- ‘What Is the State’s End Game?’ — Bobby Banson Challenges PDS Prosecutions
Ghana’s renewed pursuit of former Power Distribution Services officials has reopened a difficult legal question over whether the state is dealing with a recoverable contractual claim, suspected criminal conduct or both.
Lawyer Bobby Banson, Lead Consultant at Robert Smith Law Group, says the distinction matters because the 2025 international arbitration between PDS and the Electricity Company of Ghana resolved key questions around the failed concession while leaving disputes arising from a later Interim Protocol outside the tribunal’s jurisdiction.
Speaking during a special NorvanReports X Space, he argued that criminal prosecution should not become a substitute for the civil process required to establish who owes what under a disputed contract.
Mr Banson’s intervention turns on the structure of the arbitral award issued in London on November 3, 2025. The tribunal dismissed PDS’s substantive claims, held that the demand guarantees were void from the outset, found that the required conditions precedent had not been satisfied and upheld ECG’s entitlement to terminate the concession agreements.
But it also found that PDS had not made an actionable misrepresentation to ECG and that both parties had entered the transaction under a common mistake about the validity of the guarantees.
That distinction challenges the simplified description of the entire transaction as a case of fraud by PDS itself. The tribunal found the demand guarantees were the product of fraud and forgery, but concluded there was no evidential basis to establish that PDS had misrepresented their validity to ECG.
Its operative order specifically stated that the Transfer Date Confirmation Letter was voidable for common mistake “and not misrepresentation”, while confirming ECG’s right to terminate the Lease and Assignment Agreement and Bulk Supply Agreement.
Mr Banson argued that the fraudulent conduct originated with an employee of Al Koot, the Qatari insurer associated with the guarantees, rather than with the parties to the concession themselves.
“The gentleman that Ben referred to, who was the employee of Al Koot, had not perpetrated fraud only in respect of this PDS matter,” he said, adding that the individual had allegedly forged signatures in transactions involving other companies. “The tribunal held that both parties, or all the parties to the PDS transaction, were actually victims of that fraudulent conduct,” he said.
The legal position becomes more complicated because the relationship between ECG and PDS did not end with the collapse of the original guarantees.
On August 8, 2019, the parties entered an Interim Protocol under which they suspended the main agreements, agreed to reconcile amounts due between them and created a temporary operating arrangement under which PDS acted as ECG’s agent for electricity sales.
The tribunal later held that this protocol constituted a separate agreement and contained no arbitration clause, meaning it lacked jurisdiction over counterclaims arising from it.
That jurisdictional finding is central to Mr Banson’s argument about the reported GH¢850m at the centre of current investigations. A tribunal saying it had no jurisdiction over claims under the Interim Protocol is not the same as deciding that ECG had no claim, nor does it determine the amount, if any, recoverable under that agreement.
“I don’t know where this 850 million came from,” Mr Banson said, questioning whether the reconciliation contemplated by the protocol had ever been completed and what accounting produced the figure now being cited.
His contention is that if ECG believes money remains contractually due under the Interim Protocol, the state should establish that liability through a civil action or other competent contractual forum. “If the state is really interested in recovering any money that it thinks is recoverable to the state, then you proceed with a civil suit,” he said.
A civil proceeding could determine the reconciliation, contractual obligations, ownership of funds and any repayment due, whereas a criminal proceeding requires proof of a recognised offence and individual criminal responsibility.
That does not mean criminal and civil proceedings are mutually exclusive. Investigators could pursue criminal liability if they possess evidence of theft, fraud, money laundering or another offence separate from the contractual dispute, while ECG could simultaneously pursue recovery through the courts.
Mr Banson acknowledged that possibility, saying investigators may have “some information that we do not know”, but argued that absent new evidence, disputed contractual funds should not automatically be converted into a criminal case.
The controversy has become more sensitive because lawyers connected to the arbitration have themselves been questioned and arrested. Minkah-Premo, Osei-Bonsu, Bruce-Cathline & Partners has publicly challenged the treatment of its lawyers, saying they represented PDS in the arbitration and were acting professionally when authorities detained them.
The firm has also said that ECG’s legal team in the arbitration included the current Attorney-General, Dr Dominic Ayine, and has disputed allegations that the lawyers were involved in unlawfully transferring GH¢850m.
Mr Banson argued that lawyers should not become criminal targets merely because they advised clients or participated in disputed transactions unless evidence connects them personally to unlawful conduct.
He also raised legal professional privilege, under which confidential lawyer-client communications ordinarily receive protection, although the scope of that protection depends on the circumstances and does not extend to communications made for criminal purposes.
The wider concern, he said, is that aggressive treatment of counsel can affect both the constitutional right to legal representation and confidence in professional independence.
The current Attorney-General’s previous involvement in the arbitration adds another institutional layer. Mr Banson characterised the situation as creating an “appearance of conflict of interest”, while stopping short of arguing that the Attorney-General is automatically disqualified from exercising public functions.
His proposed safeguard is recusal and disclosure, allowing senior officials such as the Director of Public Prosecutions, Solicitor-General or Deputy Attorney-General to handle the matter independently where necessary.
That approach reflects a broader concern about the dual role of Ghana’s Attorney-General as both principal legal adviser to government and head of the Ministry of Justice.
A politically appointed officeholder may enter government after years of private practice involving state institutions, creating situations where previous professional engagements intersect with present prosecutorial responsibilities.
The PDS controversy therefore provides a practical test of whether institutional safeguards can separate prior professional involvement from current state decision-making without paralysing the office.
The larger accountability question extends well beyond the reported GH¢850m. Ghana lost access to approximately US$190m in additional Millennium Challenge Compact funding after the PDS concession collapsed, while the arbitral record shows intense pressure surrounding the transfer date and failures in verifying the guarantees before the concession became operational.
The tribunal found that both ECG and PDS believed the guarantees were genuine, raising the more difficult question of where institutional responsibility lies when a nationally significant transaction advances despite defective security arrangements.
That requires separating several different actors and forms of responsibility. The person who forged or improperly issued guarantees, the companies that relied on them, officials who approved the transaction, institutions responsible for due diligence, professional advisers and parties with obligations under the later Interim Protocol do not necessarily carry the same legal exposure.
Treating those categories as a single “PDS fraud” risks obscuring the precise failures the state must identify if it wants recovery, punishment and institutional reform to rest on credible evidence.
Mr Banson’s central argument is therefore not that the state should abandon the PDS matter, but that it should identify the legal basis for each objective it is pursuing.
If money is contractually recoverable, the state should establish the amount and recover it through the appropriate civil mechanism; if individuals committed crimes, prosecutors should identify the offences and prove them against those individuals; and if public institutions failed in due diligence or oversight, administrative and political accountability should follow.
The unresolved test for Ghana is whether it can demonstrate, through evidence and the correct legal forum, who owes what, under which agreement, for what conduct and why.
