OccupyGhana® Calls For Support For The Auditor-General To Verify All Assets & Liabilities Declared By Public Officials

28TH  JANUARY 2018

OCCUPYGHANA® PRESS STATEMENT

OCCUPYGHANA® CALLS FOR SUPPORT FOR THE AUDITOR-GENERAL TO VERIFY ALL ASSETS & LIABILITIES DECLARED BY PUBLIC OFFICIALS

INTRODUCTION 

OccupyGhana® believes that it is within the constitutional remit of the Auditor-General to conduct an audit or verification of all forms submitted to that office by affected public officers, purporting to declare their assets and liabilities. Such audit or verification would be to ascertain whether:

(1) the assets and liabilities were declared in accordance with the law, upon the assumption by the public officer of his office,

(2) the assets declared actually exist, so as to prevent ‘assumptive’ declarations, where the person declares non-existing assets now, based on the assumption that through corruption those assets may be acquired later,

(3) the declarations were submitted within the time provided by the Constitution, and

(4) any new assets were acquired or liabilities discharged while in office, so that an inquiry may be conducted into whether those assets or the means to settle the declared liabilities were acquired genuinely.

Such a verification or audit could cover all assets declared since the coming into force of the Constitution.

We also believe that if the audit/verification reveals contravention or non-compliance or that there are assets that are not properly attributable to the income of the office holder, then the Auditor-General may refer the matter to the Commission for Human Rights and Administrative Justice (CHRAJ) for investigation.

OccupyGhana® has also received and studied the 2017 Conduct of Public Officers Bill. While recognising that the Bill contains some forward-looking provisions on assets declaration, we notice that the Bill stops short of expressly recognising the inherent power of the Auditor-General to verify the declarations that are submitted to her/him, although that recognition is inferred in that Bill.

We nevertheless do not think that the Bill must be passed into law, or that any constitutional or legislative amendments are required, for the Auditor-General and CHRAJ to perform these functions.

We believe that it is time for the said offices to rise up to the constitutional obligations placed on them, and perform these functions that will bring life and meaning to the relevant constitutional provisions in the fight against corruption.

We now turn to a discussion of the relevant constitutional provisions.

 

‘SECRET’ DECLARATIONS ARE UNCONSTITUTIONAL

Article 286(1) demands that holders of specified public offices “shall submit to the Auditor-General a written declaration of all property or assets owned by, or liabilities owed by him whether directly or indirectly.” The article speaks of a “declaration,” which we understand to mean a formal or explicit statement or announcement.

Currently the declaration is in the nature of a form that is found in Schedule 2 to the Public Office Holders (Declaration of Assets and Disqualification) Act, 1998 (Act 550). Our understanding of the current practice is that the Declaration Form is allegedly completed and submitted to the Auditor-General in a sealed envelope. We also understand that the envelopes remain sealed, and that the successive Auditors-General have not considered it as part of their obligations under the Constitution to open the sealed envelopes, let alone verify or conduct an audit of their contents.

We find nothing in article 286 that supports the current “secret declaration,” which is a contradiction in terms. The concept of a “secret declaration” that remain uninspected in the hands of the Auditor-General is not just alien to the Constitution but an anathema, and is therefore unconstitutional.

We also note that the power of the Auditor-General to verify the declarations submitted is implicit or implied in the language of the Conduct of Public Officers Bill. For instance, clauses 7 and 11 make it an offence to submit a false declaration or clarification, or to fail to submit a declaration or clarification. Clause 8 provides for the Auditor-General seeking clarification on matters such as the ownership of assets declared and explanation or correction of discrepancies or inconsistencies in the declarations. Clearly, these are not possible until the Auditor-General has exercised his power to verify or audit the declarations submitted to her/him.

 

TIME FOR MAKING DECLARATIONS

Further, article 286 demands that the declarations should be submitted to the Auditor-General by office holders (i) before taking office, (ii) at the end of every four years, and (iii) at the end of a person’s term of office. The Constitution expresses these in mandatory terms and does not permit the making of the declaration and submission on any date after the stated times.

