Sector agencies are critical to the functioning of government machinery.
Established largely by Acts of Parliament, these are guaranteed autonomy and some degree of independence, subject mostly to policy directives by the sector minister in the performance of their functions.
Every government ministry set up under the civil service law has departments and agencies tasked to implement broader government policies over which the ministry has oversight.
For instance, the Center for Scientific and Industrial Research, Environmental Protection Agency (EPA) and Ghana Atomic Energy Commission (GAEC) are under the Ministry of Environment, Science, Technology and Innovation, while the Law Reform Commission is under the Office of the Attorney General and Ministry of Justice.
The National Disaster Management Organisation is an agency under the Ministry of Interior, etc.
As the implementing agencies for government policies, they are the nerve centers of a government delivering on policy interventions.
For instance, the Lands Commission is specifically mentioned in the Constitution.
Economic and Organised Crime Office, created by statute, may require the collaboration of the Financial Intelligence Centre.
The GAEC may require collaboration with the EPA, Ghana Health Service, National Security, Standards Authority, Food and Drugs Authority, or even the Water Resources Commission, etc., to carry out its mandate and vice versa.
As critical as state agencies are to achieving overall government objectives, they should not operate in silos.
Deference, legal basis
The agency deference concept, which developed in the seminal case of Chevron v. NRDC in the 1980s in the USA, although recently whittled down in scope and effect in Loper Bright v. Raimondo (2024), still affirms the significance of state agencies tasked with specific mandates.
While the recent Raimondo case whittles down the principle that the courts should defer to the agency’s interpretation and application of its rules, unless in limited cases, it does not diminish the significant and pivotal role of agencies, hence the need for inter-agency collaboration.
The Chevron case, which is now overturned, was clear on how courts will defer to agency interpretation and application, interfering only in limited cases.
Most agencies’ establishing Acts specifically call for inter-agency collaboration in the performance of an agency’s mandate.
This is important, because government units should work together to achieve set outcomes.
In carrying out its mandate, one agency may decide to rely on, collaborate with or seek the technical support of another agency that is more technically vested on an issue.
Examples include provisions in the Civil Service Act, the Local Governance Act, the Public Financial Management Act, and the EPA Act, all of which require MDAs to liaise, coordinate and cooperate in the performance of their functions.
As critical as this agency collaboration is, such collaborations are unregulated and are left to the discretion of heads of those agencies.
The opportunity or the need to collaborate must not be left to administrative whims and caprice, or to too much discretion.
State agencies have at times conducted themselves as though they were in competition rather than as arms of the same government.
Yet, the public interest and the wellbeing of the state remain the common goal.
In practice, some agencies enter into discussions with another agency to provide technical services, data, or support for a fee.
However, it is not uncommon for the approached agency to later circumvent that proposal and contract a private entity to deliver the same services.
This practice undermines trust, wastes public resources, and disincentivises collaboration between agencies.
A law to regulate inter-agency collaboration must, therefore, include a non-circumvention clause. Such a provision should:
• Prohibit circumvention: Bar an agency that has been approached for collaboration from directly or indirectly engaging a third party to provide the same services within a specified period without first exhausting the collaboration.
• Mandate good faith: Require agencies to negotiate collaboration proposals in good faith and within set timelines.
• Provide remedies: Establish administrative and financial consequences for breaches, including recovery of costs and sanctions against heads of agencies.
The objective is not to force collaboration where it is not feasible, but to ensure that when one state agency offers to assist another, that offer is respected and not used as market intelligence for private outsourcing.
Collaboration framework
Ghana should develop a broad framework for inter-agency collaboration to set timelines to be complied with and with consequences for breach.
This way, the need to collaborate does not become a bar to timely implementation.
State agencies have at times conducted themselves as though they were in competition rather than as arms of the same government.
Yet, the public interest and the wellbeing of the state remain the common goal.
In practice, some agencies enter into discussions with another agency to provide technical services, data or support for a fee.
However, it is not uncommon for the approached agency to later circumvent that proposal and contract a private entity to deliver the same services.
This practice undermines trust, wastes public resources, and disincentives collaboration between agencies.
A law to regulate inter-agency collaboration must therefore include a non-circumvention clause.
