Open Letter To Heineken

THOUGHTS OF JUNE 30, 2005 –
AN OPEN LETTER TO HEINEKEN INTERNATIONAL

Dear Heineken,

Lots of people around the world say that you are such a wonderful company to work with. I do not begrudge them at all. I have also worked with you for close to four years of my professional life and I must confess I enjoyed working with you or a part of you. My joy and indeed, that of my management colleagues during the period before you decided to offload your stake in Ghana Breweries Limited (GBL) was accentuated by the man Segun Adebanji, the former Managing Director. Mr. Adebanji showed that with a focused vision, a Ghanaian team can deliver more than our Black Stars have done in Germany.

I have taken the liberty of writing this open letter partly because today is very poignant for me and for my former management colleagues. It is exactly one year when we realized that all that we had been told by Heineken, in the lead up to the takeover of GBL were untrue and calculated to achieve one and only one objective, that is get Diageo Plc to acquire your shares no matter what Ghanaian law said. What happened to the former employees of GBL and their families would not be the headache of Heineken at all. It is indeed strange how fast time flies. It’s been an eventful year. I just could not let it pass without writing this open letter to you. The legacy of the takeover has led to the birth of Guinness Ghana Breweries Group (GGBG), Guinness Ghana Breweries Limited (GGBL), Guinness Ghana Breweries (GGB) and other nomenclature which is enriching the corporate jurisprudence of Ghana.

I must quickly add that the Director for Africa at that time (I believe he has not been made redundant yet) who at all material times was and still remains a member of the Board of GBL has written to me that Heineken was fully in support of all the actions being undertaken by GGBG in respect of the rights of your former employees. I have put his email in a photo frame. Its contents have been very helpful in the on-going battle to get Ghanaians to wake up to breaches of law that have occurred in Ghana which you can only dream about in Europe but dare not do. On the first anniversary of that infamous meeting and my delinking from the business, I wish to take the opportunity to draw the attention of the world to certain events that have occurred in your former OpCo in Ghana, GBL, following Heineken’s sale of its interests to Diageo Plc’s subsidiary in Ghana, GGBL in 2004.

I do so fully cognizant of the fact that the incumbent Chairman of the Executive Board of Heineken International personally visited Ghana before he assumed the position in the lead-up to the takeover. I am partly motivated to write this open letter due to the fact that I have a personal responsibility to ensure that justice is done to all the personnel of GBL in the wake of the takeover. A lot of the personnel of GBL looked up to us and we did not see that all the talk of seeing to the interests of employees etc would not be followed through. Right now, four other management personnel have petitions pending at the National Labour Commission (NLC) here in Ghana. My law firm will lend its assistance to these colleagues in their fight for justice in the land of their birth. I am also writing this commemorative piece due to the fact that I had a personal encounter with the present Executive Chairman of Heineken International during my tenure as Company Secretary/Legal Adviser of GBL. During that time, (I believe he was a member of the Executive Board but was not the Chairman), he made a trip to Ghana to assure all the employees of GBL that the capital restructuring project that GBL was undertaking in 2003 would resolve all the long-term problems of the Company and assure growth and profitability. This letter is therefore informed in part by the statements that the present Chairman of Heineken International personally made to us as employees of GBL juxtaposed with the events that unfolded soon thereafter culminating in the takeover by GGBL.

Until June 30, 2005, I was the Company Secretary/Legal Adviser of GBL. Further to the divestment of the Heineken stake in GBL, my position was declared redundant. Consequently, together with 9 other management personnel, we negotiated an exit package which was duly set down and executed on June 9, 2005. The new management of GBL deliberately chose to interprete the said agreement to the detriment of me and my management colleagues by deying us the agreed gratuity payments and also miscalculating our pension entitlements. More importantly, someone within the organization decided not to disclose the fact that the yield on our pensions for April, May and June 2005 were outstanding. This was never disclosed as part of the package and was only acknowledged after the new management had been challenged. As a fully qualified Ghanaian barrister, I have been at a loss why two major multinationals, Diageo Plc and Heineken International, would behave in such a manner to infringe the rights of workers when they know they cannot do any of those things in Europe. Is it because in Africa there seems to be no laws to guide corporate actions? I was therefore compelled to file a petition before the legally mandated body in Ghana for the purpose, the National Labour Commission (NLC) in July 2005. I also decided to hold my official car as a lien against the payment of my entitlements. Most of my colleagues, knowing fully well that their entitlements have been deliberately miscalculated, decided on a safety first approach by taking the offer and suing later for their money. As a lawyer, I could not accept a situation where my employer is fully aware of mistakes and yet openly dares everyone and say, you can decide to go to court if you wish. I could therefore not take any money purporting to be in full settlement of my terminal benefits when in fact it was not. I have therefore not been paid one dime since I exited GBL on June 30, 2005.

