Supreme Court on why it declared President's directive to Auditor-General unconstitutional
The Supreme Court on Monday (June 26, 2023) released its full reasoning that declared as unconstitutional, the directive by President Akufo-Addo for former Auditor-General, Daniel Domelevo, to proceed on leave.
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It said the directive of the President requesting the Auditor-General to proceed on leave under Sections 20 and 31 of the Labour Act, Act 651 violated the functional and institutional independence of the Auditor-General.
A seven-member panel of the apex court on May 31, 2023 declared the directive by the President for Mr Domelevo to proceed on leave in 2020 as unconstitutional but deferred the reasoning underpinning the judgment.
Related: Directive for Domelevo to proceed on leave unconstitutional – Supreme Court
In the full reasoning for the judgment which was released Monday, the court held that the Auditor-General’s office was an independent constitutional body which was insulated from any form of interference in the discharge of its functions.
Preserving the functional independence of the Auditor-General, the court said, was not only crucial in helping that office adequately discharge its function, but was also a cardinal principle of the country’s constitutional development.
“The Presidency failed to consider the Auditor-General’s office as head of the Audit Service forms part of the Independent Constitutional bodies.
The directive of the President requesting the Auditor-General to proceed on leave under Sections 20 and 31 of the Labour Act, Act 651 violated the functional and institutional independence of the Auditor-General,” the court held.
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Leave
It was the considered view of the court that leave was purely an administrative matter subjected to an agreement between an employee and an employer and handled by Human Resource, in line with collective bargaining agreement or conditions of service.
In this vain, the court held that leave within the Audit Service does not fall under the purview of the President since the 1992 Constitution does not cloth the President with the function as the Human Resource Manager of the Audit Service.
“Thus, the framers of the 1992 Constitution, could not have intended to create a simple employer-employee relationship between the appointing President and the Auditor-General, thereby making the President a Human Resource Manager, administering the leave schedule of heads of independent governance institutions,” the court held.
Acting Auditor-General
On the issue of the appointment of an Acting Auditor-General by the President after Mr Domelevo proceeded on leave, the apex court held that such a position was not recognised by the 1992 Constitution.
It was the view of the court that the President could only appoint an Auditor-General when an incumbent Auditor-General resigns, dies, retires or removed from office in accordance with the 1992 Constitution.
“Any action taken by the President or any person purporting to act on behalf of the President to designate another individual as ‘Acting Auditor General’ or in a similar capacity would be in contravention of the Constitution and null and void,” the court held
Suit
The seven-member panel was presided over by Justice Nene Amegatcher, who authored the judgment with Justices Prof. Nii Ashie-Kotey, Mariama Owusu, Avril Lovelace-Johnson, Gertrude Araba Esaaba Sackey Torkornoo, Prof Joy Henrietta Mensa-Bonsu and Emmanuel Yonny Kulendi, as members.
The suit culminating in the judgment was filed by nine civil society organisations.
The groups include the Centre for Democratic Development (CDD-Ghana), Ghana Integrity Initiative, (GII), Citizen Movement Ghana, Africa Center for Energy Policy (ACEP), and Parliamentary Network Africa.
The rest are Penplusbyte, Media Foundation for West Africa, SEND Ghana, and One Ghana Movement.
Background
On June 29, 2020, President Akufo-Addo directed Mr Domelevo to proceed on his 123 accumulated leave days from 2017 to 2019, with effect from July 1, 2020.
Mr Domelevo replied the President in a letter dated July 3, 2020, asking the President to reconsider his decision on the basis that it was unconstitutional and was not in the best interest of the office of the Auditor-General and the nation at large.
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In a subsequent reply by the President, signed by the Secretary to the President, Nana Bediatuo Asante on July 4, 2020, the President extended the leave of Mr Domelevo by 44 days by adding the leave days of 2020, bringing the total leave days to 167.
Writer’s email: emma.hawkson@graphic.com.gh