The Attorney-General’s Unsolicited Advice To The Auditor-General: Why The Attorney-General Gets It Wrong
The Attorney-General (the “AG”), Godfred Dame, has taken issue with the publication of a special audit report on the government of Ghana’s COVID-19 expenditures covering the period March 2020 to June 2022 by the Auditor-General. In a letter dated February 8, 2023, addressed to Auditor-General, Johnson Akuamoah Asiedu, the AG argued that the publication of the audit report was improper and wrongful in law and advised the Auditor-General to withdraw the report from its website. The Ghana Center for Democratic Development (CDD-Ghana) in response, published a press statement on February 10, 2023, describing the AG’s position as “shocking”. In a press statement dated February 15, 2023, the AG appears to have taken issue with CDD-Ghana too.
In this piece, I shall catalogue the key arguments the AG canvasses in his publications and address them for the purposes of public education.
In his letter to the Auditor-General, the AG argues that
- “…It is only after satisfying the constitutional requirement of submitting the Auditor-General’s report to Parliament, the subsequent debate by Parliament thereon and conclusion of work by the appropriate committee of Parliament, that the report of the Auditor-General may be considered final and relevant action may be taken thereon.”
- That “…In light of the constitutional provisions pertaining to the duty of the Auditor-General after the preparation of audit reports, I consider a publication of the COVID-19 audit report or indeed any audit report particularly when same has not been either considered by Parliament or referred to a committee of Parliament, premature.”
Response:
One, by statutory design, the Auditor-General is required to publish audit reports on public accounts “as soon as the reports have been presented to the Speaker to be laid before Parliament” (Section 23 of the Audit Service Act, 2000 (Act 584)). Nowhere in the Audit Service Act or any other law, including the Constitution, is it even suggested that the Auditor-General must wait until his report has been laid before or debated by Parliament before he may make it public. A report laid before Parliament is a public document to which the public cannot be denied access
Two, the Attorney-General appears not to fully appreciate the nature of auditing processes and the stage at which an audit is finalized. His suggestion that the Auditor-General’s report is finalized only after it has been debated by Parliament following the conclusion of the Public Accounts Committee’s (PAC) work is not supported by the law or even accounting practices. The Auditor-General is neither required by law (statute or Constitution) nor international best practice to wait for the outcome of hearings initiated by PAC before he can make public an audit report. Further, the international audit standards are clear. As part of the audit process, an auditor is required to communicate in writing to the management of auditee-entities any observations and or significant deficiencies in internal controls identified. Based on the responses from the management of auditee-entities, the audit report may be modified where necessary.
Three, unlike the Internal Audit Agency (IAA) which is part of the Executive branch and acts as its “internal auditor”, the Office of the Auditor-General, is by constitutional design, an “external auditor” assigned by the Constitution, not Parliament, to audit public accounts. The duty placed on the Auditor-General in article 187(5) of the Constitution to submit his report to Parliament within six (6) months after the end of each financial year is to enable Parliament to ascertain whether public funds have been used in accordance with law (the Appropriations Act, et al). The requirement for the Auditor-General to submit his report to Parliament cannot, under any circumstances, be interpreted to mean he must wait for the outcome of hearings initiated by PAC to make public an audit report. Such an interpretation would be inconsistent with the protections the Constitution gives the Office of the Auditor-General as an independent constitutional body (article 187(7)(a) of the Constitution).
Four, if persons implicated in the Auditor-General’s report feel aggrieved, Parliament is not the appropriate forum to seek redress. The Courts are. Similarly, any person surcharged by the Auditor-General pursuant to an audit report can seek redress at the Court. The appropriate procedure for challenging any disallowance or surcharge issued by the Auditor-General has long been established by statute and given judicial blessing . (Occupy Ghana v. Attorney-General [2017-2018] 2 SCLRG 527).
In his press statement directed at CDD-Ghana, the AG also argues that
- “Contrary to the strange view of CDD-Ghana, the letter and spirit of laws governing the work of the Auditor-General make him part of the Audit Service of Ghana and, therefore, a regular member of the public services of Ghana to whom the Attorney-General can give advice pursuant to his mandate under article 88 of the Constitution.”
Response:
This assertion by the AG is not only strange but exposes a shocking lack of understanding of the constitutional architecture of the Office of the Auditor-General as an Independent Constitutional Body (ICB).