Having sat in the GBL Boardroom for 4 years and having played a major role in the successful completion of the acquisition process from the GBL legal perspective, I am impressed by the loud silence of some of the members of the board who are privy to all what has transpired since Project Marina was concluded. Project Marina was marketed to GBL personnel as a merger, knowing fully well that this was an acquisition so that the ground would be smoothened for the takeover. Some of us are glad we expressed our opinions on the transaction even at that time. For me personally, if I did not have the courage to put my professional opinion in writing, I would have been nailed by the very same people by now with allegations of culpability. The records would clearly show that at approximately 11 p.m. on June 30, 2005, I was handed a letter signed by Mr. Devlin Hainsworth, Managing Director of GGBL and GBL, purporting to detail my terminal entitlements. The said letter was not on a corporate letterhead and contained lots of errors. On July 2, 2005, I wrote to GBL pointing out the errors. About a month later, I received an undated letter which stated inter alia, that I was not entitled to gratuity payments. Strangely, GBL’s answer to my petition attached a letter dated July 4, 2005 also detailing a different amount as my benefits. Characteristically and quite unworthy of a corporate entity of the caliber of Guinness, though the said letter sought to portray that it was written by the MD, it was unsigned. The official copy of what the business offered as my terminal benefits was unsigned! I have also till date not received a copy of that letter except the copy I received from the NLC which was the first time I even knew of the existence of another letter on my benefits. The NLC has since October 2005 ruled that I was entitled to full payment of my terminal benefits as determined by the June 5, agreement. Guinness filed an application for certiorari in the High Court asking the Court to quash the order of the NLC. The High Court dismissed the application by GBL in March 2006 and further ordered them to comply with the NLC’s ruling. However, GBL, being of the stock of Guinness which seems to be above Ghanaian law, has till date not complied with the Court’s orders. The NLC has therefore been compelled to file an application for an order of enforcement from the same High Court such that GBL would be compelled to abide by the Court’s ruling. God willing, the Court will have an opportunity to make a ruling in the matter on July 5, 2006.

As the custodian of GBL rules and regulations, I would not waste my energies if I was not so entitled under law. That informed my attempts to draw the attention of the Africa Director who incidentally is a member of the GBL Board and also the GGBL Board and whom I have personally served as Board Secretary to the issues. Till date, none of my communication has ever been acknowledged though I know as a fact that they were received. Indeed, I do know that he comes into Ghana for board meetings but who am I in the scheme of things for Heineken. I was a disposable asset just like all the employees of GBL who have no inclination of the legal implications of being shifted from their original employment as GBL workers to another corporate entity, Guinness, without approval of any shareholder or board of GBL. I therefore do not expect any response to this but to say the truth, just as the Africa Director’s answer provided me with a momento for my children, I would be delighted for any response howsoever couched, from Heineken, so I can enhance my book with it. I know I am too insignificant to Heineken after the disposal of its stake to interest anyone. But the records will show that Heineken is fully aware of the facts of this matter. The records will definitely show that the Board of GBL, both pre-acquisition and post-acquisition is fully aware of the facts. Let none therefore plead ignorance. As indicated in an earlier communication, the motive underlying a decision for the new owners of GBL to antagonize senior Ghanaian professionals in the land of their birth after such dedicated service, defies my understanding. As always, the so-called advisors, who are laughing all the way to the bank, are the only beneficiaries. The principle of "pacta sunt servanda” means that when an agreement is executed, one is obligated to abide by it. The events of the night of June 30, 2005, when senior managers were hounded out of the business and told to their face to go to court if they wished is the lowest point any entity would sink to. Managers who had dedicated their lives to the business did not even have a handshake as acknowledgement of their roles. I had served only close to four years and held some pretty unconventional professional opinions. What is happening is my case is therefore not unexpected. I am however saddened by the fate of some of my colleagues who spent their entire careers with you, from the Kumasi Brewery Limited (KBL) days through the merger with GBL and the takeover by GGBL. These colleagues were rather treated worse than criminals. There is therefore a groundswell of ill-will engendered. The mindset of the new owners of the business would definitely cost the business in the long run. What happened to the Ghanaian senior managers could never happen in a place like Nigeria. They would never take such treatment from foreigners. However the perception that Ghanaians are docile and therefore all sorts of people would be brought down from London solely to make savings on the provisions for the redundancy exercise without recourse to their rights would have to be discarded.

