The civil society pressure group OccupyGhana has cautioned the Attorney-General and Auditor General that their latest actions regarding the audit of public accounts in Ghana fly in the face of the 1992 Constitution, as well as a plethora of Supreme Court of Ghana decisions.
It has further warned that the Auditor-General cannot be tied to the apron strings of the President who is an auditee, and can also not be tied to the apron strings of Parliament, which is also an auditee.
“Sir, in 2017, the Supreme Court in OCCUPYGHANA v ATTORNEY-GENERAL ordered you and the Auditor-General to work together in enforcing his disallowances and surcharges. In your letter to us dated 19 July 2022 (your ref. F.28/S4.8), you confessed that both your office and the Auditor-General have done next to nothing to comply with the Supreme Court’s mandatory orders. In that letter, you wrote that ‘I take cognizance of SIGNIFICANT TARDINESS in the process to enforce notices of disallowances and surcharge issued by the Auditor-General since 2016.’ Then, you also informed us that you had ‘set up a special team specifically assigned to coordinate with the Auditor-General.’ Seven months after that letter, it appears that you are now informing the Auditor-General of the committee, and then inviting him to set up a similar team to work with my office.’
“We do not need to remind both you and the Auditor-General that under articles 2(4) and (5) of the Constitution, your admitted failure to carry out the terms of the Supreme Court’s orders constitutes a high crime, and renders you and the Auditor-General liable to fine and/or imprisonment, and a ban from holding public office for ten years after serving the term of imprisonment,” OccupyGhana said in a letter yesterday with reference OG/2023/006 which was copied to the press. It was dated 14 February 2023.
The letter from OccupyGhana was in reaction to a recent letter directed to the Auditor General from the Attorney General cautioning the former from publishing audit reports.
(Below is the letter from OccupyGhana).
Attorney General & Minister of Justice
Office of the Attorney General & Ministry of Justice
Accra
Dear Sir:
RE: AUDIT OF PUBLIC ACCOUNTS OF GHANA
We have seen and read a copy of your letter to the Auditor General dated 7th February 2023 on the above matter, the contents of which are most alarming, as they fly directly in the face of express constitutional provisions and Supreme Court pronouncements.
We take strong issue with your letter because:
1. Subjecting any function of the Auditor-General to parliamentary approval is in blatant conflict with the form and substance of his constitutionally-protected and independent mandate;
2. Although the Auditor-General has to complete his audit and submit it to Parliament, there is nothing in the Constitution that restricts also publishing the reports so that ‘We The People will know what has happened and
3. with our money;
The auditor general’s power to disallow and the surcharge is independent of Parliament’s Public Accounts Committee process, which Parliament may only invoke ‘where necessary;’ and
4. The issues raised in your letter have formed part of the proceedings before the Supreme Court and have already been decided.
Sir, your office, as a defendant in OCCUPGHANA v ATTORNEY-GENERAL, made similar arguments in defense of our action, thereby seeking to diminish the independent authority of the Auditor-General’s functions. The Supreme Court considered and dismissed them all, stating that the Auditor-General’s independent constitutional mandate ‘far exceeds’ just auditing and then preparing reports to parliament that draw attention to irregularities. The court said those irregularities ‘must trigger his powers of Disallowance and Surcharge obligations.’
The court also rejected subjecting the powers of the Auditor-General to any other statutory bodies, which would include Parliament and any legislative interventions, as your letter seems to suggest. The Supreme Court was also careful to warn against any attempts to deprecate the constitutional mandate of the Auditor General, which is what your letter seeks to do when it said:
‘Taking a cue from the importance of the work that is attached to the office of the Auditor-General and the fact that it is the custodian and protector of the public purse, any derogation of the functions … will defeat the lofty aims and objectives stated in the Preamble to the Constitution and the role and objectives of the work of the Auditor-General.’
We, therefore, reiterate our strong disagreement with you especially when the Supreme Court emphasized that the auditor general’s constitutionally independent powers ‘have to be on a higher pedestal and given pride of place.’