First, the Auditor-General of Ghana is established under the 1992 Constitution (the “Constitution”), as under the antecedent constitutions (1957 and 1969), as a unipersonal office; the office and its occupant are, in the eyes of the Constitution, one and the same. This fact distinguishes the office of the Auditor-General from the other ICBs such as the Electoral Commission (EC), the National Commission for Civic Education (NCCE), and the Commission on Human Rights and Administrative Justice (CHRAJ), all of which are multi-member bodies with the mandate and functions of the body reposed in the body and its members acting together. Ghana, in effect, follows the “sole commissioner” model when it comes to the office of the Auditor-General.
Under the terms of Article 187(2) of the Constitution, the power and duty to audit and report on the public accounts of Ghana is reposed exclusively in that one officeholder called Auditor-General who is appointed pursuant to Article 70(1) (b) and who, “before entering the duties of his office,” took and subscribed to the Oath of the Auditor-General set out in the Second Schedule to the Constitution.” (Article 187(16)).
Secondly, the Audit Service, established separately under Article 188(1) of the Constitution, exists to provide the Auditor-General with the professional and administrative staffing and support he needs to discharge his duties effectively. Instructively, the Constitution reposes no auditing responsibility or power in the Audit Service or any other person independent of the Auditor-General. The reason is simple: The Audit Service is the instrumentality with and through which the Auditor-General is expected to perform his functions and exercise his powers. Just as the Judicial Service exists to serve the Judiciary in the performance of its functions, so does the Audit Service exist to assist and serve the Auditor-General to ensure the effective and efficient discharge of his constitutional mandate. The Framers were careful to arrange the relationship between the Auditor-General and the Audit Service in such a manner as to avoid divided responsibility or divided accountability for the supreme audit function. Notwithstanding the existence of administrative Deputy Auditors-General in the Audit Service, the Auditor-General of Ghana remains constitutionally a one-person office, with all the constitutional powers and prerogatives of the office vested in that one person appointed to the position of Auditor-General in accordance with Article 70(1) (b) of the Constitution.
In Transparency International v Attorney-General & 2 Others [Petition No 388 of 2016, 16th February, 2018], the High Court of Kenya, the superior court clothed with original jurisdiction to hear and determine constitutional suits under the Constitution of Kenya has occasion to pronounce on the unipersonal status of the Office of the Auditor-General. At issue in Transparency International was the constitutionality of certain provisions of Kenya’s Public Audit Act, 2015. Section 12 of the Public Audit Act, 2015, had created the position of “Acting Auditor-General” and authorized the President of Kenya to designate, upon the recommendation of the Public Services Commission, the senior most person in the Auditor-General’s office as the “Acting Auditor-General” to exercise the full powers of the Auditor-General in the absence of the Auditor-General. Section 15 of the Act also created a position of “Senior Deputy Auditor-General”. Like Ghana’s, the Constitution of Kenya (2010) provides for the appointment of an Auditor-General (in accordance with a prescribed constitutional procedure) but purposely makes no provision for a Deputy Auditor-General. Plaintiffs in Transparency International challenged as unconstitutional the creation by statute of both the new “Acting Auditor-General” position and the position of Senior Deputy Auditors-General. The Court held that the Constitution of Kenya establishes and recognizes as Auditor-General only that one person bearing that designation who is appointed to that office in accordance with the Article 229(1) of the Kenyan Constitution. In the words of the Court:
‘. . . the petitioner argued that the position of Acting Auditor General is unconstitutional because only one person is recognized by the Constitution as Auditor General and I agree. The Constitution uses the word “an” Auditor General, meaning an individual and not individuals. The Constitution does not mention other substantive positions. Although the Constitution allows the Auditor General to recruit his own staff and in doing so, must develop staff organizational structure for the performance of his functions and exercise of powers…’
The AG also argues that
- “A proper reading of the Constitution, especially the provisions on the Public Services of Ghana, leads to the inescapable conclusion that the Attorney-General is fully vested with the constitutional function of giving legal advice to all the Public Services specifically listed in article 190(1) of the Constitution, including the Audit Service, and such other public services as will be established by law.”
Response:
While the AG is clothed with the responsibility of instituting and conducting all civil cases on behalf of the state, the Supreme Court has held that to avoid conflicts of interest and to preserve the principles of separation of powers and checks and balances, Independent Constitutional Bodies (ICBs) are entitled to hire, retain, and act on the advice of their chosen counsel. They can also sue and be sued in their own name (Amegatcher v Attorney-General [2012]). Therefore, while the AG may seek to provide unsolicited advice to the Auditor-General, such advice can, and in this case must be disregarded as being legally flawed.
The writer is a lawyer.
Email: nickknust@gmail.com
Photo Credit: Audit Service and Citi News