As a lawyer, living in the land of my birth, with inalienable rights under the Ghanaian Constitution, I am sure you would agree that I would defend my interests. Workers have been offered lower jobs and told to either take them or leave, in contravention of Ghanaian law. The fact that an avalanche of issues has not emanated does not mean that Heineken should not be concerned about what’s going on in Ghana and the potential it has to soil the good corporate image of Heineken. The new owners are so powerful that they can create and uncreate news themselves with little effort.

Respectfully, everyone who is privy to the core details of Project Marina cannot allege ignorance. Having rendered dedicated service, the least anyone can do is also to do the right thing by paying what is legitimately due to us under law in Ghana. In the mean time, I shall continue to fight to assure justice for myself and for my colleagues. Indeed, we have established a not-for-profit solely dedicated to preventing such hardships befalling our citizens in the land of their birth. We shall employ all legal means necessary to ensure that our rights are not trampled upon in the land where our umbilical cords are buried. I have been to Holland and also lived in the United Kingdom. You have no qualms out there that you are a stranger and you ought to abide by the law. As a lawyer, I wonder why certain personnel posted to Africa believe that the laws have been made for only locals and that they and the entities they run are above the law. If only our people will wake up to their rights! Let me end by giving you an example of what I am referring to. GBL has had a pension scheme for managers. Indeed, it is the lifeline for all managers and non-managers and many aspire to the position because of it. Managers also have an incentive to stay in the business and offer dedicated service as a result of the fund. It’s your lifeline to your deadline, literally, when the curtains close on your working life. My understanding right now is that the new owners of the business have decided to pay off all the managers, their accrued interests in the fund. It is unclear the modalities. But when an employer offers you your insurance to a decent retirement when you are a youngman, without any clarity as to the legal basis and effect of such a fundamental change to your service conditions, one would expect questions. Well, we are Ghanaians. We take the money on offer and go to church to thank God for the windfall. Sown in 2006, to be reaped in 2016 thereafter, so help me God!

So I am going out with my dear wife tonight to celebrate an eventful day. Revelation came on June 30, 2006 when we saw Devlin Hainsworth kick Akoto under the table to indicate that he should throw our letters at us and hound us out of the business that late in the night. That is when all the others knew what I had known all along! We had been fooled in the land of our birth by foreigners acting with the active connivance and support of some of our own citizens! That was the night when you had so-called advisers encouraging managers to go to court fully aware that it will lead to loads of money in their pockets. It has been a wonderful life experience since that day. Very tough adjustment to the new life but known true friends. Begun a wonderful law firm, 1stLaw in Accra with a wonderful senior and true friend, Vincent Aikins Esq., working to prevent corporate fraud in all shapes and forms with ThinkGhana and still struggling to please my Lord. It’s been a year, but thanks to my Lord above and my lady below, we still live. More anon.

Thanks for surprising Amsterdam, anyway. Mr. Alfred Heineken would never have done what you have done to the employees of your former subsidiary in Ghana. As our people will say, Ayekoo!!! Me ma me ho afrihyia pa!!!

"A lie never lives to be old." (Sophocles)

Yours sincerely,

JOE ABOAGYE DEBRAH Esq.
Former Board Secretary/Legal Adviser, GBL
Partner, 1stLaw, Accra
CEO, ThinkGhana, Accra