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 (2)
By: Waana-ang Martin, LLB Candidate,Kwame Nkrumah University of Science and Technology
The Constitutional Independence of The Office of the Auditor-General and the President’s Disciplinary Control Over The Office
It may be recalled that in the second letter from the office of the president to the Auditor-General, dated 3 July, 2020, it was stated that by virtue of Article 297(1) (a) of the constitution, the president has the power to exercise disciplinary control over the Auditor-General for failing to comply with the basic term of his employment of taking his annual leave.
For the avoidance of doubt, the said provision provides thus, ‘the power to appoint a person to hold or to act in an office in the public service shall include the power to confirm appointments, to exercise disciplinary control over persons holding or acting in any such office and to remove the person from that office.’ Quite clearly, this provision gives an appointing authority the power to exercise disciplinary control over persons appointed to act in an office in the public service.
In this light, it is imperative to consider the scope of applicability of article 297(1) (a) of the Constitution, and the category of persons it was intended to cover.
The Scope of Applicability of Article 297(1)(a) of the Constitution, 1992
Before I commence it is pertinent to state that in interpreting the constitution, all the provisions must be read together and in context to meet the actual intendment of the framers thereof. As the respected Justice Date-Bah opined in the case of Danso-Acheampong v. Attorney-General Words hardly stand in vacuum and to decipher the true import of a particular word used in a sentence, all the words must be read together and in context in order to arrive at a sound and a reasonably intended conclusion. Similarly, Justice Acquah in the case of National Media Commission v. The Attorney Generalarticulately stated that in interpreting a national constitutional like ours, care must be taken to ensure that all the provisions work together as parts of a functioning whole. The parts must fit together logically to form a rational and internally consistent framework. For when a constitutional document is read piecemeal, it is taken out of context and its meaning lost, resulting in a conclusion unintended by the framers.
To begin with, the term disciplinary control has been defined by the Reverso English Dictionary to mean any action or actions taken to ensure that people obey rules and regulations and to impose punishments in the event of a failure by any such person to comply with the set rules and regulations. In effect, disciplinary actions are taken when there is a violation of established rules and regulations governing an institution. Another term worth explaining per the provision of Article 297(1) (a) of the Constitution, 1992 is a person appointed to an office in the public service. The term public service as defined in article 295(1) of the Constitution, 1992 means service in any civil office of Government, the emoluments attached to which are paid directly from the Consolidated Fund or directly out of moneys provided by Parliament and service with a public corporation.”
This category of office holders can clearly be distinguished from persons appointed to an office in a public office, within the meaning of article 70 of the constitution. It is important to draw this distinction to deduce the true import of article 297(a) of the constitution. Having said this, I now proceed to juxtapose why the term public officer acting in a public office and a person acting in a public service have different intended meaning. The term public service as explained above, for the purpose of our constitution, is limited to a sector composed mainly of career bureaucrats hired by the government on merit rather than appointed or elected to work for the public sector or government departments commonly referred to as Ministries, Departments and Agencies (MDAs).
This category of officeholders usually have their appointment made by the president through the public service commission or a body designated for that purpose, and as such do not have to be appointed by the president acting in consultation of the Council of state. Accordingly, persons appointed to act in the public service are merely required to perform such administrative and bureaucratic work as may be assigned to them. This category of office holders do not have their roles specifically defined in the constitution as well as their mode of removal from office. On the contrary, persons appointed to act in a public office include persons specifically mandated with certain critical constitutional functions necessary for the development of our democracy. This category of persons have their mode of appointment and duties specially provided for in the constitution. Their mode of removal have also been provided through different procedures distinct from the appointing authority.
Thus, unlike the category of persons referred to in article 297(1), the appointing authority of persons appointed to act in a public office within the meaning of article 70 of the Constitution, does not have the power to remove those people from office, as the constitution has provided different mode of removal for these persons. It follows therefore that, the term a person appointed to act in a public office and a person appointed to act in a public service have different meanings altogether. The above exposition and analysis I have embarked on is consistent with the recent Supreme Court’s decision in the case of Dominic Ayine v. Attorney General (supra).
Relying on the above exposition, the question therefore is, what is the true import and scope of applicability of Article 297(1) (a)? In my considered opinion, article 297(1) relating to disciplinary control can only be invoked when a person has violated laid down rules and regulations with the aim of punishing the said person. Again, the scope of applicability of the said provision on the combined and contextual reading of the provision was intended to be applicable only to persons appointed to act in the public service as explained supra. Thus, this provision does not cover and is inapplicable to persons appointed to head constitutionally established institutions and to perform critical constitutional functions.
