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Constitution Law -
Interpretation - Article
187 (7) (b) (i) (ii) and (iii)
of the Constitution 1992 -
Sections 20 (1) and (2) of the
Audit Service Act, 2000 (Act
584) - Whether
Auditor-General is bound to
issue a disallowance or
surcharge where there has been
any item of expenditure on
behalf of the Government that is
contrary to law -
Whether Auditor-General
has failed, neglected and or
refused to carry out his mandate
in fulfillment of the
constitutional obligations
HEADNOTES
The facts relied upon by the
Plaintiffs who are a pressure
and advocacy group, incorporated
under the laws of Ghana can
briefly be summarised as
follows:- That the
Auditor-General pursuant to
article 187 (2) of the
Constitution, has been given the
constitutional responsibility to
audit and issue a report therein
in respect of the public
accounts of Ghana and of all
public offices which in this
instance includes the courts,
the central and local government
administrations, of the
Universities and public
institutions of like nature, of
any public corporation or other
body or organisations
established by an Act of
Parliament. The Plaintiffs
further draw attention to
article 187 (5) of the
Constitution which enjoins the
Auditor-General to carry out the
audit of the public accounts
within 6 months of the preceding
financial year and submit a
report, and “shall in that
report draw attention to any
irregularities in the accounts
audited and to any other matter
which in his opinion ought to be
brought to the notice of
Parliament” In this respect, the
Plaintiffs referred to sections
20 (1) and (2) of the Audit
Service Act, 2000 (Act 584) and
section 2 thereof in particular
which provides and states in
material particulars what this
report to Parliament by the
Auditor-General is required to
draw attention to :-
HELD :-
That upon a true and
proper interpretation of Article
187 (7) (b) (i) of the
Constitution, the
Auditor-General is bound to
issue a disallowance or
surcharge where there has been
any item of expenditure on
behalf of the Government that is
contrary to law., That upon a
true and proper interpretation
of Article 187 (7) (b) (ii) of
the Constitution, the
Auditor-General is bound to
issue a disallowance and
surcharge where any person fails
to bring any sum into the
Government’s account., That upon
a true and proper interpretation
of Article 187 (7) (b) (iii) of
the Constitution, the
Auditor-General is bound to
issue a disallowance and
surcharge where the Government
suffers or incurs a loss or
deficiency through the
negligence or misconduct of any
person.
STATUTES REFERRED TO IN JUDGMENT
Constitution 1992, Article 187
(7) (b) (i) (ii) and (iii)
Audit Service Act, 2000 (Act
584)
Public Financial Management Act,
2016 (Act 921).
High Court (Civil Procedure)
Rules, 2004 (C. I. 47)
Audit Service Regulations, 2011
C.I. 70
Heydon’s case [1584]
3 Co. Rep 7a
76 ER 637],
Sussex Peerage case [1844]
11 Co. & E 85, 8 E.R.1034],
Grey v Pearson [1857]
6. H.L.C 61, 10 E. R, 1216].
Re Presidential Election
Petition, Akufo-Addo & 2 others
(No. 4) v Mahama & 2 Others
(No. 4) 2013 SCGLR
CASES REFERRED TO IN JUDGMENT
Edusei case [1998-99] SCGLR 753
at pages 771-772
Republic v Special Tribunal,
Ex-parte Akosah [1980] GLR 592
National Media Commission v
Attorney-General [2000] SCGLR 1
Aduamoa II v Twum [2000] SCGLR
165
Tuffuor v Attorney-General
[1980] GLR 637 SC
Bimpong Buta v General Legal
Council [2003-2004] SCGLR 1200
Republic v High Court (Fast
Track Division) Ex-parte CHRAJ,
(Richard Anane: Interested
party) [2007-2008] SCGLR 213
Osei Boateng v National Media
Commission [2012] 2 SCGLR 1038,
Okudzeto Ablakwa & Another v
Attorney-General & Obetsebi
Lamptey [2011]
2 SCGLR 986
Emmanuel Noble Kor v
Attorney-General and Another,
Suit No. JI/16/2015 dated 10th March
2016
Agyei Twum v Attorney-General &
Akwetey [2005-2006] SCGLR 732 at
757
Ransford France No. 3 v
Electoral Commission &
Attorney-General [2012] 1 SCGLR
705 at 718
Tuffour v Attorney-General
[1980] GLR 637
BOOKS REFERRED TO IN JUDGMENT
The Chambers, 21st
Century Dictionary, Revised
Edition
DELIVERING THE LEADING
JUDGMENT
DOTSE, JSC:-
COUNSEL.
THADDEUS SORY FOR THE PLAINTIFF.
GRACE EWOAL, PRINCIPAL STATE
ATTORNEY FOR THE DEFENDANT
JUDGMENT
DOTSE, JSC:-
Article 187 (7) (b) (i)
(ii) and (iii) of the
Constitution 1992, provides as
follows:-
“In the performance of his
functions under this
Constitution or any other law
the Auditor-General
(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 authorizing 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.” Emphasis supplied.
Based on the above
constitutional provisions
referred to supra, the
Plaintiffs claim the following
reliefs against the Defendants
before this court.
1.
“That upon a true and
proper interpretation of Article
187 (7) (b) (i) of the
Constitution, the
Auditor-General is bound to
issue a disallowance or
surcharge where there has been
any item of expenditure on
behalf of the Government that is
contrary to law, so that the
amount unlawfully expended is
recovered from the person who
was responsible for, or
authorised, the expenditure
disallowed.
2.
That upon a true and
proper interpretation of Article
187 (7) (b) (ii) of the
Constitution, the
Auditor-General is bound to
issue a disallowance and
surcharge where any person fails
to bring any sum into the
Government’s account, so that
that amount is recovered from
the person by whom the amount
should have been brought into
account.
3.
That upon a true and
proper interpretation of Article
187 (7) (b) (iii) of the
Constitution, the
Auditor-General is bound to
issue a disallowance and
surcharge where the Government
suffers or incurs a loss or
deficiency through the
negligence or misconduct of any
person, so that the value of the
loss or deficiency is recovered
from that person (whether or not
a public servant).
4.
That the failure, refusal
or neglect by the
Auditor-General to ever issue
any disallowances and surcharges
in respect of (i) unlawful items
of expenditure, (ii) amounts not
brought into account, and (iii)
losses and deficiencies incurred
through negligence and
misconduct, as set out in
successive Reports of the
Auditor-General issued since the
coming into force of the
Constitution, are violations by
the Auditor-General of his/her
obligations under the
Constitution and
5.
That the Auditor-General
be ordered to issue
disallowances and surcharges to
and in respect of all persons
and entities found in successive
Reports of the Auditor-General
to have been responsible for or
to have authorised unlawful
items of expenditure, not
bringing sums into account, or
having caused loss or deficiency
through negligence or
misconduct, in accordance with
Article 187 (7) (b) of the
Constitution.”
FACTS RELIED UPON BY PLAINTIFFS
The facts relied upon by
the Plaintiffs who are a
pressure and advocacy group,
incorporated under the laws of
Ghana can briefly be summarised
as follows:-
That the Auditor-General
pursuant to article 187 (2) of
the Constitution, has been given
the constitutional
responsibility to audit and
issue a report therein in
respect of the public accounts
of Ghana and of all public
offices which in this instance
includes the courts, the central
and local government
administrations, of the
Universities and public
institutions of like nature, of
any public corporation or other
body or organisations
established by an Act of
Parliament.
