RE: REQUEST FOR INFORMATION CONCERNING RELEASED OR RELINQUISHED LANDS

Our Ref: OG/2023/013

9 March 2023
The Ag Executive Secretary
Lands Commission
Accra

Attention: James E K Dadson

Dear Sir:

RE: REQUEST FOR INFORMATION CONCERNING RELEASED OR RELINQUISHED LANDS

This is to follow up on our letter to you dated 2 March 2023 (our ref: OG/2023/011) on the above matter.

Today marks eight days since the Right to Information Commission (RTIC) delivered the ruling that ordered you to release the information to us within 14 days. In our 2 March 2023 letter, we also brought the ruling to your attention, and inquired when we may receive the information. We asked that if the information was in hardcopy, you let us know the total cost of it so that we may pay for and collect it. We also asked that if it is in softcopy, you let us know when, and to whom, we may submit a hard drive on which you will install the information.

We have not heard from you on these requests. We will send you daily reminders until you deliver the information to us. And if the 14 days expire without you giving us the information, we will take all steps available to us under the law to ensure that you comply with the RTIC’s orders.

Yours in the service of God and Country

OccupyGhana

cc. The Chairman
Lands Commission
Accra

   The Executive Secretary
   Right to Information Commission
   Accra

OCCUPYGHANA ENGAGES LANDS MINISTRY AND LANDS COMMISSION ON CONCERNS OVER PUBLIC LANDS

23 August 2022

PRESS RELEASE

OCCUPYGHANA ENGAGES LANDS MINISTRY AND LANDS COMMISSION ON CONCERNS OVER PUBLIC LANDS

Accra, 23 August 2022: On 11 August 2022, OccupyGhana met with officials of the Ministry of Lands and Natural Resources, members of the Ministry’s Advisory Board and officials of the Lands Commission. The meeting was held at the instance of the Ministry’s Advisory Board to discuss OccupyGhana’s concerns over alleged returns of Public Lands to alleged pre-acquisition owners.

This followed OccupyGhana’s incessant inquiries following the Achimota Forest Lands saga. OccupyGhana has specifically demanded that the Lands Commission and the Ministry produce the legal basis and Policy Directive governing these returns. This meeting was held after both the Ministry and Lands Commission responded in writing to candidly concede that there is no such Policy Directive in place.

At the meeting, chaired by a Co-Chair of the Ministry’s Advisory Board, OccupyGhana asked why the Government, although it was under no legal compulsion to do so, would take Public Lands that belong to all Ghanaians, and return them to alleged pre-acquisition owners for next to nothing, only for the lands to end up in the hands of the rich and government officials.

OccupyGhana also stated its view that these transactions breached both the President’s constitutionally imposed duties as the trustee of all Public Lands on behalf of all the people of Ghana (under article 257 of the Constitution), and the Lands Commission’s constitutionally imposed fiduciary and accountability duties (under article 36(8) of the Constitution.) We repeated our further view that the direct involvement of the Government in these matters, instead of issuing ‘general directions in writing to the Lands Commission on matters of policy in respect of the functions of the Commission,’ is also a breach of the autonomy of the Lands Commission in land management matters (under articles 258 and 265 of the Constitution.)
OccupyGhana finally reiterated that it stood by all of its demands in the several letters to the Minister and Lands Commission, including (i) full disclosure of all such transactions since the Constitution came into force, (ii) a public inquiry into them, (iii) a freeze of all pending returns (including the Achimota Forest), and (iv) the issuance of a Policy Directive by Government, so that Ghanaians, who are the beneficiaries of those lands, can raise questions about and challenge the policy.

TAKE OUT FROM MEETING

Lands Commission is still compiling the information of all returns of Public Lands from the regions and will submit that to OccupyGhana when it is ready.

Within one month, the Lands Commission will draft the Policy Directives and submit them to the Ministry to consider for adoption.

Lands Commission will, before sending the draft policies to the Ministry, engage all stakeholders, including OccupyGhana, in working on and reviewing the draft policies.

Lands Commission is very concerned about private encroachment of Public Lands and would want OccupyGhana’s advocacy to also focus on that matter.

CONCLUDING COMMENTS

While OccupyGhana appreciates the opportunity to have met with and express our concerns to officials, we remain deeply concerned about the current state of affairs and the admission that after almost 30 years of the coming into force of this Constitution, there is no Policy Directive on the management of Public Lands in Ghana. The effect of this is that we have an opaque, ad-hoc system, which in itself is unconstitutional. We remain resolute that there must be a freeze of every planned return of Public Lands until the entire system has been reviewed by a duly constituted Commission of Inquiry, and the constitutionally required and relevant Policy Directives have been put in place.

OccupyGhana is also concerned that while section 13 of the new Land Act criminalises the breach of the fiduciary and accountability duties by managers of stool, skin and family lands, the Act stops short of specifically criminalising the same breach by managers of Public Lands. This is especially shocking because article 36(8) of the Constitution imposes the same duties on all ‘managers of public, stool, skin and family lands.’ Thus, the selective criminalisation in the Land Act is discriminatory, wrong and therefore unconstitutional. Our view is that the list of specific crimes that public officers may commit under section 277 of the Land Act, does not cover the breach of their fiduciary and accountability duties. We therefore call for the amendment of section 13 of the Land Act to bring in managers of Public Lands, because the universal criminalisation of these breaches will make public officials more careful and circumspect in the performing their duties relating to the management and disposal of Public Lands.
-END-

RE: REQUEST FOR INFORMATION CONCERNING RELEASED/RELINQUISHED LANDS

30 June 2022

The Ag Executive Secretary
Lands Commission
Accra

Attention: James E K Dadson

Dear Sir:

RE: REQUEST FOR INFORMATION CONCERNING RELEASED/RELINQUISHED LANDS

We have received your letter dated 29 June 2022 (ref SCR/LCS3/V.7/2) on the above matter. We deeply appreciate your confirmation that you will provide us with the information we require. We also appreciate your point that your officers have to manually go through files to compile data on the information we seek, and that the various Regional Lands Commissions are working on this matter. We further appreciate your assurance that once the information is ready, you will provide it to us.

We must however respectfully draw your attention to item #6 of our list of demands in our letter dated 2 June 2022, ref OG/2022/007, which was:

‘A copy of any existing written Ministerial policy direction to the Lands Commission on these and other related matters.‘

We believe that if such a written Ministerial policy direction exists, you could send that to us right now, while we wait for the rest of the information. Kindly confirm the existence or otherwise of such a written Ministerial policy, and if it exists, kindly provide it to us at your earliest convenience.

And concerning the rest of the information we seek, we will send you a reminder a week from today, and every week thereafter, to check on the status of the efforts to procure the information for us.

Yours in the service of God and Country

OccupyGhana

cc. The Executive Secretary
Right to Information Commission
Accra

OCCUPYGHANA DEMANDS COMMISSION OF INQUIRY INTO RETURN OF STATE LANDS

25 May 2022

OCCUPYGHANA PRESS STATEMENT

OCCUPYGHANA DEMANDS COMMISSION OF INQUIRY INTO RETURN OF STATE LANDS

We have seen the Minister for Lands and Natural Resources’ press statement dated 24 May 2022 and titled “Achimota Forest Matters,” in which he sets out a brief but informative history of the Achimota Forest Reserve and the various attempts to return lands that were validly acquired by the state almost a century ago, to “preacquisition owners.” We appreciate the Minister’s indication that “the Ministry intends to initiate a process of an independent audit on the specific issue of the acreage de-gazetted and will act accordingly in the public interest, should that become necessary.”

However, because this is a grave “matter of public interest,” we do not think that the “independent audit” and its stated remit will suffice. Evidence abounds on how some of these lands have ended up in the hands of government officials and their privies. It even appears that some of these officials-beneficiaries were involved in the processes leading to the alleged return of lands. In the face of such apparent conflict of interest and conflict of duty as are outlawed by article 284 of the Constitution, we are not certain that a mere “independent audit” would suffice.

We think that, in accordance with article 278 of the Constitution, the President should be satisfied, or the Council of State should advise, or Parliament should request, that a Commission of Inquiry be appointed. The people of Ghana need to be informed of ALL return of state lands to “preacquisition owners” since the Fourth Republican Constitution came into being on 7 January 1993. There is no better way of doing this than by establishing a Commission of Inquiry appointed under Chapter 23 of the Constitution, with “the powers, rights and privileges of the High Court or a Justice of the High Court at a trial” specified in article 279.

Thus, while we appreciate and commend the Minister’s attempt to uncover the truth through the intended “independent audit,” we think that the President should set up the Chapter 23 Commission of Inquiry, failing which we expect Parliament to unanimously resolve, or the Council of State to advise, that a Commission be appointed. The Minister’s audit may constitute evidence to be provided to the Commission.

Always in the service of God and Country

OccupyGhana

OCCUPYGHANA®️ LBG SEEKS CLARIFICATION FROM THE SUPREME COURT REGISTRAR ON THE STATUS OF MENSAH V AUDITOR-GENERAL & OTHERS

23 May 2022
 
OCCUPYGHANA®️ LBG PRESS STATEMENT
 
OCCUPYGHANA®️ LBG SEEKS CLARIFICATION FROM THE SUPREME COURT REGISTRAR ON THE STATUS OF MENSAH V AUDITOR-GENERAL & OTHERS
 
On 23 May 2022, OccupyGhana®️ wrote to the Registrar of the Supreme Court to ask #about# why the case titled MENSAH V AUDITOR-GENERAL & OTHERS appears to have stalled since OccupyGhana®️ filed its Amicus brief on the matter. It might be recalled that on 25 September 2020, OccupyGhana ® applied to the Supreme Court for leave to file an Amicus Curiae Brief in that case. On 20 October 2020, the Supreme Court heard the application and kindly granted it; and on 26 October 2020, we duly filed the Brief.
 
We filed the Brief, believing that we could contribute and hopefully assist the Court in resolving the issue surrounding the interpretation of article 187(7)(a) of the Constitution, specifically, whether 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,’ in article 187(7), are in any way circumscribed. 
 
The Constitution uses the same words to grant independence 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 Civic Education (article 234) and the Lands Commission (article 265). We believe that Ghana needs these offices to be sufficiently empowered and independent of the Executive and Legislature. 
 
Specifically, the Auditor-General needs that independence to perform the functions of the office, particularly to issue, enforce and defend required Disallowances and Surcharges, that the Supreme Court has described in OCCUPYGHANA V ATTORNEY-GENERAL as ‘the way forward.’ We also hoped that through the Brief, we could contribute to the search and fight for a truly independent Auditor-General who can exercise all the powers and perform the functions (especially Disallowance and Surcharge) without fear, favour or interference from any quarter.
 
However, the progress of the case appears to have stalled and there is precious little that OccupyGhana®️ can do to move it forward because we are not parties to the action. That is why we have been compelled to write to the Registrar of the Court seeking clarification on why the matter is not being heard.
 
We urge Ghanaians not to forget about this case but continue to be interested in the constitutional issues that it raises, and then expect the Court to speak on and resolve this matter once and for all.
 
Still in the service of God and Country
 
OccupyGhana®️ LBG  

Re: OccupyGhana®️ Welcomes Auditor-General Back to Office

3rd March 2021

OCCUPYGHANA ®️ PRESS STATEMENT

Re: OccupyGhana®️ Welcomes Auditor-General Back to Office

OccupyGhana®️ notes that Mr Daniel Domelevo, the Auditor-General, resumes office today after his leave. We welcome him back.

A lot has happened since he was controversially ordered to go on leave, an action with which we vehemently disagreed, as expressed in our Press Statement dated 9th July 2020. The purpose of this release is to set out some of these developments that have happened in his absence, and to show how much work is cut out for him, for the remainder of his term of office.

First, we note with much concern, that the exercise of the Auditor-General’s power to disallow and surcharge appears to have gone on leave with Mr Domelevo. The most recent Report of the Auditor-General on MDAs for 2019, which was published in his absence, barely mentioned disallowances and surcharges. Yet it contained the usual retinue of infractions that should have attracted disallowances and surcharges in accordance with article 187(7) of the Constitution and in compliance with the 2017 Supreme Court decision in OCCUPYGHANA V ATTORNEY-GENERAL. There appeared to be a clear nosedive or volte face, an attempt to return to the dark days before the Supreme Court decision, when Auditor-General Reports were an exercise of empowered impotence, and successive Auditors-General had meekly abandoned their disallowance and surcharge powers by merely making recommendations in the face of blatant thievery, and to which recommendations were paid slight attention and scant regard.

Second, we note that in the Auditor-General’s absence, there have been at least 2 cases filed and pending at the Supreme Court, challenging the power of the President to direct an Auditor-General to go on leave. We await the decisions.

Third, and on our part, we were granted leave by the Supreme Court to file an Amicus Brief in another pending action that seeks the Supreme Court’s interpretation of the constitutional delineation of the functions and powers between the Auditor-General and the Audit Service Board. We await that decision too.

Fourth, we note that some appeals against disallowances and surcharges, filed under the provisions of CI 102 (the enactment of which we prompted by writing, and then submitting an first draft, to the Rules of Court Committee) have advanced to the Supreme Court. In one such case, the apex court has clarified and distilled further, the circumstances under which the disallowance and surcharge powers may be exercised. We welcome that decision.

Fifth, there were comments by the minister-designate for National Security, Mr Albert Kan Dapaah on the exercise of these powers, claiming that they were subject to Parliamentary control. In our press release dated 16th February 2021, we strongly disagreed with him, pointing out how his position runs counter to the Constitution. We have since had a direct and very constructive engagement with him and we are probably convinced that he may no longer hold that view.

Sixth, we have also noted that the simmering friction with the Audit Service Board has reared its head even before Mr Domelevo re-enters his office. We do not shy away from constitutional friction, because that is how the law gets developed. That is why we hope that, first, the members of Board appointed by the President, including the Board Chair, have ascertained that their continued stay in office after 6 January 2021 complies with the 2012 Presidential (Transition) Act as clarified by the 2019 Supreme Court in DONKOR V ATTORNEY-GENERAL. We hope that they have also ascertained that notwithstanding any alleged or purported extension of their respective terms of office in the latter part of 2020, they have not been subsequently and effectively removed from office by the Chief of Staff’s letter on the matter, dated 12 January 2021, ref: SCR/DAB9/314/01. We hope the affected Board members have advised themselves that although the Board is established by the Constitution, their tenure was set down by statute (the Audit Service Act), and that that tenure was then effectively amended by Presidential (Transition) Act. And, the Chief of Staff’s letter under reference does not contain any exceptions with respect to the Board. We further hope that the Audit Service Board, to the extent that it has capacity to still act, if it has any valid grounds for challenging Mr Domelevo being in office, will comply with the constitutional procedure for such challenges, and not seek to take the law into its own hands.

It is against this background that we welcome Mr Domelevo back. He has just a few months to retire and we are confident that he will discharge his functions and exercise his powers over this period in a way that will reinforce the magnitude and critical relevance of that office. Under our constitutional dispensation, the Office of the Auditor-General is a key independent office that the Constitution has created (along with others such as the Electoral Commission) to essentially provide checks and balances to the otherwise awesome power of the executive under the same Constitution. Long may it remain so.

