Attorney General, Godfred Dame, says some clauses in the Health Ministry’s $64 million contract with Dubai based businessman, Sheikh Maktoum, to supply Sputnik vaccines to Ghana, are biased and skewed against the government.
He also says some of the provisions are in breach of the Food and Drugs Authority’s regulations.
In a letter dated April 12, 2021, to the Health Minister, Kwaku Agyemang Manu, the Attorney General urged the Ministry to buy vaccines directly from Russia because other countries are doing that.
Chief Director at the Health Ministry, Kwabena Boadu Oku–Afari had written to the Attorney General’s Office on 10th March 2021, requesting that the Attorney General’s review of the contract between the Ministry and the private office of Sheikh Ahmed Dalmook Al Maktoum for the supply of 3.4 million doses of the Russia Sputnik vaccines.
Godfred Dame’s reply to the Health Minister, first of all observed, that the Ministry had already signed the contract before submitting it for review. He also noted, that, the agreement is an international one and must go to Parliament for approval, to ensure validity.
The Attorney General also observed, that clause 7.1 of the contract, which places liability to recall vaccines in case of unsatisfactory side effects, on the Health Ministry, is in conflict with the regulations of the Food and Drugs Authority. Clause 7.1 of the agreement says, “the liability of the seller of any action which is outside its reasonable control is excluded.”
The Attorney General says, “we note per the FDA pharmacovigilance regulations, a manufacturer, seller, or distributor must recall vaccines if asked to do so by the FDA Ghana due to any unsatisfactory side effects. The clause above seems to be in conflict with the regulations of the FDA Ghana.
“We further note that the clause is ambiguous, vague and skewed against the buyer. It is thus suggested that the agreement be amended to classify what the parties mean by “outside reasonable control” and the same provided for the buyer.”
The agreement also says the Ministry of Health shall not withhold payment for any supplied doses of the vaccines over alleged defects unless written notice has been given to the seller. The Attorney General observes this clause is biased against Ghana.
“The agreement says the buyer shall not be entitled to withhold or defer the whole or any part of any payment due for the delivered vaccine of any alleged defect, dispute, cross-claim or lien or any other claim whatsoever against the seller unless written notice has been given of the same in accordance with this schedule and such claim is recognized in writing by the seller and the seller agrees to such retention in writing signed by its authorized representative.”
“We note that Clause 1(A) is biased against the Buyer. It is suggested that the clause be amended to allow the buyer to return any batch of vaccines once there is a defect and the buyer brings it to the notice of the seller…” the Attorney General wrote.
The agreement says the Ministry of Health shall not initiate or undertake any batch recall of the vaccines without the prior consultation with and written agreement of the seller.
The AG says the clause places Ghana “at the mercy of the seller because the seller will have to agree before the buyer can initiate or undertake such recall,” and suggested amendments.
The Attorney General observed that the distributor in the agreement indicates that it is not an agent of the manufacturer and therefore will not be liable for any losses under this agreement suffered by the buyer or any person whatsoever.
The AG suggested it will be more prudent for the Ministry to engage directly with the manufacturer who can be held liable in case of adverse effects for the procurement of the next batch.
The AG also observed the agreement had no specified duration or term of expiration and suggested amendments.
The Attorney General also raised concern with the designation of the London Court of International in Dubai International Financial Center as the location for dispute resolution.
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