The renewed investigation into Power Distribution Services Ghana Limited (PDS) is no longer just about a failed electricity concession. Detentions, sweeping account freezes, and CalBank’s transfer of disputed funds have turned the PDS investigation into a test of Ghana’s commitment to due process.

It has become a test of whether Ghana will respect the boundaries among international arbitration, commercial disputes, and criminal enforcement, and whether private capital can operate safely in the country without exposure to coercive and potentially abusive state action.

For international investors, the greatest risk is not always losing a commercial dispute. It is winning, or at least obtaining a final determination, only to discover that the same issues are being reopened through arrests, detentions, account freezes, travel restrictions, and criminal allegations before the facts have been established.

That is the troubling signal emerging from the latest fallout over PDS, the company that briefly managed the Electricity Company of Ghana’s (ECG) distribution operations in 2019.

The PDS concession collapsed after questions arose over the validity of payment guarantees supporting the transaction. Ghana subsequently lost US$190 million in Millennium Challenge Compact funding, and the contractual dispute proceeded to international arbitration.

In November 2025, the arbitral tribunal upheld ECG’s right to terminate the concession because the guarantees were invalid and, as such, essential conditions precedent had not been fulfilled.

But that was not the entirety of the award. The tribunal also found that the relevant confirmation was affected by a common mistake, rather than an actionable misrepresentation by PDS. It did not accept the proposition that the invalid guarantees, by themselves, established that PDS had fraudulently misrepresented its position to ECG.

Most importantly for the present investigation, the tribunal declined jurisdiction over claims arising from the separate Interim Protocol governing the parties’ financial relationship after the concession was suspended. It therefore did not determine that PDS owed ECG GH¢850 million, GH¢1 billion or any other amount under that arrangement. Nor did it determine that ECG could never be owed money. It left the parties where the Interim Protocol placed them: requiring a reconciliation of their accounts.

That distinction is now at the centre of the controversy.

Interestingly, the Attorney General and Minister of Justice, Dr. Dominic Ayine, who supervises EOCO, is also the founder and Senior Managing Partner of Ayine and Partners. He led a legal team representing ECG and the Republic of Ghana during the Akufo-Addo administration, when the deal became highly controversial.

ECG at the time was led by a man he had never shied away from as his mentee, Samuel Dubik Masubir Mahama.

During his vetting for Attorney General and Minister of Justice, Dr. Ayine, who is also the NDC MP for Bolgatanga East Constituency, clarified that PDS approached him to represent them, but he declined; instead, he represented ECG in High Court proceedings and served as a Ghanaian law expert before the London Court of International Arbitration (LCIA).

Another person of interest in the PDS transaction is Julius Kwame Kpekpena, the current ECG boss. His involvement stems from his background with the Millennium Development Authority (MiDA).

After leaving his post as ECG Director of Engineering, Kpekpena joined MiDA and eventually served as its Chief Operating Officer (COO).

In his capacity at MiDA, Kpekpena was centrally involved in implementing the Private Sector Participation (PSP) initiative for ECG, which led to the controversial PDS transaction and the subsequent agreement.

Legal and industry reviews of the botched PDS deal have identified Kpekpena as a key figure with direct knowledge of the transactions and resolutions, including his participation in related follow-up arrangements such as the “Interim Protocol.”

It is unclear whether EOCO has questioned the two about their roles.

A commercial reconciliation cannot be converted into a criminal debt.

EOCO is entitled to investigate credible evidence of theft, fraud, money laundering or the unlawful diversion of public funds. But the power to investigate is not a licence to declare disputed commercial funds stolen before the accounts have been reconciled.

EOCO says its preliminary examination indicates that PDS received more than GH¢1 billion in revenue connected with ECG and allegedly failed to account for or transfer it. EOCO has also alleged that substantial withdrawals were made and that approximately GH¢230 million was placed in fixed deposits while the arbitration continued.

Those allegations are serious and should be tested against the evidence.

However, EOCO’s presentation risks creating a series of misleading impressions by focusing on gross receipts while ignoring the substantial payments PDS says it made during the concession period. It also risks transforming those receipts into “tainted monies” or “proceeds of crime” before the necessary accounting exercise has been completed.

