounding the Cabinet consideration is also significant.

The first scheduled Cabinet meeting at Jubilee House at which the matter was expected to be considered was cancelled because of disagreements surrounding the issue.

The matter was subsequently reconsidered at a special three-day Cabinet retreat at Akosombo.

It was at this rescheduled special retreat that the decision to proceed with the termination or abrogation of the 2005 procurement arrangement in favour of the Chinese contractors was ultimately taken.

This chronology matters because it demonstrates that the termination was not simply an unnoticed administrative cancellation.

The matter was sufficiently important and contentious to require further Cabinet consideration at a special retreat.

The sequence, as reflected in the documentary evidence and the subsequent litigation, was therefore broadly:

2005 procurement process → Central Tender Review Board consideration and concurrent approval → financing arrangements involving Bank Austria → Government consideration of the existing procurement arrangement → proposed continuation of the process → decision to pursue Chinese contractors → termination/abrogation of the earlier arrangement → subsequent contractual and legal disputes.

That history is essential to understanding why Mr Woyome later asserted a contractual or financial entitlement arising from the 2005 process.

WHY THE CABINET MEMORANDUM MATTERS

The importance of the Cabinet memorandum is not that it automatically proves every aspect of Mr Woyome’s case.

Rather, it provides contemporaneous government evidence against the proposition that the 2005 procurement process was simply fictitious, fabricated or secretly created for Mr Woyome.

The memorandum was authored by a senior NPP Government Minister who was directly involved in the matter.

He later became a prosecution witness in the criminal case.

The document therefore provides an unusually important evidential window into what the Government itself understood about the procurement process at the time.

It also raises an important question:

If the procurement process had already gone through the Central Tender Review Board, if financing exceeding €1.2 billion had been identified through Bank Austria, and if the Cabinet memorandum recommended maintaining the process, why was the arrangement subsequently terminated in favour of Chinese contractors?

That question is part of the historical record and should not be obscured by the later political slogan that “Woyome stole Ghana’s money.”

There is another important part of the history that is frequently omitted.

The international arbitration proceedings conducted under UNCITRAL did not establish that Mr Woyome was a party to the 2006 Waterville contract.

Mr Woyome’s position was that his entitlement arose from the 2005 procurement process, which had received concurrent approval from the Central Tender Review Board, and that his contractual arrangement was subsequently terminated by the Government in 2005.

The 2006 Waterville contract was signed subsequently.

This distinction is important because Mr Woyome has consistently maintained that he should not be legally or factually linked to the 2006 Waterville contract merely because both matters concerned the broader CAN 2008 stadia project.

The Court of Appeal, in the criminal proceedings, also treated Woyome’s claim as distinct from the money paid to him by Waterville.

Mr Woyome won the original Supreme Court case before the ordinary bench by 9–0.

The case was subsequently brought before a Review Bench of the Supreme Court, which reached a different conclusion and ordered the recovery of GH¢51.2 million from Mr Woyome.

That extraordinary development is one of the reasons why the Woyome litigation remains so controversial.

It is particularly important to distinguish the Ordinary Bench decision from the subsequent Review Bench decision, rather than presenting only the latter as though it were the only Supreme Court decision ever made in the matter.

Mr Woyome subsequently brought proceedings before the African Court on Human and Peoples’ Rights, alleging violations of rights protected by the African Charter, including the right to a fair hearing, equality before the law and the right to be heard by a competent and impartial tribunal.

The African Court considered, among other things, the argument that it could not act as an appellate court over the Supreme Court of Ghana and that the application did not raise a genuine human-rights issue.

Mr Woyome has also raised serious concerns about the circumstances surrounding those proceedings and the conduct of officials involved in the matter, including allegations concerning contacts between the then Attorney-General and members of the African Court.

Those allegations should, however, be distinguished from facts established by a judicial finding.

The African Court ultimately did not reverse the Ghanaian Supreme Court decision. Its proceedings concerned the alleged human-rights violations arising from the Ghanaian proceedings.

Mr Woyome subsequently sought review of the African Court’s judgment, but the application for review was not successful.

The important point is that the African Court proceedings did not constitute a criminal trial establishing that Mr Woyome had stolen GH¢51.2 million.

Woyome was never convicted of stealing the GH¢51.2 million.

When the State prosecuted him on the criminal allegations, he was acquitted and discharged.

The State appealed the High Court’s decision.

Yet the Court of Appeal subsequently dismissed the State’s criminal appeal, leaving the acquittal in place.

