By Nick Opoku
On June 29, 2020, the President, by letter,
purported to direct the Auditor General, Mr. Daniel Domelevo, to proceed on
'accumulated leave'. In this article, I reflect on the constitutional
architecture of the Auditor General’s office, not only to demonstrate why the
directive is unconstitutional, but also to argue that if the measure is allowed
to stand, it will mature into one of those perverse precedents which undermine
constitutionalism and the rule of law in Ghana.
According to Article 187 of the 1992
Constitution, the Auditor-General, in the performance of his functions under the
Constitution or any other law shall not be subject to the direction or control
of any other person or authority. It has been argued, correctly, that this
provision casts in stone the independence of the Auditor-General, and insulates
him from the type of executive control, that the President’s letter trades
in.
Despite the obvious clarity of Article 187(7)(a), some have argued that the thesis of an absolutely independent
institution, which is not subject to any checks nor controls, is not supported
by our laws, and that to insist on this will be akin to creating a unruly
beast, which is above both law and reason. This argument is no doubt flawed. To
argue that the Auditor-General is independent, and that by extension, the
President’s directive is defective, in no way implies that the Auditor General
can do no wrong, or that the institution is above the law.
In fact, even the language of 187(7) (a) makes
it clear that the independence of the AuditorGeneral is not absolute. The
language ‘any other person or authority’ implies that there are some persons or
authorities, whose control and check, the Auditor-General is subject to. In effect,
a more complete reading of Article 187(7)(a) would be, ‘the Auditor-General shall
not be subject to the direction or control of any… person or authority other
than those specifically provided for by the Constitution.’ My argument then is
that, outside of the specific persons and circumstances outlined by the
Constitution, the Auditor-General is not subject to any directive, person,
authority or law that interferes prejudicially in the performance of the
Auditor-General’s functions.
How is the Office of the Auditor General kept
in check?
One, Under Article 187 (15), Parliament is
empowered to appoint an auditor to audit and report on the Office of the
Auditor General. One would also note from Article 187(5) that the Auditor
General is duty bound to, within six months after the end of the preceding
financial year, submit his report on all audited public accounts to Parliament.
Two, where the Auditor General is accused of (i)
stated misbehavior, or (ii) incompetence or on ground of inability to perform
the functions of his office arising from infirmity of body or mind, Article
187(13) instructs that he can be removed in the same manner a Justice of the
Superior Court is removed under Article 146.
Further, where a person has been surcharged
pursuant to the Auditor General’s powers under Article 187(7)(b), and such
person is aggrieved by that decision, he may appeal to the High Court under
Article 187(9).
Outside Parliament, the courts, and the
mechanism for the removal of the Auditor General, he is not subject to any
other control. The only circumstance under which
the President can instruct the Auditor General to do something is found in
Article 187(8) where the President can ‘REQUEST’ (the Constitution uses the
word ‘REQUEST’, NOT INSTRUCT OR ORDER) the Auditor-General to, in the public
interest, audit at any particular time, the accounts of any organization. Even
under such circumstance, the President must do so, acting in accordance with
the advice of the Council of State.
Some
have also suggested that the mere fact that the President appointed the Auditor
General means the purported directive is constitutional. That view is
inaccurate. The Office of the Auditor General is an independent constitutional
body just as CHRAJ, NCCE or the Electoral Commission. The President cannot
instruct any of these institutions outside their constitutional architecture.
Some have also suggested that the Auditor
General is subject to the ‘direction or control’ of the Audit Service Board. That
is also inaccurate. Under Article 189(2)
and (3), the Audit Service Board is empowered to, in consultation with the
Public Services Commission, (i) appoint employees of the Audit Service OTHER
THAN the Auditor General; (ii) determine terms & conditions of the
employees it has appointed; and (iii) by a C.I, make regulations for the
effective & efficient administration of the Audit Service. The functions of
the Audit Service Board, one would note from the language of Article 189(2) and
(3), do not include any such authority to either ‘direct’ or ‘control’ the
Auditor General. It is for good reason that the framers of the Constitution so
carefully shield the Auditor General from any Executive control or influence.
The
Constitutional Architecture of the Office of the Auditor General (AuG) &
the Audit Service Board
Sketched
by Nick Opoku
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Appointment
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Functions (Powers & Duties)
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Financial Independence
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Functional Independence
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Checks
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Auditor General
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How is the AuG appointed?
Article (70)(1) (b)- The President
shall, acting in consultation with the Council of State, appoint the Auditor
General
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What is the job of the AuG?
