Notice of Court Action to Births and Deaths Registry

Notice of Court Action to Births and Deaths Registry

January 26, 2018

 

The Attorney-General & Minister for Justice

Ministry of Justice and Attorney-General’s Department

Accra

 

Dear Madam,

REFUSAL TO REGISTER NAMES AT THE BIRTHS AND DEATHS REGISTRY – NOTICE OF ACTION

Our attention has been drawn to the implementation of an alleged policy by the Registrars of the Birth and Death Registry that refuses to register the birth of children whose names include names such as “Maame,” “Pappa,” “Nana,” “Naa,” “Junior,” “Nene,” “Nii” and “Ohemaa” as well as determine the order in which names must be written, giving prominence to foreign names over indigeneous Ghanaian names. The Registrars claim that they are empowered to do this on the basis of the Registration of Birth and Death Act, 1965 (Act 301).

We have however checked that Act and all relevant laws including the Regulations passed under the Act. We have not seen any provision that either supports this policy or gives the Registrars of Births and Deaths any power to refuse to register any name. We believe that this stance is a gross violation of the rights of Ghanaians to choose names (particularly Ghanaian names) as they deem fit for their children, subject to the right to change one’s name at any time later in life.

We therefore write to put you on notice, in accordance with section 10 of the State Proceedings Act, 1998 (Act 555), that we intend to commence civil action against the Republic within thirty (30) days of the date of this letter if this illegality is not addressed forthwith.

We however believe that this cause of action will not be necessary if all Registrars of the Births and Deaths Registry will be directed to desist from these acts and stop refusing to register such names as they have no basis in law.

Yours faithfully,

OccupyGhana®

cc

The Honourable Minister

Ministry of Local Government

Accra.

 

The Registrar

Birth and Deaths Registry

Accra

OccupyGhana® Calls For The Existing Television Licence Regime To Be Repealed And Replaced

OccupyGhana® Calls For The Existing Television Licence Regime To Be Repealed And Replaced

4th JANUARY 2018

OCCUPYGHANA® PRESS STATEMENT

OCCUPYGHANA® CALLS FOR THE EXISTING TELEVISION LICENCE REGIME TO BE REPEALED AND REPLACED

OccupyGhana® has followed the recent discussions regarding TV Licence Fees, particularly the announcement that specific courts have been established to try defaulters. We disagree with these moves for two reasons:

  1. There is no constitutional or statutory basis for the Ghana Broadcasting Corporation (GBC), simply as the designated “licensing authority,” retaining the revenue from what is essentially a tax, and then determining how to use it, outside laws passed and appropriations made by Parliament, and
  2. The entire TV Licence regime that was established in 1966 (with just a few amendments) has become obsolete. What is required is not a forcible re-implementation of it, but a root-and-stem review that repeals the existing law and regime, and, if necessary, introduces a new statute and regime that takes the current realities in broadcasting into account.

We will address these matters in turn:

UNCONSTITUTIONALITY AND ILLEGALITY

The Television Licensing Act, 1966 (NLCD 89) and the various Television Licensing Regulations passed under it, provide for the payment of TV Licence Fees for the licensing of the installation and use of “television receiving sets.” These are to exist and operate under the auspices of a “licensing authority” that would be either “the Ghana Broadcasting Corporation or any other statutory corporation appointed by the Minister by legislative instrument.” Every contravention of the Act (including the non-payment of the fee) is an offence punishable by up to a fine of 250 penalty units (GHS3,000) and/or up to one year’s imprisonment.

The TV Licence Fee is simply a tax for owning or dealing in the affected apparatus. GBC is merely the currently designated body to administer the licences and collect those taxes, as an agent of the government. We are not aware of any statute that gives GBC the power to retain the revenue derived from the tax and then use it for its operations, developing content, sharing with other broadcasters or for any other purpose.

That tax revenue is also not listed as one of the sources of funds of the GBC under section 10 of the Ghana Broadcasting Corporation Act, 1968 (NLCD 226). Although that section provides that GBC’s funds include “moneys accruing to the Corporation in the course of the performance of its functions,” tax revenue does not accrue to the GBC and does not fall under this rubric. Similarly, if the Minister were to designate another statutory corporation as the “licensing authority” under the Act, that entity would not have the right to use the revenue.

Further, that revenue does not constitute GBC’s “internally generated funds” (IGF). Article 176 of the Constitution demands that “all revenues or other monies raised or received for the purposes of, or on behalf of, the Government;” and “any other monies raised or received in trust for, or on behalf of, the Government,” must be mandatorily paid into the Consolidated Fund. Exceptions, particularly retentions, are only permitted under an Act of Parliament.

That is why statutes such as the Ministries, Departments and Agencies (Retention of Funds) Act, 2007 (Act 735) and the Public Financial Management Act, 2016 (Act 921) contain strict rules on the use of IGFs, and our statute books are replete with specific statutes (too many to be listed here) in which Parliament expressly allows entities to keep all or part of IGFs. We are not aware of any such statute with respect to the GBC.