Yours in the service of God and Country

OccupyGhana®️

AMICUS CURIAE BRIEF FROM OCCUPYGHANA (FILED PURSUANT TO LEAVE GRANTED BY THE SUPREME COURT ON 20 OCTOBER 2020)

IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA, A D 2020

SUIT NO: J1/2/2019

WRIT TO INVOKE THE ORIGINAL JURISDICTION OF THE SUPREME COURT

ARTICLES 2, 130, 187(1), (2), (3), (4), (7) & (8), 188 AND 189 OF THE CONSTITUTION
RULE 45 OF THE SUPREME COURT RULES, 1996 (CI 16)

BETWEEN

ISAAC WILBERFORCE MENSAH

AND

1. AUDITOR-GENERAL
2. AUDIT SERVICE BOARD
3. ATTORNEY-GENERAL & MINISTER FOR JUSTICE


AMICUS CURIAE BRIEF FROM OCCUPYGHANA (FILED PURSUANT TO LEAVE GRANTED BY THE SUPREME COURT ON 20 OCTOBER 2020)


CONTENTS


CONTENTS i
AUTHORITIES ii
1. INTRODUCTION & BACKGROUND 1
2. CURRENT CONSTITUTIONAL PROVISIONS 8
Independence of Constitutionally-Established Independent Bodies 8
Limits to independence 16
3. CONSTITUTIONAL HISTORY 23
Gold Coast Constitution (1954) 23
Supreme Court Judges & Auditor-General 23
Independence Constitution (1957) 24
Supreme Court Judges & Auditor-General 25
First Republican Constitution (1960) 26
Chief Justice, Supreme Court Judges & Auditor-General 26
Second Republican Constitution (1969) 27
Auditor-General 27
Electoral Commissioner 32
Public Services Commission 32
National Redemption Council (1972) 34
Third Republican Constitution (1979) 35
Auditor-General 35
Public Services Commission 36
Ombudsman 36
Press Commission 37
Fourth Republican Constitution (1992) 37
4. SEPARATION OF POWERS 39
5. DISTINCT FUNCTIONS: AUDITOR-GENERAL & AUDIT SERVICE BOARD 46
6. CONCLUSIONS 65


AUTHORITIES

Cases
Abu Ramadan & Nimako (No 2) v Electoral Commission & Attorney-General (No 2) [2015-2016] 1 SCGLR 1 16
Agbevor v Attorney-General [2000] SCGLR 403 13
Ahumah-Ocansey v Electoral Commission; Centre for Human Rights & Civil Liberties (CHURCIL) v Attorney-General & Electoral Commission (Consolidated) [2010] SCGLR 575 15
Amegatcher v Attorney-General (No 1) & Others [2012] 1 SCGLR 679 1, 43
Amegatcher v Attorney-General (No 2) [2012] 2 SCGLR 933 6, 19, 20
Amidu v President Kufuor & Others [2001-2002] SCGLR 86 18
Appiah-Ofori v Attorney-General [2010] SCGLR 484 14, 56
Brown v Attorney-General & 2 Others [2010] SCGLR 183 6, 13, 38
Centre for Public Interest Law v Attorney-General [2012] 2 SCGLR 1261 44
Elikplim Agbemava v Attorney-General & Others [unreported, Consolidated Writ No J1/20/2016; 21 November 2018] 12
Ghana Bar Association v Attorney-General [1995-96] 1 GLR 598 17
Ghana Bar Association, Amegatcher, Amenuvor & Beecham v Attorney-General & Judicial Council; Sky v Attorney-General; Danso-Acheampong v Attorney-General (Consolidated) [2016-2016] 2 SCGLR 872 39
Ghana Independent Broadcasters Association (GIBA) v Attorney General & Another [unreported; Writ No J1/4/2016; 30/11/2016] 11, 23
J H Mensah v Attorney-General [1996-97] SCGLR 320 19
Judicial Service Staff Association of Ghana (JUSAG) v Attorney-General & 2 Others [unreported; Writ No J1/5/2015; 23 June 2016] 13
Mensah v Attorney-General [1997-98] 1 GLR 227 19
Myers v United States 272 US 52 (1926) 42
National Democratic Congress v Attorney-General & Electoral Commission; Mark Takyi Banson v Electoral Commission & Attorney-General (Consolidated) [unreported; Consolidated Writs Nos J1/9/2020 & J1/12/2020, 25 June 2020] 41
Nixon v Sirica 487 F 2d 700 (1973) 42
OccupyGhana v Attorney-General [unreported; Writ No J1/19/2016; 14/06/2017] 3, 47, 52, 54, 55, 64
Tsikata v Chief Justice & Attorney-General [2001-2002] SCGLR 437 43
Youngstown Sheet & Tube Co v Sawyer 343 US 579 (1952) 43
Statutes
Audit Service Act, 2000 (Act 584) 4, 14, 22, 35, 46, 49, 52, 55, 58, 61, 62
Audit Service Decree, 1972 (NRCD 49) – REPEALED 34, 35, 36, 52
Commission on Human Rights and Administrative Justice Act, 1993 (Act 456) 21
Electoral Commission Act, 1993 (Act 451) 21
Interim National Electoral Commission Law, 1991 (PNDCL 271) – REPEALED 22
Kenya Public Audit Act, No 34 of 2016 4
Lands Commission Act, 1994 (Act 483) – REPEALED 22
Lands Commission Act, 2008 (Act 767) 21
Local Government Act, 1993 (Act 462) – REPEALED 19
National Commission for Civic Education Act, 1993 (Act 452) 21
National Media Commission Act, 1993 (Act 449) 21
National Redemption Council (Establishment) Proclamation – REPEALED 34
Parliamentary Service Act, 1993 (Act 460) 58
Public Financial Management Act, 2016 (Act 921) 55
Public Office Holders (Declaration of Assets and Disqualification) Act, 1998 (Act 550) 46
Public Procurement Act, 2003 (Act 663) 46
Sierra Leone Audit Service Act, No 4 of 2014 4
South Africa Public Audit Act, Act 25 of 2004 4
South Africa Public Audit Amendment Act, Act 5 of 2018 4
Uganda National Audit Act, Act 7 of 2008 4
Zambia Public Audit Act, No 29 of 2016 4
Rules
High Court (Civil Procedure) (Amendment) Rules, 2016 (CI 102) 3
High Court (Civil Procedure) Rules, 2004 (CI 47) 3
Reports
1956 Constitutional Commission Report 1, 24
1968 Constitutional Commission Report 1, 27, 28, 29, 31, 32, 33, 38, 52, 56, 63
1978 Constitutional Commission Report 1, 35, 36, 37, 38
1992 Constitutional Commission Report 1, 9, 37
2019 Report of the Auditor-General on the Public Accounts of Ghana, Ministries, Departments and Other Agencies (MDAs) 54
2020 Global Report, ‘Enhancing Government Effectiveness and Transparency: The Fight Against Corruption,’ (September 2020; © 2020 International Bank for Reconstruction and Development/The World Bank) 50, 51, 52, 53
Regulations
Audit Service Regulations, 2011 (CI 70) 55, 58
Constitutional Provisions
1954 Constitution 1, 23, 24, 26, 27, 30, 31, 34
1957 Constitution 1, 24, 25, 26, 27, 30, 31, 34
1960 Constitution 1, 26, 27, 28, 31, 34
1969 Constitution 1, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 47, 52
1979 Constitution 1, 35, 36, 37, 38, 40, 47, 52
1992 Constitution 1, 3, 4, 5, 7, 8, 9, 10, 11, 12, 14, 16, 17, 18, 19, 20, 21, 22, 35, 38, 40, 41, 42, 43, 45, 46, 47, 48, 49, 51, 52, 56, 57, 58, 60, 62, 64, 65


1. INTRODUCTION & BACKGROUND

1.1 On 25 September 2020, OccupyGhana applied to this Honourable Court for leave to file a Brief in the capacity of an Amicus (‘Amicus Curiae Brief,’) in this matter. On 20 October 2020, this Honourable Court heard that application and granted it. It is pursuant to that leave granted that we file this Amicus Curiae Brief, through which we would want to respectfully assist the Honourable Court on the following points:

(1) under the 1992 Constitution, the Auditor-General and all other persons or authorities to which the Constitution applies the phrase ‘shall not be subject to the direction or control of any [other] person or authority’ (referred to in this Amicus Curiae Brief as ‘Constitutionally-Established Independent Bodies,’) are independent of and not subservient to any other person or authority. That independence is not limited to only their express constitutional or statutory functions and powers, but extends to all other functions and powers that are implied, ie necessary to performing their functions and exercising their powers;

(2) a review of the 1954, 1957, 1960, 1969, 1979 and 1992 Constitutions, the 1956, 1968, 1978 and 1992 Constitutional Commissions’ Reports and decisions of this Honourable Court show that the Framers of the Constitutions intended to confer ‘complete,’ ‘absolute’ or ‘full’ independence, also expressed as ‘independence from bureaucratic [or Government] control’ on the Constitutionally-Established Independent Bodies; in effect they have political, administrative and financial independence, and are insulated ‘against all forms of external pressures;’

(3) The Auditor-General’s (a) complete independence and (b) powers of disallowance and surcharge powers, which appear in the same paragraphs under the 1969, 1979 and 1992 Constitutions, are completely dependent and contingent on each other. Without that independence being given its true and full meaning and effect, the power to disallow and surcharge (and indeed all the powers of the Auditor-General) would be severely circumscribed and grossly watered down. The independence must therefore be given the same ‘higher pedestal and… pride of place’ as the disallowance and surcharge powers;

(4) the Constitution provides for the traditional separation of powers between the Executive, Legislature and Judiciary, but also recognises the Constitutionally-Established Independent Bodies and provides that none of the traditional branches or any other person may seek to run or dictate to the Constitutionally-Established Independent Bodies;

(5) however, the Constitutionally-Established Independent Bodies are subject to the Constitution and the other constitutionally-compliant laws; thus their independence is limited only to the extent that those limits are provided for in the Constitution and those other laws;

(6) where a Constitutionally-Established Independent Body acts out of step with the Constitution or other constitutionally-compliant laws, it is only the Courts (and no other persons or authorities except through a Court action) that have the judicial power under the Constitution or appropriate law to correct the error;

(7) the Constitution clearly demarcates the respective functions and roles of the Auditor-General and the Audit Service Board, so that although the Constitution empowers the Audit Service Board to
(i) hire the staff of the Audit Service,
(ii) set their conditions of service, and
(iii) make regulations, by Constitutional Instrument, for effectively and efficiently managing the Audit Service,
it is the Auditor-General, as the sole depository of all public audit powers and functions, who must authorise and assign Audit Service staff to work; and

(8) for those purposes neither the Auditor-General nor the Audit Service Board is subservient to each other, and by that the Constitution ensures that the Executive (which is both the Auditor-General’s primary auditee and the appointor of almost everyone on the Audit Service Board) is unable to exert any direct or indirect influence over any constitutional or statutory audit or work, or administrative functions of the Auditor-General, and preserves and protects the independence invested in the office of the Auditor-General under article 187(7)(a).

1.2 Respectfully, we advance these points on the back of the fact that since its formation in 2014, OccupyGhana, a pressure group incorporated under the laws of Ghana as a company limited by guarantee, has taken exceptional interest in the work of the Auditor-General, largely because of the centrality of anti-corruption in both OccupyGhana’s own advocacy and the mandate of the office of the Auditor-General.

1.3 Notably, OccupyGhana has had the privilege of assisting the Rules of Court Committee to draft the disallowance and surcharge appeal rules anticipated by article 187 of the Constitution, and which has been passed as the High Court (Civil Procedure) (Amendment) Rules, 2016 (CI 102), which amended the High Court (Civil Procedure) Rules, 2004 (CI 47) to include the new Order 54A.

1.4 Our engagements have also included litigation. In one such suit OccupyGhana v Attorney-General [unreported; Writ No J1/19/2016; 14/06/2017], we humbly sought and obtained orders from this Honourable Court to compel the Auditor-General to exercise the disallowance and surcharge functions vested in that office by article 187(7)(b) of the 1992 Constitution. In that case, the Attorney-General as defendant asserted the independence of the Auditor-General as one of its defences against the action. We however challenged that assertion of independence, arguing that the Auditor-General, while independent, was subject to the Constitution, especially article 295(8). We argued further that the Auditor-General’s admitted non-use of the constitutional power of disallowance and surcharge in the light of the office’s own repeated reports of corruption, was in itself an abuse of the power, which should trigger a challenge under article 295(8).

1.5 This Honourable Court agreed with our case and delivered the seminal judgment that has become the ‘Magna Carta’ in anti-corruption fights. In the African countries that have enacted identical or similar disallowance and surcharge legislation, the judgment of this Honourable Court has become an influential precedent and first point of reference.

1.6 It is from this background that, subject to leave granted by this Honourable Court, OccupyGhana would like to make some presentations, in amicus capacity, to assist this Honourable Court on the independence of the Auditor-General, captured in the magic words ‘shall not be subject to the direction or control of any other person or authority.’ With respect, Relief 1 in this action calls upon this Honourable Court to interpret these words as they appear in article 187(7)(a) of the Constitution, in the light of other clauses in that article and provisions in the Audit Service Act, 2000 (Act 584). The relief specifically seeks:

A declaration that upon a true and proper interpretation of the relevant clauses of article 187, particularly clauses 1, 3, 4 and 8 of the 1992 Constitution and the relevant sections of the Audit Service Act, 2000 (Act 584), particularly sections 10 and 11 thereof, the functions of the Auditor-General, the performance of which he ‘shall not be subject to the direction or control of any other person or authority’ as provided for in article 187(7) is circumscribed by clause 2 therefore and restricted to the actual exercise or execution of his auditing work and activities necessarily incidental to the performance of that function.

1.7 In our respectful view, this action and especially, Relief 1, affords this Honourable Court the opportunity to interpret the words ‘shall not be subject to the direction or control of any other person or authority’ as they appear in the Constitution, not only in reference to the Auditor-General, but to all other Constitutionally-Established Independent Bodies. It is said that ‘a court, like the Oracle of Delphi, speaks once;’ and when it does, it resolves all issues raised.

1.8 Our respectful view is that in the exercise of its original jurisdiction to interpret and enforce the Constitution, this Honourable Court may not be bound to follow common law principles such as the principle of obiter dictum. Once the issues arise and are relevant to be resolved so as to create constitutional harmony and provide understanding of the Constitution, this Honourable Court has the unquestionable constitutional mandate that is higher than any other legal principle (under article 11 of the Constitution), to pull all the outstanding issues together and resolve them at the same time.

1.9 That is why in some instances, this Honourable Court has felt the need to consolidate pending cases so that it would speak once, and with one voice, especially on constitutional issues arising. That is why this Court has the inherent power, in adopting Memoranda of Issues, to raise and add all issues that it deems and considers fit and proper, for a full resolution of the matter, not only for the parties to the dispute but for the guidance of the entire country.

1.10 It is in the light of the foregoing that we, through this Amicus Curiae Brief, would want, humbly, to urge this Honourable Court to seize the opportunity presented by this case, and pronounce, once and for all, and finally on the meaning, extent and bounds of the words ‘shall not be subject to the direction or control of any other person or authority’ as those words appear throughout the Constitution. And in this Amicus Curiae Brief we hope to provide a broad view of the potential ramifications of this legal issue, as a friend of this Honourable Court, rather than take a position in favour of any of the actual parties to the action.

1.11 It is very much established, and the authorities are legion, that those words offer independence or autonomy to the Constitutionally-Established Independent Bodies. However, further questions arise that require the interpretation of this Honourable Court: What is the scope or extent of that independence? Is it absolute? Are there limits to that independence? And, how do these apply in the relationship between the Auditor-General and the Audit Service Board?

1.12 Your Lordships, these questions have become germane and critical because although our constitutional history as captured by the words of the Framers of several of our Constitutions, appear to show that that independence is ‘absolute,’ ‘complete’ or ‘full,’ or that it amounts to being independent from the Government and its bureaucracy, there are lingering questions on whether this independence, howsoever adjectived, applies only where the person or authority is exercising its express ‘functions’ under the Constitution, so that in other matters, such as matters of administration, they are still susceptible to the direction or control of other persons, such as the Executive.

1.13 This Honourable Court has also described those words to mean ‘presumption of independence’ or ‘relative autonomy.’ This becomes apparent when one compares this Honourable Court’s decision in Brown v Attorney-General & 2 Others [2010] SCGLR 183 where it was held that the independence of the Auditor-General covered political and administrative independence, and then financial independence that was subject only to the power of Parliament to disagree on and revise budgets, with the decision in Amegatcher v Attorney-General (No 2) [2012] 2 SCGLR 933, where this Honourable Court appeared to hold that there could be scope for directions issued to the Electoral Commission (a Constitutionally-Established Independent Body) by the Executive and the Legislature on ‘non-electoral matters.’ Although this decision was within the specific context where the Constitution itself had granted a power (to create districts) to a political branch of Government, and then by statute, the Electoral Commission was required to make recommendations on that matter to that political branch, our respectful concern is that without further clarification, that decision could be applied to subject Constitutionally-Established Independent Bodies to Executive or other control.

