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The Office of the Special Prosecutor (OSP) has cleared former President John Mahama of any corruption and wrongdoing 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 after his investigations, he could not establish any evidence to suggest that John Mahama or any public official received bribes from Airbus SE.

Consequently, the OSP found no evidence base to suggest that Samuel Adam Foster also known as Samuel Adam Mahama, Philip Shun Middlemerth and Lean Sarah Davies acted as conduits for bribery between Airbus employees and former president John Mahama or any other public officer.

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

BACKGROUND RESEARCH

A breakdown of the Airbus corruption scandal

Ghana has 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 flag bearer for the National Democratic Congress (NDC) was vice president at the time the incident occurred.

The agreements covering them were argued at the time to be in line with the 2009-2012 Strategic Plan of the Ghana Armed Forces.

All three purchases, approved by the Parliament of Ghana after strong disagreements on the plan, were marketed by the government of the day as a commitment to modernize the Air Force of Ghana.

Financing for the purchase of the aircraft

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

Another loan of 11,750,000 million Euros from Fidelity Bank Ghana Limited was also approved by Parliament during the period for the purchase of two DA42 MPP Guardian surveillance aircraft for the Ghana Airforce.

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

Before the Parliamentary approval of the loan agreements, the Minority Leader, Osei Kyei-Mensah-Bonsu had slammed the deal as questionable and not transparent, adding that the sums of the contract were agreed by the government.

Famoso presented figures obtained from the Internet to support his claims, but was criticized for not doing more than relying on Google to come up with such serious allegations of wrongdoing.

One of the C295s purchased under the agreement supports United Nations-led missions in Mali. The rest were bought, 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 , the training of pilots and the internal transport of troops.

In November 2014, 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 Airforce.

At the time, the Ghanaian troops were said to rely heavily 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.

The judgment of the Court of the United Kingdom

The recent judgment from the Crown Court of England in Southwark seems to have now given new life to earlier suspicions that the agreements covering the C295s in particular were corrupt. The decision of 21 January 2020 approved a Deferred Prosecution Agreement (DPA) between the Serious Fraud Office and Airbus SE, a subsidiary of Airbus, after investigations exposed massive corruption scandals involving the manufacturer of aircraft in breach of the 2010 Bribery Act.

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 having committed economic crimes.

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

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

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

In the present case, the court found that the DPA is in the public interest and that the terms agreed to meet the tests of equity, reason and proportionality.

The court considered that the prosecution of Airbus now, among other things, leads to massive job losses and decimates the company's performance on the stock market in the immediate and long term.

Independent estimates suggest that Airbus could easily haemorrhage around £200bn in the long term if it pursues it immediately.

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

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

In the Ghanaian case, the Crown Court ruling highlights instances where Airbus officials, as part of a scheme to obtain and or retain government contracts, either agreed or agreed to bribe intermediaries with ties closely with a high-ranking state official. It is said to have influence on the country's aircraft purchase plans between 2011 and 2015.

The court documents did not mention any names, but the timeline set out in the judgment covers several periods of the Mills-Mahama era.

The first agreement to pay bribes in Ghana was to participate in about 5 million euros that was disguised as a commission to an intermediary – “intermediary 5” – engaged by Airbus to promote its proposal to sell two C295 aircraft to Ghana . exposed the dubious arrangements and no money was paid.

Eventually, due process tests exposed the dubious deals and no money was paid.

Subsequent approaches by Airbus have been successful, with Ghana acquiring 3 C259 aircraft through the multinational's Spanish defense subsidiaries at separate 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 decision-making position on the deals of the proposed aircraft purchase.

However, after an internal investigation revealed the link between the intermediary 5 and the unnamed government of Ghana official, a scheme was then ordered by the parties to route the transaction through a third company of Spanish origin , which the company had no previous treatment. Ghana.

The Spanish company was passed off as the facilitator of the proposed aircraft purchase agreements, when in fact it was only entered into the agreements to circumvent due diligence requirements to give the questionable transaction an invoice of clean health. After the conclusion of the agreement with Ghana, in which two aircraft were initially sold, Airbus or its agents relied on false representations and documentation to pay a bribe of close to 4 million euros to the Spanish third party company which, in turn, channels the payments to the intermediary 5. .

The payments were disguised as commissions on the amount of the contract. The Spanish third party company withdrew from a subsequent deal that gave Ghana its third C259. This was after Airbus had hired an outside lawyer to do due diligence. Intermediary 5's subsequent claim that Airbus owed them around €1.6 million in the deal covering the third C295 was not honoured.

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

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

Indeed, the ongoing investigations mean that while the SFO could, in light of Airbus' cooperation so far, refrain from prosecuting the aircraft manufacturer, it may, following investigations, take criminal action against to the people who paid or received the bribes complained of.

Such a move is likely to include middlemen in Ghana and related people. In such a case, the SFO may rely on the provisions of Mutual Legal Assistance (MLA) under English law to mount the relevant charges.

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