It is on these bases that we believe that the automatic retention of the TV Licence Fees by the GBC for its purposes is unconstitutional and illegal and we therefore call for that practice to cease forthwith. Absent a specific enabling legislation, all TV Licence Fees collected should be immediately deposited in the Consolidated Fund.

OBSOLENCE

We further contend that both the regime and the law on TV licensing are obsolete for three main reasons:

(i) The Act defines “television receiving set” as “an apparatus CONSTRUCTED SOLELY for the reception of pictures, with or without sound transmitted by radio” [Emphasis added.] This means that if the apparatus in use, by its manufacture and technology, is not restricted to only receiving pictures (with or without radio-transmitted sound), but is capable of receiving other signals, that apparatus is not the subject of licensing and consequently the payment of the fee. We think that contrary to your expressed view, the law expressly rules out the vast majority of apparatuses (Smart TVs, phones, pads, tablets, etc.) that are currently in use, and which are manufactured to receive and process more than just pictures. Indeed what may even be called “TVs” today are not mere linear broadcast receivers and translators of pictures. They are also used to play games, watch movies, project presentations, display location adverts and browse the Internet. The reality is that a strict application of a law that is based on 1966 technology, to 2017 apparatuses would leave the licensing authority with precious little or almost nothing to enforce the licence against.

(ii) With over authorized 505 radio stations (392 operational) and 75 television stations, Ghanaians have a lot of media sources to consume both local/public and international content. This ensures competition that should result in producing quality content. Also, Ghana has recorded a tremendous growth in the number and diversity of media channels, with Ghanaians having countless media sources such as radio, newspaper, magazines, websites and other online platforms. Further, online platforms such as YouTube, Hulu, Netflix, Apple TV, Amazon Prime Video and Google ChromeCast are redefining content broadcasting online and pointing to the future of TV broadcasting. All these are available and consumed in Ghana, driving the growth of data usage. There are also cable-TV services in Ghana who broadcast local channels through set-top boxes. Some of these have become the first choice channels for media content consumption, thereby reducing the audience share for traditional TV transmission. Evidently, GBC is not the only TV media source where public information is consumed for it to warrant an automatic right to TV Licence Fees and to be able to produce and broadcast public information. Further, not all Ghanaians or TV owners in Ghana will consume GTV’s content.

(iii) GBC (managers of GTV) is a commercial broadcaster. For years, it enjoyed an absolute monopoly in television broadcasting and the income from adverts and sponsored contents. Now it has competition and is faltering. Compelling Ghanaians to pay TV Licence Fees to GBC is grossly unfair and anti-competitive. Announcing the setting up of a court for these purposes sends the wrong signal to Ghanaians, that draconian steps are being taken to use the judiciary a tool of enforcement of a grossly unpopular tax. If GBC is unable to be profitable, in spite of years of government subvention and TV Licence Fees, then it may be time to consider selling it.

CONCLUSION

In conclusion, the world of television has moved from being analogue to the digital sphere. The rules have changed. In a world of digitisation, Ghana should be thinking of laws and policies that look into the future, and seek to create the enabling smart digital environment for prosperity and opportunities for all. You cannot, in 2017, be seeking to implement laws based on obsolete and currently inapplicable 1966 technology and then seek to punish Ghanaian for not complying with it. That is why we are advocating the repeal of the 1966 law and regime, and if necessary, the enactment of new laws that take the new realities into account.

Yours in the Service of God and Country.

OccupyGhana®

STATEMENT TO THE HEALTH MINISTER ON THE OUTBREAK OF INFECTIOUS DISEASES IN SENIOR HIGH SCHOOLS

17TH DECEMBER 2017

OCCUPYGHANA® PRESS STATEMENT

STATEMENT TO THE HEALTH MINISTER ON THE OUTBREAK OF INFECTIOUS DISEASES IN SENIOR HIGH SCHOOLS

Infectious diseases play a significant role in the health of Ghanaians. These diseases, some of which are highly contagious, are fortunately preventable and treatable. Their control however demands sustained and well-financed public health measures. A lack of such measures, their inadequate finance or incomplete implementation can lead to deaths.

It must be noted that some of these diseases are endemic to certain areas of the country while others occur everywhere. Some like meningitis tend to be seasonal while others like malaria may occur year round. What is common to all these diseases is that they are often found in places where people live in close proximity with each other. Our boarding schools and universities are such institutions that come to mind.

OccupyGhana® notes with concern the outbreak of infectious diseases in senior high schools in various parts of the country with at least 8 fatalities this year. In particular, we refer to the outbreak of H1N1 Flu in Kumasi Academy where 4 students have died and many others taken ill and hospitalised, and Meningitis in Koforidua Sec. Tech., Damango Snr. High School, and most recently Bawku Sec. Tech. School.

The questions that arise from these events are whether Ghana has adequate and well-financed public health measures to deal with these outbreaks and if these measures, if available, are implemented properly.

