Two outspoken governance experts have criticised an Executive Order directing the Auditor-General, Daniel Domelevo, to take his accumulated leave.
Professor Stephen Kweku Asare and Professor Henry Kwasi Prempeh have suggested that the directive issued to Mr Domelevo, while it may appear appropriate, may in fact be flouting the Constitution.
President Nana Akufo-Addo on Monday, June 29, 2020, ordered Mr Domelevo to take his 123 days of accumulated leave in accordance with sections 20 (1) and 31 of the Labour Act, 2003 (Act 651), which apply to workers, including public office holders such as the Auditor-General.
Mr Domelevo, regarded as an astute anti-corruption campaigner, has in the last couple of months clashed with some high placed government officials while carrying out his mandate, hence while some view the directive from the Presidency as consistent with the law, others say it is part of a grand scheme to remove him from office.
Reacting to the President’s directive that sparked varied public reactions, Prof Stephen Asare, who is a Fellow in Public Law and Justice at the Center for Democratic Development (CDD-Ghana), posted on Facebook that it is in the interest of the President to protect the independence of the Auditor-General.
Prof Asare is certain that attempts to remove Mr Domelevo from office, “no matter how clever, will be seen as interference with his work and will irreparably tarnish the President’s record.”
Delving into the law, Prof Asare stated that once appointed, the Auditor-General must be allowed to hold office until the age of 60 years subject to an Article 199 (4) extension for a 2+2+1 post-retirement tenure.
“On the record, I also urge the President to grant the Auditor General this Article 199(4) dispensation. The law is abundantly clear that the AG’s right to leave of absence cannot be varied to his disadvantage. It is equally clear that the AG is not subject to the direction or control of any other person or authority.
“The reason for the law is to protect his independence. The constitutional amendment of 1964 that brought the AG under the control of the Ministry of Finance and the ensuing political interference in the work of the PAC all informed the 1992 constitution framers in making him report directly to Parliament’s PAC, designed to be chaired by a ranking member from the opposition party,” he stated.
He said his understanding of the relevant provisions in the law is that Mr Domelevo cannot be forced to take his leave or to forfeit his leave by the President, nor can the President issue other controls or directions to him.
“There must be a compelling reason to force the AG to take his leave. His leave conditions must be determined by the more specific Audit Service Act, not the general Labour Act,” he stressed.
He said because there are several audits that involve government officials ongoing, any attempt to remove the Auditor-General “will offend the separation of powers, constitutionalism and the growing of our institutions.”
“The President must reconsider and the AG must stand his grounds,” he admonished.
In a similar post, Professor Henry Kwasi Prempeh, Executive Director of CDD-Ghana also said he finds it interesting that the President and his lawyers would treat the relationship of the President to the Auditor-General, an independent constitutional officeholder, as some mundane "employer-employee" relationship.
According to him, the relationship between the Executive and the Auditor-General must be one of high substance and mediated by the Constitution and the principles emanating from that document.
“The mere fact that the President ‘appoints’ a certain constitutional officeholder, who, like every other occupant of a public office, is paid from public funds, does not thereby create between the two a simple ‘employer-employee’ relationship in which the President is ‘employer’ (master) and the other his ‘employee’ (servant).
“Otherwise, what is to stop the President from ordering, say, a Chief Justice or an EC or a CHRAJ Commissioner or chair to proceed on accumulated leave or do any other act that employers ordinarily can command their employees to do?” he quizzed.
It is his considered view that the Constitution does not make a President the ‘Employer-General’ or ‘HR-General’ of all holders of public office in Ghana.
Prof H. Kwasi Prempeh (L) and Prof Asare