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The Office of the Special Prosecutor (OSP) has cleared former President John Mahama of any bribery and misconduct following its investigations into the Airbus SE scandal that began in February 2020.

Briefing journalists on Thursday, August 8, 2024, the Special Prosecutor, Kissi Agyebeng, said that after his investigations he was unable to establish any evidence to suggest that John Mahama or any public official received bribes from Airbus SE.

Accordingly, the OSP found no evidentiary basis to suggest that Samuel Adam Foster also known as Samuel Adam Mahama, Philip Shun Middlemerth and Lean Sarah Davies acted as bribery conduits between Airbus employees and former President John Mahama or any other public official.

Likewise, OSP found no evidentiary basis to suggest that Samuel Adam Mahama, Philip Shun Middlerts and Lean Sarah Davies received payments from Airbus with the intent to bribe former President John Dramani Mahama or any other public official.

Furthermore, the OSP found no evidentiary basis to suggest that former President John Mahama or any other public official received bribes from Samuel Adam Foster, also known as Samuel Adam Mahama, Philip Shun Middlemerth and Lean Sarah Davies, in respect of the purchase by from the Ghana government of Airbus military transport aircraft,” he noted.
John Dramani Mahama, former president and now flag bearer of the National Democratic Congress (NDC), was vice president at the time the incident occurred.

BACKGROUND SEARCH

A breakdown of the Airbus bribery scandal

Ghana purchased three military aircraft (C295) from Airbus. The country received its first C295 in November 2011. The second aircraft was received in April 2012 and the third in November 2015.

John Dramani Mahama, former president and now flag bearer of the National Democratic Congress (NDC), was vice president at the time the incident occurred.

It was argued at the time that the agreements covering them were in line with the 2009-2012 Strategic Plan of the Ghana Armed Forces.

The three purchases, approved by Ghana’s Parliament after heated disagreements in plenary, were heavily promoted by the government of the day as an initiative to modernize the Ghana Air Force.

Financing for the purchase of aircraft.

Financing for the first two C295s came from a loan of €60,034,636 from Deutsche Bank SAE.

During the period, Parliament also approved another €11.75 million loan from Fidelity Bank Ghana Limited for the procurement of two DA42 MPP Guardian surveillance aircraft for the Ghana Air Force.

The House also approved a total loan of $105,370,177.09 from the Brazilian Development Bank (BNDES) for the purchase of an Embraer E190 aircraft for the country. The agreement with Embraer was to cover related spare parts, relevant accessories as well as the construction of an aircraft hangar large enough to accommodate three large aircraft.

Before parliamentary approval of the loan agreements, the minority leader, Osei Kyei-Mensah-Bonsu, had criticized the agreements as questionable and opaque, adding that the contract amounts had been inflated by the government.

He famously presented figures obtained from the Internet to back up his claims, but was scorned for doing nothing more than relying on Google to file such serious allegations of wrongdoing.

One of the C295s acquired under the deal supported United Nations-led missions in Mali. The remainder was purchased, as the Government explained at the time, to support the strategic operations of the Ghana Air Force, including surveillance of the country’s offshore oil production fields, border patrol, pilot training and internal transportation. of troops.

In November 2014, then President John Mahama had announced that Ghana planned to acquire more military equipment, including five Super Tucanos, Mi-17s and four Z-9s, for the Ghana Air Force.

At the time, Ghanaian troops were said to be heavily reliant on civilian flights for their movements and needed military aircraft to correct this anomaly. Despite criticism from the opposition, the government went ahead with the purchase agreements.

UK Court ruling

The recent ruling by England’s Crown Court in Southwark appears to have given new life to earlier suspicions that agreements covering especially C295s were corrupt. The January 21, 2020 decision approved a Deferred Prosecution Agreement (DPA) between the Serious Fraud Office and Airbus SE, an Airbus subsidiary, after investigations exposed massive bribery scandals involving the aircraft manufacturer in violation of the Bribery Act 2010.

