Directive to Auditor-General: Why the President got it wrong

On June 29, 2020, the President, by letter, purported to direct the Auditor General, Mr. Daniel Domelevo, to proceed on ‘accumulated leave’. In this article, I reflect on the constitutional architecture of the Auditor General’s office, not only to demonstrate why the directive is unconstitutional but also to argue that if the measure is allowed to stand, it will mature into one of those perverse precedents which undermine constitutionalism and the rule of law in Ghana.

According to Article 187 of the 1992 Constitution, the Auditor-General, in the performance of his functions under the Constitution or any other law shall not be subject to the direction or control of any other person or authority. It has been argued, correctly, that this provision casts in stone the independence of the Auditor-General, and insulates him from the type of executive control, that the President’s letter trades in.

Despite the obvious clarity of Article 187(7)(a), some have argued that the thesis of an absolutely independent institution, which is not subject to any checks nor controls, is not supported by our laws, and that to insist on this will be akin to creating an unruly beast, which is above both law and reason.

This argument is no doubt flawed. To argue that the Auditor-General is independent and that by extension, the President’s directive is defective, in no way implies that the Auditor General can do no wrong, or that the institution is above the law.

In fact, even the language of 187(7) (a) makes it clear that the independence of the Auditor-General is not absolute. The language ‘any other person or authority’ implies that there are some persons or authorities, whose control and check, the Auditor-General is subject to.

In effect, a more complete reading of Article 187(7)(a) would be, ‘the Auditor-General shall not be subject to the direction or control of any… person or authority other than those specifically provided for by the Constitution.’

My argument then is that, outside of the specific persons and circumstances outlined by the Constitution, the Auditor-General is not subject to any directive, person, authority, or law that interferes prejudicially in the performance of the Auditor-General’s functions.

How is the Office of the Auditor General kept in check?

One, Under Article 187 (15), Parliament is empowered to appoint an auditor to audit and report on the Office of the Auditor General. One would also note from Article 187(5) that the Auditor General is duty bound to, within six months after the end of the preceding financial year, submit his report on all audited public accounts to Parliament.

Two, where the Auditor General is accused of (i) stated misbehavior, or (ii) incompetence or on ground of inability to perform the functions of his office arising from infirmity of body or mind, Article 187(13) instructs that he can be removed in the same manner a Justice of the Superior Court is removed under Article 146.

Further, where a person has been surcharged pursuant to the Auditor General’s powers under Article 187(7)(b), and such person is aggrieved by that decision, he may appeal to the High Court under Article 187(9).

Outside Parliament, the courts, and the mechanism for the removal of the Auditor General, he is not subject to any other control. The only circumstance under which the President can instruct the Auditor General to do something is found in Article 187(8) where the President can ‘REQUEST’ (the Constitution uses the word ‘REQUEST’, NOT INSTRUCT OR ORDER) the Auditor-General to, in the public interest, audit at any particular time, the accounts of any organization. Even under such circumstances, the President must do so, acting in accordance with the advice of the Council of State.

Some have also suggested that the mere fact that the President appointed the Auditor General means the purported directive is constitutional. That view is inaccurate. The Office of the Auditor-General is an independent constitutional body just as CHRAJ, NCCE, or the Electoral Commission. The President cannot instruct any of these institutions outside their constitutional architecture.

Some have also suggested that the Auditor General is subject to the ‘direction or control’ of the Audit Service Board. That is also inaccurate.  Under Article 189(2) and (3), the Audit Service Board is empowered to, in consultation with the Public Services Commission, (i) appoint employees of the Audit Service OTHER THAN the Auditor General; (ii) determine terms & conditions of the employees it has appointed; and (iii) by a C.I, make regulations for the effective & efficient administration of the Audit Service.

The functions of the Audit Service Board, one would note from the language of Article 189(2) and (3), do not include any such authority to either ‘direct’ or ‘control’ the Auditor General. It is for good reason that the framers of the Constitution so carefully shield the Auditor General from any Executive control or influence.

All these are carefully designed institutional mechanisms to place various bodies and arms of government, including the Office of the Auditor General, in check. That is the very idea of constitutionalism.

The writer is a student of law and governance.

Blog: nickopoku.blogspot.com

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