Though he has been touted by many as one of the finest legal brains in the country and an ideal candidate to deputise Dr Mathew Opoku Prempeh at the Ministry of Energy, the Appointments Committee of Parliament thinks otherwise, about Mr Andrew Egyapa Mercer.
The Committee probably holds the firm belief that a person’s competence alone cannot be a guarantee for approval to a public position, and that other factors must come to play.
For Egyapa Mercer, his comments and position on the failed Power Distribution Services (PDS) in 2019 has come to haunt him.
News from the grapevine indicates that the first batch of vetted nominees might have gotten the approval of the Appointments Committee, except Mr Egyapa Mercer.
The actual reason for purportedly showing Egyapa Mercer the red card is not yet known, but The Chronicle can link it to the responses the nominee gave to the committee, regarding his comments on the botched PDS deal and especially the outcome of the altercations between him and the Member of Parliament for Asawase, Alhaji Mubarak Muntaka.
It would be recalled that Mr Mercer had disagreed with the then Deputy Minister of Energy, Mr John Peter Amewu, for referring to the PDS deal as fraudulent, albeit the latter was canvassing the official government position.
However, during the vetting, Mr Mercer claimed that the Chairman of the Appointments Committee, Joseph Osei Owusu, had explained to him what ‘fraudulent’ means, and he had, therefore, come to accept the position the then Minister (John Peter Amewu) had taken, as captured in the conversation below;
“Muntaka: Mr Chairman, earlier too, he said that there were a lot of misconceptions and that he does not see fraud anywhere, you said this a while ago.
Egyapa Mercer: Yes I said so, but with the Chairman having drawn my attention to a potential misrepresentation being fraudulent, I am prepared to change my position with respect to that aspect of my response.
Below is what transpired between Mr Andrew Egyapa Mercer and Alhaji Mubarak Muntaka at the vetting;
Muntaka: TG Energy Solutions Ghana Limited, what was their interest in the PDS?
Egyapa Mercer: Mr Chairman, they are listed as a Shareholder of PDS
Muntaka: So indirectly they were part of the owners of PDS, right?
Egyapa Mercer: Yes, Mr Chairman.
And you were a Director and a Secretary to TG Energy Solutions Ghana Limited, am I right?
Egyapa Mercer: Correct, Mr Chairman.
What was the nature of your interest in TG Energy Solutions Ghana Limited?
Egyapa Mercer: Mr Chairman, I had no interest whatsoever, thank you.
Joseph Osei-Owusu: If you say you had no interest , you are employed by the company so to speak, is that not an interest?
Egyapa Mercer: Not at all, Mr Chairman. Like I explained, my understanding of interest is in the nature of property
Chairman: But if you are paid, it is a property, isn’t it?
Egyapa Mercer: Mr Chairman, as remuneration for services rendered? I am not sure that would be property in the nature of interest. That is my understanding, I stand to be corrected.
Muntaka: Do you have interest in parliament?
Egyapa Mercer: Mr Chairman I am an elected Member of Parliament for the good people of Sekondi.
Muntaka: I am only asking, do you have interest in parliament?
Egyapa Mercer: I don’t think I have an ‘interest’ in parliament
Muntaka: So whether parliament collapses or is overthrown, it does not matter to you?
Egyapa Mercer: Mr Chairman, for purposes of protecting our democracy, I will be interested in parliament existing and continuing the functions that it plays, which I think is pretty important.
Muntaka: So if you are a Director and a Secretary to a company, how do you say that you don’t have interest? I chose my words carefully; I didn’t ask whether you were a shareholder. I asked, “what is the nature of your interest in TG Energy solutions Ghana Limited?
Egyapa Mercer: Mr Chairman, as I explained, my understanding of interest which is really a legal construct is one that is in the nature of a property that is transferable, either tangible or intangible, real.
But with respect to my duty or my relationship with TG Energy, Mr chairman, my understanding is that it’s in the nature of a fiduciary, which is separate from an interest and so that’s why I stated that I do not have any interest.
Muntaka:Do you draw any benefits from TG Energy Solutions Ghana Limited?
Egyapa Mercer: I should have been, but I never did because the contractual relationship was such that I be paid, but I was never paid.
Muntaka: And you allowed them to use your business premises as their business premise.