English law allows the SFO to postpone the prosecution of an organization based on an agreement between the SFO and a company or companies suspected of committing economic crimes.

Such an agreement (DPA) requires a seal of judicial approval to be legal and may even allow the offending institution to avoid prosecution altogether.

The court, in its decision on such applications, considers, among other things, whether or not the DPA before it is in the public interest.

Furthermore, the terms of the agreement must be fair, reasonable and proportionate.

In the present case, the court concluded that the DPA is in the public interest and that the agreed terms meet the tests of fairness, reasonableness and proportionality.

The court considered that prosecuting Airbus now would lead to, among other things, massive job losses and decimate the company’s stock market performance in the short and long term.

Independent estimates suggest Airbus could easily lose around £200bn in the long term if it faced immediate court proceedings.

The ruling said SFO investigations found that Airbus, which has since agreed to pay more than £3 billion in fines, had engaged in schemes involving bribery to secure lucrative contracts in countries including Malaysia, Sri Lanka, Taiwan, Indonesia and Ghana.

French and US authorities have also found similar evidence of alleged bribery involving Airbus officials or their agents in other countries, including Russia and China.

In the case of Ghana, the Crown Court ruling highlights cases where Airbus officials, as part of a scheme to obtain or maintain government contracts, bribed or agreed to bribe intermediaries with close links to a government official. high rank. It is said to have influence over the country’s aircraft purchasing plans between 2011 and 2015.

Court documents did not mention any names, but the period set out in the ruling covered some periods of the Mills-Mahama era.

The first agreement to pay bribes in Ghana involved some €5 million disguised as a commission to an intermediary – “intermediary 5” – hired by Airbus to promote its proposal to sell two C295 aircraft to Ghana. exposed the dubious deals and no money was paid.

Ultimately, due process evidence exposed the dubious deals and no money was paid.

Subsequent attempts by Airbus were successful and Ghana purchased at different times 3 C259 aircraft through the multinational’s Spanish defense subsidiaries.

The agreements were arranged through a series of intermediaries headed by “intermediary 5”, who was said to be an unnamed relative of a powerful Ghanaian official who, at the relevant time, was in a decision-making position over the agreements. proposed aircraft purchase.

However, after an internal investigation exposed the link between Broker 5 and the unnamed senior Ghanaian government official, the parties devised a plan to route the transaction through a third company of Spanish origin, whose company had no dealings previous with her. Ghana.

The Spanish company was passed off as a facilitator of the proposed aircraft purchase agreements, when in reality it was simply inserted into the agreements to circumvent due diligence requirements in order to give a go-ahead to the questionable transaction. Following the conclusion of the agreement with Ghana, under which two aircraft were initially sold, Airbus or its agents relied on false statements and documentation to pay bribes amounting to close to €4 million to the third Spanish company, which in turn channeled payments to intermediary 5. .

The payments were disguised as commissions on the contract amount. The third Spanish company withdrew from a subsequent deal that delivered its third C259 aircraft to Ghana. This was after Airbus hired an outside lawyer to conduct due diligence on the matter. Intermediary 5’s subsequent claim that Airbus owed him some €1.6 million under the agreement covering the third C295 was not addressed.

The DPA does not mean that Airbus and its officials are immune from prosecution for alleged crimes.

Under English law, the SFO has the right, from time to time, to prosecute Airbus if it considers that the company has not complied with the terms of the DPA approved by the Court.

Indeed, the ongoing investigations mean that while the SFO could, in light of Airbus’s cooperation so far, forgo prosecuting the aircraft manufacturer, it may, after investigations, initiate criminal proceedings against people who actually paid or received the reported bribes.

That measure is likely to include intermediaries in Ghana and related persons. In such a case, the SFO may rely on the Mutual Legal Assistance (MLA) provisions under English law to bring relevant charges.

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