OccupyGhana® Vehemently Disagrees With Mr Albert Kan Dapaah’s Unconstitutional Views On Auditor-General’s Independence And Powers

16th FEBRUARY 2021



OccupyGhana® has noted with considerable disquiet and alarm, comments made by the Minister-Designate for National Security, Albert Kan Dapaah, in the course of his 10 February 2021 vetting by Parliament for approval as Minister. Mr Kan Dapaah claimed, first, that the independence of the Auditor-General is “not personal” to the Auditor-General but belongs to the Audit Service. Second, he claimed that the Auditor-General’s reports must be approved by Parliament before the Auditor-General could issue disallowances and surcharges.

Of course, Mr Kan Dapaah could not cite any legal or constitutional bases for these shocking views. There are none! Thus he sought solace in a false claim that the Auditor-General is an officer of Parliament, and that this is what persists under some ‘Westminster system,’ which if true, still does not apply under our constitutional system.

We vehemently disagree with Mr Kan Dapaah’s claims. They have no basis in the law or our Constitution, and appear to feed into an attempt by some political actors, clearly uncomfortable with the constitutional position and role of the Auditor-General especially in the light of the magisterial decision of the Supreme Court in OccupyGhana v Attorney-General, and seeking to whittle down that independence and powers that the court upheld in that decision.

First, Mr Kan Dapaah should know that the alleged ‘Westminster system’ might be taught to and cherished by accountants, but has no legal application in Ghana. The Minister-designate knows, or should know, that the Constitution has made no provision that applies the so-called “Westminster system” to Ghana. On the contrary, our Constitution is explicit that the Auditor-General, in the performance of his functions under both the Constitution and the law, ‘shall not be subject to the direction or control of any other person or authority.’ Parliament is one such authority. The Auditor-General is definitely independent of Parliament, and any attempt to subject the Auditor-General to the control of Parliament or any other person or authority, is not just wrong, but plainly unconstitutional.

Second, Mr Kan Dapaah is wrong in his claim that this independence is “not personal” to the office of the Auditor-General, but belongs to the Audit Service. The simplest reading of article 187(7) shows that the Constitution gives this independence to the office of the Auditor-General and not the Audit Service, which is created by article 188 and is given no such independence. While it is arguable that the Auditor-General’s independence should extend to the Audit Service, and we think that this was implied by the Supreme Court in Brown v Attorney-General, any claim that the Auditor-General qua Auditor-General has no such independence is plainly wrong and should not be countenanced.

Finally, Mr Kan Dapaah is wrong when he claims that the Auditor-General’s reports must be approved by Parliament before he can issue disallowances and surcharges. And as for his illustration about a father’s permission being required before the conduct of his erring son is impugned by an auditor, the least said about it the better. It is not a coincidence that the framers of the Constitution placed the Auditor-General’s independence and powers of disallowance and surcharge in the same paragraph of the Constitution, as if the two are to move in tandem.

There is nothing in the Constitution that supports the claim that Parliament must approve the Auditor-General’s reports before the Auditor-General can exercise his powers of disallowance and surcharge. Contrary to Mr Kan Dapaah’s position, all the Constitution says is that the Auditor-General should “submit” his report to parliament and then ‘draw attention to any irregularities’ or any other matter he deems fit. Submitting a report and drawing attention to irregularities do not mean that Parliament’s prior approval is required before the Auditor-General exercises his constitutional powers of disallowance and surcharge. Further, the exercise of these powers is not to abide by a hearing by Parliament’s Public Accounts Committee. The Constitution does not say that. What it says is that Parliament is to debate the report and ‘where necessary, in the public interest, appoint a committee to deal with matters arising from the report.’ The fact that Parliament has interpreted this to mean that the relevant committee is its Public Accounts Committee, does not mean that the Auditor-General needs to wait for this Committee to conclude its work before the Auditor-General exercises his further constitutional powers. The Committee may deal with matters arising from the report as it deems fit. But the Auditor-General has to issue his surcharges and disallowances, completely independently of both Parliament and its PAC.

Mr Kan Dapaah’s position does not also find support in the Audit Service Act. We note that section 17(7) of that Act says ‘The Auditor-General may with the prior approval of Parliament revoke any surcharge made under this section.’ While this section is of dubious constitutional effect by saying that Parliament’s approval is required to revoke surcharges, it certainly does not support the claim that Parliament’s approval is required BEFORE disallowances and surcharges are issued in the first place.

We are extremely concerned because the danger with these views that Mr. Kan Dapaah has expressed, is that it feeds into a current narrative in the political class that seeks to clip the wings of the Auditor-General, particularly the wake of the exercise of his independent powers after the decision of the Supreme Court in OccupyGhana v Attorney-General. We wish to assure Mr Kan Dapaah that we stand ready to resort to court again at any time that we believe that the independence of the Auditor-General is being compromised or powers interfered with.

Still in the service of God and Country