1.14 With respect, it is largely through the use of the same words, that the Constitution also provides for and guarantees the independence of the Judiciary. It is therefore important for this Honourable Court to determine whether in each of the seven other instances where the 1992 Constitution uses those words in relation to specified persons or authorities, the Constitution means to afford to them a quality of independence, autonomy or protection that is the same as or inferior to that given to the Judiciary.

1.15 Your Lordships, with your leave we will seek to address these matters in four ways:

• first and under subsection 2, we will examine the instances where the words appear in the Constitution, and what this Honourable Court has said about them;

• second and under subsection 3, we will analyse the constitutional history of the independence of specified persons or authorities;

• third and under subsection 4, we will seek to show how the principles of separation of powers and checks and balances are relevant to a determination of this matter;

• fourth and under subsection 5, we will set out the specific distribution of powers between the Auditor-General and the Audit Service Board; and

• finally, under subsection 6, we will present our humble concluding views on the entire matter.

1.16 Your Lordships, we believe that in going through these points, the intention of the Framers of the Constitution and its relevance to the contemporary scope of those words, subject to your Lordships’ decision, would become clear.


2. CURRENT CONSTITUTIONAL PROVISIONS

Independence of Constitutionally-Established Independent Bodies

2.1 In several articles, the 1992 Constitution provides that some person or authority created by the Constitution, or whose continued existence the Constitution recognises, is or is not subject to the ‘direction or control’ or ‘control or direction’ of another person or authority. The Constitution does this by deploying almost the exact wording, with the few dictional variations employed by the draftsperson, to convey the intention of the Framers.

2.2 With respect to the Electoral Commission (‘EC’), article 46 provides as follows:

Except as provided in this Constitution or in any other law not inconsistent with this Constitution, in the performance of its functions, the Electoral Commission, is not subject to the direction or control of any person or authority’ [emphases added.]

2.3 With respect to the Commission of Human Rights and Administrative Justice (‘CHRAJ’), article 225 provides as follows:

Except as provided by this Constitution or by any other law not inconsistent with this Constitution, the Commission and the Commissioners shall not in the performance of their functions, be subject to the direction or control of any person or authority’ [emphases added.]

2.4 With respect to the National Commission for Civic Education (‘NCCE’), article 234 provides as follows:

Except as provided in this Constitution or in any other law which is not inconsistent with this Constitution, the Commission shall not be subject to the direction or control of any person or authority in the performance of its functions’ [emphases added.]

2.5 With respect to the National Media Commission (‘NMC’), article 172 provides as follows:

Except as provided in this Constitution or by any other law not inconsistent with this Constitution, the National Media Commission shall not be subject to the direction or control of any person or authority in the performance of its functions’ [emphases added.]

2.6 As a corollary to this provision, article 167(d) bars the NMC itself from making any regulations to ‘provide for the exercise of any direction or control over the professional functions of a person engaged in the production of newspapers or other means of mass communication.’ Further, under article 173, the NMC is not to ‘exercise any control or direction over the professional functions of a person engaged in the production of newspapers or other means of communication.’

2.7 With respect to the Lands Commission, article 265 provides as follows:

Except as otherwise provided in this Constitution or in any other law which is not inconsistent with this Constitution, the Lands Commission shall not be subject to the direction or control of any person or authority, in the performance of its functions.

2.8 And with respect to the Auditor-General, article 187(7)(a) provides as follows:

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’ [emphases added.]

2.9 We have highlighted the elegant surplusage or superfluous variations in the language of all of these articles because they do not change the meaning. For instance, article 187(7)(a) uses the phrase ‘any other’ twice to refer both to other laws and to other persons or authorities. The other provisions use ‘any other’ to refer to other laws and ‘any’ to refer to the other person or authority. Your Lordships, ‘any other’ simply means ‘any,’ ‘another’ or ‘every other.’ Therefore, these articles, first, recognise the existence of a person or authority, and then provides that that person or authority is not subject to any, any other, another or every other person or authority.

2.10 In sharp focus, one acknowledged exception to the institutional independence granted by the Constitution or any other law under article 295(8), also uses the words ‘any other’ in the same sense of ‘another.’ The article says:

No provision of this Constitution or of any other law to the effect that a person shall not be subject to the direction or control of any other person or authority in the performance of any functions under the Constitution or that law, shall preclude a court from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this Constitution or the law’ [emphases added.]

2.11 Our respectful view is that notwithstanding the superfluous variations in language, all of these articles on independence mean the same thing: the persons or authorities mentioned are not subject to the direction or control of any, any other, another or every other person or authority, except the Constitution and the Courts.

2.12 In other articles, such as article 173 mentioned above, the Constitution uses the words ‘control or direction,’ but also to convey the same meaning. The most prominent of the provisions is article 127, which guarantees the independence of the Judiciary, as follows:

In the exercise of the judicial power of Ghana, the Judiciary, in both its judicial and administrative functions, including financial administration, is subject only to this Constitution, and shall not be subject to the control or direction of any person or authority’ [emphasis added.]

2.13 The Framers also used the same ‘control or direction’ formulation when they deliberately and specifically wanted to subject one person or authority to another, namely in
(i) article 202(2), which subjects the Inspector-General of Police to the Police Council,
(ii) article 207(2), which subjects the Director-General of the Prisons Service to the Prisons Council, and
(iii) article 213, which subjects the Chief of Defence Staff of the Armed Forces to the Armed Forces Council ‘on matters of policy.’

2.14 Our respectful and further position is that first, ‘direction’ and ‘control’ are synonyms. Further, ‘direction’ also means management, guidance, leadership, administration, command or supervision. ‘Control’ also means power, jurisdiction, rule, domination, management, direction, running, charge; limit, limitation, constraint, restriction, restraint, regulation, check, kerb, curb; influence, command, say, sway; discipline; rule, manipulate, influence, dictate, have a hold over, hold sway over; restrain, constrain, limit, restrict, keep under control, keep in check, hold back, rein in; monitor, check, regulate, oversee, supervise, or superintend.

2.15 The wide-ranging meaning of this phrase became apparent in Ghana Independent Broadcasters Association (GIBA) v Attorney General & Another [unreported; Writ No J1/4/2016; 30/11/2016], where this Honourable Court considered the meaning of ‘direction or control’ in the context of articles 167(d) and 173, and held that each one of the words has such several meanings and wide ramifications that no one meaning could be attributed to them. Their meanings, the Court held, ‘could only be expressed in the context in which they are used in order to achieve the purpose and intent of the provision in question.’

2.16 That context, according to the Court, was that the Framers of the Constitution intended to allow as much media freedom as possible, subject only to such reasonable restrictions as allowed by the Constitution or by law, and are consistent with the Constitution. Based on that context, the words mean that operators could not be told what to include in their broadcasts or publications. Proprietors are to control or direct their own editorial policy and content. The Court concluded that

…any decision… that has the effect of taking part in fixing the programme content for any media operator will amount to directing or controlling the affairs of the operator.

2.17 Therefore where the Constitution provides that one person or authority is not subject to the ‘direction or control’ or ‘control or direction’ of any, any other, every other or another person or authority, the latter may not exercise any of them over the former. Thus the context of articles 46, 127, 172, 187, 225, 234 and 265 of the Constitution (as is also explicitly stated in the side notes to those articles) was to make the Constitutionally-Established Independent Bodies completely free from and autonomous of any other person or authority, subject only to the Constitution and constitutionally compliant laws.

2.18 To the contrary, subjecting a person or authority to the ‘control or direction’ of a specifically mentioned person or authority means that the latter may exercise those over the former. Articles 202, 207 and 213 of the Constitution expressly subject the mentioned institutions to the other mentioned institutions.

2.19 As respectfully noted above, the independence of the Judiciary is provided for in article 127, which adopts the same core language of the others, and explains it further. In Elikplim Agbemava v Attorney-General & Others [unreported, Consolidated Writ No J1/20/2016; 21 November 2018], Your Lordships identified that article 127 is the provision that gives the Judiciary its independence under the Constitution. Bennin JSC noted further that by that article, ‘the Constitution itself explains what judicial independence entails,’ that ‘the language used is succinctly lucid, that the independence of the Judiciary relates to its core mandate, that of administering justice, and with it its administrative support’ and that ‘in the course of performing… [its] core mandate, …the Judiciary is completely insulated against any external interference.’ Dotse JSC added that article 127 amplifies the ‘hallowed and fundamental principles which underpin the independence of the Ghana Judiciary.’

2.20 In Judicial Service Staff Association of Ghana (JUSAG) v Attorney-General & 2 Others [unreported; Writ No J1/5/2015; 23 June 2016] the Supreme Court held that article 127 afforded both the Judiciary and its administrative staff, independence from the Executive. And in Agbevor v Attorney-General [2000] SCGLR 403, Kpegah JSC said that the article ‘completely insulates the Judiciary from the type of directive emanating from the Secretary to the President’s letter.’

2.21 It might be argued that it is easy for the courts to decide along these lines because unlike the other provisions that give independence to the Constitutionally-Established Independent Bodies, article 127 is more elaborate and specifically mentions that the independence includes financial and administrative independence. The language of the other provisions is terse and merely insulate those persons or authorities from the direction or control of others without further elaboration. The question therefore is whether those additional words in article 127 mean that the other independence provisions are inferior to what the Constitution affords to the Judiciary.

2.22 This question appears to have been answered by Your Lordships in Brown v Attorney-General (supra), where the Supreme Court emphasised that the independence of the Auditor-General under the Constitution extended to the political, the administrative and the financial. According to Georgina Wood CJ, the Auditor-General is insulated from all forms of external pressures, which meant he has political and administrative independence, plus a limited financial independence. She said at pages 206-207 of the Report:

True, external auditing remains one of the critical building blocks of good governance in any democratic system of government. It constitutes a key oversight accountability mechanism in public financial management in respect of or in relation to persons and institutions entrusted with state resources, hence the extensive provisions covering the office of the Auditor-General and the Audit Service, the constitutional oversight body mandated, under the direction of the Auditor-General, to carry out this important function. The constitutional provisions under reference underpin and secure their independence – political, administrative and financial – and insulate the service against all forms of external pressures. But I do think that the independence relates more to political and administrative operations, whilst the financial independence, is in a way limited.

2.23 For his part Dotse JSC reiterated that the insulation and protection were particularly from undue Government direction or control. He said at page 247 of the Report:

This is particularly gratifying in the sense that if one considers the relevant constitutional importance that the office of the Audit Service is enjoined to perform as a governance institution, then it is important to ensure that as an institution, it is insulated and protected from undue governmental control and direction.

2.24 Anin Yeboah JSC (as he then was) also acknowledged the Auditor-General’s independence in the following words at pages 261-262 of the Report:

It is in pursuance of probity and accountability that Article 187(7) makes it clear that the Auditor-General, who heads the Audit Service in performance of his functions spelt out in the Constitution and the Audit Service Act, 2000 (Act 584), shall not be subject to the direction or control of any person or authority.

2.25 The independence of the Auditor-General was again emphasised by Your Lordships in Appiah-Ofori v Attorney-General [2010] SCGLR 484, where Ansah JSC stated at page 526 that ‘in the discharge of his duties the Auditor-General enjoys much independence for he is not subject to the direction or control of any other person or authority.’ Even in his dissenting opinion, Dotse JSC agreed, and provided the context for the constitutional ‘insulation’ or ‘independence of the Auditor-General.’ He said at page 555 of the Report:

…the office of the Auditor-General is a very important position which should not be toyed with whatsoever… It should be noted that in view of the very important watchdog role that the Auditor-General plays or is supposed to superintend in the transparent use and accountability of the public purse, any attempt to prejudice and or compromise his position by linking it to the pleasure of a sitting President is untenable. This is because the President is the head of the Executive Branch of Government whose use of monies entrusted to them the Auditor-General is constitutionally mandated to Audit.

2.26 In interpreting the independence of the Electoral Commission (and indeed of every Constitutionally-Established Independent Body), Your Lordships in Ahumah-Ocansey v Electoral Commission; Centre for Human Rights & Civil Liberties (CHURCIL) v Attorney-General & Electoral Commission (Consolidated) [2010] SCGLR 575, stated through Dotse JSC at page 669 of the Report that:

…in the conduct of their business, the Electoral Commission is completely independent in that regard and is not subject to the control, direction, management, manipulation and or interference from anybody or institution whatever’ [emphases added.]

2.27 Your Lordships, these decisions, which clearly establish the independence of the Constitutionally-Established Independent Bodies ‘in the conduct of their business,’ reflect the true position of the law, as the ‘business’ here extends to all other additional functions and powers that are necessary for achieving the expressed functions and powers. This accords with article 297(c) of the Constitution, which provides that:

where a power is given to a person or authority to do or enforce the doing of an act or a thing, all such powers shall be deemed to be also given as are necessary to enable that person or authority to do or enforce the doing of the act or thing.

2.28 Therefore, the constitutional protection of the Constitutionally-Established Independent Bodies in the exercise of their express functions and powers, also covers every other implied power that is vested on account of article 297(c). With specific reference to the Auditor-General, if the Constitution had intended that that office’s independence be limited only to its auditing functions, article 187(7) would have qualified its opening words as follows ‘in the performance of his [auditing] functions.’

2.29 Your Lordships, it is upon the foundation of these provisions and authorities that we state the humble position that the Auditor-General (and all other Constitutionally-Established Independent Bodies) are independent in everything that they do under the Constitution and the law (namely in both WHAT they are established to do, and HOW they do and administer it.) They are not subservient to any other person or authority, except as provided under the Constitution, and it is to these limits that we now turn.

Limits to independence

2.30 While acknowledging the independence of Constitutionally-Established Independent Bodies, the Courts have been quick and careful to point out that that independence is subject to the Constitution and the other laws of the land that are not inconsistent with the Constitution. Thus, in Abu Ramadan & Nimako (No 2) v Electoral Commission & Attorney-General (No 2) [2015-2016] 1 SCGLR 1 this Honourable Court unanimously held, per Gbadegbe JSC, that article 46 bestows upon the Electoral Commission a ‘presumption of independence.’ It is a ‘presumption’ because that independence is subject to other constitutional provisions, statutory provisions that are consistent with the constitutional provisions, and the court’s power of judicial review under articles 23 and 296. His Lordship said at pages 39-40 of the report:

…where the Constitution intended the exercise of any of the functions conferred on the Commission to be subject to any other person or law, it is so provided. Accordingly, where no such provisions have been specifically made, the effect is that the Constitution intended the Commission to exercise its discretion without the control or direction of any person or authority. This court being the ultimate judicial authority in the country must endeavour to respect the boundaries of the jurisdiction conferred on it in order to give effect to the supremacy of the Constitution. To accede to the demand made on it in the action herein would amount to subverting the plain constitutional provisions…

However, before we end the consideration of the independent status of the Electoral Commission, we wish to say that the independent status of the first defendant does not make it immune from action for the purpose of declaring that it has exceeded its authority or acted in a manner that having regard to its unreasonableness, irrationality or unfairness cannot be accorded the sanction of legality in view of articles 23 and 296 of the constitution. We do not agree with the contention pressed on us by the first defendant that the 1992 Constitution ‘forbids any control or direction of the 1st defendant as to how to accomplish its work.’ Plainly, the said statement is erroneous as article 46 itself recognises that its independence may be derogated from either in the Constitution or by any other law… There is also the point that as a creature of article 43, the Electoral Commission is subject to the Constitution; to deny that it is so subject is to misconstrue the nature of the independence bestowed on it in relation to our exclusive jurisdiction, which is critical to effectuating the supremacy of the law’ [emphasis added.]

2.31 In his concurring opinion, Bennin JSC repeated at page 51 of the report that in the absence of evidence of breaches

…the court has no power to compel or even to direct the first defendant as to how to exercise its constitutional mandate… As long as the process they have chosen… is authorised by the law or regulations, they cannot be faulted, even if it is considered that a more efficient mode exists.

2.32 Your Lordships also examined the scope of article 295(8) of the 1992 Constitution as it relates to Constitutionally-Established Independent Bodies in Ghana Bar Association v Attorney-General [1995-96] 1 GLR 598. At page 622-623 of the report, Charles Hayfron-Benjamin JSC said:

I understand the meaning of article 295(8) of the Constitution, 1992 to be that where a person or authority is not, by the provisions of this Constitution, 1992 or any other law, subject to the direction or control of any person or authority in the performance of his duties or functions, the court is not precluded from examining the correctness or otherwise of the exercise of such duties or functions. I can readily call to mind article 225 of the Constitution, 1992 on the Commission on Human Rights and Administrative Justice and article 46 of the Constitution, 1992 on the Electoral Commission.

