The Managing Director of the Tema Oil Refinery (TOR), Asante K. Berko has been charged under the United States Foreign Corrupt Practices Act (FCPA).
In a press release issued Monday April 13, 2020, the Securities and Exchange Commission (SEC) of the US charged Berko with orchestrating a bribery scheme to help a client win a contract to build and operate a power plant in Ghana.
The SEC’s complaint which has been filed in the US District Court for the Eastern District of New York, charges Berko with violating the anti-bribery provisions of the FCPA and federal securities laws. The SEC is seeking monetary penalties against Berko among other remedies.
The SEC alleges that 46-year-old Berko, a dual US and Ghana citizen who is a former executive of Goldman Sachs in London, a subsidiary of Goldman Sachs Group Inc. of the US, helped his firm’s client, a Turkish energy company, to funnel at least $2.5 million to a Ghana-based intermediary to pay illicit bribes to Ghanaian government officials in order to gain their approval of an electrical power plant project.
The SEC in its complaint, further alleges that Berko helped the intermediary pay more than $200,000 in bribes to various other government officials, and Berko personally paid more than $60,000 to members of the Ghanaian parliament and other government officials.
The SEC indicates that, Berko took deliberate measures to prevent his employer from detecting his bribery scheme, including misleading his employer’s compliance personnel about the true role and purpose of the intermediary company.
Berko who is currently living in Ghana was appointed the MD of the country’s only refinery at Tema in January 2020 following the resignation of its former MD, Mr. Isaac Osei.
“As alleged in our complaint, Berko orchestrated a scheme to bribe high-level Ghanaian officials in pursuit of firm business and his own enrichment. Berko’s misconduct was egregious and individual accountability remains a key component to our FCPA enforcement efforts,” said Charles Cain, Chief of the SEC Enforcement Division’s FCPA Unit. “The firm’s compliance personnel took appropriate steps to prevent the firm from participating in the transaction and it is not being charged,” the SEC said in the release.
Among others court documents state the following:
On April 14, 2015, the Intermediary Senior Executive emailed Berko an invoice for $500,000 owed by the Energy Company, along with a schedule for funding the bribery scheme:
$1.5 million when the parties signed the Power Purchase Agreement;
$1.5 million when the Energy Company received a Letter of Credit from the government;
and $1.5 million when the power plant began operations.
The invoice contained specific instructions for the funds to be wired to the Ghana account of a shell company controlled by the Intermediary, via a New York correspondent bank.
On April 18, 2015, the Energy Company CFO updated Berko and the Intermediary Executive on the negotiations with the government:
“Hopefully once we have the green light tomorrow, we’ll send the contract for [the power plant] with all changes.”
He added: “[We are] planning to come on Monday with an extended team to have meetings [with the Government Electricity Company] on Tuesday.”
On April 19, 2015, the Intermediary Executive again urged Berko and the Energy Company CEO for the $500,000 in bribe money because “the intended recipient” – [Government Official 1] – “is on my case.”
The Intermediary Executive added:
“I am going to part with [$250,000] to [Government Official 1] on the basis that I will receive the same in due course. This will represent part payment to him as discussed.”
The Intermediary Executive then pressed “to have the [$1.5 million] also here in Ghana no later than end of this week or early part of the following [week]” because “[a]s agreed, certain payments will be made on signing [of the Power Purchase Agreement] and I believe all will be covered if you follow the above guidelines.”
The Energy Company CFO quickly agreed to the initial $500,000 fund transfer for Government Official 1, but expressed some confusion on the schedule.
Responding to the Intermediary Executive and Berko, he stated: “I have an invoice for $500k. That’s what you are referring to right, to be paid within this week? Then . . . [$1 million] at signing [the Power Purchase Agreement] and [$1.5 million] at [the signing of the Letter of Credit from the government].”
He then voiced concern about the lack of information from Government Official 1: “Why is there no news from [Government Official 1] [about the] extension and meeting on Tuesday, any news you can share?”
Replying to the Energy Company CFO and Berko that same day, the Intermediary Executive again emphasized the necessity for the bribe money:
“Please proceed as I stated earlier. It is in all our interest to make the necessaries [sic] are done now. [$500,000] now!!!”
He then reiterated the proposed schedule: “[$1 million] on signing [the Power Purchase Agreement] and $1.5 million on [signing the Letter of Credit]. As stated, I am getting concerned with [Government Official 1] and his resistance. I’ve decided to sort him out this week following recent developments and would advise that you have the same ready for me immediately upon signature.”
On Monday, April 20, 2015, the Energy Company’s CFO responded, copying Berko: “Money is ready, [but the Energy Company CEO] wants to talk to [the Intermediary Senior Executive] and [the PEP].” Shortly thereafter, he again emailed the Intermediary Executive and Berko to confirm the bribes:
“[$500,000] is coming today or tomorrow. [Please]pay [Government Official 1]. Let’s do the meeting on Tuesday and agree on 370 and the rest. Send [the] contract to [government official] and prepare for signing before Friday.”