According to a statement by CalBank, PDS paid approximately GH¢1.6 billion to ECG over the concession period. It also paid about GH¢200 million to the Ghana Grid Company Limited (GRIDCo) and about GH¢130 million to the Ghana Revenue Authority (GRA), in addition to payments to other entities and service providers involved in the electricity distribution operation.

Those figures, by themselves, do not establish that PDS owed nothing to ECG. However, they make it impossible to treat every cedi that passed through PDS accounts as money belonging to ECG or to describe an unresolved balance automatically as stolen public funds.

A proper reconciliation must establish what PDS collected, what it was contractually permitted to spend, what it paid to ECG, GRIDCo, GRA and other entities, what operating costs it incurred, what amounts were disputed and what net balance, if any, became legally payable to ECG or was due to PDS.

Until that exercise is completed, EOCO’s apparent treatment of the entire disputed account as criminal proceeds is premature and commercially dangerous.

As the Executive Director of the Africa Centre for Energy Policy (ACEP), Benjamin Boakye, has argued, the state cannot “criminalize the disputed account first and reconcile it later”. His intervention followed a Newsfile discussion that raised concerns about whether EOCO’s investigative powers were becoming a form of punishment before trial.

The arbitration did not complete the accounting exercise because the tribunal ruled that the Interim Protocol fell outside its jurisdiction. That jurisdictional ruling cannot reasonably be converted into a finding that all the money remaining in a PDS account belonged to ECG.

Nor does the award grant PDS or its officers immunity from investigation. Evidence of dishonest appropriation, falsified accounts or money laundering would remain open to investigation and, if substantiated, criminal prosecution. But investigators must prove those offenses independently.

The existence of invalid guarantees or unenforceable guarantees, as some might argue a large account balance or a disputed commercial obligation cannot substitute for evidence establishing ownership, criminal intent and the particular offence allegedly committed.

The unanswered questions over replacement guarantees

The guarantees issue itself also raises questions that EOCO’s current approach appears to overlook.

SGSSB reportedly gave an undertaking to replace the demand guarantees. If the central problem was genuinely the validity or enforceability of the original guarantees, why did the Akufo-Addo government refuse to accept their replacement?

And if the concession agreement allowed PDS an opportunity to remedy a defect, why was the company not permitted to do so?

Those questions matter because they go directly to whether the collapse of the concession was an unavoidable consequence of defective guarantees or the result of the Akufo-Addo government’s decision not to allow the contractual cure mechanism to operate.

According to insiders, the issue is not whether Ghana was entitled to insist on valid and enforceable guarantees. The state plainly was, particularly given the argument that the guarantees remained enforceable against the local insurers led by Donewell. The issue is whether, having received an undertaking to replace the guarantees, the Akufo-Addo government was entitled or obliged under the agreement to allow the defect to be remedied rather than terminate the concession immediately.

This question becomes even more pertinent given claims that collections had improved and that PDS was managing electricity distribution more efficiently than ECG had done, potentially saving the country millions of dollars.

If the agreement provided a cure period, refusing to permit a remedy transformed a potentially remediable contractual problem into a termination dispute. That is a commercial and contractual question, not evidence of criminal conduct by PDS.

The refusal also weakens any simplistic narrative that PDS deliberately set out to deceive ECG. The arbitral tribunal found a common mistake rather than an actionable misrepresentation. That finding does not resolve every issue, but it should make investigators cautious about presenting the guarantees dispute as proof of fraud.

When an investigation begins to resemble punishment

The methods reportedly employed against PDS executives, bankers, insurers and lawyers have intensified wider concerns about the rule of law, according to people familiar with the matter.

Former PDS Board Chairman Philip Ayesu and Project Director Viraj Bhat were detained for two days and initially granted bail of GH¢50 million each, with two sureties. Within days, the bail amount was reportedly increased to GH¢100 million, with justification required.