In a nutshell, these measures should include:
• a vaccination or prophylaxis program to protect against contracting these diseases,
• practices that help in protecting one from contracting them,
• a centre manned by trained professionals that monitors the incidence and outbreaks,
• a good reporting system that allows outbreaks to be reported,
• a team that responds to these reports of outbreaks,
• an incident manager to supervise the management of each outbreak,
• an effective way of quarantining affected individuals or communities,
• an effective way of tracking down individuals who may be carriers,
• a clear way of reassuring the public about the measures taken, and their safety and those of their families
• a program to treat the sick and
• measures to get the outbreak under control.

From all the reports of what happened in Kumasi Academy a few weeks ago, several issues become apparent:
• there is a reporting system that allows outbreaks to be reported to the Ministry of Health/ Ghana Health Service (GHS),
• the response from the GHS was adequate,
• it is unclear if autopsies were done on all 4 deceased students,
• diagnosis of the cause was rapid,
• quarantining of the affected students and areas was not good. The President visited the school in that period,
• there seems to be no vaccines available for the H1N1,
• there was a breakdown in adequate communication to the public about the outbreak and the measures being taken.

Considering these listed observations, what has happened at several schools so far, and the fact that we have entered the annual season for meningitis and outbreaks are expected in the meningitis belt, we respectfully ask the Minister of Health to provide answers to the following questions:
• Are our public health measures against infectious diseases well-funded?
• What steps has the ministry taken to protect the public and SHS students from meningitis?
• Have teachers and school staff been educated about meningitis?
• Have students been immunised against meningitis and other preventable infectious diseases?
•Do the schools have isolation guidelines and established links with health care facilities?
• Is there an effective communication strategy with the public and the media and who are the frontline communicators?
• Are the response teams allowed to quarantine affected individuals or even communities? Do we need the help of the military for that?
• Is there always an Incident Manager designated to manage the control of these outbreaks?
• What steps have been taken to enhance sanitation and hygiene and reduce congestion in schools?
• Could the GHS publish protocols to deal with outbreaks for schools?

Infectious diseases, though devastating in their effects, are also controllable and preventable. Let’s all work together to get a handle on them for a healthier Ghana for God and Country.

OccupyGhana®

OCCUPYGHANA® STATEMENT ON THE REPORTED DEFILEMENT OF A MINOR AT ASSIN ADADIENTEM AND MATTERS ARISING

7th NOVEMBER 2017

OCCUPYGHANA® PRESS STATEMENT

OCCUPYGHANA® STATEMENT ON THE REPORTED DEFILEMENT OF A MINOR AT ASSIN ADADIENTEM AND MATTERS ARISING

BACKGROUND.

Two weeks ago, we woke up to media reports, alleging that a 4-year old girl had been sexually abused in Assin Adadientem in the Central Region. This allegedly took place on 13th October 2017. The age of the suspect, named only as “Kwabena.” varies between 17 and 18 years, depending on which source you are getting the information from. The mother of the victim is alleged to have reported the matter to the chief, who is said to have pronounced the suspect innocent on the instructions of the gods. The chief has denied this. The victim’s father is also said to have reported the case to the police. There is very little to that part of the story.

According to one article on ‘myjoyonline’, she bled profusely for days before her mother sought help. According to one report, the victim’s mother had travelled to a funeral and had left her in the care of her 8-year old sister, a report that ought to be seriously investigated. That narrative, and given the fact that the mother detected the bleeding on the 14th of October, suggests that the mother was away for at least one night. Even though the article did not specify the bleeding site, we will assume that it was from the area of the vagina, considering the circumstances.

According to another Joy FM report, Dr. Bernard Brew at the St. Francis Xavier Hospital in Assin Fosu, issued a medical report showing an intact hymen with no evidence of laceration; the vulva however was moist and appeared inflamed.  These events are not unusual when it comes to matters involving child sexual abuse. The stories are hardly ever straightforward and it takes a lot of time, patience, training and commitment to sieve through the available evidence.

We condemn without reservation sex abuse in general and Child Sex Abuse in particular. However, we also believe in being innocent until proven guilty by a competent law court. For there to be a conviction, there must be good evidence gathered by the authorities to hold up in court, and like with all evidence, the earlier collected, the better. A delay usually leads to contamination and unreliability of the evidence, if any.

The court of general opinion has already found 17 or 18-year old ‘Kwabena’ guilty. We do not have the luxury to support that position until, it has been so proved by the prosecution in a competent law court. If ‘Kwabena’ is under the age of 18 years, he would be treated as a juvenile. That would mean that this matter would fall squarely within the remit of the 2003 Juvenile Justice Act, which has very different considerations as regards offences committed by juveniles. Our hearts still go out to the little girl because she is unwell and has been admitted to hospital. This will attempt to dissect the media reports, in an attempt to make any sense of it all, but ultimately, the evidence produced in court is the most crucial.

