WHY WE APPLIED TO JOIN THE CASE OF ISAAC WILBERFORCE MENSAH v ATTORNEY-GENERAL & OTHERS

Our ref: OG/2023/030

OCCUPYGHANA PRESS RELEASE

Accra, 28 November 2023

WHY WE APPLIED TO JOIN THE CASE OF ISAAC WILBERFORCE MENSAH v ATTORNEY-GENERAL & OTHERS

On 11th November 2018 the Plaintiff (Isaac Wilberforce Mensah) sued the Attorney-General, Auditor-General and the Audit Service Board in the Supreme Court for several reliefs including a declaration that the independence of ‘the Auditor-General… provided for in Article 187(7) [of the Constitution] is … restricted to the actual exercise or execution of his auditing work and activities necessarily incidental to the performance of that function.’ The general tone and tenor of the action pit the Auditor-General against the Audit Service Board, challenging the full independence of the Auditor-General.

On 20 October 2020, the Supreme Court granted OccupyGhana leave to file an Amicus Curiae Brief in the matter, which we filed on 26 October 2020. However, from that date, nothing appeared to have happened in the matter. Significantly, although the Supreme Court had earlier directed the parties to file either a joint memorandum of issues or separate issues for trial, none of the parties complied. The effect is that the case has not moved to trial for more than five years after it was filed, and more than three years since our intervention.

We have been unrelenting in trying to get the case to trial. On 20 May 2022, 5 July 2022, 29 July 2022 and 17 October 2022, we wrote to the Supreme Court registry inquiring about the status of the matter and urging the matter to be placed before the court. We received no responses. On 20 February 2023, we were compelled to draft the issues arising, which we sent to the parties and their lawyers for adoption and filing in court. We received no responses; and they took no steps.

In the meantime, the Supreme Court delivered judgment in GHANA CENTRE FOR DEMOCRATIC DEVELOPMENT & OTHERS v ATTORNEY-GENERAL, which took another step forward in freeing the Auditor-General from the unconstitutional shackles of the government. However, the key issues raised in the pending action, relating particularly to the independence of the Auditor-General vis-à-vis the Audit Service Board (majority of whose members are appointed by the President), has remained largely unresolved.

Frustrated at this state of affairs and the sheer inaction of the parties, we were compelled to file an unusual application to be joined as a defendant in the action, so that we could force the case to trial. In court today, the Supreme Court disagreed with us. However, as a result of our application, the Court has set clear, mandatory deadlines for the parties to do what the law requires of them, and which we have been urging them to do: file the memorandum of issues by 22 December 2023, and appear before the Court on 31 January 2024 for the case to proceed. The Court also ordered the registry to prepare a schedule of all applications filed and rulings made in the matter to date.

We got what we wanted from the court: ACTION. We remain committed to ensuring that the independence of the Auditor-General, which in our view is absolutely guaranteed by the Constitution, is respected by all. It is only in an environment that acknowledges and respects the clear and express constitutional injunction, that the Auditor-General ‘shall not be subject to the direction or control of any other person or authority,’ that Auditors-General will feel sufficiently independent and liberated to exercise the full functions of that office, particularly in the exercise of the powers of disallowance and surcharge.

As Chief Justice Gertrude Torkornoo stated before the court rose, ‘this is all for God and Country.’ We agree. For us, it was one small procedural manoeuvre; but it has resulted in giant steps forward in our fight for an Auditor-General who fearlessly and independently performs the functions of the office.
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