2.33 At page 640-641 of the report, Kpegah JSC said:

In analysing the language of article 295(8) of the Constitution, 1992, I have no doubt in my mind that the said clause is reiterating the courts’ power to review administrative actions, rather than giving the Judiciary sweeping powers to wander to the domain of other branches of government to scrutinise matters specifically committed to them.

For example, article 172 of the Constitution, 1992 guarantees the independence of the National Media Commission…

Article 295(8) of the Constitution, 1992 makes it possible for a person adversely affected by a decision of the Media Commission to appeal to the courts for a review on any of the known grounds, such as excess of jurisdiction, non-compliance with the rules of natural justice, etc.

2.34 Your Lordships reemphasised that Constitutionally-Established Independent Bodies are still amenable to the courts on account of article 295(8) in Amidu v President Kufuor & Others [2001-2002] SCGLR 86, where Acquah JSC (as he then was) said at pages 100 of the report that:

Under the 1992 Constitution if even the body in question is independent from any other authority, the Courts can still assume jurisdiction in disputes alleging that that institution is acting in violation of the Constitution because [of] article 295(8).

2.35 Your Lordships held that the Lands Commission (as a Constitutionally-Established Independent Body), is subject to the jurisdiction of the Court if it acts in breach of article 23 or article 296 of the Constitution in Okudzeto Ablakwa (No 2) & Another v Attorney-General & Obetsebi-Lamptey (No 2) [2012] 2 SCGLR 843, where Brobbey JSC said at page 884 of the Report:

…there is no doubt that the Lands Commission has the discretion in the management of public lands. How that discretion is to be exercised is not spelt out in the 1992 Constitution or any other law. Being a public body, its exercise of discretion should comply with the provisions of the Constitution. It has been argued on behalf of the plaintiffs that the way in which the Lands Commission exercised its discretion to grant the property to the second defendant contravened articles 23 and 296 of the 1992 Constitution… In the absence of concrete evidence of arbitrariness, bias, prejudice, capriciousness and personal dislike or breach of due process of the law, it is not right for the court to use article 296 to direct the Lands Commission on the use to which it should put public lands. Care should be taken not to use article 296 to stifle or subvert the independence or autonomy of state institutions which operate by the use of the knowledge of technocrats or experts.

2.36 Also, Your Lordships repeated that Constitutionally-Established Independent Bodies being ‘subject to no direction or control of anybody,’ would not stop the Courts from inquiring into what they do, under article 295(8), in J H Mensah v Attorney-General [1996-97] SCGLR 320 at 368 (Mensah v Attorney-General [1997-98] 1 GLR 227 at 277-278), where Acquah JSC (as he then was) said:

…if by the political question doctrine, it is meant that where the Constitution allocates power or function to an authority, and that authority exercises that power or function within the parameters of that provision and the Constitution as a whole, a court has no jurisdiction to interfere with the exercise of that function, then I entirely agree that the doctrine applies in our Constitutional jurisprudence. For this is what is implied in the concept of the separation of powers. But if by the doctrine, it is meant that even where the authority exercises that power in violation of that constitutional provision, a court has no jurisdiction to interfere because it is the Constitution which allocated that power to that authority, then I emphatically disagree.

For two reasons: First, articles 2(1) and 130(1) of the 1992 Constitution empower this Supreme Court to declare null and void not only any enactment but also any act of omission of any person which is inconsistent or in contravention of the Constitution, Secondly, if even the power or function is entrusted exclusively to an authority … and in the exercise that function the authority is subject to no direction or control of anybody, article 295(8) of the 1992 Constitution still empowers the Ghanaian Courts to enquire into whether that authority is exercising that function in accordance with the Constitution’ [emphasis added.]

2.37 However, possibly going against the grain of these decisions that upheld the absolute independence of the Constitutionally-Established Independent Bodies, subject only to the Constitution and constitutionally-compliant laws, is Amegatcher v Attorney-General (No 2) (supra), where this Honourable Court was called upon to determine the constitutionality of section 1(3) of the erstwhile Local Government Act, 1993 (Act 462), which provided that the President could ‘direct’ the Electoral Commission to make recommendations relating to the review of the local government areas of authority. Speaking per Date-Bah JSC in the lead judgment at page 959 of the report, this Honourable Court appeared to hold that the Electoral Commission’s independence under article 46 was limited to ‘electoral matters,’ and that on ‘non-electoral matters, there could be scope for direction provided for by statute, so long as such direction does not reduce or imperil the efficacy of the Electoral Commission in the discharge of its electoral responsibilities.’ This direction, according to the court would not impair the EC’s performance of its electoral responsibilities, but would improve the quality of the President’s decisions on the matter.

2.38 Your Lordships, the concurring opinion of Atuguba JSC, particularly at page 973 of the report, is very instructive in understanding the full import of the Court’s decision and putting it in perspective. He explained that the functions of the Electoral Commission under the relevant sections of the erstwhile Local Government Act were ‘merely conferred by the President on the Commission.’ He therefore did not think that they amounted to the president controlling the Commission, because the Electoral Commission ‘is entirely free as to the kind of recommendations it is to make to the President. The Commission’s independence is thereby wholly preserved and should be applauded.’

2.39 Therefore, and in the main, the authorities are unanimous that the insulation of Constitutionally-Established Independent Bodies in the performance of their functions, would be jealously protected, respected and upheld as long as they worked within the bounds or remit of the Constitution. However, if they fall foul of the Constitution or the law, the courts would step in to remedy the situation. Amegatcher v Attorney-General (No 2) (supra), we respectfully posit, did not seek to alter this position of the law.

2.40 Thus, Constitutionally-Established Independent Bodies are subject to the Constitution and other laws that are not inconsistent with the Constitution. As long as the Constitutionally-Established Independent Body is working within the Constitution and other constitutionally-compliant laws, it is completely, absolutely and fully insulated from any other person or authority, including the Courts. Where the Constitutionally-Established Independent Body falls foul of the Constitution or constitutionally-compliant law, it is only the Courts that have the power, once their jurisdiction is appropriately invoked, to take remedial action under the relevant and applicable articles of the Constitution.

2.41 Respectfully, Your Lordships would notice that in the pursuant and relevant Acts of Parliament passed with respect to each of the Constitutionally-Established Independent Bodies, Parliament has repeated those independence-investing words. They are the following and as follows:

(i) Commission on Human Rights and Administrative Justice Act, 1993 (Act 456), section 6:
Except as provided by the Constitution or by any other law not inconsistent with the Constitution, the Commission and the Commissioners shall, in the performance of their functions not be subject to the direction or control of any person or authority;’

(ii) Electoral Commission Act, 1993 (Act 451), section 3:
Except as provided in the Constitution or in any other law not inconsistent with the Constitution, in the performance of its functions, the Electoral Commission shall not be subject to the direction or control of any person or authority;’

(iii) National Commission for Civic Education Act, 1993 (Act 452), section 3:
Except as otherwise provided in the Constitution or in any other law which is not inconsistent with the Constitution, the Commission shall not be subject to the direction or control of any person or authority in the performance of its functions;’

(iv) National Media Commission Act, 1993 (Act 449), section 3:
Except as otherwise provided in the Constitution or by any other law not inconsistent with the Constitution, the Commission shall not be subject to the direction or control of any person or authority in the performance of its functions;’

(v) Lands Commission Act, 2008 (Act 767), section 6:
Except as otherwise provided in the Constitution or in any other law the Commission shall not be subject to the direction or control of any person or authority, in the performance of its functions;’ and

(vi) Audit Service Act, section 18(1)(a):
In the performance of his functions under this Act or any other law the Auditor-General… shall not be subject to the direction or control of any other person or authority.

2.42 Your Lordships, it may be argued that these provisions are technically superfluous and unnecessarily repetitive because the Constitution has already applied those words to the relevant institutions. However, the significance of their repetition or re-enactment in each of the relevant statutes, is that Parliament wanted to emphasise the independence that those persons or authorities are supposed to have, both under the Constitution and under statute.

2.43 And this is also instructive because in October 1992, a few months before the coming into force of this Constitution, the High Court in Bilson v Rawlings [1993-94] 2 GLR 413 had the first reported opportunity to interpret and apply the words ‘in the performance of its functions, the Commission shall not be subject to the direction or control of any person or authority,’ appearing in section 4 of the erstwhile Interim National Electoral Commission Law, 1991 (PNDCL 271). Essilfie-Bondzie J (as he then was) said:

This provision explicitly gives [the Interim National Electoral Commission] complete independence from government interference in its duties’ [emphasis added.]

2.44 These words of the High Court probably set the tone and blazed the path of the contemporary and post-1992 ringing and unmistakable judicial endorsement of the independence of the Electoral Commission and all other Constitutionally-Established Independent Bodies. And, this independence has its roots deeply embedded in our constitutional history as captured in our past and present Constitutions and the words of their Framers, and it is to these that we now turn.


3. CONSTITUTIONAL HISTORY

3.1 Under this sub-heading, we propose to trace and track the historical evolution of Constitutionally-Established Independent Bodies, through our Constitutions and relevant Reports of Constitutional Commissions. With respect, the historical context is important because it provides the basis of the contemporary roles and current relevance of the Constitutionally-Established Independent Bodies. As an important part of our constitutional progress, this constitutional history shows the social and political conditions that led to the creation of these Constitutionally-Established Independent Bodies, the powers vested in them, and why independence was granted to them in the first place. These details, we humbly suggest, might assist this Honourable Court’s analyses of the provisions in the current Constitution and pronouncement on how they are to apply to our contemporary situation.

3.2 The Reports of the Constitutional Commissions, much like the ‘Federal Papers’ of the United States, also explain the philosophy behind the various Constitutions, shed a lot of light on what the Framers meant or intended when they established and then conferred independence on the Constitutionally-Established Independent Bodies, and what the nature of that independence was meant to be. As Your Lordships pointed out in GIBA v Attorney-General (supra) the purpose and intent of the Framers is shown through the context in which the words are used. In this instance, in the various Constitutional Commission Reports, the Framers themselves stated the purpose and intent behind the words they used; and where these exist, we will examine them in detail.

Gold Coast Constitution (1954)

Supreme Court Judges & Auditor-General

3.3 Under article 60 the Gold Coast (Constitution) Order-In-Council, 1954 (LN 164) (‘1954 Constitution’), the Governor appointed Supreme Court Judges after consultation with the Judicial Service Commission. However the Governor could not remove a Judge of the Supreme Court except with the approval of a minimum of two-thirds of the members of the National Assembly, and only on ‘the ground of misbehaviour or of infirmity of body or mind.’

3.4 Further, the Judges’ salaries determined by the National Assembly, were a charge on the ‘general revenue and assets of the Gold Coast,’ and could ‘not be diminished during their terms of office.’

3.5 Article 61 made the same provision for the Auditor-General. Although he was appointed by the Governor after consultation with the Prime Minister, he also could not be removed except with the approval of two-thirds of members of the National Assembly and also ‘on the ground of misbehaviour or of infirmity of body or mind.’ Also, the National Assembly determined his salary, which was also charged ‘on the general revenue and assets of the Gold Coast,’ and could ‘not be diminished during his term of office.’

3.6 It is obvious from these provisions that even in the pre-independence era, attempts were made to insulate Supreme Court Judges and the Auditor-General from political interference especially removal from office upon the whim of the political executive, and financial interference in the form of executive control over their salaries.

Independence Constitution (1957)

3.7 The 1956 Constitutional Proposals for Gold Coast Independence proposed to maintain the insulation of judges from being removed for political reasons. It stated as follows:

‘The new Constitution should provide that any Judge would be liable to removal on an address of Parliament carried by not less than two-thirds of the members present and voting praying for his removal on the ground of misbehaviour or of infirmity of body or mind.’

Supreme Court Judges & Auditor-General

3.8 The 1957 Constitution, when it was passed, continued to afford the same degree of independence and protection to just two public offices, namely Supreme Court Judges and the Auditor-General.

3.9 Under articles 54(2) and 61(1) of the 1957 Constitution, Supreme Court Judges and the Auditor-General, respectively, were appointed by the Governor-General, upon the advice of the Prime Minister. However, unlike all other public officers who could simply be removed from office by the Governor-General upon the advice of the Public Services Commission under article 51(1) of that Constitution, the Constitution provided basic political independence to judges of the Supreme Court and the Auditor-General. That protection was that they could not be removed from office except by the exceptionally elaborate procedure, namely (i) by the Governor-General (not the Prime Minister), (ii) with the vote of a minimum of two-thirds of all MPs, and (iii) only on grounds of either stated misbehaviour or physical or mental ill-health.

3.10 Thus, articles 54(3) (on Supreme Court judges) and 61(1) (on the Auditor-General) were nearly verbatim in providing that they

…shall not be removed [removable] except by the Governor-General on an address of the [National] Assembly carried by not less than two-thirds of the Members thereof, praying for his removal [from office] on the ground of stated misbehaviour or of infirmity of body or mind.

3.11 Further, by articles 54(3) and 61(4), the Constitution continued to afford the two offices financial independence by (i) charging their salaries on the Consolidated Fund, and (ii) providing that that could not be varied to their disadvantage while in office.

3.12 Clearly, right from the Gold Coast into independence, the Framers of the Constitutions felt the need to grant independence to these two selected public offices, because that independence would be required for them to effectively and efficiently carry out the specific, unique and important duties imposed on them. The Framers, we respectfully point out, understood that those offices would necessarily be engaged in activities that the other branches of Government might simply not like. The Framers knew that a possible consequence of this would be the desire by Governments to seek to control and direct them through the threat of removing ‘offending’ officers from office and replacing them with more malleable and pliable people.

3.13 It is obvious that the first candidate for and beneficiary of even this limited independence would be the Judiciary (especially Supreme Court Judges), because it is their inherent duty to dispense justice without fear or favour. However, the Framers also recognised that the office charged with the auditing function would require the same level of independence as the highest judges of the land. That is why they invested the Auditor-General with the same level of independence as what they invested in Supreme Court Judges. Respectfully, we will seek to point out that regarding independence, the Judiciary and the Auditor-General have been ‘joined at the hip’ since the 1954 and 1957 Constitutions, and that this underlying principle of protecting them from Government control and interference has been strengthened and continued to date.

First Republican Constitution (1960)

Chief Justice, Supreme Court Judges & Auditor-General

3.14 Under articles 44(1) and 45(1) of the 1960 Constitution, respectively, the Chief Justice and Supreme Court Judges were appointed by the President. And under article 38(1), the President appointed the Auditor-General.

3.15 However, just as under the 1954 and 1957 Constitutions, Supreme Court Judges and the Auditor-General were insulated from the President’s power under article 51(2) of the 1960 Constitution to dismiss public officers. Thus, under both article 38(1) and article 45(3), the Auditor-General and Supreme Court judges, respectively, could only be removed by the President

‘…in pursuance of a resolution of the National Assembly supported by the votes of at least [not less than] two-thirds of the total number of Members of Parliament and passed on the ground of stated misbehaviour or of infirmity of body or mind.’

3.16 Further, under article 38(4) and 46(1) and (3) of that Constitution, the occupants of the offices had financial independence where their salaries
(i) were determined by the National Assembly (not the President),
(ii) were charged on the Consolidated Fund, and
(iii) could not to be diminished while they were in office.

3.17 Thus, Judges and the Auditor-General were the only public officers who enjoyed this level of independence under the 1954, 1957 and 1960 Constitutions, and they have moved in tandem since then. But as the analysis will show, this was just the start. In subsequent Constitutions, the independence of the two, and of other persons or authorities, would become much more strengthened than it was under the 1954, 1957 and 1960 Constitutions. Indeed, but for a brief blip and reversal in 1972 (which was itself retroactively reversed within three months), the strengthened independence of the Judiciary and the Auditor-General has more than five undisturbed decades of constitutional and legislative history in Ghana.