The Court of Appeal’s reasoning is particularly significant because it examined the evidence concerning the 2005 procurement process, Woyome’s financial-engineering claim and the relationship between Woyome’s claim and Waterville.

The appellate court concluded that the prosecution had failed to establish the essential elements of the criminal allegations against him.

Therefore, whatever one’s view of the subsequent civil and constitutional litigation, the criminal case did not result in a conviction of Alfred Woyome for stealing or defrauding the State.

This distinction deserves special emphasis.

The 2005 Woyome-related procurement process and the 2006 Waterville contracts should not simply be treated as one and the same transaction.

The documentary record shows that the CAN 2008 procurement process had begun before the later Waterville arrangements.

The 2005 procurement process went through the Central Tender Review Board and was the subject of Cabinet consideration.

The Cabinet memorandum discussed above is particularly important because it records the Government’s position before the later 2006 Waterville arrangements.

The subsequent litigation concerned the legal consequences of those procurement and contractual arrangements, including the constitutional requirement for parliamentary approval under Article 181(5).

Accordingly, the assertion that Mr. Woyome’s 2005 claim was simply a claim under the later 2006 Waterville contract is disputed and should not be presented as an established fact.

The criminal proceedings also deserve to be considered carefully because the evidence concerned numerous government officials and public officers who participated in the procurement, legal advice, payment and subsequent proceedings.

The criminal proceedings did not result in convictions of the government officials involved for a criminal conspiracy with Woyome.

Nor did the criminal proceedings establish that the judges who dealt with the matter had been criminally influenced in the performance of their judicial functions.

The evidence concerning the procurement process, the approvals and the conduct of the various government officials was examined by the criminal courts.

This is important because public discussion sometimes transforms suspicion, political criticism or allegations into established criminal findings.

Those are not the same thing.

An allegation is not a conviction.

Suspicion is not proof.

Political criticism is not a judicial finding of criminal conduct.

There is another significant legal development.

The Sole Commission of Inquiry later made adverse findings against Mr Woyome and described the payment as fraudulent.

Mr Woyome challenged those findings on the basis that he had not been given a proper opportunity to be heard before the Commission condemned him.

The Court of Appeal agreed that his right to a fair hearing had been violated and set aside the adverse findings, ordering that they be expunged from the Commission’s Report and the Government White Paper.

This is another important distinction.

A finding made by a Commission of Inquiry is not the same thing as a criminal conviction by a court of law.

Another matter deserves public examination.

Justice Dr S. K. Date-Bah was the lead judge of the original Ordinary Bench decision.

His subsequent writings on Ghanaian constitutional jurisprudence have generated extensive discussion about the proper limits of the Supreme Court’s constitutional jurisdiction, judicial review and the relationship between different constitutional institutions.

Mr Woyome and those who support his position have relied on Justice Date-Bah’s jurisprudential writings and have strongly criticised the subsequent Review Bench decision led by Justice Jones Victor Mawulorm Dotse.

The criticism goes much further: it has been argued that the Review Bench’s approach amounted, in constitutional terms, to an assault upon constitutionalism and the rule of law.

Such language should properly be identified as a legal and political criticism of the Review Bench, rather than presented as though it were itself a binding judicial finding by Justice Date-Bah that the Review Bench had committed a “coup d’état”.

What can safely be said is that the jurisprudential issues raised by the Ordinary Bench and the Review Bench remain matters of serious constitutional debate.

This is perhaps one of the most important questions that deserves to be placed openly before the Ghanaian public.

Waterville was itself a defendant in the Supreme Court litigation.

The Supreme Court declared the relevant Waterville agreements unconstitutional because they had not received the parliamentary approval required by Article 181(5).

Yet the public discussion surrounding the GH¢51.2 million has frequently focused almost exclusively on Mr Woyome.

That raises a legitimate question for public examination:

If the legal controversy arose from transactions involving Waterville and Woyome, why has the public narrative so overwhelmingly concentrated on Woyome?

The Supreme Court proceedings themselves involved Waterville Holdings (BVI) Ltd and Alfred Agbesi Woyome as separate defendants.

The question of recovery, liability and execution must therefore be examined from the actual judgments and orders, rather than from political slogans.

This question cannot responsibly be answered merely by assertion.

But it is a question that the history of the matter legitimately permits the public to ask.

Was Alfred Woyome subjected to disproportionate political attention and persecution because of his political associations?

Were there political actors within both the NDC and the NPP who had an interest in making the Woyome matter a political weapon?