The Plaintiffs further
draw attention to article 187
(5) of the Constitution which
enjoins the Auditor-General to
carry out the audit of the
public accounts within 6 months
of the preceding financial year
and submit a report, and
“shall in that report draw
attention to any irregularities
in the accounts audited and to
any other matter which in his
opinion ought to be brought to
the notice of Parliament”.
Emphasis
In this respect, the
Plaintiffs referred to sections
20 (1) and (2) of the Audit
Service Act, 2000 (Act 584) and
section 2 thereof in particular
which provides and states in
material particulars what this
report to Parliament by the
Auditor-General is required to
draw attention to in cases in
which he has observed the
following:-
a.
“an officer or employee of
Government has willfully or
negligently omitted to collect
or receive any public money due
to the Government;
b.
any public money was not
duly accounted for and paid into
the Consolidated Fund or other
designated public account;
c.
an appropriation was
exceeded or was applied for a
purpose or in a manner not
authorized by law;
d.
an expenditure was not
authorized or properly vouched
for or certified;
e.
there has been a
deficiency through fraud,
default or mistake of any
person;
f.
applicable internal
control and management measures
are inefficient or ineffective;
g.
the use or custody of
property, money, stamps,
securities, equipment, stores,
trust money, trust property or
other assets has accrued in a
manner detrimental to the state;
h.
resources have not been
used with due regard to economy,
efficiency and effectiveness in
relation to the results
attained;
i.
in the public interest,
the matter should be brought to
the notice of Parliament.”
It has to be noted that,
the above provisions of the
Audit Service Act, have taken
their authority from article 187
(7) (b) of the Constitution
already referred to supra, which
empowers the Auditor-General to
disallow any item of expenditure
which is contrary to law, and
having done so to surcharge (1)
the amount of any expenditure so
disallowed upon the person
responsible for incurring or
authorizing the expenditure, or
(ii) direct that, any sum
which has not been duly brought
into account, be brought into
account upon the person by whom
the sum ought to have been
brought into account, or
(iii) direct that the
amount of any loss or
deficiency, be brought upon any
person by whose negligence or
misconduct the loss or
deficiency has been incurred.
In other words, the person by
whose conduct of negligence or
misconduct the loss or
deficiency occurred must be held
liable.
The Plaintiffs further
asseverate that since the
inception of the 4th
Republican Constitution on 7th
January 1993, the
Auditor-General has failed,
neglected and or refused to
carry out his mandate in
fulfillment of the
constitutional obligations
referred to supra, which would
have entitled him to retrieve
the amounts, losses and or
deficiencies from the offending
persons for the benefit of the
good people of the Republic of
Ghana. This conduct of the
Auditor-General according to the
Plaintiffs is a violation of his
constitutional mandate and
obligations under article 187
(7) (b) of the Constitution.
In pursuance of their
resolve to ensure that the
Auditor-General complies with
the above constitutional
obligations referred to supra,
the Plaintiffs on 12th
November 2014 addressed a letter
exhibited to these proceedings
as exhibit OG3 entitled.
“Request for the exercise
of Auditor-General’s powers of
disallowance and surcharge, and
notice of action.”
In that letter, the
Plaintiffs state in part as
follows:-
“We have studied the
Auditor-General’s Audit Reports
to Parliament for the eleven
(11) years between the year
ended 31st December
2002 and the year ended 31st
December 2012. In that period,
the Auditor-General has
identified a wide range of
stolen and /or misappropriated
funds which are due to the
public purse. Nevertheless,
and quite without explanation,
although the Auditor-General is
known to have made
“recommendations”, Occupy Ghana
and most Ghanaians are not aware
of a single instance in which a
Disallowance and Surcharge has
been made by the Auditor-General
or any of his offices”.
Emphasis
The Plaintiffs then
requested the Auditor-General to
either comply with the
constitutional obligations
therein stated or face a legal
challenge after the expiration
of 30 days from the date of the
letter.
The Auditor-General
responded to the said letter on
9th December, 2014
and attached written comments
therein, and this is marked as
exhibit OG4 in these
proceedings.
We deem it appropriate at
this stage to quote in extenso
the relevant portions of this
exhibit OG4 as follows:-
14. “On the matter of
procedural precedence under the
laws of Ghana, there is an issue
of timing of the exercise of
discretionary power given to the
Auditor-General under Article
187 (7) (b) of the Constitution.
Article 187 (5) of the
Constitution requires the
Auditor-General to send this
report on all irregularities
(disallowance items included) to
Parliament for consideration.
Under section 23 of the Audit
Service Act, the reports of the
Auditor-General become public
documents as soon as they have
been presented to the Speaker to
be laid before Parliament.
15. The question is,
should the Auditor-General
exercise his discretionary power
of surcharge and start to
disclose his findings through
the courts for public
consumption before submitting
his report to Parliament or
after submission to Parliament.”
Emphasis
It would appear that, the
Auditor-General clearly
perceives this power of
disallowance and surcharge
granted him under article 187
(7) (b) of the Constitution as
discretionary and this therefore
meant he is not bound to apply
or enforce those provisions.
In conclusion, the
Auditor-General reiterated the
fact that his office has since
July 2013 collaborated with the
office of the Attorney-General
through the formation of a joint
committee to enquire into cases
cited in the Auditor-General’s
reports spanning 2006-2011.
According to the
Auditor-General as per the
response in OG4 which we again
refer to in extenso, “the
mandate of the Committee was to
review all cases in the
Auditor-General’s report
covering this period for further
action. The result of the
Committee’s work after several
sittings since 2013 indicate
that about 85% of the cases in
the Auditor-General’s Report for
the period covered, only
required administrative actions
by the institutions concerned
because they derive from
non-compliance with applicable
laws, policies and procedure”
Emphasis
Feeling dissatisfied with
the above explanations, the
Plaintiffs instituted the
instant action against the
Attorney-General who is the
nominal Defendant for and on
behalf of the Auditor-General.
We must commend legal
counsel for the Parties for well
prepared statements of case in
which they argued inter alia the
following:-
1.
Whether the original
jurisdiction of the court was
properly invoked
2.
The powers and
constitutional obligations of
the Auditor-General of
disallowance and surcharge under
article 187 (7) of the
Constitution.
3.
The Auditor-General’s
narrow interpretation of his
obligations under the said
articles referred to supra which
the Plaintiff’s consider as
wrong, and
4.
The closing arguments of
the Plaintiffs and Defendants in
their statement of case.
CLOSING ARGUMENTS OF
PLAINTIFF
The Plaintiffs concluded their
arguments in the statement of
case as follows:-
“Your Lordships, we have
attempted in these submissions
to answer the further issues set
out joint (sic) by the parties.
We will have humbly contended
that the Auditor-General does
not fully meet his obligations
under Article 187 (7) (b) when
he conducts audits and prepares
reports that show financial
irregularities. Those
constitutional obligations to
disallow and surcharge are only
discharged when, upon
discovering financial
irregularities, the
Auditor-General takes (sic)
follows the deliberate statutory
steps to disallow them and then
surcharge the persons
responsible for causing them
with any amounts lost to the
State. We have also
respectfully argued that the
Auditor-General’s obligations do
not even terminate when he
issues a certificate of the
Disallowances and Surcharges.