Second Republican Constitution (1969)

Auditor-General

3.18 Notwithstanding the constitutional independence given to the Auditor-General in the1954, 1957 and 1960 Constitutions, the 1968 Akufo-Addo Constitution Commission was quite scathing in its criticism of how that independence was undermined in practice after Ghana gained independence. In paragraph 592 of the 1968 Constitutional Commission Report, the Commission stated that the independence was ‘only in theory,’ as it was ‘occasionally usurped through political interference and official control exercised by the Establishment Secretariat and the Ministry of Finance, particularly, in the establishment matters.’

3.19 Paragraph 593 of the Report records that although a practice had emerged under which the Auditor-General’s reports were submitted to Parliament for discussion by the Public Accounts Committee, chaired by a member of the then opposition, with the advent of the one-party state, the chair and members of the Committee became exclusively Government members. As a result, public interest in the Auditor-General’s reports waned, and ‘nor was there any effective follow-up action on the reports in the absence of an Opposition Party in the National Assembly.’ To compound matters, the then Government used ad hoc auditing of certain organisations ‘as an instrument of saving the reputation of the political party then in power.’ District Commissioners also routinely interfered in local authority audits.

3.20 The 1968 Constitutional Commission therefore actively sought ways to grant a deeper, stronger and more meaningful insulation to both the Auditor-General and the Audit Service (that was to replace the soon to be erstwhile Auditor-General’s Department) from Government control. It therefore proposed to carve the Audit Service out of the Department and give it a Board with specified powers, the key of which was for the Board, instead of the Government, to appoint staff of the new Service. In paragraph 603, the Report clarified this proposal as follows:

The Audit Service Board should be responsible for the appointments, subject to the approval of the President but in consultation with the Public Services Commission, of officers in the Audit Service other than the Auditor-General himself’ [emphases added.]

3.21 It would appear from the above, that unlike other boards that are established to be governing bodies of other institutions (for instance in companies and statutory corporations or bodies), the Board of the new service was to have specified powers only: to appoint staff of the Service and determine their terms and conditions of service. These had been powers exercised by the President under the 1960 Constitution.

3.22 When the 1969 Constitution was enacted, article 137 provided for an Audit Service Board with power to appoint the staff of the Audit Service, and provide, by a constitutional instrument for the terms and conditions of service of the staff and regulations for the ‘effective and efficient administration of the Audit Service’. The article stated in part as follows:

(1) There shall be an Audit Service Board which shall consist of a chairman and four other members all of whom shall be appointed by the President, acting in consultation with the Council of State; the Auditor-General and the Head of the Civil Service or his representative shall be ex officio members of the Audit Service Board.

(2) The appointment of officers and other employees in the Audit Service, other than the Auditor-General, shall be made with the approval of the President, by the Audit Service Board acting in consultation with the Public Services Commission.

(4) The Audit Service Board shall, acting, in consultation with the Public Services Commission, and with the prior approval of the President, make Regulations by constitutional instrument prescribing the terms and conditions of service of officers and other employees in the Audit Service and generally for the effective and efficient administration of the Audit Service.

3.23 It is instructive that outside these specific powers, the Audit Service Board was given no other functions or powers relating to the governance of the Audit Service and its day-to-day running.

3.24 The 1968 Constitutional Commission was even more emphatic in proposing the complete insulation of the Auditor-General from any kind of external control. In paragraph 599, the Commission said:

We think that the drawback suffered by the Auditor-General in not being able to deal effectively with people having management of public funds should be done away with and that his hands should be strengthened for the purposes of audit. We therefore propose that the Auditor-General should not be subject to the control or direction of any person or authority, and the only interference that we consider legitimate will be a power for the President, acting in accordance with law and on the advice of the Prime Minister to request the Auditor-General, in the public interest, to audit at any time the accounts of any person or organisation to which we have already referred’ [emphasis added.]

3.25 On the basis of this proposal, although article 48(a) of the 1969 Constitution provided that it was the ceremonial President (not the Prime Minister) appointed the Auditor-General in consultation with the Public Services Commission, article 135(6)(a) provided for the first time in our constitutional history as follows:

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.

3.26 The Commission proposed further and strengthened political and financial protections for the Auditor-General. After proposing a more stringent procedure for removing superior court judges that was under the 1954, 1957 and 1960 Constitutions, and which became article 116 of the 1969 Constitution, the Commission proposed in paragraph 601 of the Report as follows:

These proposals to make the Auditor-General, as he should be, an important link in the chain of financial control in this country. He should therefore be a person who should have freedom of mind and tenure of office normally granted to a judge, that is, he can only be removed from office like a judge of a superior court of record. We also propose that the salary and allowances of the Auditor-General should be a charge upon the Consolidated Fund, so also would be the salary and allowances payable to members of his administrative staff, including the gratuities and pensions…’ [emphasis added.]

3.27 Thus, under article 135(12), the Auditor-General could only be removed by the same procedure for removing superior court judges under article 116.

3.28 In addition to the strengthened political independence for the Auditor-General, the Constitution also provided strengthened financial independence. Thus, although under article 52 the Auditor-General’s salary was determined by the President, this was to be based ‘on the recommendations of a committee appointed in that behalf by the President acting in consultation with the Council of state.’ This provision was also to apply to specific offices, namely judges of the superior courts, the Electoral Commissioner, members of the Public Services Commission and the then newly-created office of the Ombudsman. Further, article 135(12) prohibited varying the Auditor-General’s salary and all benefits ‘to his disadvantage during his tenure of office.’

3.29 The effect of these provisions was that the 1969 Constitution gave the Auditor-General political and financial independence that was substantially more enhanced than was offered or available under the 1954, 1957 and 1960 Constitutions. What is also instructive is that this was the same level of ‘complete independence’ that that Constitution carved out for the Judiciary. With specific reference to the Judiciary, this is what the Report of the 1968 Constitutional Commission said at paragraph 539:

‘We have stated earlier that to ensure the complete independence of the Judiciary it is not enough that the Executive does not interfere with the actual adjudicating functions of the Judiciary, but that, and this is just as vital, the Executive shall not interfere in the administrative processes of the Judiciary, and we propose that in the exercise of the Judicial power of Ghana the Judiciary, in both its judicial and administrative functions, shall be subject only to this Constitution and shall not be subject to the control and direction of any other person or authority’ [emphasis added.]

3.30 Thus, article 102(3) said

In the exercise of the judicial power of Ghana the Judiciary in both its judicial and administrative functions shall be subject only to this Constitution and shall not be subject to the control or direction of any other person or authority.

3.31 Admittedly, the formulation of the independence clause for the Judiciary was in slightly more elaborate words than the formulation for the Auditor-General, and this has continued to date. However, our respectful view is that the more elaborate formulation for the Judiciary only disaggregates the meaning of ‘independence’ to emphasise its multiple parts. It does not redefine independence as it pertains to the Judiciary. Both formulations amount to the same level of independence. In short, both the Judiciary and the Auditor-General were given the same, enhanced political, financial and administrative independence under the 1969 Constitution, and the ‘complete independence’ that the 1968 Constitutional Commission spoke about, applied to both the Judiciary and the Auditor-General.

3.32 Our respectful view, from the foregoing is that the Framers of that Constitution did not intend that by the more elaborate words in article 102(3), to give to the Auditor-General an inferior level of political and administrative independence, and thereby subject that office to any other person on any other matter, save as was expressly provided under that Constitution. And this is obvious when one considers some of the other persons or authorities to which this political independence language was applied.

Electoral Commissioner

3.33 The 1969 Constitution also gave the same level of independence to the Electoral Commissioner, by providing in article 30(6) that ‘in the performance of any of his functions the Electoral Commissioner shall be subject only to this Constitution and shall not be subject to the direction or control of any other person or authority.’ The 1968 Constitutional Commission stated at paragraph 284(a) of the 1968 Report, its preference for an

…Electoral Commissioner whose manner of appointment and control shall be independent of the Executive, with a judicial tenure of office and to surround him with all the paraphernalia of a judge including the provision of his own staff and conditions of service.

3.34 In paragraph 285, the Constitutional Commission added:

To afford the Electoral Commissioner independence of the Executive, he shall be appointed by the President in consultation with the Council of State. The Electoral Commissioner should enjoy the status of a Justice of the Court of Appeal. He should be provided with a staff of his own independent of the administration, and all the administrative expenses of the Commission including the salaries, allowances and pension shall be a charge upon the Consolidated Fund.

Public Services Commission

3.35 The 1969 Constitution also extended this political and administrative independence to the Public Services Commission. The 1968 Constitutional Commission, after recounting a litany of ails that the Commission had previously suffered, including ‘persistent assault on [its] independence,’ perversion ‘through political indoctrination and regimentation,’ and ‘intimidation, threats of victimisation and unwarranted interference, thus seriously undermining the discipline, integrity and morale,’ stated the need to invest the Commission with ‘the requisite degree of independence’ to do its work. It stated at paragraph 617 of the Report as follows:

‘We consider that the absolute independence of the Public Services Commission is a vital precondition of the independent and efficient functioning of the Public Services’ [emphasis added.]

3.36 This ‘absolute independence,’ which the Framers determined was ‘the requisite degree of independence required’ was captured in article 140(7) of the 1969 Constitution as follows:

Save as otherwise provided in this Constitution, the Public Services Commission shall not be subject to the control or direction of any other person or authority in the performance of its functions under this Constitution or any other law.

3.37 Therefore, the 1969 Constitution, in addition to the Judiciary (article 102(3)), and by the words ‘shall not be subject to the control or direction of any other person or authority’ conferred independence on three other persons or authorities, namely the Electoral Commissioner (article 30(6)), the Auditor-General (article 135(6)(a)), and the Public Services Commission (article 139(7)). By these words, the Constitution, in the words of the Constitutional Commission, conferred ‘complete’ or ‘absolute’ independence, ie both political and administrative independence. That independence was to be comprehensive and total. There could be no comprehensive effective political independence if the donee of that independence was still subject to the administrative or bureaucratic control of ‘any other person or authority.’

National Redemption Council (1972)

3.38 When the 1969 Constitution was overthrown in 1972, the National Redemption Council moved quickly and retrogressively to reverse the strengthened political independence of the Auditor-General, making it even weaker than existed under the 1954, 1957 and 1960 Constitutions. Section 16(1) & (4) of the National Redemption Council (Establishment) Proclamation, 1972, provided as follows:

(1) There shall be an Auditor-General, who shall be appointed by the Council and who shall not be removable except by the Council upon the recommendation of the Public Services Commission on the ground of stated misbehaviour or infirmity of mind or body.

(4) The salary of the Auditor-General which shall be determined by the Council, is hereby charged on the Consolidated Fund, and shall not be diminished during his term of office.

3.39 However, and thankfully, this retrogressive step was very short-lived. Within three months, on 23 March 1972, the NRC passed the Audit Service Decree, 1972 (NRCD 49), which reinstated the enhanced independence language and the protections under the 1969 Constitution and repealed the offending section 16 of the Proclamation.

3.40 Section 5(2) of NRCD 49 was a near-verbatim reproduction of article 135(12) of the 1969 Constitution, re-instating the financial independence. Section 5(3) retained the removal procedure under article 116 of the 1969 Constitution, while section 9(1) was a near-verbatim reproduction of Article 135(6)(a), thereby re-instating the administrative and political independence. As noted, NRCD 49 itself was given retroactive effect, and under section 17, it ‘deemed to have come into force on the 13 day of January 1971.’ In section 15, NRCD 49 repealed section 16 of the Establishment Proclamation. Thus, NRCD 49 retroactively reinstated the ‘complete’ and ‘absolute’ independence of the Auditor-General, just as had been conferred under the 1969 Constitution, as if it had never been repealed.

3.41 It is instructive that NRCD 49 remained in force for 38 years until it was repealed and replaced in 2000 by the current Audit Service Act, which also maintained the same independence language, based, this time, on the 1992 Constitution. The effect of all these is that once the political, administrative and financial independence of the Auditor-General was statutorily restored by NRCD 49, that ‘complete’ and ‘absolute’ independence remained and survived changes in Governments from 1972 to date.

Third Republican Constitution (1979)

Auditor-General

3.42 The 1978 Mensah Constitutional Commission kept faith with the enhanced provisions of and wording in the 1969 Constitution and NRCD 49 on the independence and protection of the Auditor-General. In Chapter 13 of the 1978 Constitutional Commission Report, titled ‘Finance,’ the Commission stated that it was proposing ‘the re-enactment of most of the provisions of the 1969 Constitution’ relating to the Auditor-General. One objective for this proposal, under paragraph 208 was

…to provide for an effective control of governmental spending with a comprehensive and well-organised system, of accountability.

3.43 In paragraph 210, the Report said:

The essential requirement for… [this] objective, the need to ensure effective financial control and systematic accountability, can be taken care of by the provisions which buttress the independence of the Auditor-General and the Audit Service not only from the Executive and the Legislature themselves, but also from the bureaucratic control of Government Ministries and Departments. This independence, which we consider to be vital for the effective discharge of the important functions of the Audit Service is provided for by the provisions establishing the Service as a separate ‘public service’ under the Audit Service Board.

3.44 With specific reference to the Auditor-General, articles 58(1)(c) and 151(12) of the 1979 Constitution provided the financial independence, while article 151(7)(a) repeated the political and administrative independence provision from the 1969 Constitution and as maintained in NRCD 49.

3.45 Respectfully, to fully appreciate how pervading this independence was expected to be under that Constitution, just like under the 1969 Constitution, one has to consider the use of the same wording to refer to other persons or authorities under that Constitution, and the explanations that the 1978 Constitutional Commission gave in its Report to those provisions. The words of the Framers, that they were also providing to the Auditor-General and Audit-Service ‘independence from bureaucratic control’ is significant. It means that they were allowed to handle their own bureaucracy, their own day-to-day administration, without any other person or authority from outside that institution interfering to direct even the most mundane matters relating to those offices. This independence was absolutely essential if the Auditor-General as going to be able to ‘provide…an effective control of government spending.’

Public Services Commission

3.46 In explaining why article 157(7) provided that the Public Services Commission ‘shall not be subject to the control or direction of any other person or authority,’ the 1978 Constitutional Commission said as follows:

216. We believe that the only way of getting our Public Services back to the required level of dedication and committed efficiency is to buttress their independence by constitutional provisions…

220. But if the Public Services Commission is to provide the required protection for the public services, it stands to reason that it should itself be independent and outside the control of any other authority. Accordingly, we recommend that the Public Services Commission shall not be subject to any other person or authority apart from the Constitution.

Ombudsman

3.47 Just like the 1969 Constitution, the 1979 Constitution provided for the Office of the Ombudsman. However, this time, article113(4) of the 1979 Constitution provided that ‘in the performance of any of his functions the Ombudsman shall be subject only to this Constitution and shall not be subject to the direction or control of any other person or authority.’ The 1978 Constitutional Commission described the extent of that political independence as ‘full independence’ in paragraph 192 of the Report as follows:

We believe that the Ombudsman shall enjoy independence and we, accordingly, propose that in the exercise of his functions, the Ombudsman shall be subject only to the Constitution and not be subject to the direction or control of any other person or authority…. We strongly believe that only an Ombudsman who derives his existence and powers directly from the Constitution and enjoys full independence from the Legislature and the Executive can protect the rights and interest of the citizen with the degree of thoroughness and effectiveness which makes that office necessary and useful in our constitutional system’ [emphases added.]

Press Commission

3.48 In paragraph 291 of its Report, the 1978 Constitutional Commission proposed the establishment of a Press Commission ‘which should be independent of Government.’ Under article 192(3) of the 1979 Constitution, this independence from Government was expressed as follows:

In the performance of any of its functions the Press Commission shall be subject only to this Constitution and shall not be subject to the direction or control of any other person or authority.’

3.49 Therefore, the 1979 Constitution, in addition to the Judiciary (article 114(3)), and by the words ‘shall not be subject to the control or direction of any other person or authority’ extended the number of Constitutionally-Established Independent Bodies from the three under the 1969 Constitution, to six, namely the Electoral Commissioner (article 37(7)), the Ombudsman (article 113(4)), the Auditor-General (article 151(7)(a)), the Public Services Commission (article 156(7)), the Lands Commission (article 189(7)) and the Press Commission (article 192(3)).

Fourth Republican Constitution (1992)

3.50 The 1992 Asante Constitutional Commission, in Chapter 19, Appendix M, at page 318 of its Report, recommended that the provisions in previous Constitutions relating to the independence of the Auditor-General be retained in the 1992 Constitution.

