Directing the Auditor General to go on ‘accumulated leave’: Why the President got it wrong

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.

All these are carefully designed institutional mechanisms to place various bodies and arms of government, including the Office of the Auditor General, in check. That is the very idea of constitutionalism.

The Constitutional Architecture of the Office of the Auditor General (AuG) & the Audit Service Board

Sketched by Nick Opoku

	Appointment	Functions (Powers & Duties)	Financial Independence	Functional Independence	Checks
Auditor General	How is the AuG appointed? Article (70)(1) (b)- The President shall, acting in consultation with the Council of State, appoint the Auditor General	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.	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.	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.	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.
		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.	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.	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)	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.
Audit Service Board	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	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			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.

PS: Petition to President written by

Korieh Duodu  and  Lolan Ekow Sagoe-Moses : http://chng.it/bxtkF6RfSm