Egyapa Mercer: Mr Chairman, TG Energy did not operate from Mercer and Co. Mercer and Co. was the registered office of TG Energy. Mr Chairman, as I explained earlier, registered offices for purposes of the Companies Act is a location where a company is suppose to provide for purposes of service of process and other official document on them. Place of doing business which is where they operate from day to day basis is different and like I said earlier, TG Energy didn’t operate on a day to day basis from the premises of Mercer and Co.
Muntaka: And where they were operating, the place of business operation didn’t have an address
Egyapa Mercer: Mr Chairman, I am not aware of the place of business that they were carrying out their business and I am sure it will be in their incorporation document.
Muntaka: In their incorporation document, it is indicated that your business location was their address and you are telling us that yes they had a different place of operation from where they indicated as their business address which is your address and that address was only for serving them letters and what have you but they were operating in a different place and I asked you, “so are you saying that where they were operating didn’t have an address?”
Egyapa Mercer: Mr Chairman, I would believe that it would
Muntaka: What prevented them from using that but chose to use your business address
Egyapa Mercer: Mr Chairman at the time of incorporation, they obviously didn’t have any business and like I said registered office being lawyers office, accountants office is pretty common
Muntaka: But since they started doing business, why didn’t you get them to change the address to their business location and instead of your place?
Egyapa Mercer:Mr Chairman the need did not arise
Muntaka: So you see the struggles about conflict of interest? You are saying that the need didn’t arise, this is a company that you were a director and secretary to and obviously you will do everything to protect their interest because you are a director.
If you will not protect their interest you will not accept to be their director. Your company is providing secretaryship to their company and their company has shares in PDS and PDS is discussed in parliament and you didn’t see the need to recues yourself in a manner that will avoid a conflict of interest and you don’t see anything wrong with that?
Egyapa Mercer: Mr Chairman, without sounding repetitive, the clear distinction between the entity that the Government of Ghana contracted with, that is PDS and its shareholders, is pretty clear. There was no business between the Government of Ghana and TG Energy. In any event, Mr Chairman, like I have said earlier, my understanding and I stand firmly on it that directorship does not constitute interest and so I did not have and still do not have interest in TG Energy that would have required me to disclose in accordance with law.
In any event, TG Energy was not the entity that the Government of Ghana was having the transaction with and so in all honesty I did not see any reason which required that I make any such disclosures. In any event Mr Chairman, the documents that were submitted to parliament with respect to the parties and their directors and shareholders in the PDS transaction were all disclosed.
Muntaka: And when it was disclosed, was TG Energy solutions not part?
Egyapa Mercer: Yes it was
Muntaka: And you are a director for TG Energy Solutions Ghana Ltd
Egyapa Mercer: Yes
Muntaka: Well, let me move on. You continued to say you disagreed with the Minister of Energy on the basis they used in terminating the PDS contact is that right?
Egyapa Mercer: No, Mr Chairman, that’s not what I said. I am saying that and the question that was asked was specific to my disagreement with the Minister of Energy on the use of the word ‘fraud’, because the time that I was making the comment I was speaking in my capacity as a spokesperson for government communication and the official communication that government had issue on the transaction at the time that it was suspended was that government had taken steps to suspend the PDS transaction for material breaches and I said that for the minister to have that the transaction had been suspended because of fraud was incorrect.
Subsequently, when the investigation was concluded and the Government of Ghana determined that at the completion date of transaction there was no valid guarantee in place and proceeded to terminate it, I fully support the action that was taken by the government to protect ECG, thank you.
Muntaka: Now you said your disagreement was the use of the word fraud.
Egyapa Mercer: Yes. Mr Chairman
Muntaka: And you also said Al Koot, when ECG was cross-checking, said that the person who signed the guarantee did not have their authority to sign that guarantee?
Egyapa Mercer: To the best of my knowledge yes.
Muntaka: So what was that?
Egyapa Mercer: Mr Chairman I believe that there is a legal principle
Muntaka: Maybe Mr Chairman, let him help us, what is the definition of fraud?
Egyapa Mercer: Fraud errm, connotes errm, broad eh eh (laughs) You know depends on the circumstances really and the fact, but I am saying that Mr Chairman, Mr Chairman, the point that I am making is this that ordinarily when documents come from a certain custody and I can relate to cheques, corporate cheques where you have A signatories, B signatories’, C signatories, who are…
Muntaka: Honourable nominee, I was just asking you to define fraud, that’s all I asked you to do.
