By Hook or by Crook

Nana Yaa Ofori Atta

To be ‘on the hook’, apparently means to be held responsible, obliged to … committed to.  It could also mean, to be in a continually and/or indefinitely delayed condition or state.  Such is the case for the 6 members of the Ghana Chamber of Telecommunications being MTN, Vodafone and AirtelTigo.  The Chamber also represents the 3 major infrastructure companies – ATC, Helios and Eaton.  Further, the Chamber has working partnerships with value added service providers including financial technology companies.  All together, they are on the hook.

On Friday, June 22nd, 2018, as this column went to bed, the Human Rights Court in Accra, Ghana, presided over by Justice Anthony Yeboah, pronounced on a landmark case filed by 2 persons – Sara Asafu-Adjaye and Maximus Amertogah. 

The 2 active citizens have petitioned the court to require the Minister of Communications (MoC), the Ghana Revenue Authority, the Attorney General and the Chamber to cease and desist, sharpish and forthwith, from enjoining and mapping themselves onto a Common Platform (CP) for any purpose.  Whatsoever.

De jure, the plaintiffs, Asafu-Adjaye and Amertogah, are not affiliated to the Chamber or its advocates.  And, Ghana is a small place.  Certainly, their cause if not their timing is fortuitous.  As long as the duo proceed, their Amicus, the Chamber, can continue to shadow box with the Ministry.

The double-sided issue at hand remains concern about the potential invasion of data privacy as well what the mechanics and cost thereof of the CP as threatened, could unleash.  $89 million paid out for 5 years to a sole purpose vehicle – KelniGVG, a combination it seems of local investors and a Haitian registered company – is to bolstered with an automatic contract renewal for a further 5 years.  This will cost the taxpayer at the end of the day, a total of $178 million.   There is much affiliation and empathy between the posture taken by the active duo and the public protests mounted by Imani Africa and others.


Active Citizens

In one corner are the telcos.  They claim that since liberalisation of the market really took off in 2007, close to 40% of their revenues have been paid in taxes to the government – some $2 billion paid to and in an array of direct taxes, customs duties, corporate taxes, withholding tax, social security,local taxes … They say they have provided close to 2 million direct and indirect employment.  They say that between 2013 and 2017, their obligations under the Communications Service Tax, charged on 6 percent of every call minute a subscriber makes, virtually doubled, from Ghc 174 million to Ghc328 million.

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In the other corner is the MoC, a virtual tour de force.  A lawyer, the sitting Member of Parliament for Ablekuma South, she has previously worked all angles of the industry.  Formerly as a director at Ghana Telecom (now Vodafone Ghana), she worked too as Director of External Affairs for Zain and at some point served as the acting Managing Director for Westel – both have now emerged as AirtelTigo.

On May 31st, 2018, in Parliament, the Minister insisted that the said new and improved CP will purportedly, finally, after previous failed and attempts under the previous administration led by 2 companies – the infamous Afriwave and Subah Infosolutions Limited – provide real time surveillance of the volumes of traffic by the telecoms industry in Ghana and thus their tax obligations.  Her position seems to be, ‘if you make money in the telecoms industry in Ghana, you pay taxes that can be verified’.  This lady is also not for turning.

Minister Owusu-Ekuful pointedly reminded the Minority, that they they were in the Majority and in agreement when the amendment elaborating the Ministry’s rights to monitor in real time was passed by the House.


Focus in Double Time

Based on our increased performance in political stability, commodity prices and public financial economic reforms,  Ghana, projected to be the world’s fastest growing economy in 2018, led by the recently awarded Africa’s best performing Minister of Finance, Ken Ofori-Atta, has ascended to the top tier of the Africa Risk-Reward Index, a report published by Control Risks and Oxford Economics. Look up their bona fides.

Simultaneously, according to a recent report attributed to the Institute of Economic Affairs (IEA) in Ghana, more than 6% of the continent’s GDP – some US$68 billion is lost of a total annual of an estimated US%203 billion – in transition, due to tax avoidance by multinationals.  These types tend to dominate the market in all industries here.

Someone in Ghana is paying attention to the dual messaging and responding, in double time.  It explains the government’s declared ambition to use what they say is the bright and shiny CP, to deliver a bifocal if not ambidextrous goal.  Show me the money in real time and whilst you are at it, the CP should also help prevent simbox and other technology based fraud. 

In these swiftly unfolding matters with far reaching consequences, Justice Yeboah has deemed it fit to adjourn matters until July 3,2018 to enable him to to study the docket for as we say here, ‘further and better particulars’.

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Calling It

Without risk to prejudicing the ongoing case before Justice Yeboah, some legal analysts have pointed out, that even before the Minister of Communications took to the floor of Parliament, the die was well and truly cast. 

On first reading, relevant sections of ACT 864, being the Communications Service Tax (Amendment Act), in particular, section 14, seems to embolden the Ministry to establish a monitoring mechanism to verify actual revenue and this compute taxes to be paid to government.  It also requires the Ministry to be given physical access to the network nodes of telecommunications companies where the billing systems are connected and further, it requires the establishment of a CP to monitor revenues.


Slam Dunk

The original law – Electronic Communications Act 2009 (Act 775) was enacted by the previous administration, now in noisy Opposition.  It was they who also introduced Afriwave and Subah, both of whom are loosely and publicly accused now, of double dipping to do what it is that was allegedly neither in real time nor forensically useful in calculating who owed what to whom.

So, is it by hook or by crook, or both, and if so in what measure to what effect that we are back here?  Are we relying on a law, a principle, an objective and/or payback to address the telcos this time? 

Short of a miracle – that would have to include immaculate conception – analysts say that the members of the Chamber were always bound by the letter of the existing law, to comply with the Ministry’s directive to connect to a CP.  The question now is how?


On the Hook

While publicly attending court and taking quiet positions as matters unfold, in reality, the engineers from the members of the Chamber are already working with the Ministry on designing an architecture that will, insiders say, enable real time monitoring to satisfy the Ministry without comprising data privacy.

Meanwhile litigants Asafu-Adjyae and Amertogah, persist.  We are not done, by any measure on matters CP.  We are all on the hook, hopefully, without crooks.  Local or otherwise.  Justice Yeboah will pronounce further.  Will he insist that the KelniGVG lot, whosever they are, stand up and take a public bow?  According to their website, they work also in Liberia, Senegal and Congo.

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