The Office Of The Auditor General And Leave Regime In Ghana: A Critique Of The President’s Directive Compelling Auditor-General To Proceed On Leave (1)

By: Waana-ang Martin, LLB Candidate, Kwame Nkrumah University of Science and Technology

1.Introduction

The recent attempt by the President of the Republic of Ghana to compel the Auditor-General to proceed on an accumulated leave and the growing trend in the exercise of such powers on the leadership of other constitutionally established independent bodies have splintered public opinions. Whilst many Constitutional law experts have attempted to validate the exercise of such powers by the president, some others have strongly condemned it.

In this paper, the author argues that the president lacks the power to direct and control the Auditor-General, and the leadership of other independent bodies, on how they should conduct themselves and discharge the duties incumbent upon them. Against this background, the author contends that the conduct of the president in directing the Auditor-General to proceed on his annual leave was in wanton disregard for the constitutional independence of the Auditor-General’s office and thus, presupposes executive imperialism.  

The article shall cover a discussion on the legal framework of the office of the Auditor-General in Ghana, and ‘Leave’ under the Labour Act, the independence of Auditor-General’s Office, the applicability of Article 297(1) (a) of the constitution, and lastly, whether actions based on practice, even if taken in violation of the law can validate future actions. The author then ends the piece by proffering some opinions and suggestions on whether the president has the power to exercise disciplinary control over the Auditor-General, and the leadership of other constitutional independent bodies.

For clarity, this paper would be divided into various sub-headings to put the presentation in an orderly manner. I set off with the background facts.

2.Background Facts

It would be recalled that on the 29^th of June, 2020, the President of the Republic of Ghana, His Excellency Nana Addo Dankwa Akufo-Addo, by a letter addressed to the Auditor General as well as the media, directed the Auditor-General to proceed on an accumulated leave of 123 days with effect from July 1, 2020. 

In response to the President’s directive, the Auditor-General, Mr Daniel Yaw Dumelovo in a letter dated July, 3 2020, with Reference no. AG/OP/20/8, sought to condemn the president’s directive by sharing his differing views. In the said letter, the Auditor-General opined that, with his knowledge of recent Labour law, a worker may decide to forfeit his leave and such forfeited leaves do not accumulate. He then cited instances of bad faith that motivated the president’s directive.  Even before the Auditor-General’s letter got the office of the presidency that day, the President, through his secretary, replied to the Auditor-General’s letter and in that letter, justified his decision to direct him to proceed on leave. And hilariously, the president decided to double the punishment for his “son”, the Auditor-General, by “grounding” him for an extra 44 days for his “rebellion”: thus, from 123 days to 167 days.

The president’s letter stated that, by virtue of Article 297(1) (a) of the constitution, the president has the power to direct the Auditor-General to proceed on leave where he fails to do so. The said provision cited above states that the power to appoint includes the power to exercise disciplinary control over the person holding or acting in that office. This has generated so much public debate about the president’ power to exercise control over independent constitutional bodies.

Having set out the relevant factual background that informed this piece, I now proceed to deal with the substantive matters. I shall commence with the office of the Auditor-General.

3.The Legal Framework of the Office of the Auditor-General

The office of the Auditor-General is a creation of the 1992 Constitution of Ghana. Article 187(1) of the constitution, 1992 provides that: ‘there shall be an Auditor-General of Ghana whose office shall be a public office’. The functions of the Auditor General include, but not limited, to the auditing of all public accounts in Ghana, and of all public offices, including the courts, and central and local government administration, of all Public Universities and institutions of like nature, of any Public corporation, and institutions of like nature established by an Act of parliament.^[1]

The office of the Auditor-General is categorised as one of the independent constitutional bodies established by the constitution, and is for that reason, not to be subject to the direction or control of any organ or person in the performance of its functions under the constitution or any other law, in this case, the Audit Service Act, 2000 (Act 584).^[2]   This in effect means that the Auditor-General is immune or insulated from any interference or interjections from the government and any other person whosoever. This is due to the fact that the office performs delicate functions under the constitution which need to be protected. I shall in the course of this piece refer to the independence of this office in a much better detail.

As succinctly indicated above, the Office of the Auditor-General is a public office by virtue of article 187(1) of the constitution, 1992, clause 1 of article 190, as well as section 10(2) of the Audit Service Act, 2000 (Act 584). A public office under the constitution, 1992 is defined as an office, the emoluments attached to which are charged from the consolidated fund, or directly out of monies provided by Parliament or an office in a public corporation established entirely out of public funds or monies provided by parliament.^[3] In Ghana, the term public office refers to different classes of persons accorded different treatments within the penumbra of the constitution. Thus, we have the Article 70 officeholders as well as the Article 190 officeholders.  Article 70 officeholders have been held to be a special class of public officers distinct from those envisaged under Article 190 of the constitution.