Therefore, it is also unconstitutional to submit any declaration to the Auditor-General after the deadline stated in the article. Any office holder who submits the declaration after the stated deadline has breached the Constitution and the oath of office to “defend the Constitution of the Republic of Ghana as by law established.”

Accordingly, we believe that the provision in section 1(4) of Public Office Holders (Declaration of Assets and Disqualification) Act, 1998 (Act 550), which gives a 6-month extension for the submission of the declaration, is unconstitutional and void. The repeat of this in clause 4(3) of the Conduct of Office Holders Bill would also be unconstitutional if the Bill is passed into law.

 

NO CONSTITUTIONAL BAR TO VERIFICATION

Article 286(3) then provides that the declaration “shall on demand be produced in evidence” before a court, a commission of inquiry under article 278 and before an investigator appointed by CHRAJ.

Since the inception of the Constitution, this provision has been applied to mean that these are the only circumstances under which the declaration may be made public. We disagree. This provision only states instances where the declaration may be tendered in evidence. It does not say that apart from these circumstances, the declaration is and remains a confidential document that even the Auditor-General can neither audit nor verify. The article surely does not bar the Auditor-General from opening the envelopes submitted to verify if indeed what has been submitted is an assets and liabilities declaration form in the first place, and then to audit the contents, cross-checking with other assets and liabilities declared previously by the same persons.

That is why any application of article 286(3) to make the declaration submitted to the Auditor-General a secret even from the Auditor-General himself/herself also flies in the face of article 286(4), which is couched in general terms and not subject to article 286(3) as follows:

“Any property or assets acquired by a public officer after the initial declaration required by clause (1) of this article and which is not reasonably attributable to income, gift, loan, inheritance or any other reasonable source shall be deemed to have been acquired in contravention of this Constitution.”

Any position that purports to bar the Auditor-General from auditing and verifying the declaration would read article 286(4) as being subject to article 286(3), so that the only circumstances under which it may be discovered that an office holder had acquired assets or settled liabilities in breach of the Constitution, is when the declaration is “produced in evidence” in the course of court proceedings, commission of inquiry proceedings or CHRAJ investigations.

Our respectful view is that it is the Auditor-General’s audit or verification that would reveal whether any new assets have been acquired or liabilities settled. It is that audit that would inform the commencement of any of the article 286(3) proceedings at which the actual declaration submitted to the Auditor-General would be “produced in evidence.”

The current stance therefore flies in the face of the probity, accountability and transparency provisions in the preamble to the Constitution, negates the mandatory obligation placed on the state under article 35(8) “to eradicate corrupt practice,” and claws back the duty placed on citizens to “to protect and preserve public property and expose and combat misuse and waste of public funds and property.”

 

CONCLUSION

We reiterate that it is not for nothing that the Constitution provides that the assets and liabilities declarations be submitted to the Auditor-General, and no other person. In line with the residual auditing function of that office under the Constitution, we find it hard to believe that the declarations submitted remain unopened and are simply filed away. Without the Auditor-General conducting such audits and verification, the spirit and true intent of article 286 will never be achieved and the current “concealment and archiving” process will be used to defeat the article.

It is on these bases that we have concluded that the only way to give voice and flesh to article 286 is for the Auditor-General to verify and audit declarations that are submitted, or at least a sample of them. That audit will reveal to the office (i) whether a person has truly declared all assets and liabilities upon assumption of office, and (ii) when a person had completed service to the nation, whether that person has acquired any new assets or settled any liabilities so that an inquiry may be had into whether those assets were acquired genuinely.

We call on the Auditor-General to outline a verification procedure which reflects the true and proper interpretation of the Constitution, particularly article 286, in line with the above, and implement it forthwith. Yours in the service of God and Country,

OccupyGhana

Notice of Court Action to Births and Deaths Registry

Notice of Court Action to Births and Deaths Registry

January 26, 2018

 

The Attorney-General & Minister for Justice

Ministry of Justice and Attorney-General’s Department

Accra

 

Dear Madam,

REFUSAL TO REGISTER NAMES AT THE BIRTHS AND DEATHS REGISTRY – NOTICE OF ACTION

Our attention has been drawn to the implementation of an alleged policy by the Registrars of the Birth and Death Registry that refuses to register the birth of children whose names include names such as “Maame,” “Pappa,” “Nana,” “Naa,” “Junior,” “Nene,” “Nii” and “Ohemaa” as well as determine the order in which names must be written, giving prominence to foreign names over indigeneous Ghanaian names. The Registrars claim that they are empowered to do this on the basis of the Registration of Birth and Death Act, 1965 (Act 301).

