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Why Charlotte Osei was fired

chronicle June 29, 2018

Below are excerpts from the 54 page document

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 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.

(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.

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 GHC100,000.00, 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 8th 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 GHC5, 000.00. The threshold of the Chairperson as head of entity for services was changed to GHC100, 000.00 on the 1st 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 amended 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 must 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 procedures 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 (5) 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.

We 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:-

  1. That the Chairperson herself was writing directly to seek approval from the Public Procurement Authority to do restricted tender.
  2. 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 roles.

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.

RECOMENDATION

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 accepted 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, 4th 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….

 

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