After Elections: Who Stays And Who leaves?
The Supreme Court has in the case of Theophilus Donkor v. The Attorney General shorn the light on the controversial question of the category of officeholders who get to stay in office and those who are required to leave when a new government is elected. In summary, the court recognized that the answer to the question was nuanced and it was important that, in fitting circumstances, the President was not “saddled with non-career officeholders appointed by a previous President.”
The plaintiff issued a writ of summons invoking the original jurisdiction of this court pursuant to Articles 2 (1) and 130 of the 1992 constitution seeking the following reliefs: (a) A declaration that the removal from office Chief Executives, Chief Executive Officers, Director-Generals and members of governing boards of public corporations on the assumption of office of a newly elected as President does not amount to a just cause and thus unconstitutional; (b) A declaration that to the extent that section 14 of the Presidential (Transition) Act requires all these officers to cease to hold office on the assumption of office of a newly elected as President is unconstitutional and inconsistent with Articles 70(1)(d)(iii), 190 and/or 191(b) of the Constitution; and (c) An order of perpetual injunction restraining the removal of such persons from office by any newly elected president
The issues before the court were: (a) Whether the President in line with Article 297(a) has the legal authority to remove members of the governing boards of public corporations appointed pursuant to Articles 70(1)(d)(iii), 190(1)(b) and 190(3) of the 1992 Constitution without just cause; (b) Whether or not section 14 of the Presidential (Transition) Act is inconsistent with articles 70(1)(d)(iii), 190 and or 191(b) of the Constitution, 1992; and (c) Whether or not article 190(b) of the Constitution, 1992, also applies to the category of officers mentioned in section 14 of Act 845.
The Supreme court speaking through Kotey JSC held that:
- Officers appointed as chairpersons and offices of the governing bodies of public corporations are not members of the Public Service and their tenure is not governed by articles 191 and 195 (which requires justification for removal) of the Constitution and therefore they may be removed on the assumption of a newly elected president.
- Executive Heads of statutory boards and corporations are not affected by section 14 of Act 845. They are public officers under Article 190 of the Constitution. They hold office under terms and conditions stated in their letters of appointment and may only be removed in accordance with those terms.
The interpretation given by the Supreme Court in the above case to officers appointed in accordance with article 70(1)(d)(iii) of the Constitution (i.e. as chairpersons and members of the governing board) is that these persons are not members of the Public Service. Because these officers only joined the service by virtue of an appointment made by the executive, unlike permanent officers who applied and were taken throughout the usual rigorous selection process. Thus, their tenure is not governed by articles 191 and 195 of the Constitution and therefore they may be removed on the assumption of a newly elected president.
However, heads of statutory boards and corporations even though captured under Section 14 of Act 845 are not affected by section 14 of Act 845 . They are already public officers under Article 190 of the Constitution. They hold office under terms and conditions stated in their letters of appointment and may only be removed in accordance with those terms.
Again, the intendment of Section 14 of the transitional provisions is to ensure that a new President is not saddled with office holders appointed by a previous President who may not believe in the new president’s policies. But to avoid a situation where the whole nation would be brought to a standstill until new appointments are made, this judgment safeguards the tenure of office appointed as heads of public corporations (other than those of a commercial nature) irrespective of who their appointing master was.
Suit No. J1/08/2017
“The President shall, acting in consultation with the Council of State, appoint – (d) the Chairman and other members of – (iii) the governing bodies of public corporations.”
A member of the public services shall not be – (b) dismissed or removed from office or reduced in rank or otherwise punished without just cause.
Article 190 deals with entities that fall within the remit of public service “the Civil Service, the Judicial Service, the Audit Service, the Education Service, the Prisons Service, the Parliamentary Service, the Health Service, the Statistical Service, the National Fire Service, the Customs, Excise and Preventive Service, the Internal Revenue Service, the Police Service, the Immigration Service; and the Legal Service; public corporations other than those set up as commercial ventures; public services established by this Constitution; and such other public services as Parliament may by law prescribe.”
Section 14 requires that the following offices shall end when there is a change of government: “The persons holding office under the Presidential Office Act 1993 (Act 463), Ministers and Deputy Ministers of State, Regional and Deputy Regional Ministers of State, Special Assistants, Special Aides to the President, to the Vice-President and to the Ministers of State, Deputy Ministers, Regional Ministers, and Deputy Regional Ministers, Non-career Ambassadors and High Commissioners, Persons appointed by the President or a Minister of State as members of Statutory Boards and Corporations.”