3.51 In addition to the Judiciary, the 1992 Constitution, by the words ‘shall not be subject to the direction or control of any [other] person or authority’ also extends the list of Constitutionally-Established Independent Bodies from the six under the 1979 Constitution, to seven by adding the National Commission on Civic Education (‘NCCE’.) These are the Electoral Commission (article 46), the National Media Commission (article 172 – replacing the Press Commission), the Auditor-General (article 187(7)(a)), the Public Services Commission (article 198), the Commission on Human Rights and Administrative Justice (article 225 – replacing the Ombudsman), the new NCCE (article 234), and the Lands Commission (article 265).

3.52 There is no doubt that following the precedent of the 1969 and 1979 Constitutions, all of these persons or authorities are granted what the 1968 Constitutional Commission called ‘complete independence’ or ‘absolute independence,’ and what the 1978 Constitutional Commission called ‘full independence,’ ‘independence from bureaucratic control’ or ‘independence from Government,’ which apply as long as they have not been held by a court to have breached the Constitution and constitutionally-compliant laws. This is also what Your Lordships speaking by Georgina Wood CJ in Brown v Attorney-General (supra) (under the 1992 Constitution) confirmed and summarised as ‘independence – political, administrative and financial’ and insulation ‘against all forms of external pressures.’

3.53 It is also critical to point out that under article 172(2) of the 1969 Constitution, article 213(2) & (3) of the 1979 Constitution, and article 295(2) & (3) of the 1992 Constitution, Justices of the Superior Courts and the Auditor-General are completely protected against and excluded from the power of the person who appointed them, to require them to retire from the public services.


4. SEPARATION OF POWERS

4.1 In this section we will seek to show that certainly since the 1969 Constitution, Ghana’s constitutional jurisprudence has evolved from recognising just a tripartite system of Government (the Executive, Legislature and Judiciary) into recognising a genre of ‘persons or authorities’ that the Constitutions do not place under any of the three branches of Government. These ‘persons or authorities’ are composed mostly by watchdog bodies and the elections monitor. Although the occupants of those office may be appointed by the President, they are not subservient to the President or any other person or authority, but are subject only to the Constitution and constitutionally compliant laws. That is why the Constitution repeatedly provides that such offices and officers are ‘not subject to the direction or control of any person or authority,’ not even the President. Our view, respectfully, is that they are thereby afforded the necessary absolute, complete or full independence and protection from especially the Executive and Legislature.

4.2 Your Lordships, our successive Constitutions have repeatedly vested in the Executive branch, some of the most immense powers in any democracy on earth. Currently, the President is the repository and embodiment of Executive power and authority, and gets to appoint almost every significant actor in the public service. And by the decision of this Honourable Court in Ghana Bar Association, Amegatcher, Amenuvor & Beecham v Attorney-General & Judicial Council; Sky v Attorney-General; Danso-Acheampong v Attorney-General (Consolidated) [2016-2016] 2 SCGLR 872, even where the Constitution provides that the President, in making certain appointments shall act on ‘the advice’ of a designated entity, and/or consult with another designated entity, and then obtain Parliament’s approval of Parliament, any advice so rendered is merely an opinion and not binding on the President.

4.3 Yet, while the President may have immense and wide-ranging powers in the Executive sphere, what the Framers of our successive post-1960 Constitutions have sought to do, is to put certain safeguards or checks and balances in place that would restrain the exercise of those powers and prevent Executive overreach and turf creep. Absent such safeguards or checks and balances, the Constitution would leave Ghana with the oxymoron or contradiction of a democratic, constitutional dictatorship.

4.4 It is trite that one way in which the Constitution checks power is through separation of powers. But since 1969, Ghana’s Constitutions have set a further example that has been followed by the constitutions of other commonwealth countries by going further afield, and investing power beyond the traditional three branches of Government. From the number three created by the 1969 Constitution, through six in the 1979 Constitution, the 1992 Constitution has created as many as seven Constitutionally-Established Independent Bodies. To these persons or authorities, all of these Constitutions have applied essentially the same language that affords independence and protection to the Judiciary. In all of these cases, although the President may make appointments, the architecture of the Constitution, through the use of the words ‘shall not be subject to the direction or control of any person or authority’ absolutely, completely and fully insulates those Bodies from not only the Executive and Legislature, but from every other person or authority, except the Courts under specified circumstances.

4.5 Thus, except as provided by the Constitution, no other person or authority, has political, executive, administrative (including disciplinary), or financial control or power over those offices and officers. Therefore, for example, we would say that the implied power of appointed to exercise control and disciplinary power over appointees, under article 297(a) of the Constitution, does not apply in the case of these Constitutionally-Established Independent Bodies. It is trite that implied powers are given under a constitution because they are necessary to the achievement of the functions and powers of a constitutional body. However, where a body is expressly denied the power to do a thing under the Constitution (for instance in not having the power to direct or control another), that first body cannot be said to have any related implied powers. Simply, where there is no express power, there cannot be an implied power. Respectfully, a contrary reading of article 297(a) would render nugatory the very essence of the independence and separate constitutional sphere conferred on these institutions, including the Judiciary.

4.6 Yet, your Lordships, as we have stated above, the Constitution did not seek to constitute those Constitutionally-Established Independent Bodies into unrestrained demi-gods. It therefore subjects them and their operations appropriately to the Constitution itself and constitutionally-compliant law, by providing specific, limited instances where the courts may call them to order, such as under articles 23, 33, 187(9), 295(8) and 296 of the Constitution. As noted above, the most graphic of these is article 295(8), under which the absolute, complete or full independence applies only where the person or authority is acting within the Constitution and the law. Thus, where the person or authority breaches either the Constitution or the law, that person or authority would be subject to the corrective powers of the courts. Article 295(8) says:

No provision of this Constitution or of any other law to the effect that a person or authority shall not be subject to the direction or control of any other person or authority in the performance of any functions under this Constitution or that law, shall preclude a court from exercising jurisdiction in relation to any question whether the person or authority has performed those functions in accordance with this Constitution or the law.

4.7 It is within this context that even this Honourable Court, being the apex court of the land, has repeatedly shown restraint and not interfered in the internal operations of Constitutionally-Established Independent Bodies, except where there is evidence of a breach of the Constitution or the law. This is clear in the relatively long line of authorities discussed earlier in this Amicus Curiae Brief, the most recent being National Democratic Congress v Attorney-General & Electoral Commission; Mark Takyi Banson v Electoral Commission & Attorney-General (Consolidated) [unreported; Consolidated Writs Nos J1/9/2020 & J1/12/2020, 25 June 2020].

4.8 This constitutional architecture that restrains even the highest court of the land from giving directions to or exercising control over Constitutionally-Established Independent Bodies, in the absence of any evidence of unconstitutionality or illegality, is deliberately and delicately constructed. Constitutionally-Established Independent Bodies are expected to counter-balance and check the power of, and stand up to, all other persons or authorities, if need be. Accordingly, our Constitution, while recognising the traditional three branches of power, carves out and ring fences certain functions (several of which might have been performed by the Executive), vests them in these Constitutionally-Established Independent Bodies, and then insulates them from any control, except that of the Constitution itself or any constitutionally-compliant law.

4.9 By this, the Constitution, within the context of separation of powers anticipates and expects ‘healthy tension,’ not only between the traditional three branches of Government, but also with the Constitutionally-Established Independent Bodies. In this way the Constitution protects the Bodies from the whims and caprices of any other person or authority, in the expectation that out of that ‘healthy equilibrium of tension,’ Ghanaians would be protected and those Bodies will do the important work that the Constitution has tasked them to do. In Nixon v Sirica 487 F 2d 700 (1973), the US Supreme Court famously said:

The Founding Fathers were not looking for the most efficient government design. After all, they had been subject to and rebelled against one of the most efficient governments then existing. What the Founding Fathers designed was not efficiency, but protection against oppression. Leaving the three Branches in an equilibrium of tension was just one of their devices to guard against oppression’ [emphases added.]

4.10 This dictum reflected the earlier statement by the same court in Myers v United States 272 US 52 (1926) that:

The doctrine of the separation of powers was adopted…not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but by means of the inevitable friction incident to the distribution of the governmental powers… to save the people from autocracy’ [emphasis added.]

4.11 Yet Justice Jackson of the US Supreme Court clarified in Youngstown Sheet & Tube Co v Sawyer 343 US 579 (1952) at 635 that:

While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches, separateness but interdependence, autonomy but reciprocity.

4.12 In Ghana, the principles enunciated in these cases are relevant and critical to hold an otherwise super-powerful Executive in check. Thus, although the occupants of offices in the Constitutionally-Established Independent Bodies are public officers appointed by the Executive, the appointing authority and/or any others shall not direct and control them and the Bodies in any manner whatsoever.

4.13 In Amegatcher v Attorney-General (No 1) (supra), this Honourable Court, speaking by Date-Bah JSC at page 686 of the Report, recognised the independence of the Constitutionally-Established Independent Bodies within the context of checks and balances as follows:

Another fundamental principle is that of checks and balances, according to which certain bodies created by the Constitution are given relative autonomy to enable them to maintain oversight responsibility over other organs of State. It follows that the Constitution should be so construed as to preserve and not undermine these fundamental principles.

4.14 This decision is also extremely relevant to this matter because this Honourable Court also held that as a consequence of or upshot to their independence under the Constitution, Constitutionally-Established Independent Bodies could sue and be sued in their name (not in the name of the Attorney-General), and appoint their own lawyers as they are not bound to use the office of the Attorney-General. In a clear departure from the earlier decision of this Honourable Court in Tsikata v Chief Justice & Attorney-General [2001-2002] SCGLR 437, Atuguba JSC held

…the time has come for a realistic revisit of article 88(5) of the 1992 Constitution. Accordingly, we would come down on article 88(5) as follows: All constitutionally-established independent bodies like the Commission on Human Rights and Administrative Justice, the Electoral Commission etc can sue and be sued on their own relating to their functions per counsel of their choice’ [emphasis added.]

4.15 Date-Bah JSC added:

The opinion read by my learned brother, Atuguba JSC, represents a brilliant pragmatic purposive interpretation to reconcile the public interest requirements of the context of article 88(5) with the plain meaning of the provision and I fully agree with it. I only wish to add a few words by way of further explanation of the position that this court has taken.

The plain meaning of article 88(5) is given effect through the interpretation that the presumptive rule is that the Attorney-General is to be the defendant in all civil proceedings against the State. However, there are exceptions to this presumptive rule, necessitated by the core values of the Constitution and the overriding constitutional need to avoid conflicts of interest. The exceptions are meant to buttress the autonomy of the independent organs of the State. There has in fact been the practice of allowing the legal persons referred to popularly as the “constitutional bodies” to be sued in their own name. Thus there are judicial precedents showing that the Commission on Human Rights and Administrative Justice, the Electoral Commission and the National Media Commission may be sued in their own name and not through the Attorney-General. This practice is endorsed and affirmed as being in consonance with the position taken by this Court today. Furthermore, applications may be made in respect of other State organs to this Court in relation to specific cases for leave for these organs to be allowed to sue or be sued in their own name, in order to avoid conflict of interest’ [emphasis added.]

4.16 Your Lordships, thus the deep respect that the Constitution and this Honourable Court have for the concept of separation of powers, applies in equal measure to the relationship between the Constitutionally-Established Independent Bodies, and all other persons or authorities. In Centre for Public Interest Law v Attorney-General [2012] 2 SCGLR 1261 this Honourable Court, speaking through Date-Bah JSC, said at page 1276 of the Report as follows:

What is in the national interest or promotes the interest of Ghana… is justiciable (and is not a matter of mere moral obligation). However, firm evidence has to be produced before this court can legitimately invalidate executive acts as being in breach of such broad norms. This Court would also do well to recognize that it is possible to have a range of legitimate views as to what is in the national interest. In reaching a judgment on such issues, the Court should bear this consideration in mind in making its decisions. In other words, merely because a judge does not consider a particular transaction to be in the national interest, for example, should not result necessarily in its invalidation. The better test would be whether all reasonable observers would reach the same conclusion. The Executive needs to be given some space to try out its political and economic judgment, even if this does not coincide with that of the judges. It is only if the Executive is reaching perverse decisions that the courts ought to intervene. Otherwise, the courts would end up in effect running an aspect of the Executive power, which would be anathema to our system of government which has separation of powers at its root.

4.17 What applies to the Executive applies with equal force to other branches of Government and the Constitutionally-Established Independent Bodies. Thus, the Executive and every other person or authority, including boards answerable to the Executive, ought to give the Constitutionally-Established Independent Bodies space to do their work in the manner they consider proper under the Constitution, even if that does not coincide with how the Executive, etc. might view what they are doing. The prospect of any other person seeking to run or dictate to these Constitutionally-Established Independent Bodies, directly or indirectly, is and should be an anathema, abhorrence or abomination to our constitutional architecture. Unless this is upheld and made very clear to all other persons or authorities, including boards (where they exist), there is the danger of displacing the constitutional arrangement and replacing it with what those other persons or authorities feel or think, concerning the operations and activities of the Constitutionally-Established Independent Bodies. Where the Bodies act out of step with the Constitution or other constitutionally-compliant law, the Courts (and no other persons or authorities except through the Courts) have the judicial power under the Constitution or appropriate law to correct the error.


5. DISTINCT FUNCTIONS: AUDITOR-GENERAL & AUDIT SERVICE BOARD

5.1 The independence of the Auditor-General (as a Constitutionally-Established Independent Body) from every person or authority, including the Executive and the Audit Service Board, is at the very heart of the Auditor-General’s mandate. Apart from the instances where the Constitution authorises the Courts to hold the Auditor-General in check, any system or action that makes an Auditor-General answerable or susceptible to any sort of influence by or interference from any other person or authority is an anathema to our Constitution, we respectfully state.

5.2 The Auditor-General’s functions may be generally summarised as follows:

(i) auditing and reporting on all public accounts of Ghana and all public office (article 187(2)) ;
(ii) approving the form in which all public accounts must be kept (article 187(4) and section 11(3) & (4) of the Audit Service Act);
(iii) conducting special audits (section 16 of the Audit Service Act);
(iv) conducting procurement audits (section 91 of the Public Procurement Act, 2003 (Act 663));
(v) performing specific audits requested by the President upon the advice of the Council of State (article 187(8));
(vi) submitting reports to parliament (article 187(5));
(vii) publishing reports (section 23 of the Audit Service Act);
(viii) administering assets and liabilities declarations (article 286 and the Public Office Holders (Declaration of Assets and Disqualification) Act, 1998 (Act 550)); and
(ix) disallowance and surcharge (article 187(7)(b)).

5.3 It is for the purpose of performing these onerous, all-important and critical functions and exercising these powers that the Constitution deemed it fit to invest the Auditor-General with absolute independence from every other person or authority in the land, so that no one may interfere with what the Auditor-General does. And this independence and autonomy are not limited to the Auditor-General’s auditing and other express functions and powers only, but extends to any other functions and powers that are necessary and incidental to the exercise of these functions and powers.

5.4 Your Lordships, it is not an accident or a coincidence that the Framers of the Constitutions, since 1969, have provided for the independence of the Auditor-General together with his disallowance and surcharge powers. Article 187(7) provides specifically as follows:

In the performance of his functions under this Constitution or any other law the Auditor-General
(a) shall not be subject to the direction or control of any other person or authority;
(b) may disallow any item of expenditure which is contrary to law and surcharge
(i) the amount of any expenditure disallowed upon the person responsible for incurring or authorising the expenditure; or
(ii) any sum which has not been duly brought into account, upon the person by whom the sum ought to have been brought into account; or
(iii) the amount of any loss or deficiency, upon any person by whose negligence or misconduct the loss or deficiency has been incurred.

5.5 These provisions are largely repeated from article 135(6) of the 1969 Constitution and article 151(7) of the 1979 Constitution.

5.6 Our respectful view is that without a firm assurance of an Auditor-General who is ‘absolutely,’ ‘completely,’ and ‘fully’ ‘independent from Government’ and any other ‘bureaucratic control,’ which is provided for under article 187(7)(a), the exercise of the power of disallowance and surcharge under article 187(7)(b), which the Honourable Court has upheld, will never be achieved.