Globally, Child Sexual Abuse (CSA) is defined as intra or extra familial contact abuse of a minor (below 18 years of age), and the victim may be female or male. What then is defilement? In Ghana, section 101 of the 1960 Criminal and Other Offences Act defines defilement as the natural or unnatural carnal knowledge of a child under sixteen years of age. In defilement, consent from the child is immaterial. What this means is that, a suspect who defiles a child under sixteen cannot say that he obtained consent from the victim therefore he is justified. Apart from having natural or unnatural carnal knowledge of a child, some children are also indecently assaulted; there is a spectrum, running from non-invasive to frank rape, and this poses a challenge.

There are varied but marked consequences on the victims, from mental, through emotional and even to their physical health. CSA is a complex, deeply rooted and very traumatizing phenomenon; the victims suffer profound disturbances in their sexual development. It leads to profound feelings of guilt, shame, low self-esteem and familial and social isolation. Globally, about 20% of girls are sexually abused as minors. Curiously, it has very little correlation with socio-economic status of the victim and the perpetrator – all are at risk. Indeed, it is commoner than childhood cancers.

Could it be related to culture? At this moment, there is no evidence to support that, because the incidence is about the same globally, with the difference being in the number of reported and prosecuted cases. Perhaps, the effect of our culture may lie in the elders, chiefs and deities deciding to adjudicate the matter, rather than allowing the law to take its course. The perpetrators are related or known to the victims in 70% of cases. We also know that this is grossly under reported because of collective and individual shame. When there is strong collective shame, there is a low tendency to disclose. It is even worse when the victim and perpetrator are related. With the combined efforts of the police Domestic Violence and Victim Support Unit (DOVVSU), social pressure groups, better education and financial independence of our women, the number of reported cases has increased. For instance, reported rape cases rose by about 10% from 2016 to 2017, whereas defilement cases reduced by about 15% over the same period.

There are a ton of publications on CSA, and most papers often address it as primarily legal as well as feminist issue. This moved the discussion away from the psychological and emotional dimensions and focused more on the direction and development of the law, and in such cases, the law tends to be identified as a significant site of contest.

This particular case, presents more questions than answers:

  1. Apart from the 8-year old sister, was there an adult child keeper?
  2. If there was such a keeper, what did she do about it before the victim’s mother returned from the funeral?
  3. From the media, the victim’s mother reported after several days of bleeding, why was that so? Was it that the child refused to talk? Was she afraid? Was the mother also afraid?
  4. Did the mother confide in another person prior to reporting the case? If she did, what did the person advise?
  5. The victim’s mother is said to have reported to the chief of the village, can this be corroborated?
  6. If she did report to the chief, what exactly did the chief advise?
  7. Did the chief say he had consulted the oracles who declared the suspect innocent?
  8. Was there another person present when the victim’s mother met the chief? We know that per our customs, there is usually a linguist at least, when the chief holds court.
  9. Has the chief been invited by the police for questioning? If he did not advise the lady to report the case, nor did not report same to the police, can we say he obstructed justice?
  10. Has the suspect been questioned by the police?
  11. Has the suspect been examined by the doctor?
  12. How authentic is the medical report doing the media rounds?
  13. Is it possible for a rape victim not to have physical clinical evidence of rape?

EVIDENCE GATHERING.

The successful prosecution in a normal legal system requires that there are laws that have been infringed upon and good quality evidence presented. Sadly, 90% of CSA will not have any physical clinical findings. Sometimes, the only evidence is the victim’s word, and that has many challenges; even for adults, it is not easy, so you may well imagine it for a 4-year old witness whose evidence might even require corroboration to stand up in court. The recent abuse stories involving Harvey Weinstein, the American movie producer, show that even the adults were afraid to come forward for many years.

‘The absence of the hymen does not mean CSA’.

Anatomy is not sacrosanct; there are variations of normal, and these are not abnormal. In simple language, there are tall and short people, with many shades between. Likewise, there are normal variations of the genitals. The appearance of genitalia and the hymen in particular varies with age, constitution, hormonal and the different phases of life. Tampons, riding, splits and stretches may vary the shape and size of hymen.

The perineum (the area around the vagina/penis and anus) has a rich blood supply, and this hastens tissue healing. It is important therefore, to report immediately. A few days later, and the evidence is gone. Early presentation may also allow for DNA evidence from semen, skin and hair to be collected at the hospital. It also allows for medical examination of the suspect for scratch marks, bruising of genitalia and the victim’s DNA samples on his body. It is important to examine the whole body, and not just the genital area. Most doctors may not be sufficiently trained in child and adolescent gynaecology and forensics, and are therefore, likely to miss important pieces of the jigsaw puzzle. A well-trained gynaecologist will be familiar with the challenges and the current trends in determining CSA. Unfortunately, there is a shortage of those.

RECOMMENDATIONS.

DOVVSU should join hands with the gynaecologists to organize training sessions for the doctors in the front line. This will equip them with the skills to enable them pick up evidence and quickly from the history, physical examination and appropriate investigations. Again, we should look at the legal framework that will enable limited and responsible use of photography to improve evidence collection, interpretation and preservation.

Having lost so much time already, this case needs a medical board with gynaecologists, police interrogators and investigators, psychologists and forensic scientists to give it the best shot.

