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The Office of the Special Prosecutor (OSP) has exonerated former President John Mahama of any bribery and wrongdoing after its investigations into the Airbus SE scandal which began in February 2020.

Briefing journalists on Thursday, August 8, 2024, the Special Prosecutor, Kissi Agyebeng said after his investigations, he could not establish any evidence to suggest that John Mahama or any public official received bribes from Airbus SE.

As a result, 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 a conduit for bribery between Airbus employees and Former President John Mahama or any other public officer.

Also, the OSP found no evidentiary basis to suggest that Samuel Adam Mahama, Philip Shun Middlerts and Lean Sarah Davies received payments from Airbus with the intention of bribing 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 relation with the purchase by the Ghanaian government of military transport aircraft from Airbus,” he noted.
John Dramani Mahama, a former president and now the flag bearer of the National Democratic Congress (NDC) was the Vice President at the time the incident occurred.

BACKGROUND SEARCH

Analysis of the Airbus bribery scandal

Ghana bought three Military Aircraft – C295s – from Airbus. The nation received its first C295 in November 2011. The second aircraft was received in April 2012 and the third in November 2015.

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

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

The three purchases, approved by the Ghanaian Parliament after heated disagreements on the floor, were heavily marketed by the government of the day as a drive to modernize the Ghana Air Force.

Funding for the purchase of aircraft

Funding for the first two C295s came from a €60,034,636 loan facility from the Deutsche Bank SAE

A further €11,750,000 million loan from the Fidelity Bank Ghana Limited was also approved by Parliament during the period for the acquisition 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 jet for the country. The Embraer contract was to cover related spare parts, relevant accessories as well as the construction of an aircraft hangar large enough to house three large aircraft.

Before Parliament approved the loan agreements, the Minority Leader, Osei Kyei-Mensah-Bonsu had criticized the deals as dubious and non-transparent, adding that the contract amounts were padded by the government .

He is famous for presenting figures obtained from the internet to support his claims but has been ridiculed for doing no more than relying on Google to find such serious allegations of wrongdoing.

One of the C295s acquired under the agreement was supporting UN-led missions in Mali. The rest were 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 areas, border patrolling, pilot training and internal transport of troops.

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

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

UK Court Judgment

It seems that the recent ruling of the English Crown Court in Southwark has now given new life to earlier suspicions that the contracts for the C295s in particular were corrupt. The January 21, 2020 decision approved a Deferred Prosecution Agreement (DPA) between the Serious Fraud Office and Airbus SE, a subsidiary of Airbus, after investigations revealed massive bribery scandals involving the aircraft manufacturer in violation of the Bribery Act 2010.

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

Such an agreement – (DPA) – requires Judicial approval to become legal and may even allow the offending organization to avoid prosecution altogether.

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

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

In the present case, the court found that the DPA was in the public interest and that the agreed terms satisfied the tests of fairness, reasonableness and proportionality.

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

Independent estimates suggest that Airbus could easily bleed around £200 billion in the long term if it faced immediate prosecution.

The ruling said that SFO investigations had found that Airbus – which has since agreed to pay more than £3 billion in fines – had taken part in schemes which involved bribing its way into lucrative contracts in countries such as Malaysia, Sri Lanka, Taiwan, Indonesia and Ghana.

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

In the case of Ghana, the Crown Court Judgment highlights cases where Airbus officials, as part of a scheme to obtain and or maintain contracts with the government, have either bribed or agreed to bribe intermediaries with close ties to an official high status state. he is said to have influence over the country’s aircraft purchase plans between 2011 and 2015.

The court documents did not mention any names but the timeframe set out in the judgment covered some periods of Mills-Mahama’s life.

The first agreement to pay bribes in Ghana involved around €5 million which was disguised as a Commission to an intermediary – “intermediary 5” – employed by Airbus to promote its offer to sell two C295 aircraft to Ghana. Ultimately, due process tests revealed the dubious arrangements and no money was paid.

Ultimately, due process tests revealed the dubious arrangements and no money was paid.

Airbus was able to follow up, resulting in Ghana purchasing 3 C259 aircraft through the multinational’s Spanish defense subsidiaries at different times.

The deals were arranged through a number of intermediaries led by “intermediary 5”, said to be an unnamed relative of a powerful Ghanaian official who, at the relevant time, was in a position to make a decision on the proposed aircraft purchase agreements.

However, after an internal investigation revealed the connection between intermediary 5 and an unnamed official of the Ghanaian government, a plan was then drawn up by the parties to route the transaction through a third party company of Spanish origin, with which the company had no previous connection with him. Ghana.

The Spanish company was approved as the facilitator of the proposed aircraft purchase agreements when in fact it was only inserted into the arrangements to avoid due diligence requirements in order to give the dubious transaction a clean bill of health. At the end of the contract with Ghana, where two aircraft were initially sold, Airbus or its agents relied on false representations and documentation to pay bribe amounts close to €4 million to the Spanish third party company which in turn channeled the payments to an intermediary 5 .

The payments were disguised as a commission on the contract amount. The Spanish third-party company pulled out of a subsequent deal that gave Ghana its third C259 aircraft. This was after Airbus hired external counsel to carry out due diligence on it. Referee 5’s subsequent claim that Airbus owed him around €1.6 million under the contract for the third C295 was not honoured.

The Data Protection Act does not mean that Airbus and its officers are immune from prosecution for the alleged offences.

Under English law, the SFO has the right, in due course, to sue Airbus if it is satisfied that the company has failed to comply with the terms of the Court-approved Data Protection Act.

Indeed, ongoing investigations mean that although the SFO may, in light of Airbus’ cooperation so far, stop prosecuting the aircraft manufacturer, it may, after the investigations, bring criminal proceedings against the persons who paid or received the bribes complained of.

Such a move is likely to involve the intermediaries in Ghana and associated individuals. In such a case, the SFO may rely on the Mutual Legal Aid (MLA) provisions under English law to levy the relevant charges.

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