In the matter of the Auditor-General, the President has goofed big time
By Dr. Samuel Adjei Sarfo Attorney and Counselor at Law
The Akufo-Addo government has compromised its credibility by asking the Auditor General to proceed on leave, thereby opening itself up to the perception of a cover-up in the matter of Osafo Marfo and the payment of $1 million to Kroll and Associates.
On June 29, 2020, the President of the Republic asked Mr. Daniel Domelevo, the Auditor General, to proceed on his accumulated leave of 123 days (later computed to be 167 days). But the general view is that the President has no power to make such an order. Mr. Domelevo, therefore, protested by a letter dated July 03, 2020, stating some rather unpleasant facts purported to show that the President had no power to make such an order and that his action was taken in bad faith with the purpose of protecting the government from embarrassment.
Since Mr. Domelevo is indeed not a lawyer, as the letter emanating from the presidency condescendingly highlighted, the curious response coming from the presidency, authored and approved by at least two great lawyers, ought to be critically examined.
As an initial matter, any leave in any organization is a right or benefit, not a condition of service, as wrongly noted in the presidency’s response. This distinction is significant because a condition triggers a consequence, but a failure to exercise a right or a benefit does not. And just as a worker can give up his right to remuneration or any other concomitant benefits, the worker also has the right to give up or donate his or her leave, either wholly or partially. For this reason, there is nothing known in labor laws as disciplinary order for any public servant to proceed on leave, unless the practical purpose of such an order is for the investigation of criminal misconduct.
So the idea that the President is using his power to discipline the Attorney General for his failure to use his own accumulated leave has no legal basis. Nobody breaches any law for deciding not to proceed on leave.
And where a corruption matter involving the Senior Minister and the Auditor General is pending in the public domain, such an order to proceed on leave smacks of a cover-up, double standard and plain hypocrisy and conflict of interest. It is our understanding that barely 24 hours after assuming office, the Acting Auditor General has quickly cleared the Senior Minister of any wrong-doing in the Kroll Affair in which he is alleged to have wrongfully paid $1 Million to an undeserving party. If true, this is problematic, disingenuous and totally risible at the same time.
The law setting up the office of the Auditor-General is located in Article 70 of the Constitution.
And although the appointive power is vested in the President, that office is expected to be independent and without any control by any state agency. And even if we recognize that the same constitution gives the President the power to discipline the Auditor General per article 297(a), procedural or substantive due process is implied as per the relevant portions of the constitution. Even where there is an infraction against existing law, there is nothing in the constitution that authorizes the president to peremptorily and summarily discipline any public servant without recourse to due process. But here in this instance, we have already contended that the failure to proceed on leave is not an offense under existing labor laws.
This is because although the labor laws of Ghana are articulate in the assertion that Public Servants must proceed on leave, this assertion cannot be construed anywhere as a crime or misconduct, simply because it has no prescribed punishment for those who fail to take their leave. (It is trite law that a crime and its punishment must concurrently be set out clearly in law).
It is even possible for the government itself to refuse to grant the request for leave if the circumstances warrant it. See “The New Public Service Leave Policy” at Page 4. Therefore we can hold that the rules governing leave are advisorial or aspirational, and not compulsory or obligatory. Failure to proceed on leave is not something to be construed as an infraction upon the law warranting any disciplinary order.
If this government asserts that a prior President acted in the same way by asking others to proceed on leave, the answer is that the prior President is not in office today exactly because it engaged in a concatenation of such illegal conduct. Besides, the fallacy of false equivalence ought to be familiar to these acclaimed lawyers who are fond of such an impermissible argument.
Moreover, the power to appoint is not commutative to the power to remove from office or even to discipline. The President appoints judges and many officers in government who he has no power to summarily discipline, except through an elaborate scheme of due process. So whenever it occurs to the president to give any summary order to this category of protected public servants, he has to tamper this predilection with the overall spirit of the constitution and proceed with circumspection.
The spirit of the constitution, as contemplated in those articles that set up the office of the Auditor General, gives that office the free hand to audit government account. And this is not something which any government likes. But whether any government likes it or not, it must align itself to the constitutional reality that it must periodically be audited. And if any Auditor General makes any government uncomfortable, it might well be because the Auditor General is performing his work well. I would even go to the extent of saying that it is a good idea for the Auditor General to be appointed by a departing government just as happened in the Domelevo situation. That way, he will work impartially without huddling too much with the government of the day, thereby improving upon the balance of power contemplated in our constitution.
The president has sacrificed too much political goodwill by asking the Auditor General to proceed on leave. And the more he justifies this unlawful order, the more some of us are made to believe that the government’s account is in a sordid state, and that the person responsible for auditing the account has been targeted to protect corrupt officials in high places. If one considers that the Senior Minister is involved in some shenanigans which the Auditor General is investigating, the gravity of the government’s action becomes palpable. We are therefore aggrieved because this government came to power on a platform of fighting corruption wherever it may be found.
In sum, the constitution indeed makes the office of the Attorney General independent and beyond the reach and control of any entity. And even where the constitution subjects this office to any disciplinary control, it needs to be restated that failure to proceed on leave is not an infraction against the law that warrants any disciplinary control. In fact, the principles of compelling public policy require that those indefatigable officials who are energetically working hard and sacrificing their leave ought to be honored as patriots. But even where the presidency somehow believes that they are infracting upon the law, their discipline ought to be imposed through substantive/procedural due process.
Dr. Samuel Adjei Sarfo, Esq.
Austin, Texas, USA.
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