The law has created a bifurcated
enforcement responsibility,
first on the public entity with
respect to which the
irregularity occurred to receive
payment within 60 days. When the
amount surcharged is not paid,
the head of that public entity
has to institute civil action to
recover same. However, if
the person surcharged files an
appeal against the Disallowance
and Surcharge, the
Auditor-General is made the
statutory respondent to that
appeal. However, even this
bifurcated enforcement
responsibility cannot commence
or arise unless and until the
Auditor-General has first
performed his Disallowance and
Surcharge obligations.” emphasis
THE DEFENDANTS CASE
The Defendants on their
part contended through learned
Solicitor-General, Mrs. Helen
Ziwu that the Auditor-General
has not failed to carry out the
constitutional mandate he bears
by virtue of Article 187 (7) (b)
of the Constitution as is
contended by the Plaintiffs. The
Defendants further argued that
the powers of discharge and
disallowance vested in the
Auditor-General are set out in
section 17 of the Audit Service
Act 2000 (Act 584). We therefore
deem it appropriate at this
stage to set out in detail the
provisions of this section 17 of
Act 584.
17. Disallowance and
surcharge by Auditor-General
(1)
“The Auditor-General shall
specify to the appropriate head
of department or institution the
amount due from a person on whom
a surcharge or disallowance has
been made and the reasons for
the surcharge or
disallowance.
(2)
A sum of money specified
by the Auditor-General to be due
from a person shall be paid by
that person to the department or
institution within sixty days
after it has been so specified.
(3)
A person aggrieved by a
disallowance or surcharge made
by the Auditor-General may
appeal to the High Court not
later than the expiration of
sixty days prescribed in
subsection (2).
(4)
In accordance with article
187 (10), the Rules of Court
Committee may, by constitutional
instrument, make Rules of Court
for the purposes of subsection
(3) of this section.
(5)
A sum of money which is lawfully
due under this section is
recoverable, on civil
proceedings taken by the head of
department in a Court as a civil
debt and where the person
surcharged is in receipt of
remuneration from the Government
or an institution, the
remuneration shall be attached
to the extent of the sum
lawfully due.” Emphasis
In other words the roadmap which
the Auditor-General is expected
to follow whenever he exercises
his powers of surcharge or
disallowance pursuant to article
187 (7) (b) and section 17 of
Act 584 supra are the
following:-
(i)The Auditor-General shall
indicate to the appropriate head
of department or institution the
amount due from the person on
whom the surcharge or
disallowance has been raised and
the reasons for it.
(ii)The sum of money indicated
by the Auditor-General to be due
from a person shall be paid by
that person to the department or
institution within 60 days after
it has been indicated
(iii) An aggrieved person has 60
days from the date of the
indication in subsection 2 supra
to appeal against the discharge
or surcharge made by the
Auditor-General.
(iv)The Rules of Court Committee
have been mandated under article
187 (10) of the Constitution to
make Rules of Court for the
actualization of subsection 3 of
section 17 of Act 584.
(v) Any sum of money due under
this section 17 is recoverable,
by civil proceedings taken by
the head of department in a
court as a civil debt and where
the person surcharged is on
Government payroll, his salary
or entitlements shall be
attached to the extent of the
sums lawfully due.
The above road map indicates
quite clearly that the powers of
the Auditor- General in respect
of this Surcharge and
disallowance are really
extensive and are intended to
ensure that any monies that are
lost through any of the
processes mentioned in article
187 (7) (b) (i) (ii) and (iii)
are recovered to the state.
CLOSING ARGUMENTS OF DEFENDANTS
The Defendants summarised
their closing arguments very
briefly as follows and we wish
to quote them accordingly thus:
“My Lords, we respectfully
submit, in conclusion that the
Auditor General’s obligations
end when he carries out his
statutory mandate as set out in
Section 17 (1) of Act 584 and
section 84 of Act 921 and in
this regard, it is respectfully
contended on behalf of the
Defendants that the
Auditor-General has from the
inception of the 1992
Constitution carried out his
statutory mandate of
disallowance and surcharge.”
DEFENDANTS RAISE JURISDICTIONAL
ISSUE
The Defendants raised a
jurisdictional point against the
Plaintiffs writ thus:
“The Plaintiff has not made out
a proper case which will require
this honourable court to make
any declarations within the
meaning of Article 2 (1) (b) of
the 1992 Constitution, and it is
respectfully urged on this court
to dismiss this action.”
Emphasis
MEMORANDUM OF ISSUES
At the close of pleadings,
the following issues were set
down in the joint memorandum of
issues agreed upon by the
parties.
1.
Whether or not the
Auditor-General fully discharges
his constitutional obligation
simply by auditing and pointing
out financial irregularities in
the accounts of a public entity.
2.
Whether or not the
Auditor-General has an
obligation to ensure that his
powers of disallowance and
surcharge duly exercised are
complied with by the public
entity or official directly
affected by the
Auditor-General’s exercise of
his power of disallowance and
discharge.
After the setting down of
the above issues, this court by
an order dated 31st
January 2017 requested the
parties and or their counsel to
file legal arguments in respect
of the said two issues.
We observe that, the
parties have complied with the
said orders.
On the 7th of
March 2017 this court again
directed that further arguments
of law be filed by the parties
and or counsel in respect of the
issue of whether the Plaintiffs
have properly invoked this
court’s jurisdiction.
We observe that, this
order has been complied with
only by learned Counsel for the
Plaintiffs Thaddeus Sory. We
will therefore proceed to deal
with these issues, and since
jurisdiction is primary, we will
deal with that first.
HAVE THE PLAINTIFFS PROPERLY
INVOKED THE ORIGINAL
JURISDICTION OF THE COURT?
It is to be noted that,
articles 2 (1) (a) and (b) and
130 of the Constitution deals
with the original jurisdiction
of the Supreme Court. Thus the
Plaintiffs action in the instant
case must be measured in terms
of the said provisions of the
Constitution.
Out of abundance of
caution, these provisions
provide as follows:-
2 (1) “A person who alleges that
(a) an enactment or anything
contained in or done under the
authority of that or any other
enactment; or
(b) any act or omission of any
person
is inconsistent with, or is in
contravention of a provision of
this Constitution, may bring an
action in the Supreme Court for
a declaration to that effect.
130 (1) Subject to the
jurisdiction of the High Court
in the enforcement of the
Fundamental Human Rights and
Freedoms as provided in article
33 of this Constitution, the
Supreme Court shall have
exclusive original jurisdiction
in
(a) all matters
relating to the enforcement or
interpretation of this
Constitution; and
(b) all matters
arising as to whether an
enactment was made in excess of
the powers conferred on
Parliament or any other
authority or person by law or
under this Constitution.
In their closing
arguments, learned counsel for
the Defendants submitted that
the Plaintiffs have not made a
proper case to require this
court exercise it’s jurisdiction
in their favour, and urged the
Court to dismiss the action.
Predictably, the
Plaintiffs anticipated this type
of jurisdictional objection and
stated as follows in their
original statement of case:-
“From the facts so far
recounted, the Plaintiff’s case
falls squarely within the first
ambit of the court’s original
jurisdiction as classified by
the court in the Edusei case
[1998-99] SCGLR 753 at pages
771-772”.