We have however checked that Act and all relevant laws including the Regulations passed under the Act. We have not seen any provision that either supports this policy or gives the Registrars of Births and Deaths any power to refuse to register any name. We believe that this stance is a gross violation of the rights of Ghanaians to choose names (particularly Ghanaian names) as they deem fit for their children, subject to the right to change one’s name at any time later in life.

We therefore write to put you on notice, in accordance with section 10 of the State Proceedings Act, 1998 (Act 555), that we intend to commence civil action against the Republic within thirty (30) days of the date of this letter if this illegality is not addressed forthwith.

We however believe that this cause of action will not be necessary if all Registrars of the Births and Deaths Registry will be directed to desist from these acts and stop refusing to register such names as they have no basis in law.

Yours faithfully,

OccupyGhana®

cc

The Honourable Minister

Ministry of Local Government

Accra.

 

The Registrar

Birth and Deaths Registry

Accra

OccupyGhana® Calls For The Existing Television Licence Regime To Be Repealed And Replaced

OccupyGhana® Calls For The Existing Television Licence Regime To Be Repealed And Replaced

4th JANUARY 2018

OCCUPYGHANA® PRESS STATEMENT

OCCUPYGHANA® CALLS FOR THE EXISTING TELEVISION LICENCE REGIME TO BE REPEALED AND REPLACED

OccupyGhana® has followed the recent discussions regarding TV Licence Fees, particularly the announcement that specific courts have been established to try defaulters. We disagree with these moves for two reasons:

  1. There is no constitutional or statutory basis for the Ghana Broadcasting Corporation (GBC), simply as the designated “licensing authority,” retaining the revenue from what is essentially a tax, and then determining how to use it, outside laws passed and appropriations made by Parliament, and
  2. The entire TV Licence regime that was established in 1966 (with just a few amendments) has become obsolete. What is required is not a forcible re-implementation of it, but a root-and-stem review that repeals the existing law and regime, and, if necessary, introduces a new statute and regime that takes the current realities in broadcasting into account.

We will address these matters in turn:

UNCONSTITUTIONALITY AND ILLEGALITY

The Television Licensing Act, 1966 (NLCD 89) and the various Television Licensing Regulations passed under it, provide for the payment of TV Licence Fees for the licensing of the installation and use of “television receiving sets.” These are to exist and operate under the auspices of a “licensing authority” that would be either “the Ghana Broadcasting Corporation or any other statutory corporation appointed by the Minister by legislative instrument.” Every contravention of the Act (including the non-payment of the fee) is an offence punishable by up to a fine of 250 penalty units (GHS3,000) and/or up to one year’s imprisonment.

The TV Licence Fee is simply a tax for owning or dealing in the affected apparatus. GBC is merely the currently designated body to administer the licences and collect those taxes, as an agent of the government. We are not aware of any statute that gives GBC the power to retain the revenue derived from the tax and then use it for its operations, developing content, sharing with other broadcasters or for any other purpose.

That tax revenue is also not listed as one of the sources of funds of the GBC under section 10 of the Ghana Broadcasting Corporation Act, 1968 (NLCD 226). Although that section provides that GBC’s funds include “moneys accruing to the Corporation in the course of the performance of its functions,” tax revenue does not accrue to the GBC and does not fall under this rubric. Similarly, if the Minister were to designate another statutory corporation as the “licensing authority” under the Act, that entity would not have the right to use the revenue.

