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Opinions of Sunday, 16 December 2012

Columnist: Forson-Asimenu, Kwaku

Judgment Debts And The People Of Ghana

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When the dust settles fully on the 2012 Presidential elections of Ghana, one key matter that will resurface is that of ‘Judgment debts’. This topic is very important to the Ghanaian people because judicial debts are clearly shunting away a lot of revenue that could otherwise be used for developmental purposes. Already, the sole commissioner appointed by President Mahama in his previous presidential role has resumed duties after a short break as a result of, I reckon, the elections. To many people, Ghana should not have paid any judgment debt to any foreign company. We should have just said ‘ yentua’;we won’t pay and that would be it. Such thinking, in my humble opinion, has not considered fully the international implications of refusing to pay sovereign debts. For instance, lets take a look at a case now known as ‘Argentina vs Ghana’.

On the 14th of November 2012, the Hamburg based International Tribunal for the Law of the Sea made a release to the press; Argentina had sued Ghana before it. Argentina’s case was that, its frigate or warship christened ARA Libertad was illegally detained by Ghanaian authorities at the Port of Tema from 2nd October 2012. Argentina requested the court to grant that: 1.Ghana unconditionally enables the warship to leave the Tema Port 2.The ship to be resupplied to that end.

A good friend of mine asked, why did Ghana impound this warship in the first place? What do we stand to gain? We are having enough trouble without international aggressors how much more creating enemies ‘deliberately’? Now look, the Argentines are trying to hack into the database of key government agencies including the Bank of Ghana. Heh! The last time I heard, Argentine officers on the ship were threatening to shoot Ghanaians in our own country! What is all this about?’, my friend sounded desperately annoyed. I decided to narrate how it happened to him.

It all started when an Argentine warship decided to dock in Ghana en route Nigeria as part of a worldwide training and goodwill tour. Unbeknown to the crew on the Libertard, not everyone was in a goodwill mood towards them. One of such people is Paul Singer, a key financier of the U.S. Republican Party and owner of NML capital. Argentina owes NML capital substantial amount of money in judgment debt. And as Argentina cruised on, NML had been tailing the ship including using information from the ships official website. ARA Libertad docks in Tema and Ace Ankomah, a renowned Ghanaian lawyer who is counsel for NML capital prayed a Ghanaian high court to restrain the ship until and unless the Argentine government provided sufficient security in the form of depositing a percentage of the judgment debt it owed NML. The court granted his request and ARA libertad was prevented from leaving Tema against its will. Fair game isn’t it? It would have been except the government and people of Ghana have been drawn into a matter that should not have been any business of theirs.

But the reality is that, as a growing democracy Ghana is governed by the rule of law. An application before its courts must be examined. The only problem was that a Sovereign cannot be tried in the court of another sovereign. In other words, matters directly involving one sovereign state cannot be tried in the court of another. This is sovereign immunity, a cornerstone principle in International Law. This immunity extends to all properties of the sovereign state including ships, airplanes and other means of transportation. Before the tribunal, Argentina argued that, ‘the order of the Ghanaian court is in violation of International Law and, in particular, of the immunities enjoyed by warships. The Argies cited Article 32 of the UN Convention of the Law of the Sea which provides for the immunity of warships. Interestingly, this appears to be an argument Argentina has recycled over the period despite a provision in its agreement with NML limited which sets aside such sovereign privileges.

When Argentina failed to pay its debt, she was sued in a US domestic court, District Court for the Southern District in New York. Judgment was obtained to recover a principal amount of $284,184,632.30, plus interest of $48,95,940.91.When settlement was not effected, NML again sued in the Supreme court of the United Kingdom for the debt obligation. In both cases the plaintiff relied on a particular provision in the agreement signed between it and Argentina which had waived the immunity of the sovereign state of Argentina. Therefore, this particular matter could be heard in the court of any other country including Ghana. Argentina’s attempt to cling to sovereign immunity therefore could be likened to Esau who sold his birthright and afterwards weeps for the blessings of the firstborn.

The second issue which makes Argentina’s challenge against Ghana hollower is the argument put forward by the Ghanaian legal team in Hamburg. ‘- it is a competent court of jurisdiction that acted in Ghana and the government of Ghana has no control over that bearing in mind the separation of powers in a democracy. The government of Ghana therefore is not in conflict with the government of Argentina. The Ghanaian team strengthened their position further by reminding the court that the incident happened in the internal waters (Tema Port) of Ghana where the international tribunal cannot have jurisdiction. The court says it will give its ruling on Saturday December 15th .

Ghana’s position appear very strong but there are three developments that calls for concern. The first is the position of the International Maritime Organization (IMO). Even though the IMO, principally responsible for international shipping, is not the body directly adjudicating the matter, its comment at this early stage that Ghana should respect the immunity clause in article 32 of UNCLOS could at best be considered prejudicial and contemptuous. The second issue is the declaration by the court itself that it will not go into the substantive case but would only make a decision about whether the ship should be released and may not make a wider judgment about whether warships can be arrested in civil debt cases. Without going into the details Ghana’s position would be severely challenged. The third and probably the most legally important point against Ghana is the fact that the United States, the nation whose courts have issued the initial rulings under which Ghana is holding the ship is not a party to the International Tribunal of the Law of the Sea.

Ghana therefore needs to strengthen her position well otherwise a technically savvy Argentine legal team may try to explore the possibility of differentiating between the state of Ghana and the government of Ghana. It may remind the court that inasmuch as the judiciary is independent of government, it is still part of the state. Therefore Argentina has a case against the state of Ghana.

But the big question again is why should Ghana take upon itself all this bother? When cost was awarded to NML in the US were there no Argentine properties in the US to be attached? How about the consulate of Argentina on 12 West 56 Street, New York? How about the Argentine consulates in Los Angeles and Washington as well as the Argentine Embassy in Washington or the Argentine Permanent Mission to the UN in new York? In the United Kingdom, Argentina has an embassy on 53 Hans Place, London (SWIX OLA,UK) as well as a trade office in Cadogan Gardens, London. If the courts in these jurisdictions recognizes the waiver of Argentine immunity per this matter, why can’t they attach any of these landed Argentine properties? Or is Ghana being directed by some invisible hands to do the bidding for some international financiers and vulture fund operators? So , did the high court in Ghana rule in the national interest? Or somebody is trying to show the Ghanaian people what happens when a state refuses to pay judgment debts?

By Kwaku Forson-Asimenu.

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