Egyapa Mercer: Mr Chairman, fraud, hahahahaha
Chairman : Will misrepresenting a fact amount to fraud?
Egyapa Mercer: If it was with the intent to deceive, then it will amount to fraudulent misrepresentation
Haruna: Did I hear you use the word fraudulent misrepresentation?
Egyapa Mercer: Yes
Haruna: Ahh is it not the same fraud word you have a problem with?
Egyapa Mercer: Mr Chairman, No
Haruna: So which of them do you have a problem with?
Egyapa Mercer: The sequence of…
Haruna: You are a trained lawyer and a contract can be vitiated on the basis of fraud and misrepresentation and to quote you fraudulent misrepresentations. So come clear with what the Whip (Muntaka) is elucidating from you. You say you have a difficulty with the word fraud yet you are using the word fraudulent to qualify misrepresentation.
Egyapa Mercer: Chairman I will explain, at the time that the transaction was suspended there was absolutely no basis for the assertion that it was suspended base on fraud and that is the point where I said I disagreed with the word that the Minister used because the communication that came from government at the time of the suspension was that there were some material breeches that were detected which was going to be investigated. It was after the investigation that the transaction was terminated. So I am saying that at the time that the Minister used those words to describe the basis for the suspension I disagreed with him.
Chairman:The reason was that he was speaking too soon is that so?
Egyapa Mercer: If you like, Mr Chairman, thank you.
Muntaka: Now, Mr Chairman, I heard, unless maybe he wants us to go back to the tape. He said he disagreed with the Minister then and he continues to disagree with him now for the choice of words.
Egyapa Mercer: Yes, at the time that he used those words.
Muntaka: Mr Chairman let me just ask this on the disagreement on the use of the word. Honourable Egyapa who am I in this House ? I am just using an analogy, who am I in this house?
Egyapa Mercer: You are a Member of Parliament for the good people of Asawase and the Minority Chief Whip, leader of the House.
Muntaka:I am a member of this committee right?
Egyapa Mercer: Yes
Muntaka: If there is a letter to be signed by the chairman of this committee and I sign it, how will you describe that?
A committee member asks, amidst laughter
Committee Member: You signed for the chair?
Muntaka: I didn’t sign for the Chair I sign as the Chair of the Appointment Committee, what will that be?
Egyapa Mercer: That you have acted ultra vires of your power.
Muntaka: Will that not be misrepresentation?
Egyapa Mercer: I believe so
Muntaka: If the intent is to gain whether financially or gain influence or get some other information will that not be fraud?
Egyapa Mercer: Mr Chairman I believe so, yes.
Muntaka: Mr Chairman, now that he believes so, let move on to the next question. Are you aware that PDS is in court with the Ministry of Energy?
Egyapa Mercer:Mr Chairman I have heard so, yes.
Muntaka: So you are aware they are in court
Egyapa Mercer: Yes
Muntaka: So you still have your relationship with TG Energy Solutions intact?
Egyapa Mercer: Chairman as of I believe last Friday, yes.
Muntaka: So Mr Chairman you see the difficulty that the nominee has going to the Ministry of Energy as a Deputy Minister when a company that not directly involved but indirectly involved is litigating with the Ministry of Energy?
Egyapa Mercer: Mr Chairman if the Committee finds it worthy to approve me, I don’t see any difficulty at all. Like I said TG Energy is not my company and so I don’t see how a role that is only by appointment can influence my decision with respect to this great republic of ours. In any event TG Energy hasn’t got any transaction with the government of Ghana. PDS has its own directors and their secretary who are best suited for taking decisions for that legal entity.
Muntaka:Mr Chairman earlier he made reference to the FTI report, you said the issues there were very clear, can you educate us on the clarity of the FTI report?
Egyapa Mercer: Mr Chairman probably the conclusions that they drew which was a request essentially for pursuant to which the US Government of the Government of Ghana to provide PDS with an opportunity to procure a new guarantee, just to be brief because it was an extensive voluminous document that traced the commencement of the transaction, the role that the transaction advisors have played, the roles that the parties had played and then they came to a conclusion which was that recommendation.
Muntaka:Mr Chairman earlier to he said that there were a lot of misconceptions and that he does not see fraud anywhere, you said this a while ago
Egyapa Mercer: Yes I said so but with the Chairman having drawn my attention to a potential misrepresentation being fraudulent, I am prepared to change my position with respect to that aspect of my response.
Muntaka: Chairman thank you.