Why We Filed An Amicus Brief In Mensah V Auditor-General & Others

Why We Filed An Amicus Brief In Mensah V Auditor-General & Others

28th OCTOBER 2020



On 25 September 2020, OccupyGhana® applied to the Supreme Court for leave to file an Amicus Curiae Brief in the pending case MENSAH V AUDITOR-GENERAL & OTHERS. On 20 October 2020, the Court heard the application and granted it; and on 26 October 2020, we duly filed the Brief.

Having studied that case, we believe that we can contribute and hopefully assist the Court in resolving the issue surrounding the interpretation of article 187(7)(a) of the Constitution. Specifically: is the plaintiff right when he asserts that words ‘in the performance of his functions under this Constitution or any other law the Auditor-General… shall not be subject to the direction or control of any other person or authority,’ are ‘circumscribed…and restricted to the actual exercise or execution of his auditing work and activities necessarily incidental to the performance of that function’?

Thus, we respectfully urged the Court to seize the opportunity presented by the case, and finally pronounce on the meaning and extent of those words as they are used throughout the Constitution, not only with respect to the Auditor-General, but to the Judiciary itself (article 127), the Electoral Commission (article 46), the National Media Commission (article 172), the Public Services Commission (article 198), the Commission on Human Rights and Administrative Justice (article 225), the National Commission on Civil Education (article 234) and the Lands Commission (article 265).

We traced the constitutional evolution of the independence of the Judiciary and the Auditor-General from the 1954 Gold Coast Constitution, through the 1957 Independence Constitution, 1960 First Republican Constitution, the 1969 Second Republican Constitution, the 1972 National Redemption Council Establishment Proclamation, the 1979 Third Republican Constitution, to the 1992 Fourth Republican Constitution. We also reviewed the relevant and revealing proposals on the Auditor-General in the Reports of the 1956, 1968, 1978 and 1992 Constitutional Commissions and relevant judicial decisions.

On these bases, the Brief canvassed 3 main points as follows:

  1. That in BROWN V ATTORNEY-GENERAL, the Supreme Court affirmed that constitutionally, the Auditor-General has political and administrative independence and is ‘insulate[d]… against all forms of external pressures,’ and in OCCUPYGHANA V ATTORNEY-GENERAL, that the Auditor-General’s Disallowance and Surcharge Powers ‘have to be on a higher pedestal and given pride of place,’ emphasising the need to respect the Auditor-General’s Independence. Without upholding this Independence (under article 187(7)(a)), the Auditor-General’s Disallowance and Surcharge Powers (under article 187(7)(b)) would be rendered meaningless. In sharp focus is the fact that Ghana is now touted as a worldwide beacon and exemplar in the World Bank’s October 2020 GLOBAL REPORT, titled ‘Enhancing Government Effectiveness and Transparency: The Fight Against Corruption.’ This Report cited with ringing endorsement, (i) the Auditor-General’s Independence, (ii) the Court’s decision in OCCUPYGHANA V ATTORNEY-GENERAL, and (iii) the Judiciary’s designation of courts to hear Disallowance and Surcharge appeals, adding that ‘this achievement inspired other African [countries] to pass similar legislation on disallowances and surcharges.’
  2. That any arrangement that now seeks to make the Auditor-General or any of his functions and powers (auditing or administrative) subject to the Audit Service Board or any other ‘person or authority’ (including the Executive and the Legislature), would completely defeat the letter and spirit of the Constitution, and the expressed basic purpose for which the Audit Service Board was created under the 1969 Constitution and maintained in all subsequent Constitutions. It would send us back to the pre-1969 era, where, as was said in paragraph 592 of the 1968 Constitutional Commission Report, the Auditor-General’s Independence had been ‘only in theory…, usurped through political interference and official control,’ but this time exercised by or through the Audit Service Board, whose members are appointees of the Executive, the primary auditee of the Auditor-General.
  3. That where the Auditor-General (or any other Constitutionally-Established Independent Body) is alleged to have breached the Constitution or constitutionally-compliant law, the Constitution provides that only judicial action can reverse, correct or remedy it. Any attempt by any other ‘person or authority’ to do so would unconstitutionally usurp of the judicial power of state.

As we also stated in the Brief, when judgment in OCCUPYGHANA V ATTORNEY GENERAL was delivered on 14 June 2017, the total loss to Ghana from irregularities detected by the Auditor-General in his report to Parliament on Ministries, Departments and Other Agencies (MDAs) for 2016 was GH¢2,165,542,368.14. That judgment appeared to have had an immediate effect because the total loss to Ghana from irregularities in MDAs dropped to GH¢892,396,375.19 for 2017. Regrettably and alarmingly, this figure has started to climb up. In 2018, total losses from irregularities in MDAs rose to a record GH¢5,196,043,399.94 and dropped to a still unacceptable GH¢3,008,187,888.15 in 2019. It is anyone’s guess where this figure will land in 2020 while the Auditor-General battles to assert the constitutionally donated independence from all other persons or authorities.

We believe that Ghana needs a sufficiently empowered and independent Auditor-General to perform the functions of the office, particularly to issue, enforce and defend required Disallowances and Surcharges, described in OCCUPYGHANA V ATTORNEY-GENERAL as ‘the way forward.’ In filing the Brief, we do not take a position in favour of any of the parties to the action but simply hope to provide a broad view of the potential ramifications of these issues, as a friend of this Court. We also hope that through this Brief, we have contributed what we can in the search and fight for a truly independent Auditor-General who can exercise all his powers and perform his functions (especially Disallowance and Surcharge) without fear or favour, or interference from any quarter.

We anxiously await the Court’s decision. Ghana anxiously awaits the Court’s decision.

In the Service of God & Country