What then are the
principles in Edusei (No. 2)
v Attorney-General referred
to supra?
In that case, it was noted
by Kpegah JSC that, “in
determining the scope or extent
of this court’s original
jurisdiction, we must read
together articles 2 (1) and 130
(1) of the Constitution. And in
reading the two articles
together, “the courts
exclusive original jurisdiction
can be said to be in respect of
the following situations.”
(i)
enforcement of all provisions of
the Constitution, except those
provisions contained in Chapter
5 dealing with Fundamental Human
Rights, or
(ii)
The interpretation of any
provision of the Constitution;
or
(iii)
an issue whether an
enactment is inconsistent with
any provision of the
Constitution.” Emphasis
The Plaintiffs have also
filed a response in compliance
with this court’s order dated 7th
March 2017, on this
jurisdictional issue.
The facts of the instant
case, which have been
extensively stated, fall into
categories (i) and (ii) supra.
This is because the Plaintiff’s
are indeed asking this court to
interprete article 187 (7) (b)
of the Constitution in a certain
direction such that when
enforced it will have the
desired results that they wish.
But the Defendants contend
otherwise. Meaning there are
rival contentions.
In clear terms, the
Plaintiffs are indeed requesting
of this court to interprete the
mandate given to the
Auditor-General in the discharge
of his constitutional duties or
obligations. Thus, if this court
accedes to that request and
interpretation, then it will
have to follow it with
enforcement which will then lead
to the Auditor-General issuing a
disallowance and surcharge in
all the three scenarios
mentioned in articles 187 (7)
(b) (i) (ii) and (iii)
respectively of the
Constitution.
We also observe that, the
Plaintiffs, anchored their
reliefs basically on the
constitutional provisions and
where necessary provided flesh
by reference to the Audit
Service Act, 2000 (Act 584) and
Public Financial Management Act,
2016 (Act 921). The Defendants
on the other hand have relied
basically on the said statutory
provisions and argued that this
court has no jurisdiction.
We have on our part,
considered in detail, the facts
of this case which admit of no
controversies whatsoever.
We have also considered
the law and a plethora of
decided cases on the subject,
such as the following:-
1.
Republic v Special
Tribunal, Ex-parte Akosah [1980]
GLR 592 which is the locus
classicus on the subject-matter
2.
National Media Commission
v Attorney-General [2000] SCGLR
1
3.
Aduamoa II v Twum [2000]
SCGLR 165
4.
Tuffuor v Attorney-General
[1980] GLR 637 SC
5.
Bimpong Buta v General
Legal Council [2003-2004] SCGLR
1200
6.
Republic v High Court
(Fast Track Division) Ex-parte
CHRAJ, (Richard Anane:
Interested party) [2007-2008]
SCGLR 213
7.
Osei Boateng v National
Media Commission [2012] 2 SCGLR
1038, just to mention a few
We deem it necessary to
refer to the observation by our
respected Sister, Adinyira JSC
in the case of Okudzeto
Ablakwa & Another v
Attorney-General & Obetsebi
Lamptey [2011] 2 SCGLR 986
wherein she stated as follows:-
“Article 2 (1) of the 1992
Constitution imposes on the
Supreme Court the duty to
measure the actions of both the
legislature and the executive
against the provision of the
Constitution. This includes the
duty to ensure that no public
officer conduct himself in such
a manner as to be in clear
breach of the provisions of the
Constitution. It is by actions
of this nature that gives
reality to enforcing the
constitution by compelling its
observance and ensuring probity,
accountability and good
governance.” Emphasis
The matter was recently
put to rest by the unanimous
decision of the Supreme Court in
the unreported judgment of the
Court in Emmanuel Noble Kor v
Attorney-General and Another,
Suit No. JI/16/2015 dated 10th
March 2016 in which it was made
explicitly clear as follows:-
“It will be seen that article 2
of the Constitution is headed
“Enforcement of the
Constitution” and the ensuing
provisions are meant to attain
the enforcement of the
Constitution. There is therefore
express authority in the
Constitution itself for the view
that the enforcement
jurisdiction of this court is a
conspicuously independent item
of jurisdiction of this court.
Indeed, though it will be
erroneous to say that a
declaratory action cannot be
brought within article 2
towards the enforcement of an
ambiguous provision of the
Constitution, it appears that
while the enforcement purpose of
that article is clear on the
face of its provisions, its
interpretative purpose is
comparatively latent.”
Based on the above
decisions and the principles of
law decided therein, we have no
doubts whatsoever in our minds
that the plaintiffs have
properly invoked the original
jurisdiction of this court, and
this court must therefore give
them a hearing in line with the
principles of law stated
therein.
The objection on grounds
of jurisdiction is thus
dismissed.
This then requires us to
consider the two issues set out
in the memorandum of issues.
1.
WHETHER OR NOT THE
AUDITOR-GENERAL FULLY DISCHARGES
HIS CONSTITUTIONAL OBLIGATION
SIMPLY BY AUDITING AND POINTING
OUT FINANCIAL IRREGULARITIES IN
THE ACCOUNTS OF A PUBLIC ENTITY
The Constitutional and
Statutory mandate of the
Auditor-General in respect of
the public accounts of Ghana as
defined in article 187 (2) of
the Constitution are well stated
not only in the Constitution,
but also in the Audit Service
Act 2000, Act (584) and the
Public Financial Management Act,
2016 (Act 921) respectively.
For example, the
constitutional obligations of
the Auditor-General include the
following:-
(i)
to audit and report on the
public accounts of Ghana and of
all public offices. Article 187
(2)
(ii)
to within six months after
the end of the financial year
prepare a report of his audit
and lay same before Parliament
drawing attention to any
irregularities in the accounts
audited and to any other matter
which in his opinion ought to be
brought to the notice of
Parliament reference. - Article
187 (5).
(iii)
To audit any public office
upon the request of the
President acting with the advice
of the council of State
reference. - Article 187 (8).
(iv)
To exercise his
Disallowance and Surcharge
obligations in respect of
irregularities he discovers in
the performance of his functions
under the Constitution or any
other law, article 187 (7) (b).
It is to be noted that,
these constitutional obligations
even though exist separately,
some can only be triggered by
the performance of others. For
example the Auditor-General must
conduct an audit into the public
accounts of Ghana before he can
prepare a report to Parliament.
Similarly, there must also be an
audit by the Auditor-General
into the public accounts before
there can be any Disallowance
and or Surcharge.
However, it is possible
for the Auditor-General to
perform the audit into the
public accounts of Ghana,
prepare a report and lay same
before Parliament without any
irregularities detected. But it
is not automatic that there must
be a Disallowance and Surcharge
arising from every such report.
These are only triggered when
the report discloses
irregularities in the public
accounts audited.
Thus, the constitutional
obligation in article 187 (7) on
the Auditor-General to exercise
his mandate of Disallowance and
Surcharge in the manner stated
are only invoked against those
persons responsible for
incurring the liabilities which
have led to the occurrence of
the events listed in articles
187 (7) (b) (i) (ii) and (iii)
supra of the constitution.
Furthermore, if we
consider The Statutory
Interventions in Acts 584
and 921, then it becomes very
clear that the Auditor-General’s
constitutional mandate in
auditing the public accounts of
Ghana far exceeds the task of
auditing and pointing out the
irregularities in the accounts
of a public entity.