5.7 In the ground-breaking decision in OccupyGhana v Attorney-General, this Honourable Court, speaking unanimously and unmistakably through Dotse JSC, and after an extremely detailed and exhaustive analysis of article 187, held that the word ‘may’ that would usually merely empower and not be imperative or mandatory, would be interpreted as mandatory when it comes to the Auditor-General exercising his disallowance and surcharge functions. Your Lordships said:

…when it comes to the vexed issue of the Disallowance and Surcharge provisions as used in Article 187(7)(b) the operative word is ‘may.’

Taking a cue from the importance of the work that is attached to the office of the Auditor-General and the fact that it is the custodian and protector of the public purse, any derogation of the functions therein specified will defeat the lofty aims and objectives stated in the Preamble to the Constitution and the role and objectives of the work of the Auditor-General.

It is in this respect that we feel the entire provisions of article 187 to 189 on the Auditor-General and the Audit Service must be read as a whole. If that is done, then the intended effect of the work of the Auditor-General which is to ensure that public funds or accounts are handled by safe hands, and that whenever losses of any kind contemplated in article 187(7)(b) occur, those responsible are identified and duly punished. This must be measured against the background of the fact that the practicalisation of the work of the Auditor-General will ensure that there is probity and accountability in the management of state funds. This will no doubt prevent the wanton dissipation of state resources that are meant for specific projects and activities under the Government’s fiscal policies.

This therefore means that there should be no loss to the state or public in the management of state resources.

At this moment, we think judicial notice can be taken of the fact that corruption, abuse of position and embezzlement of public funds among others has become the bane of our governance structures. Reference is made to the various Auditor-General’s Reports attached to these proceedings. It is our opinion that, notice must be taken of the rampant carelessness that is often times employed by those in charge of public funds in most entities.

We believe that the time has come when it is necessary to strengthen the relevant constitutional bodies set up under the Constitution such as the Auditor-General to protect the public purse from persons who intend to embark upon personal economic recovery programmes with the public funds.

We are also of the view that, the Auditor-General is expected to name the persons who commit irregularities etc, under article 187(7)(b) and Section 17 of Act 584 respectively, recover the amounts from them and thereafter those persons be made to face appropriate punishment. That should be the way forward.

We therefore have a duty to ensure that the reports of the Auditor-General into the public accounts of Ghana wherein findings are made in respect of persons who act in authorizing expenditure contrary to law, or have withheld sums of money from the public account or by whose negligence or misconduct losses or deficiencies to public funds has resulted, must be treated in accordance with the Constitution and laws of Ghana, and have an immediate impact.

‘To be or not to be, that is the question,’ reference Shakespeare in Hamlet, Prince of Denmark.

Should this court hold and rule that, because the word ‘may’ has been used in article 187(7)(b) of the Constitution 1992, the Auditor-General’s powers of Surcharge and disallowance are not mandatory and can be exercised at the whims and caprices of the Auditor-General? Are these constitutional obligations discretionary then?

When we put all the learning in the above quotation together, the ‘may’ in article 187(7)(b) of the Constitution 1992, becomes a mandatory may, and no longer permissive. This is to afford us the opportunity to enforce the provisions of article 187(7)(b) which will deepen probity and accountability.

It is to be noted that the times we are in as a nation require that we deepen and institutionalize principles which will uphold proper and decent management and protection of public accounts. The tendency where public accounts are considered as a fattened cow to be milked by all and sundry must stop. Our laws on financial management must therefore be made to work to prevent absurdity in our enforcement regimes of same’ [emphases added.]

5.8 In arriving at this judgment, your Lordships recognised that prior to that, successive occupants of the Auditor-General’s office had literally spurned or fled from exercising this power. Your Lordships found that the:

…resolve to exercise this power… has not only been breached, but there has been stoic silence from the office of the Auditor-General to date.

5.9 We have taken the trouble to quote and highlight these portions of Your Lordships’ judgment in extenso because your orders meant that the Auditor-General would be amenable to your powers of contempt of court, if he fails, refuses or neglects to disallow or surcharge whenever the conditions in article 187(7)(b)(i) to (iii) arise.

5.10 This Honourable Court’s judgment has become a beacon and an exemplar worldwide. Exhibit OG 1 is the World Bank’s 2020 GLOBAL REPORT, titled Enhancing Government Effectiveness and Transparency: The Fight Against Corruption. It speaks in glowing terms about Your Lordships’ judgment and its effect as follows:

JUDICIOUS USE OF DISALLOWANCE AND SURCHARGE POWERS

In 2017, the Supreme Court ruled that the AG be required to exercise its powers of disallowance and surcharge to commence the recovery of public funds that have been found to be illegally spent or lost through negligence or misconduct.[11] These powers enable the AG to disallow any unlawful expenditure and impose a surcharge on the person(s) responsible. Anyone aggrieved by a disallowance or a surcharge can appeal to the High Court as provided for by Article 187(9) of the Constitution within 14 working days of the surcharge. To facilitate the process, particular courts were identified and assigned by the Chief Justice to hear these appeals.

The refusal of previous AGs to exercise the disallowance and surcharge powers had resulted in a loss of almost GHS2.5 billion worth of public funds through ministries, departments, and agencies (MDAs) alone from 2003 to 2014, and GHS5 billion through public boards, corporations, and other statutory institutions between 2009 and 2014. The new AG established a special task force to review all previous Audit Reports to reveal instances where the powers of disallowance and surcharge may be applied to recover lost public funds. Between June 2017 and November 2018, the GAS issued 112 surcharge certificates and returned a total amount of GHS67.3 million (USD12.2 million) back to government coffers. This achievement inspired other African SAIs to pass similar legislation on disallowances and surcharges. In 2019, the GAS stopped publishing special reports on disallowance and surcharge activity, and instead incorporated it in their usual audit reports to Parliament as a step towards establishing it as a fixed and regular part of the audit process.

[11] The decision materialized as a result of an action filed against the government by Occupy Ghana on claims that the powers have never been exercised by the AG. The court ruled that the AG must act on its annual reports, take steps to retrieve any public funds found to have been misappropriated and ensure enforcement of the orders including criminal prosecution where necessary’ [emphases added.]

5.11 This is a ringing and unqualified endorsement of Your Lordship’s decision. However, when your Lordships set the Auditor-General on this bold, historic and unprecedented course that your Lordships aptly declared as ‘the way forward’ (and, respectfully, your Lordships may take judicial notice of the shaking that the exercise of these powers, after your judgment, caused to the financial foundations of this nation), your Lordships also set that office on an expected collision course with its primary auditees, their agents and appointees, and indeed all other persons who are amenable to those powers.

5.12 That must have been what the Framers of the Constitutions foresaw, and must have been why they set out the Auditor-General’s protections, insulation and independence almost as a condition to his exercise of the powers of disallowance and surcharge. Indeed, the Auditor-General’s independence is so engrained in the Constitution that under article 187(8), even the President may (and upon the advice of the Council of State), make only audit ‘requests’ of the Auditor-General.

5.13 Our respectful view is that without that independence being given its true and full meaning and effect, the power to disallow and surcharge (and indeed all the powers of the Auditor-General) would be severely circumscribed and grossly watered down; outright brutum fulmen. It would return the Auditor-General and the entire nation to the pre-1969 state of affairs that the 1968 Constitutional Commission so unambiguously decried and criticised.

5.14 Thus, the complete independence of the Auditor-General from Government and the powers of disallowance and surcharge are not just ‘joined at the hip;’ they share vital organs. They are inseparable, and one cannot realistically exist without the other. The continued rendering of them together in the same paragraph in article 136(6) of the 1969 Constitution, article 151(7) of the 1979 Constitution, article 187(7) of the 1992 Constitution, section 9(1) of the erstwhile NRCD 49 and section 18(1) of the Audit Service Act has not been a sheer coincidence, fluke, happenstance or drafting accident. The Framers and the legislature have been unanimous in conveying the message that those two, (a) the complete independence and (b) the disallowance and surcharge powers, are completely dependent and contingent on each other.

5.15 This Honourable Court appeared to recognise this movement in tandem and collective rendering of article 187(7)(a) and 187(7)(b) in OccupyGhana v Attorney General when Your Lordships cited with approval, the need for the Auditor-General to maintain both independence under the Auditing Standards of the International Organisation of Supreme Auditing Institutions (INTOSAI) and the provisions on surcharge and disallowance, and then spoke of ‘the need to maintain and enforce the provisions in article 187(7)(a) & (b)… and also implement and enforce the provisions on surcharge and disallowance’ [emphasis added.]

5.16 We respectfully need to re-emphasise that article 187(7)(a) provides for the independence of the Auditor-General while article 187(7)(b) provides for the disallowance and surcharge powers. Exhibit OG 1, the 2020 World Bank GLOBAL REPORT recognises several factors that have influenced the Auditor-General’s work including the exercise of the disallowance and surcharge powers. It identifies the first two of those factors as the Auditor-General’s autonomy and personal convictions. The Report says:

Factors behind GAS’s impact

SAIs are not always able to play an effective role in promoting financial integrity. In Ghana, its impact has been aided by several factors:

1. Financial and administrative autonomy: GAS’s financial and administrative independence has been instrumental in allowing it to maintain impartiality, counter corruption effectively, and fulfil its mandate. While most public bodies in Ghana are subject to the supervision of the Ministry of Finance, GAS maintains its operational control, with minimal external interference in decision making or the appointment or removal of staff. In addition, the Parliament is accustomed to providing GAS with the financial resources it requires yearly, as stipulated in the annual budget GAS submits.

2. Personal conviction and knowledge of the AG: Besides a strong mandate, the AG’s personal convictions and deep-rooted knowledge of the legal and constitutional authority of the office have enabled GAS to be effective in the fight against corruption.

5.17 Respectfully, the Auditor-General’s ‘personal conviction’ is completely linked to and based on the strong and unqualified independence that the Constitution guarantees and invests in that office. Without that independence (especially from the Executive and even the Audit Service Board that is almost entirely populated by persons appointed by the Executive), the Auditor-General, rightly and aptly described by this Honourable Court rightly as ‘the custodian and protector of the public purse,’ would be spineless, spiritless, weak and incapable of exercising the disallowance and surcharge and other powers effectively or at all.

5.18 It is remarkable that both this Honourable Court and the World Bank recognised the regrettable state of the office of the Auditor-General prior to Your Lordship’s ground-breaking decision in OccupyGhana v Attorney-General. In Exhibit OG 1, the World Bank speaks of ‘the refusal of previous [Auditors-General] to exercise the disallowance and surcharge powers [that] resulted in a loss of almost GHS2.5 billion worth of public funds.’ Your Lordships’ judgment spoke of the lack of resolve to exercise the powers and the ‘stoic silence’ on this from the Auditor-General. We respectfully state that that deprecated state of affairs was due to the failure of the then Auditors-General to assert the independence that the Constitution gives to them.

5.19 This is what Your Lordships recognised and therefore delivered a judgment that turned the office of the Auditor-General and indeed the entire country on a bold and seminal 180-degree volte-face, a complete reversal of the previous attitude or position. This momentous step is captured in Your Lordships’ words as follows:

Taking a cue from the importance of the work that is attached to the office of the Auditor-General and the fact that it is the custodian and protector of the public purse, any derogation of the functions therein specified will defeat the lofty aims and objectives stated in the Preamble to the Constitution and the role and objectives of the work of the Auditor-General’ [emphasis added.]

5.20 When your Lordships delivered your judgment OccupyGhana v Attorney General on 14 June 2017, the total loss to Ghana from irregularities as stated by the Auditor-General in his report to Parliament on only Ministries, Departments and Other Agencies for 2016 was GH¢2,165,542,368.14. But your judgment appeared to have had an immediate effect on this matter because the total loss to Ghana from irregularities from the same source dropped to GH¢892,396,375.19 for 2017.

5.21 However, and regrettably, as The Report of the Auditor-General on the Public Accounts of Ghana, Ministries, Departments and Other Agencies (MDAs) for the Financial Year Ended 31 December 2019 [Exhibit OG 2] shows, this figure has started to climb up alarmingly. In 2018, the quantum of losses 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.

5.22 It is in the light of these alarming figures that we respectfully posit that what the Auditor-General needs next from this Honourable Court to continue this fight, is the fortification of the total independence of the office from all other persons and authorities, including the Audit Service Board. Without that, the powers of disallowance and surcharge alone would not amount to much or achieve the aims for which the Constitution vested them in the Auditor-General. Humbly, this Honourable Court’s reinforcement of the independence is required to achieve ‘the lofty aims and objectives stated in the Preamble to the Constitution and the role and objectives of the work of the Auditor-General.’

5.23 In your Lordship’s judgment, you were emphatic that the powers of disallowance and surcharge were superior to and more prominent than all other statutory provisions relating to the Auditor-General. Your Lordships said:

What is to be noted is that, all the above requirements and procedures are statutory, based on Acts 584 and 921 respectively as well as the Audit Service Regulations, 2011 respectively. However, the Auditor-General’s powers of surcharge and disallowance are constitutional and therefore have to be on a higher pedestal and given pride of place’ [emphasis added.]

5.24 Our humble position is that as a necessary condition of or companion to the powers of disallowance and surcharge that this Honourable Court has rendered mandatory in your judgment, Your Lordships should uphold the absolute independence of the Auditor-General, subject only to the Constitution, constitutionally-compliant laws and the powers of the Court. That independence is also constitutional, appears in the same paragraph as the disallowance and surcharge powers, has the same ‘higher pedestal and… pride of place’ as the disallowance and surcharge powers, and cannot be affected or in any way circumscribed by any person or authority, or statutory provisions.

5.25 Further, your Lordships were right when you stated in OccupyGhana v Attorney-General that when article 187 (on the Auditor-General), article 188 (on the Audit Service) and article 189 (on the Audit Service Board) are read together, it is the Auditor-General who is the person or authority is entrusted with the work of checking the safe handling of public funds or accounts. Your Lordships said:

…the entire provisions of article 187 to 189 on the Auditor-General and the Audit Service must be read as a whole. If that is done, then the intended effect of the work of the Auditor-General which is to ensure that public funds or accounts are handled by safe hands.

5.26 In arriving at this conclusion, your Lordships were aware of the functions of the Audit Service Board, and yet held that the job of watching over state funds and accounts was that of the Auditor-General, and the Auditor-General alone. It is ironic that the Audit Service Board, which was first conceived of in the 1968 Constitutional Commission Report for the express purpose of further insulating the Auditor-General and its functions from Executive control, has found itself in a tussle with the Auditor-General over the latter’s turf and independence. While friction and tension are expected in every separation of powers situation, our respectful position is that the Constitution clearly distinguishes between the powers and functions of the Auditor-General vis-à-vis the Audit Service Board. However uncomfortable the respective, assigned roles and remits might be to both the Auditor-General and the Audit Service Board, each is duty bound to respect them.

5.27 Your Lordships, even in terms of the hierarchy of articles 187 to 189, it is important to point out that while article 187 is an entrenched provision under article 290(1)(j), articles 188 and 189 are non-entrenched provisions.

5.28 The relationship between the Auditor-General and the Audit Service itself is captured quite succinctly by Georgina Wood CJ in her dissent in Appiah-Ofori where she described the Audit Service as ‘the agency through which the Auditor-General, whose office is a public office, discharges his constitutional obligations as embodied under article 187 of the 1992 Constitution.’

5.29 And your Lordships, article 187(14) defines ‘administrative expenses of the office of the Auditor-General’ to include statutory payments to ‘persons serving in the Audit Service,’ confirming the view that the Audit Service is the agency by this the Auditor-General exercises his functions and powers. Article 187(14) says:

The administrative expenses of the office of the Auditor-General including all salaries, allowances, gratuities and pensions payable to or in respect of persons serving in the Audit Service shall be a charge on the Consolidated Fund.

5.30 Thus, the Audit Service Board is the entity that under article 189(2) & (3), appoints staff to work in the Audit Service in consultation with the Public Service Commission, which is another independent authority under the Constitution. ‘Appoint’ in this context clearly refers to employing or hiring the staff of the Service. The Board, also in consultation with Public Service Commission, determines their employment terms and conditions, and then makes regulations by Constitutional Instrument for the ‘efficient and effective administration’ of the Service.