There is a lot of work to be done to reduce the incidence of CSA in Ghana and the rest of the world. We need the police to be professional, we need the doctors to be well equipped to gather the evidence, we must encourage people to come forward, and early and we must find a way of stopping adjudication by people who are not mandated by law so to do. Even though the state encourages out of court settlement in certain cases, that only applies to misdemeanours and not offences like CSA. It might even be prudent to consider legislation that punishes people who block such cases from coming to the authorities.

Children are not responsible enough to look after other children. That is why the 1998 Children’s Act demands that parents must “ensure that in the temporary absence of a parent, the child is cared for by a competent person.” Parents should therefore show responsibility and not leave children in the care of other children and adults in whom trust is questionable. Ghanaians must be educated on the fact that the breach of the parental care and duty provisions of the Children’s Act is an offence that could end up in the parent being fined and/or going to jail.

Further, parents should love and encourage their children to communicate with them without fear, so that the children are able to report any form of abuse. Finally, the community should not shield offenders.

What we should all realize is that, prevention is better than cure!

Yours in the service of God and Country

OccupyGhana®

OCCUPYGHANA® DEMANDS AN UNQUALIFIED APOLOGY FROM MR. GEORGE AYISI BOATENG OR IN THE ALTERNATIVE HIS REMOVAL FROM OFFICE

OCCUPYGHANA® DEMANDS AN UNQUALIFIED APOLOGY FROM MR. GEORGE AYISI BOATENG OR IN THE ALTERNATIVE HIS REMOVAL FROM OFFICE

1st  NOVEMBER 2017
OCCUPYGHANA® PRESS STATEMENT
OCCUPYGHANA® DEMANDS AN UNQUALIFIED APOLOGY FROM MR. GEORGE AYISI BOATENG OR IN THE ALTERNATIVE HIS REMOVAL FROM OFFICE
OccupyGhana® is disgusted and appalled by High Commissioner George Ayisi Boateng’s discriminatory comments that pitched partisan  interests above those of other Ghanaians. We are even more shocked by his unrepentant expression of lack of remorse in the face of the massive expressions of disappointment at his divisive comments.
We do not have to remind the High Commissioner that as a public officer of his standing, he is required to speak both with honour and from a patriotic disposition. He has failed in this regard.
We do not have to remind the High Commissioner that he must operate above party cronyism and the prioritization of partisan interests above the supreme interests of the Ghanaian people. He has failed in this regard.
We do not have to remind the High Commissioner that his comments run counter to the theme of his own party’s Manifesto: “An Agenda for Change. Creating Prosperity & Equal Opportunities for All.” He has failed in this regard too.
We can not condone such statements, and we condemn them in no uncertain terms as unbefitting of an envoy and holder of a high privileged diplomatic office.
We also condemn the statement made by the Acting NPP Chairman, Mr. Freddie Blay that suggested support for Mr. Ayisi Boateng’s position.
We demand from Mr. Ayisi Boateng an unqualified apology to the people of Ghana for both his appalling initial comments and his subsequent statement expressing lack of remorse. We call on the NPP and the government to denounce the statement and demand a full retraction and apology.
If he should fail or refuse to do that, then we would respectfully and humbly call on the President to remove Mr Ayisi Boateng from office as High Commissioner.
Yours, for God & Country,
OccupyGhana®
OccupyGhana® Condemns The Mishandling Of The Delta Force Case And The Farcical Sentences Imposed.

OccupyGhana® Condemns The Mishandling Of The Delta Force Case And The Farcical Sentences Imposed.

25th OCTOBER 2017

OCCUPYGHANA® PRESS STATEMENT

OCCUPYGHANA® CONDEMNS THE MISHANDLING OF THE DELTA FORCE CASE AND THE FARCICAL SENTENCES IMPOSED.

OccupyGhana ® has noted with grave concern, the ridiculously insignificant fines imposed on the NPP activists who either escaped from lawful custody or engaged in criminal acts under the banner of the Delta Forces.

On March 28th 2017 we issued a press statement condemning the acts of lawlessness, vandalism, violence, thuggery and assault by certain groups said to be associated with the ruling New Patriotic Party (NPP) since it took over the reins of power on January 7th 2017.

We pointed to the Flagstaff House assault on January 9th 2017 by persons alleged to be members of the NPP’s Invincible Forces, forcible takeovers of tollbooths by persons claiming NPP membership, and the March 24 attack in the Ashanti Region by persons alleged to belong to the NPP affiliate, Delta Force.

OccupyGhana® minced no words in expressing our alarm that these unlawful and criminal acts were being brazenly carried out seemingly without condemnation by the government, and in the full glare of and a seeming lack of strong, swift, forceful and decisive intervention by the state security apparatus to stop it. We unreservedly condemned the acts as illegal and unlawful and called on the government, the NPP and the state security apparatus to act to curb them.

