The Office of Special Prosecutor (OSP) has exonerated former President John Mahama of bribery and corruption charges following an investigation into the Airbus SE scandal that began in February 2020.
Special Prosecutor Kisi Agyebeng told reporters on Thursday, August 8, 2024 that investigations had not produced any evidence to suggest that John Mahama or any public official had accepted bribes from Airbus SE.
As a result, the OSP found no evidence to suggest that Samuel Adam Foster (aka Samuel Adam Mahama), Philip Shun Middlemars or Leanne Sarah Davis) acted as intermediaries for bribery between Airbus employees and former President John Mahama, or any other public official.
The OSP also found no evidence to suggest that Samuel Adamu Mahama, Philip Shun Middtz and Leanne Sarah Davis received money from Airbus with the intent of bribing former President John Dramani Mahama or any other public official.
“Furthermore, the OSP has not found any evidence to suggest that former President John Mahama or any other public official received bribes from Samuel Adam Foster (aka Samuel Adam Mahama), Philip Shun Middlemars or Leanne Sarah Davis in relation to the purchase of military transport aircraft from Airbus by the Government of Ghana,” he noted.
Former President and current Leader of the National Democratic Congress (NDC), John Dramani Mahama, was Vice President at the time of the incident.
Background research
Details of the Airbus bribery scandal
Ghana has purchased three C295 military aircraft from Airbus. The country received the first C295 in November 2011. The second came in April 2012 and the third in November 2015.
Former President and current Leader of the National Democratic Congress (NDC), John Dramani Mahama, was Vice President at the time of the incident.
At the time, it was claimed the deals were in line with the Ghana Armed Forces’ 2009-2012 Strategic Plan.
The purchase of the three aircraft, approved after fierce debate in Ghana’s parliament, was heavily promoted by the government of the day as an effort to modernise the Ghana Air Force.
Aircraft purchase funds
The first two C295s were funded through a €60,034,636 credit facility from Deutsche Bank SAE.
During the period, Parliament also approved a further loan of €11,750,000,000 from Fidelity Bank Ghana Limited for the purchase of two DA42 MPP Guardian surveillance aircraft for the Ghana Air Force.
The House of Representatives also approved a loan totaling $105,371,779.09 from the Brazilian Development Bank (BNDES) for the purchase of Embraer E190 jetliners for Brazil. The contract with Embraer also includes the construction of an aircraft hangar large enough to accommodate three large aircraft, as well as related spare parts and accessories.
Before Parliament approved the loan agreement, Minority Leader Osei Kyei Mensah Bonsu slammed the deal as questionable and opaque, adding that the value of the contract had been inflated by the government.
He famously presented figures from the internet to back up his claims, but was criticised for simply relying on Google to come up with such serious allegations of wrongdoing.
One of the C295s purchased under the contract supported a UN-led mission in Mali, while the remaining aircraft were purchased to support strategic operations of the Ghana Air Force, including monitoring oil fields off the coast of Ghana, border security, pilot training, and transporting troops around the country, the government explained at the time.
In November 2014, then-President John Mahama announced plans to acquire further military equipment for the Ghana Air Force, including five Super Tucanos, Mi-17s and four Z-9s.
At the time, it was said that the Ghanaian military was heavily reliant on civilian aircraft for transportation and that military aircraft were needed to correct this anomaly. Despite criticism from the opposition, the government went ahead with the purchase contract.
UK court ruling
A recent ruling by Crown Court in Southwark, England, appears to have given new life to earlier allegations that the contracts relating to the C295 in particular were fraudulent. The ruling of 21 January 2020 approved a Deferred Prosecution Agreement (DPA) between the Serious Fraud Office and Airbus subsidiary Airbus SE, after an investigation uncovered a major bribery scandal in which the aircraft manufacturer was involved in breach of the Bribery Act 2010.
UK law allows the SFO to defer prosecuting an organisation pursuant to an agreement between the SFO and a company suspected of committing an economic crime.
Such agreements (DPAs) require a judicial stamp of approval to be legal and may allow offending institutions to avoid prosecution altogether.
In deciding such an application, the Court will consider, among other things, whether the DPA submitted to it is in the public interest.
Additionally, contract terms must be fair, reasonable and proportionate.
In this case, the Court found that the DPA was in the public interest and that the agreed terms met the tests of fairness, reasonableness and proportionality.
The court stated that prosecuting Airbus now would result in significant job losses and a significant decline in the company’s stock market performance in both the short and long term.
Independent estimates suggest that Airbus could face long-term losses of around £200 billion if prosecuted immediately.
The ruling stated that the SFO investigation found that Airbus was involved in schemes to use bribery to win lucrative contracts in countries including Malaysia, Sri Lanka, Taiwan, Indonesia and Ghana. Airbus subsequently agreed to pay a fine of more than £3 billion.
French and U.S. authorities also found similar evidence of alleged bribery involving Airbus officials or their agents in other countries, including Russia and China.
In the Ghana case, the criminal court ruling highlights how Airbus executives bribed or agreed to bribe intermediaries with close ties to government officials allegedly with influence over the country’s aircraft purchasing plans between 2011 and 2015 as part of a scheme to win or retain government contracts.
No names were mentioned in the court documents but the period mentioned in the judgment covered some of the Mills Mahama era.
The initial agreement to pay a bribe in Ghana amounted to approximately €5 million disguised as a commission to an intermediary (“Intermediary 5”) hired by Airbus to facilitate a proposed sale of two C295 aircraft to Ghana. Ultimately, due process tests uncovered the questionable arrangement and no money was paid.
Ultimately, a due process review uncovered the questionable arrangements and no money was paid.
A subsequent approach by Airbus was successful, with Ghana purchasing three separate C259 aircraft through the multinational’s Spanish defence subsidiary.
The deal was arranged through several intermediaries, led by “Middleman 5,” who is said to be an unnamed relative of a senior Ghanaian government official who had decision-making power over the proposed aircraft purchase contract at the time.
However, an internal investigation uncovered links between Intermediary 5 and a senior Ghanaian government official (whose name was withheld), and the parties hatched a plan to route the transaction through a third-party Spanish company that did not do business with Ghana.
Spanish companies were disguised as intermediaries for the proposed aircraft purchase agreements, but in reality only intervened in the agreements to circumvent due diligence requirements to ensure that the questionable transactions were not in question. At the time of the signing of the agreement with Ghana for the sale of the original two aircraft, Airbus or its agents, relying on false representations and documents, paid bribes of nearly €4 million to a third-party company in Spain, which in turn diverted the payments to Intermediary 5.
The payments were disguised as commissions on the contract amount. A Spanish third party company withdrew from a subsequent contract to provide Ghana with a third C259 aircraft after Airbus engaged external counsel to conduct due diligence. Intermediary 5 unsuccessfully claimed that Airbus was owed €1.6 million on a contract for a third C295 aircraft.
The DPA does not mean that Airbus and its executives will be immune from prosecution for the alleged crimes.
Under English law, the SFO has the right to prosecute Airbus in due course if it determines that the company has failed to comply with the terms of the court-approved DPA.
Indeed, the ongoing investigation means that while the SFO may decide not to prosecute the aircraft manufacturer in light of Airbus’s cooperation so far, it may bring criminal proceedings against those who actually paid or received the alleged bribes once the investigation is concluded.
Such a move is likely to also include Ghanaian intermediaries and related individuals, in which case the SFO may rely on mutual legal assistance (MLA) provisions under English law to recover associated costs.
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