In all your arguments, you stridently evade or avoid any mention of Article 187(7)(a) of the Constitution, which states emphatically that ‘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’ [emphasis added.]
Sir, your office was, again, the defendant in BROWN v ATTORNEY-GENERAL, when Wood CJ held this constitutional provision ‘underpins and secures … independence’ and ‘insulates… against all forms of external pressures.’ Dotse JSC said it ensures that the institution ‘is insulated and protected from undue governmental control and direction.’ Anin Yeboah JSC (as he then was) added that the Auditor-General’s independence under the provision was ‘in pursuance of probity and accountability.’
Again, your office was the defendant in APPIAH-OFORI v ATTORNEY-GENERAL, when the Supreme Court reiterated that ‘in the discharge of his duties the Auditor-General enjoys much independence for he is not subject to the direction or control of any other person or authority.’ On this point, Dotse JSC, even in his dissenting opinion, agreed with the majority of the court, and provided an erudite context as follows:
‘…the office of the Auditor-General is a very important position which should not be toyed with whatsoever… It should be noted that given the very important watchdog role that the Auditor-General plays or is supposed to superintend in the transparent use and accountability of the public purse, any attempt to prejudice and or compromise his position by linking it to the pleasure of a sitting President is untenable. This is because the President is the head of the Executive Branch of Government whose use of monies entrusted to them the Auditor-General is constitutionally mandated to Audit.’
If the Auditor-General cannot be tied to the apron strings of the President who is an auditee, then that office, surely, cannot be tied to the apron strings of Parliament, which is also an auditee.
Sir, in 2017, the Supreme Court in OCCUPYGHANA v ATTORNEY-GENERAL ordered you and the Auditor-General to work together in enforcing his disallowances and surcharges. In your letter to us dated 19 July 2022 (your ref. F.28/S4.8), you confessed that both your office and the Auditor-General have done next to nothing to comply with the Supreme Court’s mandatory orders. In that letter, you wrote that ‘I take cognizance of SIGNIFICANT TARDINESS in the process to enforce notices of disallowances and surcharge issued by the Auditor-General since 2016.’ Then, you also informed us that you had ‘set up a special team specifically assigned to coordinate with the Auditor-General.’ Seven months after that letter, it appears that you are now informing the Auditor-General of the committee, and then inviting him to set up a similar team to work with my office.’
We do not need to remind both you and the Auditor-General that under articles 2(4) and (5) of the Constitution, your admitted failure to carry out the terms of the Supreme Court’s orders constitutes a high crime, and renders you and the Auditor-General liable to fine and/or imprisonment, and a ban from holding public office for ten years after serving the term of imprisonment.
With the greatest respect, you cannot worsen this with your current approach. It will set back efforts at ensuring the independence and good governance of the office of the Auditor-General and other constitutionally mandated bodies and lead to a decline in good governance and a lack of integrity of public officials.
We are copying the Auditor-General in this letter, and urging him to ignore your letter as being blatantly unconstitutional. If you are unhappy with the state of the law as expressed in the Constitution and interpreted by the Supreme Court, you may take your case to the Supreme Court. Or, since you are already a defendant in ISAAC WILBERFORCE MENSAH v AUDITOR-GENERAL, AUDIT SERVICE BOARD & ATTORNEY-GENERAL, which seeks yet another Supreme Court pronouncement on the independence of the Auditor-General, you may, more than two years after the matter was last called in court, finally file the agreed Memorandum of Issues that you have failed, refused or neglected to file. We are taking the opportunity to attach to this letter a proposed Memorandum of Issues for your consideration and adoption so that you may file it in the Supreme Court for that matter to proceed.
Finally, we would respectfully advise you to cease this course of action and allow the Auditor-General to do the work as the Constitution and the Supreme Court have stated.
Yours in the service of God and country
OccupyGhana
cc. The Auditor-General
Office of the Auditor-General
Accra
