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 

Charging Officer Derek Chauvin with third-degree murder is laziness if not more

1. In Minnesota, first-degree murder requires prosecutors to prove that a killer acted with premeditation and with the 'intent to effect the death' of another person. Premeditation means 'to consider, plan or prepare for, or determine to commit, the act' of murder. Minnesota does not have the death penalty. The harshest punishment for those convicted of first-degree murder is life imprisonment.

2. Second-degree murder in Minnesota requires prosecutors to prove intent, but not premeditation. It is punishable by up to 40 years in prison.

3. Third-degree murder requires neither premeditation nor intent. It requires prosecutors to prove that a defendant 'causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.' It is punishable by up to 25 years in prison.

4. How can the DA prove intention for the purposes of establishing second-degree murder? Intention can be direct or constructive. From the widely circulated video of the unfortunate incident, Floyd is seen pleading several times, 'please please please I can't breathe!' Officer Derek Chauvin ought to have exercised caution at that point. Instead he kept his knee on Floyd's neck for close to 9 minutes! He maintained his position even after the medics arrived and it was discovered Floyd had no pulse. One can reasonably infer from Officer Chauvin's conduct that he had the intention to kill. Therefore charging Officer Chauvin with third-degree murder is complete laziness (if not more) on the part of the DA. Officer Chauvin might not suffer the maximum punishment for his crime.

5. Another interesting argument worth considering has been made for the charge of first-degree murder. My friend, Dede Djaba, argues: 'A good and willing prosecutor may be able to get a first-degree murder conviction in this case... Premeditation which requires planning and preparation does not have a time limit. It can be 5 minutes, or one hour. The murdering officer had 9 minutes to plan, 9 minutes to execute his plan... The officer had the intent to effect the death of Floyd. He heard Floyd's cries begging that he couldn't breathe. He heard the onlookers begging that he removes his knees from Floyd's neck. A Prosecutor can establish [premeditation] and intent!' Dede's argument is indeed compelling.

6. A newly surfaced video of the unfortunate incident appears to show not one (Officer Chauvin), but three other officers kneeling on George Floyd in the moments leading up to his death. If this video is anything to go by, the DA ought to charge the 3 other officers with abetment to murder.

7. George Floyd deserves justice. Racial profiling and brutish policing methods in the US must end.

Pass Tax Exemption Bill — Speakers at Graphic Business/Stanbic Bank forum

Discussants at the Graphic Business/Stanbic Bank Breakfast Meeting held yesterday proposed varied solutions to help resolve the disparities between public revenue mobilisation and expenditure.

The solutions included the immediate passage of the Tax Exemptions Bill, which seeks to lay out a clear criteria for giving tax holidays to businesses, to help streamline and address the shortfalls in revenue mobilisation. 

Data from the Ministry of Finance indicate that in 2016 the country lost GH¢4 billion to tax exemptions.

At the Free Zones enclave alone, the practice cost the economy more than $2 billion annually, according to the International Monetary Fund (IMF).

Other suggestions were the decentralisation of the country's tax system, simplifying the tax regime, enforcement of Value Added Tax (VAT) laws and roping the informal sector into the tax net to shore up domestic revenue mobilisation.

Forum focus

The forum, which was held on the theme: “Breathing new lease of life into the economy — Fixing the revenue/expenditure conundrum”, brought together economists, bankers, tax experts and business executives, including a former Minister of Finance, Mr Seth Tekper; a former Chief Executive Officer (CEO) of the Ghana National Petroleum Corporation (GNPC), Mr Alex Mould, and the Managing Director of Stanbic Bank, Mr Alhassan Andani.

To help digest the topic and elicit the right responses to shape public policy, a three-member panel made various presentations that set the tone for deliberations at the forum.

They were a partner at PricewaterhouseCoopers (PwC), Mr Abeku Gyan-Quansah; the Vice-President of Imani Africa, Mr Kofi Bentil, and  the Resident Representative of the IMF, Dr Albert Touna-Mama.