When one considers in
detail, the effect of Section 20
(2) of Act 584 referred to,
elsewhere in this rendition,
then it becomes crystal clear
that the Auditor-General, quite
apart from conducting an audit
into the public accounts of
Ghana and preparing a report for
Parliament and drawing attention
to irregularities, and the
matters stated therein, must
definitely trigger his powers of
Disallowance and Surcharge
obligations, whenever these
irregularities exist.
We are therefore of the
considered view that the
statement by the learned Counsel
for the Defendants that, Section
17 of Act 584 only mandates the
Auditor-General to issue
management letters as indicated
in exhibits AG1 to AG4 is
untenable.
This is because, a careful
reading of Section 17 of Act 584
referred to supra, gives very
clear indications that the
provisions therein stated are to
be procedural steps that the
Auditor-General is mandated to
pursue in his quest to fulfill
the Discharge and Surcharge
obligations imposed upon him
under the Constitution.
What is worthy of note is
that, the 4th
Republican Constitution has been
anchored on the principles of
Freedom, Justice, Probity and
Accountability and the
recognition that the powers of
government spring from the
sovereign will of the people
based on the concept of
universal adult suffrage and
rooted on the principle of Rule
of Law, the protection and
preservation of fundamental
human rights among others as
stated in the preamble to the
Constitution.
When we juxtapose these
principles against the powers of
the Auditor-General in article
187 (7) (b) and Acts 584 and 921
respectively, it becomes very
clear that adequate measures
have been put in place to afford
any person against whom the
Attorney-General has exercised
his powers of surcharge and
disallowance to avail himself of
the due processes in the High
Court to vindicate himself,
whilst at the same time ensuring
that the public accounts of the
state are duly protected.
That fundamental right in
Section 17 subsection 3 of Act
584 which enables an aggrieved
person against whom a
Disallowance and Surcharge had
been made by the Auditor-General
to within 60 days appeal to the
High Court is in itself a
recognition of the fact that,
failure by an aggrieved person
to take those steps can lead to
the disallowance and surcharge
being enforced without more.
This enforcement can lead to the
attainment of the principles of
probity and accountability
enshrined in the Constitution.
We are further emboldened
by the views we have expressed
in this judgment when we refer
to the views of the then
Auditor-General in Exhibit OG2,
attached to these proceedings
which are the proposals of the
Auditor-General for amendment of
the Constitutional provisions of
the office of the
Auditor-General.
For example on page 16 of
the proposals, under the heading
Issues and Comments are
the following:-
“The provisions of Article 187
(7) (a) & (b) should be
maintained and enforced.
The independence of the
Auditor-General from the
direction or control of any
person or authority is a key
requirement under INTOSAI’s
Auditing standards. The
office of the Auditor-General
has received adverse comments
from Development Partners who
have invested in the national
budget and also from Parliament
for not actively introducing
measures to implement the
provisions on surcharge and
disallowance.” emphasis
From the above, it is
clear that the Auditor-General
has recognized the need to
maintain and enforce the
provisions in article 187 (7)
(a) & (b) supra and also
implement and enforce the
provisions on surcharge and
disallowance.
There is also a tacit
recognition by the
Auditor-General that the
provisions on disallowance and
surcharge must be maintained.
The problem if any is the
erroneous impression in the mind
of the then Auditor-General that
the said powers are
discretionary in nature and
that perhaps that he needed
more legislation to carry out
this disallowance and surcharge
mandate. If this be it, then it
is untenable.
The memorandum to the
Interpretation Act, 2009 (Act
792) states in part as follows:-
“In essence
the Constitution must be
construed or interpreted in a
manner
(a)
that promotes the rule of law
and the values of good
governance,
(b)
that advances human rights and
fundamental freedoms
(c)
that permits the creative
development of the provisions
of the Constitution and the Laws
of Ghana, and
(d)
that avoids technicalities which
defeat the purpose of the
Constitution and of the ordinary
law of the land.”
The Chambers, 21st
Century Dictionary, Revised
Edition, defines disallow on
page 379 as follows:-
“verb - to formally refuse to
allow or accept something
(2) to judge something to be
invalid – disallowance – noun”.
The same dictionary on
page 142 defines surcharge as
follows:-
(i)
an extra charge, often as
a penalty for late payment of a
bill.”
When we consider the
meanings ascribed to these words
in the context in which they
have been used in article 187
(7) (b) of the Constitution then
there seems to be no doubt
whatsoever that, what the words
actually mean is that, the
Auditor-General will formally
refuse to accept or allow any
item of expenditure that is
contrary to law etc.
Having refused to accept
or allow the expenditure as
being contrary to law, the
Auditor-General now proceeds to
impose an extra charge as
penalty for the retrieval of the
amount or expenditure that he
has refused to allow or accept,
because it was contrary to law.
Furthermore, article 34
(1) which deals with the
Directive Principles of State
Policy provide thus:-
“The Directive Principles of
State Policy contained in this
chapter, shall guide all
citizens, Parliament, the
President, the Judiciary
the Council of State, the
Cabinet, political parties and
other bodies and persons in
applying or interpreting this
Constitution or any other law
and in taking or implementing
any policy decisions, for the
establishment of a just and free
society.” Emphasis
The above provisions are a
clear injunction on the
Judiciary to bear the above in
mind when interpreting the
Constitution. There is thus no
room for us as a Judiciary to be
pedantic in dealing with issues
of constitutional
interpretation. This is
especially so when in article 37
(1) of the Constitution, (which
also includes the provisions on
the Directive Principles of
State Policy). It is directed
that, “the state shall endeavour
to secure and protect a social
order founded on the ideals and
principles of freedom, equality,
justice, probity and
accountability as enshrined in
chapter 5 of this Constitution.”
Emphasis
All constitutional
interpretations must therefore
bear the above provisions in
mind. This is especially so when
we consider provisions requiring
compliance with upholding of the
tenets of probity and
accountability vis-à-vis the
work of the Auditor-General in
protecting the public purse for
the public good.
On the basis of the above,
the nature of the Constitution
as the basic law of the land and
therefore requiring pride of
place has been recognized in
article 11 (1) of the
Constitution.
At this stage, it is
useful to refer and remind
ourselves of the fact that the
Constitution itself in article
11 (1) (a) has given pride of
place to the Constitution as the
Grundnorm, that is to say it is
at the apex, of the laws of
Ghana. This therefore means that
the constitutional provisions in
article 187 (7) (b) take
precedence over any other laws,
and must therefore be regarded
in that position.
In our opinion therefore,
the mandate of the
Auditor-General in exercising
his constitutional obligations
in article 187 (2) of the
Constitution does not end simply
by the performance of same and
issuing a report on the
irregularities in the accounts
of a public entity, but goes
beyond it to include the powers
of Disallowance and Surcharge
which we will consider next.