We are not aware that anyone was punished for the Flagstaff House attack and tollbooth takeovers. That was bad. But ultimately, what has happened with respect to the acts of the so-called Delta Force leaves a bitter taste in the mouth, makes a mockery of our law enforcement institutions and ridicules our judiciary. From the botched bail hearing which was disrupted by alleged Delta Force members, through the failure of the police to provide evidence to support a prosecution leading to the filing of a nolle prosequi, and ending with the farcical fines slapped on those who escaped lawful custody and the even more farcical fines imposed for “rioting”, the notion that one can get away with impunity and even criminality if one was an activist of a ruling government has been reinforced and fortified.

That is wrong. We are shocked at how these matters have been handled and are even more appalled about the risible fines imposed on the persons found to have engaged in these criminal acts.

One would have thought that all would have learnt lessons from the Montie 3 incidents when it comes to dealing with the court. The physical attack on the circuit court in Kumasi was in our view worse than what the Montie 3 did on radio. One would have expected that the judiciary, like it did with the Montie 3, would send a strong message to all that similar conduct would not be tolerated. Unfortunately the meek fines imposed can at best be described as a stab in the back of the judiciary by the judiciary itself.

It is of little wonder that a self-proclaimed leader of the Delta Force is reported to have stated that they have no regrets for their acts. That is a sad testimony produced by the toxic mix of official complicity and judicial blessings in the imposition of those farcical fines.

It is hardly surprising that on Monday 16th October, in blatant disregard for the rule of law, the Burma Camp Youth Wing, a pro NPP youth group, attacked and chased out  the Regional Coordinator & staff of the Ghana School Feeding Programme in Tamale over perceived unfair allocation of schools in the region to caterers. The group’s chairman has since boldly defended their actions which included locking the Regional GSFP offices saying they would do whatever it takes to make the party succeed.

OccupyGhana® registers its absolute disgust at and utter condemnation of these matters.

It is not too much to demand from political parties, especially those in power, that they call their supporters and support groups to order and educate them on these matters. It is not too much for the state security apparatus, especially the Ghana Police Service to thoroughly investigate acts of thuggery (irrespective of who engages in them), and arrest the perpetrators and bring them to book. It is not too much to demand that the state deal with this fast calcifying canker firmly, immediately and decisively without delay, without favour and resist interference from every quarter. It is not too much to ask of the judiciary that as the last bastion of the rule of law and constitutional harmony, it should do more than merely slap persons who engage in such acts on the wrist.

Our regret is that what has happened will give these or like-minded people and groups increased licence to perpetrate unlawful acts, embolden others to form new groups along similar lines, increase the likelihood of reprisal attacks from rival groups and spur violence between political opponents and on citizens. If the court can be attacked in this way, who can tell how far such people will be prepared to go?

We consider these as grave threats to our national security and cohesion. Ghana cannot afford this. We call on the Attorney-General to appeal against these sentences and to give a higher court an opportunity to review the sentences imposed. That is what will send a clear message that impunity is not tolerated in Ghana. Anything short of this is wrong and unacceptable.

Yours in the service of God and Country,

OccupyGhana®

OCCUPYGHANA® Calls For New Rules On Lpg Dispensing Stations And Trucks

OCCUPYGHANA® Calls For New Rules On Lpg Dispensing Stations And Trucks

9th OCTOBER 2017

OCCUPYGHANA® PRESS STATEMENT

OCCUPYGHANA® CALLS FOR NEW RULES ON LPG DISPENSING STATIONS AND TRUCKS

The explosion and fire that occurred at the Liquefied Petroleum Gas (LPG) dispensing station at the Atomic Junction on the night of October 7th, 2017, is another reminder that the Government and the regulators it appoints need to produce a permanent solution to this issue. There have been eight reported gas explosions within the last 3 years. These are eight occurrences too many.

The fact that several of these LPG dispensing stations are sited in close proximity to markets, chop-bars, shops, lorry stations, and residential areas causing residents to complain, means we have a major problem with adherence to our zoning laws. It also means that we should have the strictest of safety standards, and regulate the siting or existence of these dispensing stations, and most importantly, the discharge of gas from tankers into the site storage tanks. It is critical that the industry players adhere to strict safety rules, comply with standard operating procedures, and have both a perfect maintenance culture and adequately trained staff. There must be periodic, routine and unannounced stress testing and drills including evacuation procedures. Clearly, this training must go beyond the staff to others living or operating in close proximity to these dispensing stations.

We must have and enforce rules that treat the tankers that carry the gas for dispensing almost as ‘weaponised trucks’ that must obtain and maintain special permits and pressure gauges that will indicate if there are any leakages at any time during the transport and discharge.

Until these measures are tried, tested, and put in place, OccupyGhana® would recommend the banning of all on-site dispensing of gas. We side with the decision of the National Petroleum Authority to regulate the downstream gas distribution by phasing out refilling of LPG gas at LPG dispensing stations. Thus, instead of having LPG dispensing outlets, all gas cylinders will be filled by cylinder bottling plants for onward distribution to retail outlets.

We know that LPG distributors have met this decision with fierce resistance. However, in the interest of the health and safety of service providers, consumers and the general public, we urge the regulators to put these measures in place and enforce the zonal laws for the siting of fuel and LPG gas stations.