L-R: Kofi Bentil (Vice Prez, Imani Africa), Dr. Albert Tuona-Mama (Resident Representative, IMF), Abeku Gyan-Quansah (Partner, Pwc) and Nick Opoku (moderator)

Simplify tax system

Mr Gyan-Quansah, who set the ball rolling for the deliberations, said Ghana’s tax system was unduly complicated and needed to be simplified to encourage compliance.

He explained that a section of the public was not tax compliant because of the complicated nature of calculating tax under the current system.

“Why do you want to have a tax system that unduly complicates matters for you and then people use it as an excuse not to pay?” he asked.

He said there was nothing innovative about raising tax revenue if policies and laws were not implemented.

Beyond that, he said, the government must effectively utilise the resources generated from taxes to help encourage the citizenry to be committed to their tax obligations.

Abeku Gyan-Quansah (Partner, Pwc)

He said when the citizenry were assured that their taxes would be used for development projects that would benefit them, they would be tax compliant, but they would refuse to pay taxes if they were convinced that the money would be mismanaged.

“If the people are not assured that their taxes will be put to good use, they will not pay,” Mr Gyan-Quansah said.

Check on politicians

On the management of expenditure, Mr Bentil said corporate activism was a proven measure of good governance, and that there was the need to get to the point where politicians would have fear for an organised business community.

He said members of the business community must ensure that the government used tax revenues for development projects that would have a general effect on the citizenry to protect the public purse.

“Losing that ground is the reason we can have 110 ministers and there will be no problem; losing that ground is the reason we have 600,000 people in the civil and the public services and they take up over 50 per cent of our domestic revenue,” he said.

Kofi Bentil (Vice Prez, Imani Africa)

He added that to help curtail abuse of the public purse, there was a pressing need for the public to ensure that the government did what the public required, “because we fund them”.

For him, although politicians came to power with an agenda, the public must rise up to shape that agenda for the benefit of society.

Deploying existing strategies

Mr Bentil also called on the government to decentralise domestic revenue mobilisation to reduce the burden on the central government.

He explained that shifting the burden of tax collection to the district level would help “strip government expenditure below a certain level”.

For his part, Dr Touna-Mama said there was no need to deploy innovations in the domestic revenue mobilisation space, as there were already the needed structures to help in the collection of revenue internally.

However, he said, the government must activate structures and strategies to help shore up revenue mobilisation.

“There is no need for innovation, per se; but there is the need for action, there is the need to deploy strategic plans to improve on domestic revenue for Ghana,” he said.

Opportunity

The Managing Director of the Graphic Communications Group Limited (GCGL), Mr Ato Afful, in his welcome address, said the forum was an opportunity for the private and the public sectors to find a common ground for issues confronting the development of the country.

He said the meeting, which focused on domestic revenue mobilisation and public expenditure, was a timely intervention to address shortfalls in Ghana’s economic management.

Exemptions regime

Tax exemptions are growing at levels that many analysts are worried about.

In 2011, tax exemptions cost Ghana $2.4 billion, representing 6.13 per cent of its gross domestic product (GDP).

In 2013, tax exemptions jumped to $ 2.5 billion, constituting 5.2 per cent of GDP.

Tax exemptions were $2 billion in 2014.

According to the Exemptions Bill, 2019, “These exemptions are growing at the expense of tax revenue. For every one Ghana cedi of tax collected, the corresponding amount given away as exemptions has increased from six pesewas to 12.5 pesewas between 2010 and 2018.”

The programme held at the Labadi Beach Hotel, Accra was moderated by Nick Opoku. It was sponsored by Stanbic Bank, Labadi Beach Hotel, Joy Business, Proseline Events and Geovision Services.

Credit: Graphic Online

Make the most of the opportunities AfCFTA presents- private sector urged

International and local business players are pointing to the African Continental Free Trade Area (AfCFTA) as one of the potential biggest breaks for local businesses. 