WHETHER OR NOT THE
AUDITOR-GENERAL HAS AN
OBLIGATION TO ENSURE THAT HIS
POWERS OF DISALLOWANCE AND
SURCHARGE DULY EXERCISED ARE
COMPLIED WITH BY PUBLIC ENTITY
OR OFFICIALS DIRECTLY AFFECTED
BY THE AUDITOR-GENERAL’S
EXERCISE OF HIS POWER OF
DISALLOWANCE AND DISCHARGE
We have been persuaded by
the submissions of both learned
counsel for the parties herein
that, apart from the
constitutional provisions in
article 187 (7) (b) supra, which
is applicable to the
circumstances of this case, the
other relevant statutes are
sections 17 (1) of Act 584 supra
and Sections 85 (1) and 88 (1)
respectively of the Public
Financial Management Act, 2016
(Act 921) which provides as
follows:-
85. (1) A Principal Spending Officer shall, on an annual basis,
submit the following to the
Minister and Auditor-General:
(a)
a report on the status of
implementation of
recommendations
made
by the Auditor-General in
respect of that covered entity;
and
(b)
a report on the status of
implementation of
recommendations
made by Parliament in respect of that covered entity.
(2) The Attorney-General shall,
on an annual basis, submit a
report on the status of any
action commenced on behalf of
the Government to the Minister,
Auditor-General and Parliament
following findings of the
Auditor-General and
recommendations of the Public
Accounts Committee of
Parliament.
88. (1) An Audit
Committee shall ensure that the
head of a covered entity, to
which the Audit Committee
relates,
(a)
pursues the implementation of
any recommendation contained in
(i) an internal audit report;
(ii) Parliament’s
decision on the
Auditor-General’s report;
(iii) Auditor-General’s
Management Letter; and
(iv) the report of an internal
monitoring unit in the covered
entity
concerned particularly, in
relation to financial matters
raised; and
(b)
prepares an annual statement
showing the status of
implementation of any
recommendation contained in
(i) an internal audit
report;
(ii) Parliament’s
decision on the
Auditor-General’s report;
(iii) Auditor-General’s
Management letter;
(iv) the report on
financial matters raised in an
internal monitoring unit of a
covered entity; and
(v) any other related
directive of Parliament.
(2) An annual statement
required under subsection (1)
(b) shall
(a)
indicate the remedial action
taken or proposed to be taken to
avoid or minimise the recurrence
of an undesirable feature in the
accounts and operations of a
covered entity;
(b)
indicate the period for the
completion of the remedial
action; and
(c)
be endorsed by the relevant
sector Minister and forwarded to
the Minister, Parliament, Office
of the President and the
Auditor-General within six
months after the end of each
financial year.” Emphasis
supplied.
A perusal of the
Constitutional provisions in
article 187 (7) (b) and
statutory provisions referred to
supra, makes it quite clear that
the bifurcated or two pronged
enforcement regime argument put
up by the Plaintiffs in their
statement of case is not only
borne out by the relevant
provisions referred to supra,
but also prudent, designed to
the encouragement of probity and
accountability in the management
of public accounts.
1.
In the first procedure,
the public entity against whom
the irregularity has been made
is required to take steps to
collect or retrieve the amount
from the person who incurred the
liability and has been
surcharged.
2.
The second stage is where
the person surcharged does not
pay the amount and the
provisions in section 17 of Act
584 supra are triggered.
As already stated supra,
section 17 (1) thereof of Act
584 stipulates that it is to the
head of the public entity that
the Auditor-General shall
specify the requirement to
collect any amount due from the
person on whom a surcharge or
disallowance has been made and
the reasons therein contained.
As stated supra, the
roadmap that is envisaged by the
Section 17 (1) provision of Act
584 has been indicated. This
roadmap has recently been given
a further boost by the enactment
of the High Court (Civil
Procedure) (Amendment) No. 2
Rules, which are Rules of
procedure enacted by the Rules
of Court Committee to further
amend the High Court (Civil
Procedure) Rules, 2004 (C. I.
47) by the insertion after Order
54 of the following new Order on
“Disallowance and Surcharge
Appeals). The enactment of C. I.
102 makes it quite certain that
the powers of the
Auditor-General under article
187 (7) of the Constitution are
to retrieve from persons who
have caused loss of public funds
in their management of same
which is contrary to law. The
law speaks for itself and there
can be no turning back on this.
However, where the person
surcharged files an appeal,
Order 54A rule 2 (7) and (8) of
C. I. 47 constitutes the
Auditor-General into the
respondent to the appeal, as
follows:-
(7)
For the purposes of the
appeal, the Auditor-General is
the respondent.
This makes it quite
apparent that, following the
Auditor-General’s exercise of
the Disallowance and Surcharge,
the bifurcated approach is
triggered. It should also be
noted that, there can be no such
bifurcated approach to retrieve
the sums of money so specified
unless and until there has been
a disallowance and surcharge.
Furthermore, Section 88
(1) and (2) of Act 921 puts the
matter beyond doubt by
stipulating the various steps
that the head of the entity
covered is expected to take in
order to ensure the
implementation of the
Auditor-General’s
recommendations as contained in
his management reports and final
report on financial matters.
Section 85 (1) (a) and (b)
on the other hand directs the
Principal spending officer to
submit on an annual basis, the
following:-
(a)
A report on the status of
the implementation of the
Auditor-General’s report.
(b)
A report on the status of
the implementation of the report
of the Auditor-General made by
Parliament in respect of the
entity covered.
In our considered opinion,
in interpreting the
constitutional provisions
referred to in article 187 (7)
(b) (i) (ii) and (iii) supra, we
also have a duty to look at all
the subordinate legislations
which have been enacted to
practicalise the harmonious
effect of the constitutional
provisions. These include the
following:-
1.
Audit Service Act, 2000
Act 584
2.
Audit Service Regulations,
2011 C.I. 70
3.
Public Financial
Management Act, 2016 Act 921
4.
High Court (Civil
Procedure) (Amendment) No. 2
Rules 2016 C. I. 102
Perusal of the relevant
sections of Act 584 and 921
supra, and the overriding
philosophical underpinnings of
the 4th Republican
Constitution in it’s preamble,
make it quite clear that the
said constitutional provision on
the powers of Disallowance and
Surcharge of the
Attorney-General must be
enforced.
We reckon the fact that,
the stipulations in articles 187
(2) (3) (4) (5) and (6) of the
Constitution has the operative
word “shall”, and this is
mandatory.
However, 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 to be noted that,
the general rules for
construction or interpretation
that we have become so familiar
with were formulated by Judges
and crystalised into rules and
principles of interpretation.
See for example the
mischief rule which was
enunciated in Heydon’s case
[1584] 3 Co. Rep 7a76 ER 637],
the Literal Rule which was
propounded in the Sussex
Peerage case [1844] 11 Co. &
E 85, 8 E.R.1034], the Golden
Rule enunciated in the Grey v
Pearson [1857] 6. H.L.C 61,
10 E. R, 1216].
The courts in the
commonwealth then moved to the
now in vogue Purposive Approach.
Judges in Ghana and elsewhere in
the Commonwealth, have where it
is considered appropriate
abandoned the strict
constructionist view of
interpretation in favour of the
purposive approach to
interpretation which per Atuguba
JSC in his opinion in Re
Presidential Election Petition,
Akufo-Addo & 2 others (No. 4)
v Mahama & 2 Others (No. 4) 2013
SCGLR (Special Edition) page 73
at 111 where he stated that
“the purposive approach has been
enthroned in the Supreme Court
as the dominant rule for the
construction of the
Constitution.”
See also the Supreme Court
case of Agyei Twum v
Attorney-General & Akwetey
[2005-2006] SCGLR 732 at 757
where the court adopted the
purposive approach to
interpretation of the
Constitution.