In the meantime, we urge all the regulators- the NPA, EPA, Ghana Atomic Energy Commission, the GNFS, the Ghana Standards Authority- to ensure that strict safety rules are enforced at filling stations especially during discharge.

Yours in the service of God and Country,

OccupyGhana®

OCCUPYGHANA® PRESENTS RELIEF ITEMS TO SIERRA LEONE

OCCUPYGHANA® PRESENTS RELIEF ITEMS TO SIERRA LEONE

On Wednesday, August 30, 2017, the pressure group OccupyGhana®, donated assorted medical supplies to the Sierra Leone High Commissioner in Ghana to aid in the ongoing relief efforts following the catastrophic mudslides in Regent near Freetown on August 14, 2017.

The items were made up of 16 cartons of all types of intravenous fluids, 400 pieces of intravenous sets, 400 pieces of different intravenous cannulas, antibiotics in intravenous and oral forms including Ceftriaxone, Ciprofloxacin, Cefuroxime ,   antimalarials like  Artemether Inj,  Artesunate Lumefantrine in tablet and suspension forms, analgesics including Paracetamol in tablet and syrup forms, Ibuprofen in  tablets and syrup forms, Diclofenac in injection and tablet forms, oral rehydration salts, blood tonics and vitamins, antibiotic eye drops, 3 cartons of Chlorine bleach, dressings including gauzes, plasters, cotton wool, bandages, syringes, needles and examination gloves.

Making the presentation were OccupyGhana® members Dr Radha Hackman, Mr Kwaku Segbefia and Mr Sydney Casely-Hayford. In his remarks on behalf of the group, Mr Casely-Hayford, a leading member of OccupyGhana®, said that the catastrophic events of August 14 saddened most people across the continent and that the gesture was not only humane but also a reflection of the old bond that existed between the two countries.

“In times like these, no nation or society should stand alone, for such pain and suffering touches not only the people of Sierra Leone but all of humanity. Also, to a Ghanaian, Sierra Leone is not just another country but a nation with whom we share a strong bond that dates back over a 100 years. “, Mr. Casely-Hayford said.

The items, which were addressed to the Office of the Sierra Leonean First Lady, were received by the Sierra Leonean High Commissioner to Ghana, H.E. Justice Umu Hawa Tejan-Jalloh.

In her heartfelt remarks as she received the donation, she expressed the appreciation of the people of Sierra Leone to OccupyGhana®, adding that she had been overwhelmed by the level of support from the government and people of Ghana in the aftermath of the tragic disaster in Regent, Sierra Leone.

“The relationship between Ghana and Sierra Leone is second to none in the West Region. The relationship has spanned centuries and we can only continue to pray that the ties will flourish and develop from strength to strength,” she said.

She marvelled at the timeliness of the donation since she and her staff had been discussing ways of acquiring medical supplies for her country. She explained that a medical disaster was highly possible since the mountains near Regent were the source of drinking water for all of Freetown. She pointed out that it was feared that, that source was probably contaminated by all the dead bodies and that the contamination could lead to spread of water-borne diseases. She pointed out that the donated supplies would go a long way in helping to combat any such medical calamity.

“This is a great humanitarian gesture which only a sister or brother can do for another sister or brother,” she added.

The mudslides have claimed close to a 1000 lives and has made over 4000 Sierra Leoneans homeless. The country, which is trying to recover from the scourge of Ebola not too long ago, needs all the help it can get. We at OccupyGhana® thus appeal to all Ghanaians to donate in all possible ways to the rescue and rehabilitation efforts in Sierra Leone.

Yours in the service of God and Country,

OccupyGhana®

OccupyGhana on MenzGold Saga

OccupyGhana on MenzGold Saga

10th AUGUST, 2017

OCCUPYGHANA® PRESS STATEMENT

THE MENZGOLD CONTROVERSY – OCCUPYGHANA® DEMANDS ACTION FROM BANK OF GHANA, SECURITIES & EXCHANGE COMMISSION AND MINERALS COMMISSION

OccupyGhana® has read the news report of a statement allegedly made by the Second Deputy Governor of the Bank of Ghana, Dr. Johnson Asiamah, that the company called MenzGold is not licensed to conduct deposit-taking, and that although it is licensed by the Minerals Commission (MinCom) to trade in gold, it had deviated into accepting deposits from unsuspecting customers. Yet in the same story Dr. Asiamah admits that there does not appear to be evidence that MenzGold is flouting the law; but adds that the Bank decided to still notify the public that MenzGold is not to accept deposits.