In light of the analysis above, I submit that the reliance on the provision article 297(1) by the president in the exercise of his disciplinary control over the Auditor-General by directing him to proceed on leave was flawed and based on a misconstruction and piecemeal reading of the said article. Accordingly, I find their position erroneous. Secondly, as discussed above, leave entitlement is a right and not a punishment. Construing the meaning of disciplinary control above, it is only exercised when someone has violated a rule or a regulation and not when a person omits to enjoy his right or privilege, so to do would clearly mean that the president must be turned into a watchdog in ensuring that everyone enjoys his fundamental rights according to the dictates provided in the constitution, and punish any such person who omits to enjoy the said rights. This would clearly be impossible and the courts have warned against such a situation in the case of Republic v. Fast Track High Court; ex parte CHRAJ (Richard Anane Interested Party.
Assuming without admitting that the first part of this argument is flawed for the purposes of argument, the question whichbegs for answers is whether section 20 of the Labour Act imposes a positive obligation or a duty on the Auditor-General and any other employee, such that if it is not performed the president can invoke the provisions of Article 297(1) of the Constitution, in exercise of his disciplinary authority over the said person? Obviously not. The wording of section 20 is very clear and unambiguous. Annual leave is a right, a privilege and an entitlement accorded to all public service workers.
Apparently, the provision does not seek to impose duties or obligations on employees such that if it is not performed, the employer can compel the said person to perform the duty. An omission to enjoy a right is not a violation of the said right. To this extent, the intendment of Article 297(1) is to the effect that it could only be invoked to compel the performance of a positive obligation or duty imposed on a person, where the person fails to comply. An example of a positive obligation can be found in article 78 of the Constitution, 1992, where the president is required to appoint ministers with the approval of parliament. Where the president fails to secure the approval of parliament, then there is a violation of this obligation, as was seen in the case of J.H. Mensah v. Attorney General. Accordingly, based on these analyses, it is my considered opinion that the provisions of section 20 was never intended by the framers of the Labour Act to impose a positive obligation on workers. As such, the provisions of Article 297(1) cannot be invoked to compel compliance with the said provision. To this extent, it is most unfortunate that the president relied on that provision as an authority for his directive.
I now proceed to consider in details the constitutional independence of the Auditor-General’s Office.
The Constitutional Independence of the Office of the Auditor-General
Article 187(7) of the Constitution, 1992 provides thus, in the performance of his duties under this Constitution or any other law, the Auditor-General shall not be subject to the direction and control of any person or authority. Same is reiterated verbatim in section 18(1) of the Audit Service Act, 2000 (Act 584). The framers of the constitution in their wisdom, considering the chequered constitutional history from the days of the decision in the infamous Re Akoto case, through to the various military insurrections and the manner in which constitutionally independent bodies were used as rubber stamps by unscrupulous politicians for political gain, guaranteed the independence of these constitutional bodies.
The framers of the constitution sought to protect and insulate the office of the Auditor-General from superfluous and unnecessary interferences from political actors and the whims of the executive. To this extent, the provisions of article 187 of the constitution are even entrenched pursuant to article 290 of the constitution. Therefore, in the words of Wood C.J in the case of Williams Brown v. Attorney General supra, the framers of the constitution, sought to insulate and protect the office of the Auditor-General from the ravages and spoils of politics, and to underpin and secure its administrative, political and financial independence against all forms of external pressure. Rightly so, the constitution has provided for the freedom of independence of all constitutional bodies that perform such sensitive roles in the arena of our democratic space with the aim of advancing the principles that underpin the constitution and the directive principles of state policy. For instance, the constitution, 1992 specifically, article 46 similarly provides for the constitutional independence of the Electoral Commission, and it is not to be subject to the direction and control of any person in the performance of its functions.
Interpreting this particular provision in the case of Abu Ramadan & Evans Nimako v. The Electoral Commission & The Attorney General, Justice Gbadegbe JSC, opined that the words as used were clear and unambiguous and that the true import of the said provision was that the commission is insulated from external direction or control from any person whatsoever in the performance of its duties under article 45 of the constitution. Similar provisions on the independence of constitutional bodies include, but not limited to, the independence of the National Commission on Civic Education as provided in article 234 of the Constitution. Same is provided as regards the independence of the Commission on Human Rights and Administrative Justice. Therefore, from the comparative analysis herein, it is apparent that the constitution, 1992, clearly intended to protect critical constitutional bodies from unnecessary pressure and interference.
