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 recommendation 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.
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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 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.
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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 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’.
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.
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(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.
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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.