Further, that revenue does not constitute GBC’s “internally generated funds” (IGF). Article 176 of the Constitution demands that “all revenues or other monies raised or received for the purposes of, or on behalf of, the Government;” and “any other monies raised or received in trust for, or on behalf of, the Government,” must be mandatorily paid into the Consolidated Fund. Exceptions, particularly retentions, are only permitted under an Act of Parliament.

That is why statutes such as the Ministries, Departments and Agencies (Retention of Funds) Act, 2007 (Act 735) and the Public Financial Management Act, 2016 (Act 921) contain strict rules on the use of IGFs, and our statute books are replete with specific statutes (too many to be listed here) in which Parliament expressly allows entities to keep all or part of IGFs. We are not aware of any such statute with respect to the GBC.

It is on these bases that we believe that the automatic retention of the TV Licence Fees by the GBC for its purposes is unconstitutional and illegal and we therefore call for that practice to cease forthwith. Absent a specific enabling legislation, all TV Licence Fees collected should be immediately deposited in the Consolidated Fund.

OBSOLENCE

We further contend that both the regime and the law on TV licensing are obsolete for three main reasons:

(i) The Act defines “television receiving set” as “an apparatus CONSTRUCTED SOLELY for the reception of pictures, with or without sound transmitted by radio” [Emphasis added.] This means that if the apparatus in use, by its manufacture and technology, is not restricted to only receiving pictures (with or without radio-transmitted sound), but is capable of receiving other signals, that apparatus is not the subject of licensing and consequently the payment of the fee. We think that contrary to your expressed view, the law expressly rules out the vast majority of apparatuses (Smart TVs, phones, pads, tablets, etc.) that are currently in use, and which are manufactured to receive and process more than just pictures. Indeed what may even be called “TVs” today are not mere linear broadcast receivers and translators of pictures. They are also used to play games, watch movies, project presentations, display location adverts and browse the Internet. The reality is that a strict application of a law that is based on 1966 technology, to 2017 apparatuses would leave the licensing authority with precious little or almost nothing to enforce the licence against.

(ii) With over authorized 505 radio stations (392 operational) and 75 television stations, Ghanaians have a lot of media sources to consume both local/public and international content. This ensures competition that should result in producing quality content. Also, Ghana has recorded a tremendous growth in the number and diversity of media channels, with Ghanaians having countless media sources such as radio, newspaper, magazines, websites and other online platforms. Further, online platforms such as YouTube, Hulu, Netflix, Apple TV, Amazon Prime Video and Google ChromeCast are redefining content broadcasting online and pointing to the future of TV broadcasting. All these are available and consumed in Ghana, driving the growth of data usage. There are also cable-TV services in Ghana who broadcast local channels through set-top boxes. Some of these have become the first choice channels for media content consumption, thereby reducing the audience share for traditional TV transmission. Evidently, GBC is not the only TV media source where public information is consumed for it to warrant an automatic right to TV Licence Fees and to be able to produce and broadcast public information. Further, not all Ghanaians or TV owners in Ghana will consume GTV’s content.

(iii) GBC (managers of GTV) is a commercial broadcaster. For years, it enjoyed an absolute monopoly in television broadcasting and the income from adverts and sponsored contents. Now it has competition and is faltering. Compelling Ghanaians to pay TV Licence Fees to GBC is grossly unfair and anti-competitive. Announcing the setting up of a court for these purposes sends the wrong signal to Ghanaians, that draconian steps are being taken to use the judiciary a tool of enforcement of a grossly unpopular tax. If GBC is unable to be profitable, in spite of years of government subvention and TV Licence Fees, then it may be time to consider selling it.

CONCLUSION

In conclusion, the world of television has moved from being analogue to the digital sphere. The rules have changed. In a world of digitisation, Ghana should be thinking of laws and policies that look into the future, and seek to create the enabling smart digital environment for prosperity and opportunities for all. You cannot, in 2017, be seeking to implement laws based on obsolete and currently inapplicable 1966 technology and then seek to punish Ghanaian for not complying with it. That is why we are advocating the repeal of the 1966 law and regime, and if necessary, the enactment of new laws that take the new realities into account.

Yours in the Service of God and Country.

OccupyGhana®