Moving on, the constitution states that the Auditor-General shall not be subject to the direction and control of any personin the performance of his functions. Does this provision operate to preclude the President of the Republic, being the first gentleman of the land? The answer is obviously no. This is because by virtue of article 17 of the Constitution, 1992, all persons are equal before the law and no one is above the operations of the law.
Therefore, as a country, that prides itself on the principle of the rule of law, this provision must be strictly adhered to. Consistent with this provision, Amua Sakyi JSC in the case of New Patriotic Party v. President Rawlings stated that if words have any meaning, the term “any person” must include the president of the Republic. Quite similarly, Ajabeng JSC in the case of Amidu v. President Kuffour, observed thus: “It must be noted that our 1992 Constitution has firmly established the rule of law in this country. The Constitution makes it clear that everybody in this country, including His Excellency the President, is under the Constitution and the law. This clearly is what we mean by the rule of law… And I have no doubt that adherence to this policy will indeed bring about real democracy in this country and therefore real freedom, justice and prosperity. Accordingly, therefore, the Auditor-General is not to be subject to the direction of any person including the president. It is submitted that even where the Auditor-General violates the provisions or rules governing the office, the president does not have the power to exercise disciplinary control over him.
In support of this assertion, the constitution has provided the modalities for the removal of the Auditor-General from office similar to that of a Justice of the superior court. In effect, even where the Auditor-General goes contrary to the law, the president though he appointed him to the office cannot remove him from office. Considering this in context, it is submitted that the president cannot be endowed with the power of checks to direct the Auditor General to proceed on leave where he fails to do so. For to do so would amount to the president behaving like an octopus in an attempt to extend his eight tentacles into areas to grab power not constitutionally meant for it, as Archer C.J warned in the case of New Patriotic Party v. Attorney-General. This is because, the constitution, 1992 has made provision for the establishment of an Audit Board to oversee all the activities of the audit service. Accordingly, all matters relating to the audit service are within the exclusive reserve of the Board and not the president. In light of these discussions, I assert that the president does have any power whatsoever to exercise disciplinary control over the Auditor-General where he does not comply with the laws governing his office. There are internal mechanisms established by the constitution, to check the Auditor General’s duties.
Lastly, I now move to consider the precedent that was also cited as a basis for the president’s directive.
The President’s Directive Based on Practice
It will again be recalled that the president’s first letter to the A.uditor-General dated the 29th of June, 2020, cited a precedent that was set during the tenure of the then president, His Excellency, the late president John Evans Atta Mills, when in 2009 he directed the then Auditor-General, Mr. Eward Dua Agyemang to take his accumulated leave of 264 working days.
The nagging question to ask thereof is whether the conduct of the then-president even if it was taken in breach of the provisions of the constitution or any other law can suffice as a precedent for the current president to follow suit.
It is trite learning that in our constitutional jurisprudence, the fact that a particular conduct has been done or is a practice, in breach of the law, does not presuppose that the said conduct or action thereby becomes constitutionally legal by virtue of the precedent or practice. This view is in accord with the views of Chief Justice Wood as was enunciated in the Richard Anane Case supra. The learned justice observed thus: “I have never understood the law to be that provided a person succeeds in committing an act a number of times, whether constitutional or otherwise, lawful or unlawful, that act passes as “precedent and practice.” She proceeded to state that no unconstitutional or unlawful act, no matter the number of times it has been perpetrated without question or challenge, can ripen into constitutional or lawful practice, procedure or precedent. Citing the case of A-G v Faroe [2005 – 2006] SCGLR 271, in support of her position, she emphasized that unconstitutional acts cannot be validated by the estoppel doctrine of res judicata. Equally, acts violating either the Constitution or other statute cannot be validated on the grounds of practice, precedent custom or usage.
On the strength of this authority, I contend that the reliance that was made by the president on the precedent set by his predecessor was out of place and erroneous. As rightly espoused by the court, the fact that a particular act or omission has been done innumerable times does not warrant its validity in law and an otherwise unconstitutional act cannot be validated by practice. It is most regrettable that the president of the Republic cited the said previous executive act as a precedent for his directive. Since, it has become trite law that previous acts cannot pass as precedents where they violate the organic law of the land.