David Ofosu-Dorte (Senior Partner, AB& David), Michael Kottoh (Executive Director, AfroChampions) and Tony Oteng Gyasi (CEO, Tropical Cable and Conductor Ltd) made these remarks at the 7^th edition of Crystal Ball Africa, held in Accra on January 16, 2020.

Sharing their investment notes on Africa, they explained that the AfCFTA presents extraordinary opportunities for the private sector to transform the continent by investing in infrastructure and industries to increase intra-Africa trade and create wealth.

The African Continental Free Trade Area (AfCFTA) seeks the progressive elimination of tariffs on 90 per cent of products within 5–15 years depending on the economic status of each participating country, and the liberalisation of even more tariffs on other “sensitive goods” within 10–13 years.

The agreement also aims to remove non-tariff barriers through the creation of a single market of about 1.2 billion persons for the trading in goods and services. If fully implemented, the AfCFTA is estimated by IHS Markit to contribute to a 32 per cent increase in total trade in goods between its members and trade between AfCFTA countries that do not currently share an FTA would also increase from $13 billion to $32.5 billion. 

Regional trade in Africa remains low despite efforts by African Governments to boost intra-regional trade. Since 2010, only about 12 per cent of Africa’s total trade took place within the continent, according to the United Nations Conference on Trade and Development (UNCTAD). One of the major reasons for the weakness in the continent’s regional trade performance has been the lack of a private sector that is dynamic and vibrant enough to seize existing opportunities in the trading system.

Challenges the African private sector face include high and rising informality, small size of enterprises, weak inter-firm linkages, low level of export competitiveness and low innovation capabilities. These challenges are compounded by the fact that regional integration initiatives aimed at promoting trade tend to focus on processes, such as the removal of trade barriers, without the commensurate attention to the building of productive capacities and private sector development that would effectively address the consequent weaknesses. There is certainly a need to shift away from this linear and process-based approach towards a greater development focus, international trade and investments experts have argued.

R-L: Catherine Krobeh Edusei (MD, Edentree Ltd), Tony Oteng-Gyasi (CEO, Tropical Cable & Conductor Ltd), Engr. Mansur Ahmed (Prez, Manufacturers Assoc, Nigeria), Samuel Appenteng (MD, Joissam Gh. Ltd) and Nick Opoku (moderator). 

The private sector has a crucial role to play in making regional integration work for Africa because, though trade agreements are signed by governments, it is the private sector that understands the constraints facing enterprises and is in a position to take advantage of the opportunities created by such agreements and regional trade initiatives.

Some indicators of core opportunity areas (current and future)

1.      Feeding the People

- Africa’s annual food import bill is $35 billion

- Africa’s annual food important bill is estimated to reach $110 billion per annum by 2025

- Agriculture represents 15% of the continent’s GDP, or more than $100 billion annually

- Africa’s total urban food market is estimated to reach $150 billion by 2030

- Agribusiness sector is estimated at $1 trillion by 2030

- Africa’s financial needs for irrigation is up to $65 billion investment in irrigation in suitable areas in sub-Saharan Africa (from 5% to 15% total cultivate area)

- The total smallholder financing need for Agriculture in Africa is estimated at $450 billion

2.      Clothing the People

-          1.6 billion people will need clothing by 2030

3.      Moving people and goods

-          $200 billion worth of trade in Africa is carried by the region’s trunk road network

-          Africa’s aviation sector contributes $72.5 billion to economy

4.      Telecommunication

-          Broadband connections in Africa by 2022 projected to be 1.07 billion broadband

-          Africa’s smartphone market penetration by 2035 projected to be 636 million

5.      Manufacturing  and Value-addition

-          Business-to-business spending in manufacturing in Africa is projected to reach $666.3 billion by 2030

-          African manufacturing output by 2025 if all 55 countries join AfCFTA estimated at $1 trillion

6.      Tourism and creative industries

-          By 2030, consumer spending on tourism, hospitality and recreation in Africa is projected to reach about $261.77 billion

7.      Education, Skills and healthcare

-          Africa has a financing gap of 40 billion to achieve the SDGs for education by 2030

-          Africa’s pharmaceutical market is estimated to be worth $160 billion by 2024

-          Business opportunities in the health care and wellness sector in Africa will reach $259 billion by 2030

8.      Financial services

-          Africa’s Central banks hold more than $400 billion in international reserves.