5.31 The burning question would be whether apart from these three express powers, namely (i) employing staff, (ii) determining staff conditions of service, and (iii) making administrative regulations by Constitutional Instrument (and which are exercised in consultation with the Public Service Commission), the Audit Service Board, simply on account of being called the ‘Board’ becomes the governing board with the mandate to govern and administer the Audit Service. This is significant because the Constitution did not even provide that the Audit Service Board is to superintend or implement the administrative regulations that they make by way of a Constitutional Instrument, in consultation with the Public Service Commission.

5.32 This situation is analogous to that of the Parliamentary Service Board, which is given similar powers under article 124, and which article also stopped short of expressly conferring any directing, control, supervising or governing powers on that board as well. Yet section 3 of the Audit Service Act and section 4 of the Parliamentary Service Act, 1993 (Act 460), give to these Boards (to which the Constitution only gave specific powers) ‘governing’ status, as if the word ‘governing’ is the natural qualifier to the word ‘board,’ and applies even when the Constitution vests specific powers in the board but no supervisory powers. That, your Lordships, is probably the source of all of this confusion.

5.33 Significantly the Constitution mentions only three boards, namely the Audit Service Board (article 189), the Parliamentary Service Board (article 124), and the Statistical Service Board (article 186.) Among these three, it is only the Statistical Service Board that is specifically given supervisory powers.

5.34 Your Lordships, this calls into sharp focus and question, provisions in both the Audit Service Act and the Audit Service Regulations, 2011 (CI 70) that purport to give to the Audit Service Board, powers that extend beyond the powers that are expressly granted under article 189(2) & (3), and which are not necessarily incidental to the exercise of those powers. Our respectful view is that those extended powers that do not fall within the power to appoint staff and determine their employment terms and conditions (which powers cannot even be exercised solely but upon consultation with the Public Services Commission), and are not implied because they are necessary and incidental to the exercise of those express powers, are unconstitutional. Thus, the express power under article 189(2) to employ staff of the Audit Service would, under article 297(a) include the powers to (i) confirm the appointments, (ii) discipline, and (iii) terminate appointments. Nothing more.

5.35 The power to make administrative regulations through a Constitutional Instrument (also subject to consultation with the Public Services Commission), however, is a bare ‘delegated legislative power.’ The Audit Service Board may make the regulations in accordance with the procedure for making them under the combined effect of article 189(2) & (3) and article 11(7) of the Constitution. But the Board does not appear to have any power to directly administer or superintend the administration of those regulations after they have been made.

5.36 Article 11(7) provides that

Any Order, Rule or Regulation made by a person or authority under a power conferred by this Constitution or any other law shall

(a) be laid before Parliament;

(b) be published in the Gazette on the day it is laid before Parliament; and

(c) come into force at the expiration of twenty-one sitting days after being so laid unless Parliament, before the expiration of the twenty-one days, annuls the Order, Rule or Regulation by the votes of not less than two-thirds of all the members of Parliament.

5.37 Under article 295(1), a ‘Constitutional Instrument’ is simply ‘an instrument made under a power conferred by [the] Constitution.’ And under the same paragraph, an ‘enactment’ is defined to include a Constitutional Instrument, which means that the power to make a Constitutional Instrument is simply the delegated power to enact a subsidiary legislation. That power is therefore limited to simply making the instrument and having it passed by Parliament, and nothing more, unless the Constitution express gives to the body making the Instrument, the power to administer it, as it does with the Electoral Commission under article 51, the Public Services Commission under article 197, the Police Council under article 203(1), the Prisons Service Council under article 208(2), the Armed Forces Council under article 214(2), CHRAJ under article 230, or any person on whom a discretionary power is vested under article 296(c). All of these persons are given the power to enact Constitutional Instruments to regulate the performance of their functions. The Constitution deliberately makes no such provision with respect to the Audit Service Board and the Parliamentary Service Board.

5.38 The power given to the Audit Service Board to enact a specified Constitutional Instrument places the Audit Service Board is in much the same position as the Rules of Court Committee, which is given the power to enact Constitutional Instruments on several matters under article 33(4) (practice and procedure of the superior courts on human rights actions), article 64(3) (practice and procedure on presidential election petitions), article 69(8) (practice and procedure on the tribunal or medical board on the removal of a president), article 157(2) (practice and procedure for all courts), article 187(10) (rules for disallowance and surcharge appeals), and article 281(2)) (practice and procedure for commissions of inquiries and appeals from them), without the power to either directly administer or superintend the administration of the matters provided in those Instruments.

5.39 Thus, the powers of the Audit Service Board in relation to the administrative regulations, should end when the Board has complied with the procedure under article 11(7) and the regulations are passed. There is no implied power by which the Board, after making the regulations, would then administer them. Our respectful view is that the power to administer falls into the hands of the Auditor-General whose agency the Audit Service is. And in administering the Audit Service, the Auditor-General is bound to follow the duly enacted administrative regulations and cannot go beyond or outside them. And, the Auditor-General has no power to employ staff into the Audit Service or determine their employment terms and conditions, as those powers are expressly vested in the Audit Service Board.

5.40 We respectfully note that article 188, which recognises the Audit Service, does not assign any responsibility or function to it. That is in tandem with the recognition by Georgina Wood CJ in Appiah-Ofori and the clear intent of the Framers of the 1969 Constitution, that the Service is set up to be the agency through which the Auditor-General executes his functions and exercises his powers. It is thus within this recognition of the Board’s remit that article 187(3) says that it is only the Auditor-General or any person the Auditor-General authorises or appoints for the purpose of the Auditor-General’s functions under article 187(2), who shall have access to the documents relating or relevant to the accounts being audited. This simply means that although the Board hires the staff, it is only the Auditor-General who may authorise or sanction or assign them to do any work that is assigned to the Auditor-General under the Constitution.

5.41 Without being so authorised or appointed by the Auditor-General, no staff of the Audit Service or any other person would have a right of access to documents relating or relevant to accounts being audited, an absolute sine qua non in every audit process. Simply, public audits take place at the instruction and on the command of the Auditor-General, acting in accordance with the Constitution; no other person has that power or may purport to supervise the Auditor-General in exercising that power. In other words, while the Auditor-General needs the Audit Service to perform the functions given to him under article 187 of the Constitution, the Audit Service cannot perform any public audit (which is the reason for which the Service was created in the first place) without the Auditor-General. This is the delicate and well-woven structure that the Constitution has put in place, with the primary purpose of ensuring that public audits take place in an atmosphere where the Auditor-General and his auditing and other functions are completely insulated from any external influence and interference.

5.42 Your Lordships, that is why when section 33(1)(a) of the Audit Service Act makes it an offence for any person to fail ‘to produce for inspection by the Auditor-General or otherwise fails to give the Auditor-General access to any book, record, return or other document relating or relevant to any account to be audited by the Auditor-General, when so requested by the Auditor-General,’ section 33(2) says ‘for the purposes of subsection (1), “Auditor-General” includes any auditor acting under the direction of the Auditor-General’ (emphasis added.)

5.43 Thus, Parliament, through the Audit Service Act recognises that to the extent that any person (including staff of the Audit Service) other than the Auditor-General performs any of the auditing functions vested in the Auditor-General, that other person does so as an agent, working ‘under the direction of the Auditor-General.’ Simply, no audit or other responsibility assigned by the Constitution to the Auditor-General may be performed by any person without the Auditor-General’s authorisation or appointment, ie direction. This is because under article 187, all public audits are the responsibility of the Auditor-General, not the Audit Service. The Audit Service cannot, sua sponte or on the instruction of the Audit Service Board, perform any public audit. And when the Auditor-General has instructed that an audit be conducted, the Audit Service Board cannot interfere in it.

5.44 Accordingly, while the Audit Service Board hires staff into the Auditor-General’s ‘agency’ (and the Board is not subservient to the Auditor-General while doing this or any of its specific responsibilities under the Constitution), it is the Auditor-General who must authorise and assign the staff to work. And for the purposes of that work, the Auditor-General is not subservient to the Board.

5.45 Your Lordships, it must be for the good reason of maintaining the independence invested, that the Constitution does not provide for a board for any of the other Constitutionally-Established Independent Bodies. And when it did, in the case of the Audit Service, the Constitution set up this delicate balance and intricate constitutional architecture that clearly demarcates the respective functions and roles of the Auditor-General and the Audit Service Board, to be separate but interdependent, and to be autonomous of each other but work with reciprocity. That is why the Framers were careful to make the Auditor-General a member of the Audit Service Board, and through the Audit Service Act, Parliament has made meetings of the Board inquorate without the presence of the Auditor-General. We respectfully state that that is the equilibrium that the Constitution ordains.

5.46 And that is the balance that will ensure that the Executive (which is the Auditor-General’s primary auditee and at the same time, the appointor of almost everyone on the Audit Service Board) is unable to exert any direct or indirect influence over any constitutional or statutory audit or any other work, function or power of the Auditor-General. This is what is required to preserve and protect the independence that the Constitution invests in the office of the Auditor-General under article 187(7)(a).

5.47 This independence of the Auditor-General is made even clearer and more obvious when one considers the immediately preceding article, article 186, which expressly makes the Government Statistician subservient to the Statistical Service Board. Article 186(2) & (3) provide that:

The Government Statistician, under the supervision of the Statistical Service Board, shall be responsible for the collection, compilation, analysis and publication of socio-economic data on Ghana and shall perform such other functions as may be prescribed by or under an Act of Parliament.

The Statistical Service Board may prescribe the manner in which data may be compiled and kept by any person or authority in Ghana’ [emphasis added.]

5.48 This is in direct contradistinction to the relationship between the Auditor-General and the Audit Service Board. Thus, the Audit Service Board does not have the same constitutional status as the Statistical Service Board. The Constitution severely circumscribes the functions and powers of the Audit Service Board. It is to have no role outside appointing staff for the Audit Service, setting staff terms and conditions of service, and then passing a constitutional instrument to provide for the effective and efficient management of the Audit Service, all of this it may only do in consultation with the Public Services Commission. It has no supervisory or superintending functions or powers.

5.49 Respectfully, any arrangement that makes the Auditor-General or any of his functions and powers (auditing or administrative) subject or subservient to the Audit Service Board, would simply surrender the Auditor-General to the direction and control of the Executive. This is because the members of the Audit Service Board, are overwhelmingly appointed by the Executive. That not only contradicts but completely defeats the letter and spirit of the Constitution, and the expressed basic purpose for which the Audit Service Board was created under the 1969 Constitution. It sends us back to the pre-1969 period, where, although the relevant Constitutions provided for a level of independence for the Auditor-General, the political arrangements of the time had conspired to strip and succeeded in stripping that independence down.

5.50 It cannot be said of us in 2020, what was said in paragraph 592 of the 1968 Constitutional Commission Report, that the independence of the Auditor-General was ‘only in theory…, usurped through political interference and official control,’ only this time exercised by or through the Audit Service Board. We humbly state that we will prevent a slide back to this deprecated state by placing the independence of the Auditor-General under article 187(7)(a) on the same ‘higher pedestal and pride of place’ as this Honourable Court uncompromisingly placed his disallowance and surcharge powers under article 187(7)(b) in OccupyGhana v Attorney-General. We humbly urge this Honourable Court to add the ‘brace’ of independence to the ‘belt’ of disallowance and surcharge powers, to complete the true meaning and effect of article 187(7) of the 1992 Constitution.

5.51 We respectfully re-state that even where the Auditor-General (or any of the Constitutionally-Established Independent Bodies) is alleged to have acted in breach of the Constitution or constitutionally-compliant law, only judicial action can reverse it. Except where expressly provided for in the Constitution, neither the Executive nor the Legislature (nor indeed any other person or authority) has the power to decide that there has been a breach, and then seek to take what it perceives to be corrective or remedial action. Any such attempt would be an unconstitutional usurpation of the judicial power of state, which is vested exclusively in the Judiciary. Only the court is empowered by the Constitution to take such corrective steps or remedial action.

5.52 By reserving this remedial power exclusively to the Judiciary, the Constitution has sought to place the Judiciary as the only impartial arbiter between the Constitutionally-Established Independent Bodies and other persons or authorities (such as the Executive, Parliament and various boards.) We respectfully say that the Framers anticipated the ‘equilibrium of tension’ and ‘inevitable friction incident to the distribution of the governmental powers’ that would naturally arise between the various persons or authorities. When those tensions and frictions that are inherent in this distribution of governmental powers arise, the courts would then step in, not only to resolve the tensions and frictions, but to lay down the law that would guide those institutions thenceforth.


6. CONCLUSIONS

6.1 Respectfully, we conclude by saying that:

(1) the 1992 Constitution grants the Auditor-General and all other Constitutionally-Established Independent Bodies independence from any other person or authority;

(2) that independence is political, administrative and financial, and insulates them from all external pressures;

(3) the Auditor-General’s (a) complete independence and (b) powers of disallowance and surcharge powers are so completely dependent and contingent on each other that the independence must therefore be given the same ‘higher pedestal and…pride of place’ as the disallowance and surcharge powers;

(4) in addition to the traditional separation of powers between the Executive, Legislature and Judiciary, the Constitution recognises the Constitutionally-Established Independent Bodies, protects them from the dictates of the traditional branches and any other person or authority;

(5) the Constitutionally-Established Independent Bodies are subject only to the Constitution and the other constitutionally-compliant laws;

(6) it is only the courts that have the power to correct the Constitutionally-Established Independent Bodies where they act out of step with the Constitution or other constitutionally-compliant law;

(7) the respective and distinct functions and roles of the Auditor-General and the Audit Service Board are clearly demarcated under the Constitution; and

(8) and for those purposes, the Auditor-General is not subservient to the Board.

6.2 It is for these reasons that we have respectfully filed this humble Amicus Curiae Brief, in the hope that it would assist the Honourable Court in defining and resolving these issues, particularly the interplay of power between the Constitutionally-Established Independent Bodies, and any other person or authority, including the specific case of the Auditor-General and the Audit Service Board.

Amicus Brief respectfully submitted for and on behalf of the Amicus Curiae.

Respectfully Submitted on 26 October 2020

OccupyGhana

The Registrar
Supreme Court
Accra

OccupyGhana® vs Attorney General Anniversary Lectures

OccupyGhana® vs Attorney General Anniversary Lectures

13 June 2019
 
OccupyGhana® Press Statement
 
OccupyGhana® vs Attorney General Anniversary Lectures

For us at OccupyGhana®, one of the achievements of which we are most proud is getting the Auditor-General to recognize the power inherent in his office – the ability to disallow illegal expenditure and losses to the government, and then to surcharge those who are responsible for the expenditure and losses. The Supreme Court judgment has given the Auditor-General a much-needed impetus to chase after monies stolen from the public purse and to recover those monies from the perpetrators.

Driven primarily by the wish to see Ghana on a better path, a legal battle commenced with a 12th November 2014 letter to the then Auditor-General, and culminated with the seminal judgment by the Supreme Court on 14th June 2017. The judgment upheld our position that the Auditor-General should be compelled to exercise the power to disallow, surcharge and recover public monies.

By the last Auditor-General report from 30th November 2018, the exercise of this power to disallow since the judgment and the installation of this present Auditor-General in 2016 has saved Ghana the net total of GHS 5,445,676,134.53 (5.4 billion Ghana Cedis) – monies that some government officials fraudulently claimed was owed on various government contracts, but which had been already paid. Further, through his surcharging and recovery efforts, the Auditor-General has retrieved GHS 67,137,517.86 (67 million Ghana Cedis). There are currently further outstanding surcharges in excess of half a billion Ghana Cedis. 

It is based on these successes that the Audit Service and OccupyGhana jointly present the first ever “Anniversary Lectures”. These lectures, which we hope will become an annual event, will seek to explore the issues of safeguarding the public purse.

The theme of the first one is: “From Surcharging to Safeguarding: Next Steps in the Fight to Protect the Public Purse.”

Speakers will include the Vice-President, Dr. Mahamudu Bawumia, the Auditor General, Mr. Daniel Domelevo, and our own Ace Ankomah.

We hope with these lectures to explore ideas that will help Ghana protect its wealth, encourage a fairer and more honest interaction from all and inculcate ethical practices in dealings with the government.

We look forward to seeing all there at 0800 on 14th June 2019, at the British Council in Accra.

For God and Country.

OccupyGhana®