On May 12, 2015, the Energy Company and the Ministry of Power signed the Power Purchase Agreement, triggering another milestone payment.
Berko, the Intermediary Executive, and the Energy Company Executives almost immediately arranged the next tranche of funding for the bribe scheme:
On May 12, 2015, the Intermediary Senior Executive emailed the Intermediary Executive an invoice for the Energy Company to provide an additional $1.5 million of funding that was intended to be used to further the bribery scheme.
On May 19, 2015, the Intermediary Executive forwarded the invoice for $1.5 million to the Energy Company CEO for payment. When, or soon after, this invoice was sent, Berko also knew, or was reckless in not knowing, that the funds requested by the Intermediary Company were to be used to bribe government officials to approve the Power Plant Project.
On May 22, 2015, the Energy Company wired $1.5 million to the Intermediary Company. These funds were wired from the Energy Company’s bank account in Turkey, through a New York-based correspondent bank, to a shell company bank account in Ghana under the control of the Intermediary Company.
On May 26, 2015, the Energy Company CEO emailed the Intermediary Executive a copy of a bank document confirming the payment. At or soon after the time of this payment, Berko knew that it had been made.d.On May 28, 2015, the PEP received $30,000 from the same bank account into which the Energy Company had transferred the $1.5 million and which the Intermediary Company used to facilitate the bribery scheme.
On June 11, 2015, Berko received $75,000 from the same bank account into which the Energy Company transferred the $1.5 million and which the Intermediary Company used to facilitate the bribery scheme.
On July 15, 2015, Berko emailed Intermediary Employee 1 his bank account information along with fund transfer instructions so that the Intermediary Company could wire him funds for the bribery scheme.
Berko’s fund transfer instructions specified that funds should be routed through a New York-based correspondent bank to Berko’s account at a bank in Ghana.
On July 17, 2015, the Ghanaian parliament ratified the Power Purchase Agreement, another of the milestones that triggered additional funding for the bribery scheme. That same day, Intermediary Employee 1 forwarded Berko’s bank account information and fund transfer instructions to the Intermediary Executive with the note: “[Berko] payments $33,800.”
Berko planned to use these funds to bribe (or to reimburse himself for bribes already made to) government officials, including members of parliament, to advance the Power Plant Project.62.On July 20, 2015, the Senior Intermediary Executive emailed the Intermediary Executive and Berko apprising them on the progress of their corrupt scheme:
“Just a quick update from my side and anything we can do to get some of the outstanding deliverables happening . . . .
Caught up with [Government Official 1] and I think we are aligned on how to proceed. He claims to have resolved the [Government Utility Company] issue so no problem from there and I agreed with him to do the needful for the boys there . . . .
I presume [Government Official 2] will do most of the required memo’s [sic] to get things moving.”
He then noted that “[the Intermediary Company is] due to issue a milestone invoice on parliamentary ratification” as “Funds [were] urgently required for next crucial steps.”
At that point, a dispute arose between Berko and the Intermediary Senior Executive concerning the amount of funding the Energy Company was obligated to provide to the Intermediary Company.
In particular, the Intermediary Senior Executive claimed that the Energy Company had agreed to fund $5 million for the bribery scheme and demanded a $1.5 million “milestone payment” of that agreed amount. Berko, however, maintained that the Energy Company had only agreed to fund a total of $3 million, and that no more funds were due.
Email communications on July 20, 2015 documented this dispute:
Berko, who was then in New York, promptly responded to the Intermediary Senior Executive’s July 20, 2015 email requesting a $1.5 million milestone payment. First, Berko stated that “a deal will be reached as [the Energy Company] is not in a position to renege as long as I am working on the project,” adding that “we need to also agree my split vis a vis [the Intermediary Company].”
Then Berko asserted that all milestone payments due had already been paid:
“With regards to invoices there is not one that can be raised at this stage . . . .
Based on the schedule [$1 million] was for signing and [$1 million] was for parliamentary approval . . . and last will be based on [the receipt of the Letter of Credit].”
The Intermediary Senior Executive continued to demand the additional payment. Later that day, he emailed Berko:
“[The] deal is for [$5 million] and hence the historical [$500,000] + [$1.5 million] and not [$1 million] + [$1 million] . . . .
[Therefore] there is [$1.5 million] due now (parliament) and another [$1.5 million for the Letter of Credit].”
Berko again disputed the amounts owed: “As far as I was concerned [the Energy Company] did not agree to 5 million and they are also saying the same thing. I will chalk down to misunderstanding rather than a devious attempt to screw anyone out of cash. I am doing my best to manage a relationship that will pay everyone millions of dollars and I hope it is appreciated as [it] is not easy to get counterparts that will pay out 2 million without a transaction closing.”
Berko knew, or was reckless in not knowing, that the funds discussed in these email communications were to be used to bribe government officials and/or otherwise facilitate the bribe scheme.