Did the fact that the controversy unfolded largely during periods when the NDC was in government contribute to internal political tensions within the NDC itself?

Were some actors within the NDC politically hostile to Mr Woyome while opposition actors in the NPP simultaneously used the matter against the Government?

Were the later proceedings shaped, directly or indirectly, by political interests that went beyond the legal questions actually before the courts?

These are questions for evidence, not assumptions.

They should therefore be investigated through the documentary record, parliamentary records, court proceedings, procurement records, Cabinet documents, Commission of Inquiry materials, correspondence and the conduct of the various political and governmental actors.

But they should not be dismissed simply because they are politically uncomfortable questions.

The Cabinet memorandum adds another dimension to this question.

If the contemporary Cabinet record showed:

1. that the 2005 procurement process had gone through the Central Tender Review Board;

2. that financing exceeding €1.2 billion had been identified through Bank Austria;

3. that the Government was expected to access the financing after the necessary Bank of Ghana confirmation;

4. that the responsible Minister recommended maintaining the procurement process;

5. that the Government nevertheless contemplated replacing the arrangement with Chinese contractors; and

6. that the Minister expressly warned that, if the contract were abrogated in favour of the Chinese, the Government would need to “marshal all our forces internally in Ghana and externally to defend the decision”,

then the later history deserves to be examined with considerably greater care than the simple political slogan suggests.

The question is not whether the Cabinet had the constitutional power to change its procurement policy.

The question is what exactly happened, why it happened, what contractual consequences followed, and whether the subsequent legal and political treatment of Mr Woyome fairly reflected those facts.

There are therefore at least three different legal questions that should never be deliberately mixed together:

1. Was Woyome criminally convicted of defrauding Ghana?

No.

He was acquitted and discharged, and the State’s appeal did not overturn that acquittal.

2. Did the Supreme Court nevertheless order Woyome to refund GH¢51.2 million?

Yes.

The Supreme Court’s repayment order arose from its determination concerning the constitutional validity of the underlying arrangements, including the requirement for parliamentary approval under Article 181(5).

That repayment order should not be converted into a statement that Mr Woyome was criminally convicted of theft.

3. Were adverse findings of fraud made against him by the Commission of Inquiry subsequently allowed to stand?

No.

Those findings were challenged on fair-hearing grounds and were subsequently set aside by the Court of Appeal.

The most important point is simple:

Alfred Agbesi Woyome was never criminally convicted of stealing GH¢51.2 million from Ghana.

He was prosecuted.

He was acquitted and discharged.

The State appealed.

The Court of Appeal upheld the substance of the acquittal.

Separately, the Supreme Court, exercising its constitutional jurisdiction in the Waterville litigation, ordered repayment of GH¢51.2 million because of its determination concerning unconstitutional contractual arrangements and the absence of the constitutionally required parliamentary approval.

Those are two different legal outcomes arising from different proceedings and different legal questions.

They must not be deliberately merged.

It is factually misleading to collapse this complicated constitutional, contractual, procurement and litigation history into the political slogan that “Woyome stole Ghana’s money.”

A person accused of fraud was taken before a criminal court.

The State had the opportunity to prove the allegations.

It failed to do so, and the accused was acquitted and discharged.

At the same time, intellectual honesty requires acknowledging the Supreme Court’s separate determination that the GH¢51.2 million had to be returned.

Both parts of the history must be told.

The issue is not whether one supports or opposes Alfred Agbesi Woyome politically.

The issue is whether the public record should be stated accurately.

The repayment order should not be rewritten as a criminal conviction.

An acquittal should not be rewritten as a conviction.

A Commission finding challenged successfully on fair-hearing grounds should not be presented as a standing criminal conviction.

The 2005 procurement history should not automatically be collapsed into the 2006 Waterville contract.

A Cabinet memorandum recording the Government’s own contemporaneous understanding of the procurement and financing arrangements should not be ignored when the history is being narrated.

And political allegations should not be presented as established facts unless the evidence supports them.

The Woyome affair is therefore not a simple story of “a man who stole GH¢51.2 million from Ghana.”

It is a long and complex history involving public procurement, Cabinet decisions, Central Tender Review Board approval, proposed international financing, the replacement of an existing procurement arrangement with Chinese contractors, contractual claims, constitutional approval requirements, criminal prosecution, Supreme Court review, a Commission of Inquiry, the right to a fair hearing, international human-rights litigation and competing political narratives.

That whole history deserves to be told.

Not selectively.

Not politically.

Not through slogans.

But according to the actual documentary and judicial record.