Akufo-Addo cannot direct Domelevo to go on leave – Professor Asare
President Nana Akufo-Addo has no authority to dictate to the Auditor-General, Mr Yaw Domelevo, Law Professor Stephen Asare, has said.
Professor Asare explained that Ghana’s Constitution does not give such a provision even though the President has the power to appoint the Auditor-General.
“Can the President direct the Auditor General? No. Can the President exercise any control, including disciplinary control on the Auditor- General? No. Can the board direct the Auditor General? No, ” he explained.
The discussion arose after Mr Akufo-Addo had asked Mr Domelevo to proceed on accumulated leave after being on recess for only nine days since his appointment in 2016.
The Board of the Audit Service had tried to get the Auditor-General to take his leave but failed, compelling the presidency to intervene.
While Mr Domelevo maintained that the law does not allow him to take accumulated but annual leave, the presidency maintained that the directive was backed by law.
Mr Domelevo indicated the law allowed him to forfeit his leave days, which had not been taken for a particular year.
He, subsequently, took a leave beginning July 1 but insisted that was for the year 2020, which would be 44 days.
In response, the presidency said he should take 167 days, up from the initial 123 indicated earlier.
The presidency backed the directive citing a case of Samuel M.K Adrah v. Electricity Company of Ghana.
However, Professor Asare said he disagrees with the president. He indicated that Mr Domelevo is insulated from such control by the presidency.
He pointed out on JoyNews’ Newsfile on Saturday that it was very important for people to pay attention to Article 187, 188, and 189, of the Constitution.
Article 187 creates the Office of the Auditor-General with specific functions, he said.
“In the discharge of his functions, he is not subject to any directions or control” and “All his reports go to the legislature so in that regard he is a legislative officer.”
The instrument by which the Auditor-General is to perform his function is provided in Article 188, he continued.
“So the Office of the Auditor-General is very different from the Audit Service. Article 189 creates an Audit Service Board for the Audit Service and not the Board for the Auditor-General’s Office.
“So this Audit Service Board cannot direct or control the Auditor General because by definition the Auditor-General’s office is independent, individually and constitutionally”.
“You cannot say that an Auditor-General is there, so you are appointing an officer to perform the functions of a constitutional officer
He was emphatic that the implications of the constitutional provision backing the Auditor-General’s office are that the Auditor-General was independent.
Citing Article 297 of the Constitution which empowers the President to appoint an Auditor-General, he stated that, “If he (Auditor-General) misbehaves he is removed through Article 146”.
“The President has no power to remove the Auditor-General, the President has no power to exercise any control – disciplinary, whatever, financial, managerial, none,” he emphasised.
He said 167 days was approximately eight months and a constitutionally appointed officer cannot be asked to stay from office for that long, hence the President’s order was “unfounded”.
The directive cited Article 30 of the Labour Law, which bars employees from negotiations on annual leave.
The labour law suggests that any of such arrangement are null and void.
In his response, Professor Asare insisted, “This is just something to stop employers who try to victimise employees to sign contracts that limit their ability to enjoy their leave.
He said in regimes where leave can accumulate it can be converted into other forms and “sometimes they pay you cash, and sometimes the cannot pay cash”.
However, in Ghana, the Labour Law does not permit cash payment.
Even in instances where leave accumulates “it does not mean your employer can compel you to take all the days that you have accumulated” at once.
“Nobody can tell you tell you to take all that immediately,” he insisted.
He believes the “forced leave” is becoming fashionable in Africa where it has been used in Malawi and Kenya to remove officials including Supreme Court judges.