Accordingly, it is my humble opinion that president Nana Addo Dankwa Akuffo Addo cannot rely on the precedent that was set by his predecessor to commit the same unconstitutional act.
In light of the foregoing discussion, it is my submission that, firstly, on the basis of the Samuel Adrah Case, the concept of accumulated leave does exist in Ghana’s jurisprudence. However, it is submitted that this concept does not warrant or otherwise confer any power whatsoever on employers to mandatorily force their workers to go on leave especially where the said worker concerned is a constitutionally independent body under the constitution entrusted with delicate functions. This is because, so to do would lead to a situation where it would be used by diabolic and desperate politicians as a means of silencing critical constitutional institutions by mandating them to proceed on leave when serious and sensitive functions remain to be performed.
It is my opinion that it could not have been the intent of the framers of section 20, and 31 of the Labour Act, that it should be invoked to mandate constitutionally independent bodies to proceed on leave whilst they have delicate functions to perform to deepen our democracy. For instance, considering the fact that Ghana is set to go to the polls this December 2020, to elect a new president as well as parliamentary representatives for our various constituencies, what would be of our democracy and our elections as a whole should the president directs the Electoral Commissioner to proceed on her accumulated leave a few days to the elections? Clearly, this would negatively impact on the electoral process, such negativity could not have been the intendment of the framers of our constitution. To this extent, it is submitted that same should be applicable to the Auditor-General, since he ensures the protection of the public purse.
Again, it is submitted that the provisions of Article 297(1) of the constitution does not apply to constitutionally independent bodies on the basis of the discussions made hereinabove, since these bodies are fundamentally different from those envisaged in the said article. Also, since the said provision relates or is only applicable when there is a positive obligation to be performed, I argue that, leave entitlement is not a positive obligation, but a right and accordingly, the reliance on the said provision as a source of authority for the president’s directive was flawed and same is erroneous. Further, it is my respectful opinion that the president does not have the power of disciplinary control over constitutionally independent bodies.
The power of the president ends after the appointment of those officers and any attempt to control these independent bodies beyond appointment is unconstitutional. Lastly, as clearly indicated above, the precedent that was set by His Excellency President Atta Mills was done in excess of the powers conferred on him as president, a thus unconstitutional. Accordingly, same is applicable in this context and the president cannot rely on that act as a precedent to justify his directive. To this extent, I consider that, the president wrongly exercised his powers when he directed the Auditor-General Mr Dumelevo to proceed on his accumulated leave, and it is in this light that I consider his directive unconstitutional.
It needs to be borne in mind that the days of Re Akoto, with its ramifications of executive imperialism are over and we are now in an era of constitutional democracy with the constitution been the supreme law. Therefore, the patent incongruity between the past and our present constitutional dispensation are like poles apart and like east is to west, “never the twain shall meet. Therefore, any attempt to reverberate the echoes of the past which has the propensity to shatter our democratic institutions must be vigorously opposed. It is however sad that after 27 years of democracy, we still behave like a bird kept in a cage for years, and we have come to think of the cage as home rather than a prison. The door has been flung wide open, yet we huddle in a corner and refuse to leave. It would not be out of place at this point to remember the words of the Ethiopian Emperor Haile Selassie, when he said: “Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.” The lessons of history are there for all to see: we ignore them at our peril.
I end this piece with the words of Justice Amua-Sakyi in the case of New Patriotic Party v. Attorney General supra: “Although the President is the first citizen, he is not above the law. The medieval fiction that the “King can do no wrong”, which the sophist interpreted to mean that if the action was wrong then it was not that of the king, has no place in a republican setting which prides itself on all citizens being equal under the law and therefore obliged to act in conformity with it. We recognise that an executive President being the most powerful person in the state is the one who has the greatest capacity for wrong-doing.
  SCGLR 353
 SCGLR 1
 Ayine (n 4)
 Ayine (n 4), Per Amegatcher JSC
 CIVIL MOTION NO.J5/10/2007
 The Constitution, 1992, art 225
 [1993-94] 2 GLR 193
 [25/04/2001] CIVIL MOTION NO. 8/2001
 [1994 – 95] G B R 1
 The Constitution, 1992 art 189; Audit Service Act, 2000 (Act 584), section 3, &4.