See also Ransford
France No. 3 v Electoral
Commission & Attorney-General
[2012] 1 SCGLR 705 at 718
where the court rejected a
literal interpretation that was
urged upon it in favour of a
purposive approach claiming that
a literal interpretation would
lead to grave injustice.
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?
We have been privileged to
have been given access to the
training materials used by the
Auditor-General on March 23rd
2006 in a presentation by the
then Auditor-General Mr. Edward
Dua Agyemang, at a seminar on
public accounts management,
among others, on the topic
“Public Expenditure Monitoring
and Tracking- The Role of the
Auditor-General” attached to
these proceedings as exhibit
OG1.
We find these materials
quite appropriate, and
revealing. Since they also
conflict with the stance of the
Defendants in these proceedings,
we deem it appropriate to refer
to some of them as per exhibit
OG1.
Powers of surcharge
and approval of systems
“In the course of monitoring
public expenditure, the
Auditor-General has been given a
unique power of surcharge by the
Constitution and the Audit
Service Act.
Article 187 (7) (b) of the
Constitution requires that the
Auditor-General may disallow any
item of expenditure, which is
contrary to law and surcharge.”
Any person against whom a
surcharge has been raised by the
Auditor-General has the power of
appeal against the surcharge in
the High Court.
So far this power has not been
invoked against public officials
because they are given the
opportunity to rectify financial
lapses resulting in delayed
accountability.
However, because of the
escalation in cash
irregularities by 99.5% in 2004
involving presented payments
vouchers and unacquitted
payments, the Auditor-General
will invoke his powers of
surcharge against responsible
officers for such serious
compliance violations in 2006.
This robust sanction will hasten
and deepen accountability in the
country.” Emphasis
The combined effect of the
above is that, as at March 2006,
the office of the
Auditor-General recognized the
fact that the way to protect the
public funds of Ghana, and
prevent looting of the public
purse, avoid corruption and
dictatorship is to practicalise
the constitutional provisions on
the powers of surcharge and
disallowance, granted the
Auditor-General under the
Constitution 1992.
However, this resolve to
exercise this power from 2006
has not only been breached, but
there has been stoic silence
from the office of the
Auditor-General to date.
We do not substitute the
views of the Auditor-General in
those presentations for our
constitutional mandate in
interpreting and enforcing the
constitutional provisions in
article 187 (7) (b) as we are
required to do. We have only
done the references in order to
let it be known that, this was
the thinking of the
Auditor-General in 2006 on these
vexed issues.
We also wish to refer to
the locus classicus case of
Tuffour v Attorney-General
[1980] GLR 637. Even though
the facts of this case are well
known, suffice it to be stated
briefly as follows:-
The Plaintiff therein,
filed a writ against the Speaker
and Attorney General under
Section 3 of the first Schedule
to the Constitution 1979 for a
declaration as follows:-
a.
On the coming into force
of the Constitution the Hon. Mr.
Justice Apaloo was deemed to
have been appointed as Chief
Justice and also as President
and member of the Supreme Court.
b.
The application of the
procedure in article 127 (1) to
him and his purported vetting
and rejection by Parliament were
in contravention of the
Constitution.
c.
That Justice Apaloo
remained Chief Justice and
President of the Supreme Court.
Sowah JSC (as he then was)
in delivering the judgment of
the court, made some pronounced
and notable statements regarding
the nature of a written
constitution such as this 4th
Republican Constitution and how
it also mirrors the history of
the people of Ghana. Out of
abundance of caution, we wish to
refer to the relevant portions
of that judgment.
This has been done with a view
to illustrating how
Constitutional provisions can be
interpreted to achieve the
special architecture designed to
ensure a proper equilibrium in
the governance structure aimed
at probity, accountability and
transparency. Without these
values, all is vanity in our
quest for a control mechanism of
our public funds or accounts.
He states:-
“A written Constitution such as ours
is not an ordinary Act of
Parliament. It embodies the will
of a people. It also mirrors
their history. Account,
therefore, needs to be taken of
it as a landmark in a people’s
search for progress. It contains
within it their aspirations and
their hopes for a better and
fuller life.
The Constitution has its letter of the
law. Equally, the Constitution
has its spirit. It is the
fountain-head for the authority
which each of the three arms of
government possesses and
exercises. It is a source of
strength. It is a source of
power. The executive, the
legislature and the judiciary
are created by the Constitution.
Their authority is derived from
the Constitution. Their
sustenance is derived from the
Constitution. Its methods of
alteration are specified. In our
peculiar circumstances, these
methods require the involvement
of the whole body politic of
Ghana. Its language,
therefore, must be considered as
if it were a living organism
capable of growth and
development Indeed, it is a
living organism capable of
growth and development, as the
body politic of Ghana itself is
capable of growth and
development. A broad and liberal
spirit is required for its
interpretation. It does not
admit of a narrow
interpretation. A doctrinaire
approach to interpretation would
not do. We must take account of
its principles and bring that
consideration to bear, in
bringing it into conformity with
the needs of the time. And so we
must take cognisance of the
age-old fundamental principle of
constitutional construction
which gives effect to the intent
of the framers of this organic
law. Every word has an
effect. Every part must be given
effect. Perhaps it would not be
out of place to remember the
injunction of St. Paul contained
in his First Epistle to the
Corinthians, Chapter 12, verses
14-20 (King James Version):
“For the body is not one member,
but many. If the foot shall say,
Because I am not the hand, I am
not of the body; is it therefore
not of the body? And if the ear
shall say, Because I am not the
eye, I am not of the body;
is it therefore not of the body?
If the whole body were an eye,
where were the hearing ? If the
whole were hearing, where were
the smelling . . . ?
But now are they many members,
yet but one body.”
And so a construction should be
avoided which leads to
absurdity.
And when a particular
interpretation leads to two,
shall we say “inconsistent”
results, the spirit of the
Constitution would demand that
the more reasonable of the two
should be adhered to. We must
have recourse to the
Constitution as a whole.”
Emphasis supplied
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.
We reckon that, it is in
the pursuance of these noble
objectives that the Rules of
Court Committee has enacted C.
I. 70 and also C.I. 102 both
referred to supra.
The rationale for the
above is to give teeth to
the constitutional and statutory
mandate of the Auditor-General’s
powers on Disallowance and
Surcharge to bite.
In their respective
submissions, learned counsel
have variously referred to and
relied on Audit observations and
management letters.
In essence, whilst the
Defendants concede that the
Auditor-General has this
constitutional power or mandate
of surcharge and disallowance,
they argue that, the duty of the
Auditor-General ends with the
submission of his report. They
contend further that, action on
the Auditor-General’s reports
are to be implemented by other
statutory bodies. These are the
Audit Committee’s established
under the Public Financial
Management Act, 2016, Act 921,
section 85 (1) of which deals
with the report and
recommendations of the
Auditor-General by the principal
spending officer of that entity
in relation to his dealings with
the Auditor-General and
Parliament respectively.
On the other hand,
sections 86 to 88 of Act 921
deals with the Establishment of
Audit Committees by various
entities, the composition of the
membership of such committee’s
and the functions of the said
Audit Committees respectively.
Section 88 (1) of Act 921
has already been referred to
supra. The crux of the
provisions therein contained
indicate that, in all cases;
1.