Both men had been required to report three times a week until about a week ago, when the requirement was reduced to once a week. They have also reportedly been prevented from travelling outside Ghana since May 2026. Their personal and business accounts, including accounts unrelated to PDS, have been frozen since March 2026.

Those conditions appear extraordinarily severe for individuals who have not been convicted and whose alleged liability remains tied to a disputed commercial account.

Bail is intended to secure attendance and protect the integrity of an investigation, not to impose financial ruin, restrict movement indefinitely or create a presumption of guilt.

The treatment of the PDS lawyers is arguably even more disturbing.

Justice Kusi-Minkah-Premo and Sophia Kokor, lawyers connected with the arbitration, were detained and granted bail of GH¢50 million each. Their law firm says they were questioned over professional fees received for legal services and treated as suspects in alleged offences including dishonest receipt and abetment of money laundering. The firm has described their treatment as intimidation, while EOCO disputes that account and says the lawyers had already been invited as suspects.

The distinction between investigating lawyers and intimidating or harassing them is fundamental. Lawyers must not be immune from investigation where there is credible evidence that they participated in fraud or money laundering. However, receiving professional fees for representing a client in an arbitration is not, by itself, evidence of criminal participation.

If legal fees paid under a written engagement are treated as suspicious merely because the client is under investigation, the consequences will extend far beyond PDS. Lawyers will become reluctant to represent companies involved in disputes with state entities. International counsel will hesitate to work with Ghanaian firms. Clients will struggle to obtain independent legal advice. The ordinary operation of the legal profession will be chilled by the fear that advocacy itself may later be portrayed as complicity.

The reported detention of the lawyers is therefore not a peripheral issue. It is a direct warning to every professional adviser involved in Ghanaian commercial transactions.

Newsfile host Samson Lardy Anyenini, a lawyer, recently questioned whether the detention, the doubling of Ayesu’s bail and the freezing of corporate and personal accounts amounted to pre-trial punishment.

There have also been reports that accounts belonging to other lawyers at the firm, clients unrelated to PDS, individuals and private companies with no direct contractual relationship with the state were frozen because of their association with persons under investigation. These claims are very serious and demand a transparent response from EOCO.

Freezing assets may sometimes be necessary to preserve suspected proceeds of crime. However, such orders must be targeted, supported by evidence, regularly reviewed and connected to the alleged offence. Freezing every account associated with a suspect, including unrelated personal or corporate accounts, risks converting a preservation measure into economic punishment.

A company whose operating accounts are frozen may be unable to pay employees, suppliers, taxes or lenders. Even if it is eventually cleared, the business may already have collapsed. In commercial terms, exoneration after destruction is no remedy.

EOCO’s conduct is becoming an investment risk to Ghana

The PDS case is increasingly difficult to view as a routine investigation. The combination of arrests, extreme bail conditions, travel restrictions, account freezes and the targeting of lawyers creates the appearance that an agency is using criminal proceedings to gain leverage in a commercial dispute.

That appearance is damaging even if EOCO ultimately brings no charges.

An investigative and anti-graft agency that treats disputed commercial funds as presumptively criminal, detains directors before establishing a debt, and questions and detains lawyers over fees paid for legal representation sends a message that private enterprise in Ghana is conditional on remaining in the government’s favour.

The danger is not merely reputational. It is structural.

Investors need to know that a disagreement with a state-owned entity will remain a commercial disagreement unless there is independent evidence of criminal conduct. They need to know that directors and lawyers will not be detained simply because a company’s accounts are disputed. They need to know that lawyers can represent clients without becoming targets. They also need to know that bank accounts will not be frozen on the basis of association, suspicion or an incomplete reconciliation.

The PDS directors and lawyers are entitled to due process. They are not required to prove their innocence before the state establishes a properly particularized case against them. Nor should they be subjected to conditions that effectively punish them before trial.

The message reaching foreign investors

International investors do not assess a country solely on the basis of tax incentives, natural resources or headline economic growth. They assess whether contracts will be honoured, disputes will be resolved predictably and state agencies will exercise coercive powers within clearly defined legal boundaries.

Ghana has been a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards since 1968. The Convention rests on the principle that arbitral awards must be recognized as binding.