Article 187(2)- The Auditor
General shall audit the public accounts of Ghana and of all public offices,
including the courts, the central and local government administrations, of
the Universities and public institutions of like nature, of any public
corporation or other body or organization established by an Act of
Parliament.
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How is the AuG paid?
Article 71(c)- The salary and
allowances payable, and the facilities and privileges available, to the
AuG…being expenditure charged on the Consolidated Fund, shall be determined
by the President on the recommendations of a committee of not more than five
persons appointed by the President, acting in accordance with the advice of
the Council of State.
And how is the Office of the AuG funded?
Article 187 (14)- The
administrative expenses of the office of the Auditor-General including all
salaries, allowances, gratuities and pensions payable to or in respect of
persons serving in the Audit Service shall be a charge on the consolidated
Fund.
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Is the AuG subject to the
direction/control of any person or authority?
Article 187 (7) (a)-
In
the performance of his functions under this Constitution or any other law,
the Auditor-General
SHALL
NOT be subject to the direction or control of any other person or authority
Can the AuG appoint a person to act on
his behalf/in his absence?
Article 187(3)- For the
purpose of clause (2) of this article, the AuG or ANY PERSON AUTHORISED OR
APPOINTED for the purpose BY the AuG shall have access to all
books, records returns and other documents relating or relevant to those
accounts.
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Who Audits the Office of the AuG?
Article 187 (15)- The accounts
of the office of the Auditor-General shall be audited and reported upon by an
auditor appointed by Parliament.
How does one challenge a decision of the
AuG?
Article 187(9)-
A
person aggrieved by a disallowance or surcharge made by the AuG may appeal to
the High Court
Which
institution does the AuG report to?
Article
187(5) -
The AuG shall, within 6 months after the end of the immediately preceding
financial year, submit his report to parliament and shall, in that report,
draw attention to any irregularities in the accounts audited and to any other
matter which in his opinion ought to be brought to the notice of Parliament.
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Power to surcharge & disallow
unlawful expenditure
Article 187(7) (b)- In the
performance of his functions under this Constitution or any other law the AuG
- may disallow any item of expenditure which is contrary to law and surcharge
(i) the amount of any expenditure disallowed upon the person responsible for
incurring or authorising the expenditure; or (ii) any sum which has not been
duly brought into account, upon the person by whom the sum ought to have been
brought into account; or (iii) the amount of any loss or deficiency, upon any
person by whose negligence or misconduct the loss or deficiency has been
incurred
Occupy Ghana v AuG & AG
(J1/19/2016)[2017]GHASC 24 (14/6/2017)
Held:
The AuG has an obligation to ensure
that his powers of disallowance and surcharge exercised under Article
187(7)(b) are complied with by the public entity/officials directly affected
by such powers.
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What are the rights of the AuG?
Article 187(12)- The salary and
allowances payable to the Auditor-General, his rights in respect of leave of
absence, retiring award or retiring age shall not be varied to his
disadvantage during his tenure of office.
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Under what circumstance can the Prez
instruct/direct the AuG?
Article 187(8) - The
President, acting in accordance with the advice of the Council of State, can REQUEST
the Auditor-General in the public interest, to audit, at any particular time,
the accounts of any such body or organisation as is referred to in Article
187(2)
At what age does the AuG retire?
60
years
See:
Appiah Ofori v AG (Writ No.J1/4/2017)
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How is the AuG removed from office?
Article 187(13)- The provisions
of Article 146 of this Constitution relating to the removal of a Justice of
the Superior Court of Judicature from office shall apply to the
Auditor-General.
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Audit Service Board
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Appointment & Composition
Article 189(1)-
(a)
a chairman & 4 other members
appointed by the President, acting in consultation with the Council of State;
(b)
AuG;
(c)
Head of the Civil Service/ his Rep
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Functions (Powers&Duties)
Article 189(2) & (3)-
The
Audit Service Board shall in consultation with the Public Services
Commission,
(i)
Appoint officers/employees in the Audit Service
OTHER THAN the AuG
(ii)
Determine terms & conditions of the
officers/employees appointed
(iii)
By a C.I, make regulations for the effective &
efficient administration of the Audit Service
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How is a member of the Audit Service
Board removed?
Article 189(4)-
Other
than the AuG & the Head of the Civil Service, a member of the Audit
Service Board, may be removed from office by the President, acting in
accordance with the advice of the council of State, for inability to perform
the functions of his office arising from
(i)
infirmity of mind or body; or
(ii)
for any other sufficient cause.
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PS: Petition to President written by
