Public Law fellow at CDD-Ghana Prof. Stephen Kwaku Asare says President Akufo-Addo has no disciplinary control over the Auditor-General.
A letter from the Presidency directing the Auditor-General Daniel Domelevo to proceed on leave for 167 days says “As you are well aware, the power to appoint the Auditor-General is vested in the President and the appointment is done in accordance with article 70 of the Constitution. Per article 297(a) of the constitution, that power to appoint includes the power to “exercise disciplinary control over persons holding or acting in any such office”. Thus to the extent that you fail to comply with a basic term of your appointment such as taking annual leave the President has the power to exercise disciplinary control over you to ensure that you comply with the terms of your appointment.”
Explaining the articles that establish the office of the AG and analysing the directive from the President, Prof. Kwaku Asare said, “There are two directives here, directive number 1 is that the Auditor-General should take accumulated 123 days from effect from July 1 that is pursuant to the 29th June letter which has now been increased to 167 days pursuit to the July letter. And the second directive is for him to hand over all matters relating to the Office of the Auditor-General to a Deputy-Auditor General and now the source of power for this action are identified as Section 21, 31 of the Labour Act and by the most recent letter by Article 2(97) and there is also precedence by Prof Mills.”
“In terms of the constitution, it is very important for people to pay attention to Article 187, 188 and 189. Unless you understand those three Articles none of this discussion will make a whole lot of sense, Article 187 creates an office and that Office is occupied by the Auditor-General and the AG is given some specific functions to audit the public accounts to disallow, to a surcharge and in the discharge of his function he is not subject to any direction or control.”
“So what we have is that he is a constitutional officer, all his reports go to the legislature so in that regard he is a legislative officer and then the instrumentality by which the Auditor-General is to perform his function is provided in Article 188 which creates the Audit Service to the office of the Auditor-General is very different from the Audit Service that is very important. Article 189 creates an Audit Service board, this Audit Service board is the board of the Audit Service, not the Auditor-General’s office. So this board cannot direct or control the Auditor-General because by definition the Auditor-General’s office and the Auditor-General is independent individually and institutionally.”
Speaking on the motive for such establishment he said this is to protect the office from partisan influence.
“We want an Auditor-General who is beyond the reach of partisan politics because the AG Afterall audits the Executive.”
“Because we have a constitutional office and because its functions have been defined by the constitution his duties are prescribed and the duties cannot be delegated to anyone or any entity,” he added.
To this end Prof. Kwaku Asare said the President has no control over the Auditor-General.
“Can the President direct the Auditor-General? no, can the President exercise any control including disciplinary control on the Auditor-General? no.”
“I was shocked because when you look at Article 297 not only does it talk about disciplinary control but it also talks about the removal by this logic there saying that the AG can be removed by the appointing authority, as an independent officer if he misbehaves he is removed with Article 146, the President has no power to remove the Auditor-General and has no power to exercise any control.”