Auditor-General’s publication of COVID-19 expenditure audit unconstitutional – Attorney General

The Attorney General and Minister for Justice, Godfred Yeboah Dame has questioned the constitutionality of decision of the Auditor General’s Office to publish its audit of government’s expenditure on COVID-19.

According to the Attorney General, the report was prematurely published as it failed to fulfil some provisions in the Constitution.

“I observe that the report of the special audit on the Government’s COVID-19 transactions has been published on the website of the Audit Service. In light of the constitutional provisions pertaining to the duty of the Auditor-General after the preparation of audit reports, I consider a publication of the COVID-19 audit report or indeed any audit report particularly when same has not been either considered by Parliament or referred to a committee of Parliament, premature.

Referencing Articles 187(5) and 187(6) of the 1992 Constitution in a letter addressed to the Auditor-General, Mr Dame noted that the report ordinarily ought to have been submitted to parliament for the House to debate and where necessary, appoint a committee to deal with matters pertaining to the report.

He emphasised that any such report cannot be deemed final until parliament has done its work.

The Attorney General thus advised the Auditor General to withdraw the report published on its website.

“I advise a withdrawal of the report on the Government COVID-19 transactions from your website before same has been debated by Parliament and considered by the appropriate committee of Parliament,” Mr Dame said.

The audit report by the Auditor-General on Government of Ghana’s Covid-19 transactions for the period March 2020 to June 2022, uncovered several infractions relative to expenditures from Ministries, Departments and Agencies.

The report published on the website of the Auditor-General has generated controversy with calls being made for a full-scale parliamentary probe to be made into the uncovered infractions.

Read the full letter by the Attorney General below:

RE: AUDIT OF PUBLIC ACCOUNTS OF GHANA

I refer to various discussions between your good self and me regarding the effective implementation of reports of the Auditor-General on audits into the public accounts of Ghana, particularly with regard to the issuance of disallowances and surcharges.

The matters discussed have become more pertinent in view of the intense controversy generated by the publication of the report on the special audit of the Government of Ghana’s Covid-19 transactions for the period March 2020 to June 2022 on the website of the Ghana Audit Service http://www.audit.gov.gh.

I find it compelling to lay out a few points which I hope will guide action to be taken after the preparation of your reports.

1. Article 187(5) of the Constitution mandates the Auditor-General to submit his report to Parliament and in that report, draw attention to any irregularities in the accounts audited. Section 16 of the Audit Service Act, 2000 (Act 584) clearly indicates that reports on special audits and reviews, as the one conducted in respect of the COVID-19 transactions, are subject to the requirement for the Auditor-General to submit the reports to Parliament.

2. Article 187(6) of the Constitution requires Parliament to debate the report of the Auditor-General and appoint, where necessary and in the public interest, a committee to deal with any matters arising from it. This is repeated in section 21 of Act 584. Over the years, the Public Accounts Committee of Parliament (PAC) seems to be the committee designated by Parliament to interrogate issues arising out of the Auditor-General’s reports. It is only after satisfying the constitutional requirement of submitting the auditor general’s report to Parliament, the subsequent debate by

Parliament thereon and conclusion of work by the appropriate committee of Parliament, that the report of the Auditor-General may be considered final and relevant action may be taken thereon.

3. I observe that the report of the special audit on the Government’s COVID-19 transactions has been published on the website of the Audit Service. In light of the constitutional provisions pertaining to the duty of the Auditor-General after the preparation of audit reports, I consider a publication of the COVID-19 audit report or indeed any audit report particularly when same has not been either considered by Parliament or referred to a committee of Parliament, premature.

4. I am mindful of the provision in section 23 of Act 584 which seems to mandate a publication of the reports as soon as they have been presented to the Speaker to be laid before Parliament. However, the laws governing the functions of the Auditor-General ought to be construed as a whole. The constitutional duty of the Auditor-General to submit his reports to Parliament and Parliament’s consequential obligation to debate and scrutinise same, will be grossly prejudiced by a prior publication of the report.

The proceedings of the PAC provide an opportunity for irregularities raised by the Auditor-General to be interrogated and queried. Persons and institutions affected by the report receive a further hearing on the findings of the Auditor-General’s reports at the proceedings of the PAC in Parliament. A prior publication of the Auditor-General’s report completely undermines the purport and meaning of article 187(5) and (6) and should not be encouraged. Consequently, I advise a withdrawal of the report on the Government COVID-19 transactions from your website before same has been debated by Parliament and considered by the appropriate committee of Parliament.

5. Further, as pointed out in previous letters by the Attorney-General to your office over the years, there has been a glaring omission to indicate in the notices served on the Office of the Attorney-General and Ministry of Justice, satisfaction by the Auditor-General of the mandatory procedure enjoined by section 17 of Act 584, in order to be able to execute a disallowance and surcharge.

6. As you would recall, I have, in previous communication with you, indicated that in accordance with section 17 of Act 584, certain steps ought to be complied with by the Audit Service after an audit report has been subjected to the scrutiny of the PAC. These steps border on the issuance of disallowances and surcharges by the Auditor-General.

i. the relevant head of department or institution to whom the amounts stated in the notice of surcharge or disallowance are due, must be notified of the surcharge or disallowance, the reasons for the surcharge or disallowance as well as when this was done. Please see section 17(1) of Act 584

(ii) notices served on the Attorney-General must indicate whether the affected individuals and institutions have been served with the notice of surcharge or disallowance and, if so, when this was done. Please see section 17(2) of Act 584.

iii. Information confirming compliance with the statutory steps and when same was done is crucial for the

Attorney-General to institute legal action against specified defaulters.

7. By letters dated 21st December 2017, 14th December 2018 and 21st January 2019, the Attorney-General informed the then Auditor-General about lapses in the notices of disallowance and surcharge served on the Attorney-General in order for him to remedy same. Unfortunately, to date, some have not been remedied.

8. It is only through due process, particularly the observance of the processes stated above, that we can realise the true import and effect of article 187 of the Constitution. There ought to be enhanced cooperation between the Audit Service and the Office of the Attorney-General and the Ministry of Justice. These two institutions are at the forefront of the quest for public accountability, probity, the rule of law and the rooting out of corruption and malpractices in Ghana, and therefore are left with no option but to collaborate. In this regard, I have set up a special team in my Ministry, jointly headed by the Solicitor-General and the Director of Public Prosecutions, specifically charged with coordinating with your outfit in order to promptly act, in accordance with law, on established irregularities contained in the Auditor-General’s reports.

I would appreciate if you could set up a similar team to work with my office. Please accept the assurances of my highest consideration.

GA/SARA