This position I have reached is in tandem with the recent Supreme Court’s decision in the case of Dr Dominic Ayine v. The Attorney General.^[4] The Court through Amegatcher JSC opined that the constitution, 1992, has created various class of public offices with some of those offices being clothed with critical constitutional roles necessary for the maintenance and progress of our democracy. The court reasoned that the office holders of Article 70 of the constitution are a special-class of officeholders distinct from those envisaged in Article 190 of the constitution. For clarity, Article 70 provides that the president shall acting in consultation with the council of state appoint … (b) the auditor general. On the other hand, Article 190 lists various categories of offices as belonging to the public service. In the respectful opinion of the court, Article 70 offices holders are a special breed of public officers who play critical or sensitive roles in the governance structure of the country.

In support of this position, Justice Dotse in the case of Appiah Ofori v. Attorney General,^[5] demonstrably underscored that the Article 70 officeholders though public officials are the crème de la crème of either the Public Services of Ghana and or of core constitutional bodies performing very critical, and sometimes delicate constitutional functions. He proceeded thus, these classes of public office holders usually head constitutional bodies, statutory bodies or other state institutions referred to in the Constitution or created by an Act of Parliament. In effect, it follows that the Auditor-General being an article 70 appointee is a special and important office holder, and accordingly, it would be out of place if the office is made comparable to the public services as referred to in article 190(1) of the Constitution.

I have taken this long excursus in order to point out the pertinent, sacred and sensitive role the office of the Auditor General plays in our democratic dispensation. The constitution, 1992 is built on the core principles of probity and accountability as articulately provided in the preamble to the constitution. In order to ensure the realization of these constitutional goals, the office of the auditor general was established and charged with the responsibility as indicated supra, to wit, to audit all public accounts and to report to parliament accordingly. The office is also insulated from the shackles of the political arena to ensure that the office performs its functions effectively for the maintenance and fundamental protection of our democratic credentials of probity and accountability, and also to ensure the protection of the public purse from corrupt and hungry governmental officials whose aim has been to loot taxpayers’ money.^[6]

Considering the extensive discussions on the legal framework and critical role of the Office of the Auditor-General, I am impelled to state that to ensure a deep-seated democracy based on the principles of probity and accountability, the office of the Auditor-General must be jealously guarded.

I shall now consider the “leave” regime in Ghana for all public officeholders. 

4.The Legal Regime of the Annual Leave in Ghana

The provisions in relation to annual leave have been eruditely stated in the Labour Act, 2003 (Act 651), the statute that governs all public services in Ghana. This Act replaced the Industrial Relations Act, the law which governed labour services before the coming into force of the Labour Act. 

Section 20 of the Labour Act, provides that: ‘every worker is entitled to an annual leave of not less than 15 working days with full pay in a Calendar year.’ According to the Cambridge English Dictionary, the term annual leave is defined as a paid number of days each year that an employee is allowed to be away from work. Thus, the term connotes the period where a worker or a public officer is allowed to stay at home or is relieved from work for days not less than 15 days with pay. In effect, it can, reasonably, be asserted that leave is an entitlement, a benefit or a right conferred on every public officer by virtue of the provisions of the Labour Act, 2003 (Act 651).

 In order to better ensure the security of this leave entitlement to workers, the Labour Act provides that, any agreement to relinquish the entitlement to annual leave or to forgo the leave is void.^[7] The true import of this provision is to the effect that one’s entitlement to leave is not relinquished by any agreement to the entitlement itself or to forgo as to do so will be void.^[8] To further advance on this definition, the provision seeks to prohibit employers and employees from any agreement which would deprive the employee or the worker of his right or entitlement for that matter. Against this background, to properly invoke the said provision, there must be a consensus between an employer and an employee, to which the employee agrees to sell his right or entitlement to leave in return for the said leave to be converted to cash.

Taking this into account, there is, undisputedly, a cause to investigate the legislative intendment of the provision of section 31 of the Labour Act. It is an established principle of law that in interpreting statutes, one must first have regard to the law that was in existences immediately before the present statute was formulated in order to decipher the mischief that the new Act sought to cure.

This rule was first expounded in the Haydon’s Case.^[9] The Rule as was succinctly delineated by Chief Justice Coke states that:

“For the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered: (1st) what the common law was before the making of the Act. (2nd)  the mischief and defect for which the common law did not provide. (3rd) the remedy the Parliament hath resolved and appointed to cure the defect in the Common law. And (4th) The true reason for the remedy; and then the office of all judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and PRO PRIVATO COMODO, and to add force and life to the cure and remedy, according to the true intent of the ‘makers of the Act, PRO BONO PUBLICO. (For the Public Good)”. 

The above rule of construction naturally directs that a judge, faced with a problem as in the instant case, to be guided by the historical background of the statute, what evil it is intended to cure and the remedy the law seeks to put in place to secure the intended result; and whether the intended interpretation will give premium to curing the disease or not. This rule has been cited with approval in numerous cases in our jurisprudence.^[10]

On the strength of this principle, I proceed to consider the mischief that was intended to be cured by the provisions explained supra as regards the annual leave of workers.