-          Africa’s banking market is approximately $86 billion in revenues before risk cost

9.      Housing the People

Crystal Ball Africa is an annual pan-African business forum organized by AB& David for business people and professionals currently doing or seeking to do business in Africa where advance knowledge on key policies, legislations and other related matters that will impact businesses in the year is/are shared. This year’s event held at the Labadi Beach Hotel, Accra, was on the theme: ‘The AfCFTA and business without borders: the game changer’. The programme was moderated by Nick Opoku and Bernard Avle.

Credit: Additional files from AB& David and the AfroChampions Initiative

The annual celebration of the 31st December Coup: a case of gross impunity?

By: Nick Opoku and Kwadwo Yeboah Gyan

Photo Credit: Getty Images

1. On 31st December 1981, the government of Ghana was overthrown by the PNDC. The PNDC subsequently made 31st December a statutory public holiday and celebrated the anniversary of the coup each year with public funds.

2. On 7th January 1993, a civilian government assumed power under the 1992 constitution. But the celebration of the 31st December coup with public funds continued.

3. The NPP went to the Supreme Court arguing that the celebration of 31st December with public funds is unconstitutional because it's against the letter and Spirit of the 1992 constitution.

4. The Supreme Court agreed with the NPP (See New Patriotic Party v Attorney General [1993-94] 2 GLR 35—192). The court held amongst others that because the 1992 constitution enjoins Ghanaians to defend and resist any attempt to overthrow the constitution, the celebration of the 31st December coup with public funds weakens the resolve of Ghanaians to defend and protect the constitution. It is also unfair to persons adversely affected by the coup but are unable to seek redress because of the Transitional provisions. Therefore using public funds for the celebration of the 31st December coup is unjustified and unconstitutional.

5. My friend, the venerable Prof Stephen Kwaku Asare (Kwaku Azar) argues that despite the perceived non-use of 'public funds' for the celebration of the 31st December coup, the continuous organization of the event by a political party makes it a 'national' event and therefore must be subject to the rule in the 31st December case. He argues that it is against 'our collective conscience and wisdom' to allow the continuous celebration of the event because it poses a danger to our peace and democracy.

6. One may argue that the right to join a political party in the celebration of the 31st December coup is a right protected by the constitution. I am mindful of these rights: rights/ freedoms of assembly, to participate in the activities of political parties, etc under Article 21. But we must note that these rights are subject to 'such qualifications and laws as are necessary in a free and democratic Society'. The exercise of these rights must also be 'consistent with [the] Constitution.'.

8. To the extent that the Supreme Court held that the celebration of the 31st December coup weakens/ will weaken the resolve of Ghanaians to defend and protect the constitution and such celebration will be unfair to persons adversely affected by the coup but are unable to seek redress because of the Transitional provisions which protect perpetrators of the coup from being 'held liable either jointly or severally' for their actions or omissions, I agree with Prof Kwaku Asare’s argument.  

9. One may also argue that the funds of a political party (NDC) used in the celebration of the 31st December coup are not ‘public funds’ and therefore the celebration is not unconstitutional. But let us note that the funds of political parties are considered public funds. The Supreme Court in Republic v Yebi and Avalifo [2000] GLR (also [2000] SCGLR) said so. The court in that case held, amongst others, that ‘the alleged theft of the money [of the NDC] is not in the interest of only the members of the NDC, but also the entire Ghanaian public who are by law entitled to inspect and take copies of the audited accounts of the NDC.’ A person who appropriates the funds of a political party is liable to punishment under our criminal laws.

10. It stands to reason, therefore, that the NDC's continuous use of its resources to celebrate the 31st December coup is an unconstitutionality.

11. For now, we can only trade ideas and debate this issue until it is tested in our courts someday.