The Audit Committees are
to pursue the implementation of
any recommendation contained
inter alia, in the
Auditor-Generals report, as
decided upon by Parliament, and
the Auditor-General’s management
letter and
2.
To prepare an annual
statement showing the status of
implementation of any
recommendation contained in the
Auditor-General’s report on
(a)
Parliament’s decision on
the Auditor-General’s report and
(b)
Auditor-General’s
management letter, among others
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.
When we consider the
combined effect of Regulations
34, 35, and 57 respectively of
the Audit Service Regulations,
2011 C I. 70, which deals with
Audit observations and
reporting, consequences of not
responding to an audit
observation and issue of
management letters after
completion of an audit
assignment respectively, it
becomes very clear that these
roles and functions are
different in scope and magnitude
from the Auditor-General’s
report envisaged and stipulated
in articles 187 (2) (5)
respectively of the
constitution.
Whilst management letters
are issued by Branch and
sectorial heads within two weeks
of an audit assignment,
containing their findings,
recommendations and conclusions
of their assignment to the
management of the entity and
copied to the officials and the
organisations, that of the
Auditor-General is wider in
scope as it is submitted to
Parliament and has far reaching
effects and consequences as is
stipulated in articles 187 (7)
(b) of the Constitution.
Audit observations per
Regulation 34 (1) of C. I. 70 on
the other hand are formal audit
observations issued at an audit
location in the course of the
audit. In this respect, the
audit team is enjoined under
Regulation 34 (2) (a) & (b) of
C. I. 70 to take steps to
discuss with the audited
organization the findings and
recommendations arising from the
audit and also obtain written
responses from the audited
organization. Thus these
activities occur at a lower
level and earlier stage of the
process which culminated in the
Auditor-General’s report
submitted to Parliament.
It is thus therefore quite
clear that Audit observations,
and Management letters are
different in context, scope and
magnitude from the
Auditor-Generals’ report as
stipulated in article 187
referred to supra.
From the above
discussions, it is quite
apparent that the
Auditor-General has an
obligation to ensure that his
powers of disallowance and
surcharge duly exercised by him
under article 187 (7) (b) of the
Constitution are complied with
by the public entity or
officials directly affected by
the exercise of his powers of
surcharge and disallowance.
CONCLUSION
In the premises, it is our
considered view that using the
principles of interpretation so
eloquently and powerfully
explained in the decision in the
case of Tuffour v
Attorney-General, supra and
the purposive approach to
interpretation generally, this
court will interprete article
187 (7) (b) as having a
mandatory effect in so far as
the Auditor-General’s report is
final.
In the premises, the Plaintiffs
succeed in their claims against
the Defendants in respect of
reliefs 1, 2, and 3 as follows:-
1.
That upon a true and
proper interpretation of Article
187 (7) (b) (i) of the
Constitution, the
Auditor-General is bound to
issue a disallowance or
surcharge where there has been
any item of expenditure on
behalf of the Government that is
contrary to law.
2.
That upon a true and
proper interpretation of Article
187 (7) (b) (ii) of the
Constitution, the
Auditor-General is bound to
issue a disallowance and
surcharge where any person fails
to bring any sum into the
Government’s account.
3.
That upon a true and
proper interpretation of Article
187 (7) (b) (iii) of the
Constitution, the
Auditor-General is bound to
issue a disallowance and
surcharge where the Government
suffers or incurs a loss or
deficiency through the
negligence or misconduct of any
person.
4.
Reliefs 4 and 5 are
granted in their entirety
against the Defendants.
CONSEQUENTIAL ORDERS
1.
As a sequel to our
judgment just delivered, we
further direct that, henceforth,
the Auditor-General shall take
steps to recover the amount
unlawfully expended from the
person or persons who incurred
and or authorised the disallowed
expenditure.
2.
Secondly, the
Auditor-General shall also take
steps to recover the amount from
the person or persons by whom
the amount ought to have been
brought into account.
3.
Thirdly, the
Auditor-General shall also take
steps to recover the value of
the loss or deficiency from the
person or persons by whose
negligence or misconduct the
losses or deficiencies were
incurred, (whether or not the
person is a public servant).
4.
Finally, the
Attorney-General is hereby
ordered to take all necessary
steps to enforce the decisions
or steps taken by the
Auditor-General supra to ensure
compliance including in some
cases criminal prosecutions.
We have had to issue out
the above consequential orders
even though we are happily aware
that the current Auditor-General
Mr. Daniel Yao Domelevo has
taken steps to train his staff
under C. I. 102 to prepare them
adequately for the hearings in
respect of the surcharge and
disallowance appeals anticipated
under article 187 (7) of the
Constitution.
EPILOGUE
Quoting again from the
presentation by the then
Auditor-General, Mr. Edward Dua
Agyemang, attached to these
proceedings by the Plaintiffs as
exhibit OG1, which we have
already referred to supra, the
Auditor-General concluded that
presentation as follows:-
“Let me conclude by saying that
whenever people get a choice
between privacy and
accountability, they tend to
choose privacy for themselves
and accountability for everyone
else. But accountability and
good governance are inextricably
interrelated with each other.
Take away accountability from
good governance and you will be
left with dictatorship and
corruption.
For accountability to thrive
there is the need to have
effective monitoring and
tracking of public expenditure
by the Auditor-General. The
success in this endeavor depends
on strong political will to
adequately resource the
Auditor-General to be able to
hire and maintain properly
trained staff and professionals;
acquire the needed equipment and
other resources.
The growing interest of the
public in the work of the
Auditor-General has demonstrated
the important contribution the
Auditor-General makes in helping
our nation spend wisely through
expenditure surveillance. The
Auditor-General provides
assurances to the people of
Ghana through Parliament that
public money is spent properly
and that there is
accountability.” Emphasis
From the above, what is
apparent is that, there is an
urgent need to adequately
resource not only the office of
the Auditor-General, but also
that of the other constitutional
bodies like the Judiciary, CHRAJ
and Attorney-General, just to
mention a few, who are the front
runners in our fight against
corruption. This will ensure
that the impact of these
constitutional bodies in our
quest to ensure probity and
accountability thereby enhancing
proper management and control of
public funds is put on a higher
pedestal.
We believe that as a
nation, we have reached a
critical stage in our governance
systems where we must not shy
away from spending wisely in
order to superintend the public
purse. This is the only sure way
to ensure that the good
governance principles enshrined
in the Constitution such as
article 187 (7) (b) are not
lost.
There is an old adage
which states as follows “penny
wise, pound foolish”. We
therefore must adequately fund
these constitutional bodies
including the Auditor-General to
ensure maximum protection of the
public funds.
Save as is stated supra,
the Plaintiffs succeed
substantially on their claims
against the Defendants.
V. J. M. DOTSE
(JUSTICE OF
THE SUPREME COURT)
S.
A. B. AKUFFO (MS)
(JUSTICE OF
THE SUPREME COURT)
S.
O. A. ADINYIRA (MRS)
(JUSTICE OF
THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF
THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF
THE SUPREME COURT)
N. S. GBADEGBE
(JUSTICE OF
THE SUPREME COURT)
A. A. BENIN
(JUSTICE OF
THE SUPREME COURT)
COUNSEL
THADDEUS SORY FOR THE
PLAINTIFF.
GRACE EWOAL, PRINCIPAL
STATE ATTORNEY FOR THE
DEFENDANT.
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