The judgement of a district court in Norway obtained by ghanabusinessnews.com shows that the mother company of cement producer GHACEM set up an intriguing system of bribery and corruption in Ghana.
The scheme, according to the document was used to pay out millions of dollars to politicians and others.
The system was uncovered during the trial of a former Scancem employee, Tor Egil Kjelsaas who was managing Scancem’s operations in Ghana, Togo and Nigeria.
Scancem had brought action against Kjelsaas in 2006. The judgement says, “The matter concerns damages or a claim for recovery by Scancem International ANS against Tor Egil Kjelsaas, formerly employed by the company. Scancem International ANS alleges that Tor Egil Kjelsaas appropriated funds from the company and that he recklessly and disloyally had financial connections with the company’s counterparty in Nigeria.”
The court, Asker and Bærum District Court, presided over by District court judge, Trine Standal found during the trial that Scacem was involved in extensive bribery and corruption in Ghana and Kjelsaas was in charge of that elaborate scheme. But the company later found that Kjelsaas paid himself large amounts of the money it set aside to bribe public officials. In effect, he didn’t use the money to bribe the officials he was expected to, instead he kept the money.
“Scancem International ANS was involved in extensive bribery and corruption in a number of countries in Africa, including Ghana. This was Tor Egil Kjelsaas’s responsibility as head of the African division. He was also the one with the local contacts,” the court said.
The court noted that Scancem International ANS has alleged essentially that Tor Egil Kjelsaas unlawfully appropriated funds from the company.
“Kjelsaas was behind payment of considerable amounts to his account at Unibank Luxembourg. He concluded the contracts and ordered outpayments. He was one of Scancem International ANS’s most trusted managers. Some of the payments were also made twice, such as paying the rent on a guest house in Ghana which was both paid for locally and by transfer to Tor Egil Kjelsaas’ account at Unibank Luxembourg,” it said.
During the trial the court heard that Kjelsaas told Scancem the account in question belonged to an African politician, concealing the fact that this account was actually his.
“This in itself is sufficient evidence for Scancem International ANS’s claim against Tor Egil Kjelsaas, unless he can show that he did not keep the money himself, which he can only do by producing the statements of account,” the court concluded.
The court noted among others that Kjelsaas refused to produce bank statements of his account with Unibank, even though those statements could be produced, however, documentary evidence in the case showed that the moneys were paid into his account.
The court also stated that evidence has been produced to show that Kjelsaas concealed from Scancem that he transferred significant amounts to his own account, it is Kjelsaas on whom both the obligation to prove and burden of proof rest to show that he did not acquire the moneys.
“This is particularly so as it is within Kjelsaas’s power to produce that evidence, such as via statements for the Unibank account. Kjelsaas’s explanation which appeared in pleadings just before the proceedings in chief is not credible,” the court said.
Kjelsaas, meanwhile told the court that he did not want to state that the account was in his name in 1998 ‘because he did not want to put the recipients at risk’.
Scancem set up an internal enquiry to locate the money, the court heard.
“But Scancem knew who the money was supposed to go to, and the purpose of the internal enquiry was to find out whether the moneys went to Kjelsaas. The enquiry was also internal in nature. Nor is it credible that the moneys were taken out of Kjelsaas’s account and given to the right people either,” the court said.
It noted further that Scancem paid amounts to other accounts during this period which were controlled by African recipients. Tor Egil Kjelsaas’s travel accounts show that he was often in Luxembourg when travelling in Europe and when travelling home, but not en route to Africa. Scancem also paid out amounts in cash locally to a number of African recipients in Ghana. Those amounts were paid out via other channels.
The judge indicated that Scancem International ANS’s culture of bribery and corruption in Ghana in the 1990s was built around Tor Egil Kjelsaas.
“It was Tor Egil Kjelsaas who had the contacts in Ghana, who agreed how much the bribes would be in each case, and who instructed the payments along with another member of staff. It was not the other members of staff’s job to check Tor Egil Kjelsaas’s information, or what amounts were to be used to grease who or how they should be greased. The system was based on an extremely high level of trust in Tor Egil Kjelsaas, even if Selen has stated that there were all kinds of gossip and rumours about him from 1993 onwards,” it said.
Attorney Arne-Jørg Selen, represented Scancem in the case.
The court found that payments were made in a number of ways. In some cases, payments were made directly in cash in Ghana by the company’s financial managers once the money had been taken from Scancem International ANS’s account, sometimes money was taken from banks outside Africa and shipped into Ghana to be handed over in envelopes and sometimes bank transfers were made to accounts in Luxembourg, Switzerland etc.
“No list has been produced of the total amount involved, or how this was treated for accounting purposes. Between January 1993 and March 1998, amongst other things, $2.7 million was transferred to an account at Unibank Luxembourg, of which $90,000 every other month amongst other things,” it added.
The court was told that there were duplicated payments, in that the same amount was paid out locally in Ghana and transferred to the account at Unibank Luxembourg.
However, it notes, “There is no evidence or proof what the amounts paid were supposed to settle, e.g. rent. It is therefore unlikely that the payment was divided in two, so it is a double payment. Scancem International ANS was also aware of these matters ever since the internal investigations, but the company did not make any further investigations this time.”
The court found that, if Scancem International ANS itself accepts and assists in a system such as that described, it cannot subsequently use that system’s shortcomings against its staff.
The only Ghanaian name, mentioned in this case was the Late P. V. Obeng. He had worked with and for GHACEM as a consultant, but no illegal payment was found to have been made to him, according to the ruling.
The court therefore found Kjelsaas, not guilty of the charges.