The concern in the PDS matter is not that Ghana has refused to pay a monetary award. The danger is subtler: state institutions may disregard the factual and jurisdictional boundaries established through arbitration and use criminal investigative powers to indirectly obtain an outcome that was never established through reconciliation or adjudication.

That perception can be as damaging as a formal refusal to honour an award.

An investor watching this episode may reasonably ask: If my company enters a dispute with a state entity, will a final arbitration bring commercial closure? Could my local accounts be frozen before a debt is established? Could unrelated companies or personal assets be targeted? Could my directors be detained or prevented from travelling indefinitely, including for medical reasons? Could my lawyers become suspects because of the fees they received for representing me? Could the government refuse a contractual cure and later portray the resulting dispute as evidence of fraud?

When the answers appear uncertain, investors adapt.

They keep working capital offshore. They contract through foreign special-purpose vehicles. They minimize balances held with local banks. They demand offshore payment arrangements, sovereign guarantees, political risk insurance and higher returns to compensate for enforcement risk. Some simply redirect capital to jurisdictions where commercial disputes are less likely to result in criminal investigations.

The resulting damage does not always appear as a dramatic withdrawal announcement. It arrives quietly through projects that are never approved, expansions that are postponed, financing that becomes more expensive and profits that are repatriated instead of reinvested.

Local banks also suffer. If businesses believe funds held in Ghana can be swept into an investigation unrelated to the account holder’s own conduct, rational treasury management will favour offshore custody. That weakens domestic liquidity, financial deepening and the ability of Ghanaian banks to finance private-sector growth.

The treatment of professional advisers creates another layer of risk. International transactions depend on lawyers, accountants, bankers and consultants being able to advise clients without fearing that legitimate fees will automatically make them participants in their clients’ alleged misconduct.

Professional advisers are not above the law, but their fees cannot, by themselves, constitute evidence of criminality merely because someone considers them significant.

Ghana can investigate without abusing power

Protecting public money and protecting investor confidence are not competing objectives. Both depend on transparent institutions, reliable evidence and respect for due process.

EOCO and ECG should begin by producing a complete reconciliation showing what PDS collected, what it paid to ECG, GRIDCo, GRA and other entities, what operating expenses it incurred, how much ECG says it is owed by PDS, when any balance became due and what specific law was allegedly broken.

They should also explain why the replacement demand guarantees reportedly offered by SGSSB were rejected, whether the concession agreement allowed PDS to remedy the alleged defect, and why that cure mechanism was not permitted to operate.

EOCO should identify the evidential connection between each frozen account and the suspected offense, periodically review all restrictions, and either charge the affected persons within a reasonable period or relax conditions that have become punitive.

Another disturbing issue is EOCO’s reported instruction to banks to transfer funds held in already frozen accounts into its own account. CalBank reportedly complied, while other banks refused and requested a court order.

If other banks insisted on a court order, CalBank should explain why it reached a different conclusion. Did its legal team review a court order or identify a statutory power permitting the transfer? Was the legal team consulted? Did the bank seek independent advice? Who approved the payment, and what record was made of that decision?

EOCO should also distinguish clearly between PDS as a corporate entity, its directors, its lawyers and unrelated third parties. Corporate liability cannot automatically be transferred to directors. A director’s association with a company cannot, by itself, establish dishonest appropriation. Similarly, a lawyer’s receipt of professional fees cannot, by itself, establish money laundering.

The PDS directors and lawyers should not be tried through press statements, excessive bail conditions or indefinite restrictions. If EOCO has evidence, it should present a properly defined case before a court. If it does not, it should stop using the machinery of investigation and the state to impose punishment by attrition.

Ghana should not have to choose between accountability and investment. But it must choose between institutional discipline and arbitrary power.

The international business community is watching, not simply to determine who was right or wrong in the PDS concession, but to judge whether Ghana remains a jurisdiction in which commercial disputes are resolved according to law, contractual cure rights are respected, arbitral outcomes are treated with intellectual honesty, private property is protected, lawyers can represent clients without intimidation, and investigations do not become punishment by another name in a democratic system.