Under Ghana’s 1992 Constitution, the Auditor-General “cannot mysteriously disappear, he cannot be shut up, he cannot be arrested or lose his job for doing his work”, civil society group OccupyGhana has said in a statement concerning Mr Daniel Yaw Domelevo’s duel with Senior Minister Yaw Osafo-Maafo over the former’s disallowance of a $1-million payment made by the former Finance Minister to private firm Kroll & Associates for “no work done”, according to the 2018 Auditor-General’s report, and his surcharging of same by the A-G.
In OG’s statement titled: ‘OccupyGhana hails constitutional independence of Auditor-General’, the group said “people he surcharges (whoever they are) have no option but to work under the principles of constitutionalism and the rule of law, and to challenge the Auditor-General in court”.
OG’s statement comes a day after Mr Osafo-Maafo said he was resorting to the court to fight the surcharge imposed on him by Mr Domelevo.
The A-G’s 2018 report said Mr Osafo-Maafo supervised the payment of the $1 million to Kroll & Associates, despite no work having been done, thus, the disallowance of the payment and surcharging of Mr Osafo-Maafo.
Mr Osafo-Maafo challenged the claims of the Auditor-General, insisting work was done by Kroll to merit the payment but Mr Domelevo would not budge.
Mr Osafo-Maafo has, therefore, gone to court to fight his case.
“I have today, Wednesday, 11 December 2019, instructed my lawyers to commence legal processes to challenge a disallowance and surcharge imposed on me by the Auditor-General following his notice on 24 October 2019.
“The evidence available shows clearly that the Auditor-General erred in law and professional procedures in the exercise of his powers regarding his audit on payments to Kroll and Associates Limited,” the former Finance Minister said in a statement.
“The legal action has been initiated on behalf of myself and four other officials of the Ministry of Finance. I am optimistic that the courts will afford us the opportunity to prove the regularity of the said transaction and clear our names in the process”, he noted.
Read OG’s full statement on the matter below:
Pray - 12TH DECEMBER 2019
OCCUPYGHANA® PRESS STATEMENT
OCCUPYGHANA® HAILS CONSTITUTIONAL INDEPENDENCE OF AUDITOR-GENERAL
OccupyGhana® has closely followed the story about the Auditor-General disallowing a one-million-dollar payment and surcharging the Senior Minister with that amount.
We have also seen a statement dated 11th December 2019, issued by the Senior Minister in which he states his disagreement with the Disallowance and Surchage and communicates his intention to challenge them in court.
We do not think that these momentous developments in our history ought to pass without comment.
This is probably the first time in this Fourth Republic (and possibly in Ghana’s political history) that an Auditor-General has dared to issue a Disallowance and then Surcharge a minister; and no less a minister than the Senior Minister.
And under the constitutional dispensation that we are blessed with, the Auditor-General, who issued the Disallowance and Surcharge, cannot mysteriously disappear. He cannot be shut up. He cannot be arrested or lose his job for doing his work. Rather, people he surcharges (whoever they are) have no option but to work under the principles of constitutionalism and the rule of law, and to challenge the Auditor-General in court.
When, in November 2014, OccupyGhana began the fight to compel the Auditor-General to exercise the constitutionally-mandated powers of Disallowance and Surcharge, our biggest obstacle was the several naysayers who were convinced that we had no case and would lose. But we were confident because our cause was just and our course was right. We were fortified in our simple argument: that where the Constitution donates a power and prescribes the circumstances under which the power is to be exercised, it is a breach of the Constitution if that power is never exercised. We were convinced that especially where the Auditor-General himself issued annual reports showing the routine illegal dissipation of Ghana’s resources, the non-use of the power to check that wrong was in and of itself an abuse of the power. We, therefore, urged the Supreme Court to interpret the empowering word “may” in the Constitution as the imperative “shall,” so that whenever the Auditor-General discovers what he considers to be a wrongful use of Ghana’s money, he would be mandatorily required to disallow and surcharge.
When on 21st June 2016 the Supreme Court came out with a judgment that granted each of the five reliefs we had sought, we knew that the history of public sector accountability in Ghana had changed forever. But the Supreme Court was not done. It gave one further relief that we had not even asked for, as follows: “Finally, the Attorney-General is hereby ordered to take all necessary steps to enforce the decisions or steps taken by the Auditor-General...to ensure compliance including in some cases criminal prosecutions.”
Going to court cost us a lot in terms of energy, time and resources. But Ghana was, and remains the winner from our convictions and resolve.
We do not know, as yet, the legal route that the Senior Minister plans to take in his promised challenge. However, if it is an appeal under the new Order 54A of the High Court (Civil Procedure) Rules, 2004 (CI 47), then we are even more gratified because we were proud to work on and submit the original draft that gestated into the Bill, which was adopted by the Rules of Court Committee and passed by Parliament as the High Court (Civil Procedure) (Amendment) (No. 2) Rules, 2016 (CI 102), and which we have happily named “the OccupyGhana Rules.”
We believe that in the final analysis, if the Auditor-General erred in the Disallowance and Surcharge against the Senior Minister, the court will say so. However, if he was right, the court will also say so and hold the Senior Minister liable to pay the money paid under the transaction to the state.
That is democracy. That is constitutionalism. That is the rule of law. Ultimately, when the story of Ghana is told, it ought to end with three words: “...and Ghana won.”.
Yours in the service of God and Country,