The Labour Act, was passed by parliament in 2003 to replace the law relating to Industrial Relations, known as the Industrial Relations Act.  Under the Industrial Relations Act, an employee could enter into an agreement with the employer to relinquish or forgo his leave and in several cases have the leave accumulated for the purpose of converting this accumulated leave into cash payments to him, not having any regard to the health consequences of the worker. Therefore, in taking a cue from James Howell’s Proverbs (1659), “All work and no play makes a dull boy”, the Parliament of Ghana in its wisdom enacted the Labour Act, to rectify this defect and misnomer that the Industrial Relations Act created. Accordingly, section 31 was inserted into the new Labour Act to automatically render void any agreement between an employee and an employer for the purposes of forgoing leave entitlement and accumulating it into cash benefits.  Therefore, the Labour Act cured the mischief of allowing workers to sell their leave entitlement at the risk of their health. In light of this, it is incumbent on the courts to declare any such agreement as void and not having taken place. On the basis of this exposition, the baffling question, therefore, is whether there is or can ever be an accumulated leave in Ghana?

There is little authority that resolves this question. However, the case of Samuel M. K. Adrah v. The Electricity Company of Ghana is of relevance in the resolution of this matter: albeit not completely. In that case, the court per justice OFOE, opined that, on the strength of section 31 of the Labour Act, there is no such thing as accumulated leave save in certain exceptional circumstances including but not limited to equitable considerations.

The brief facts of that case are that: the plaintiff, Mr Samuel was at one time an employee of ECG. Whilst on his employment, he did not take his annual leave for the Calendar year of 2008, and 2009, due to the fault of the Defendant herein (ECG). In 2010 he successfully proceeded on his accumulated leave of 249 days which was thus to end in July 2011. Whilst on leave the plaintiff received a severance letter from the Defendant, terminating his employment with the company. The plaintiff sued to have his accumulated leave converted to cash. Since by virtue of section 30 of the Labour Act, termination of employment does not affect leave entitlement. It was also, provided in the Defendant staff manual that a worker’s leave could be accumulated to cash. However, the defendants in their defence contended that the concept of accumulated leave violated section 31.

The Court rightly acknowledged that the concept of accumulated leave does not exist by virtue of the section of the Labour Act cited supra. However, the court based on equitable grounds (to wit, since the leave accumulated based on the defendants’ own conduct), gave judgment in favour of the plaintiff.   In light of this decision, therefore, and in my considered opinion, the concept of accumulated leave for the purposes of being converted into cash does not exist in Ghana’s jurisprudence within the context of section 31 of the Labour Act. That is, an employee cannot sell his leave. Having deduced the true import of section 31 of the Labour Act, it is important that the said provision be read in context and within the peculiar facts of that case.

Admittedly, the court did recognize that the concept of accumulated leave does exist, and an employee may take his accumulated leave at such time as he deems fit. However, the Court of appeal did not by their decision imply that an employer can mandate their employees to go on leave. The annual leave entitlement given to employees was to cure the mischief as I discussed above. It was not intended as a duty or a positive obligation, to the extent that where it is not performed, the employer can compel the employee in that regard. On the basis of this analysis, the premise by the president on the authority of this case as a basis for compelling the Auditor-General to proceed on leave is misplaced. As I stated above, that case must clearly be considered in context and principles should not be taken in isolation.

Therefore, the factuality of that case can clearly be distinguished from the facts of the present situation. The case was more akin to a private setting arrangement as against this particular situation which deals with a constitutionally independent body insulated from all forms of directions or control from the executive or parliament. This was succinctly underscored by Justice Dotse in the Appiah Ofori Case referred to supra. To this extent, I submit that, the reliance that was placed on the said case was erroneous and based on a misapprehension of the court’s ruling. 

Again, section 31 of the Labour Act was cited as an authority for the said directive that the Auditor-General should embark on his accumulated leave as he could not agree to relinquish the leave with his employer. The provision is very simple, for it to operate, there must be an agreement between the employer and the employee, where the employee relinquishes his entitlement to the leave or to forgo the leave. Quite clearly, there was no such agreement between the Auditor-General and any person. Besides the office of the Auditor-General is an independent constitutional body. Accordingly, in the absence of any such agreement, the reliance on the said provision was again misplaced and erroneous. The provision does not in any way whatsoever empower employers to force leave on employees.

Moving on, I shall then consider the constitutional independence of the Office of the Auditor-General and the President’s power of Disciplinary action over the office whilst making comparative analysis with similarly situated constitutional independent bodies under the 1992 Constitution.

Photocredit: Newsghana.com

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^[1] The constitution, 1992, art 187(2)

^[2] The Constitution, 1992, art 187(7), Audit Service Act, 2000, (Act 584)

^[3] The Constitution, 1992, art 295(1).

^[4] (2020) JELR 87040 (SC)

^[5] [2010] 2 GLR 294 at 355

^[6] Williams Brown v. Attorney General (2010) JELR 63997 (SC), per Date Bah JSC (as he then was), (emphasis added)

^[7] The Labour Act, 2003 (Act 651), sec. 31

^[8] Samuel M. K. Adrah v. The Electricity Company of Ghana. (2018) JELR 69728 (CA)

^[9] (1584) 3 Co Rep 7a

^[10] Republic v. Central Regional House of Chiefs Judicial Committee; Ex parte Aaba (2001) JELR 68260 (SC)