That statement gives OccupyGhana® much cause for concern, stemming in part from MenzGold’s denying that it takes deposits, claiming that it is only engaged in the purchase and sale of gold. The Precious Minerals Marketing Company (PMMC)’s 2016 – Third Party Gold Export records show that in 2016, the PMMC exported gold on behalf of an entity called “MenzBanc,” for 6 out of the 12 months. The total weight of gold so exported was 3,217.834 ounces, with MenzBanc earning US$3,943,022.41 (GH¢15,742,662.18). These exports were to Dubai, South Korea and Hong Kong, according to the records, and placed MenzBanc among one of the smallest exporters of gold through the PMMC. When one contrasts the above facts with the fantastic interest rates (“dividends”) that MenzGold promises and pays to its customers or clients, it is critical for Ghanaians to know whether MenzGold is really only dealing in gold, and if so whether the current business model complies with the terms and conditions of its gold dealing licence, if any. Ghanaians deserve to know whether the underlying gold transactions can support the promised rates of return; if not, then we have another potentially serious issue on our hands.

Against the background of the recent financial ruin visited upon some Ghanaians by the DKM disaster, we are concerned whether the claim of dealing in gold is a guise for:

  • deposit-taking by a private company in breach of the Companies Act, 1963 (Act 179);
  • unlicensed deposit-taking in breach of the Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930),;
  • unauthorised securities transactions in breach of the Securities Industry Act, 2016 (Act 929); or
  • worse still, a criminal ‘Pyramid’ or ‘Ponzi’ Scheme.

As ordinary Ghanaians, we are unable to make these determinations. The institutions authorised to determine whether MenzGold is involved in (un)authorised business are:

  • the Minerals Commission (MinCom), which licences dealers in gold, and is empowered by the Minerals Commission Act, 1993 (Act 450) to “monitor the operations of the bodies or establishments with responsibility for minerals;”
  • the Securities and Exchange Commission (SEC) which is empowered by Act 929 to maintain “surveillance over activities in securities to ensure orderly, fair and equitable dealings in securities;” and
  • the Bank of Ghana, which is entrusted by Act 930 with the “protection of depositors in the country through the regulation and supervision of financial institutions.”

It is for these reasons that OccupyGhana® is concerned that if MenzGold is engaged in illegal deposit-taking or worse, disguised as a gold trading/investment business, the Bank of Ghana does not appear to have exercised its powers under sections 20 to 22 of Act 930 at all. If MenzGold is breaching that Act then we expect the Bank to do more than issuing a warning statement. We expect the Bank to take the steps set out by law and apply the sanctions provided in the law for breaches, if any. However if the law has not been breached by MenzGold, and it is engaged in genuine business, then the Bank of Ghana’s statement is dangerous and has to potential to kill that business, unjustifiably.

OccupyGhana® does not need to remind the Bank of Ghana that Act 930 gives it immense powers with respect to deposit-taking and then prohibits anyone from accepting deposits from the general public or carrying on a deposit-taking business without the Bank’s licence.

OccupyGhana® does not have to remind the Bank of Ghana that where the Bank “has sufficient reason to believe that a person is transacting or carrying on a deposit-taking business or taking deposits in contravention” of the law, the Bank has the power to cause a full-scale forensic audit to be conducted of that business to first ascertain that that person is involved in the illegal activity, and then “close down the business of [that] person.”

The Bank of Ghana does not need any further reminder it that it is for good reason that the law empowers it, as part of this forensic audit, to demand the production of all books, instruct the freezing of assets, suspend the business, etc.

The Bank of Ghana must be aware of its power to ensure the refund of all monies obtained and profits accrued, the return of all assets acquired as a result of the illegal activity, and the payment of interest that may be owing to people. The law adds that a person who fails to do these is deemed to be bankrupt and that the Bank has the power to apply to court for the winding up and sequestration of the estate of that person.

Who needs to remind the Bank of Ghana that the above civil sanctions do not affect the person’s criminal liability for unauthorised deposit-taking, which includes fines and/or imprisonment between 2 and 4 years?

If the Bank of Ghana does not require any of the above reminders of the vast powers given to it by the people of Ghana to prevent (and protect us from) unauthorised deposit-taking, then it beggars belief that the Bank has not taken any action except to issue a mere press statement. What is worse, the Bank has not yet determined whether the law has been broken or not.

In this regard all of the Bank of Ghana, the SEC and the MinCom have failed Ghana, by neglecting to take any of the statutory steps to ascertain whether MenzGold is involved in any illegal business, and then take control of its activities to ensure an orderly dismantling of it, including ensuring that the actors are punished in accordance with the law. This inaction by the Bank, and the silence of both the SEC and MinCom, are shockingly unacceptable.

If on the other hand Menzgold is engaged in genuine business, then the Bank’s statement is injurious and has the potential of killing it unjustifiably, which act could trigger a huge run and rush for monies paid, potential tortious liability for the Bank and the dreaded “judgment debt” which, of course, would be met with taxpayer funds.

It is on the basis of the foregoing that OccupyGhana® is demanding of the Bank, SEC and MinCom that they exercise their statutory powers in this matter in order that the law might take its normal course if it has to. It is our expectation as citizens that the above-mentioned institutions will take the appropriate steps and promptly.

Yours in the service of God and Country,

OccupyGhana®

OCCUPYGHANA v. Auditor-General and Attorney-General – Judgement

OCCUPYGHANA v. Auditor-General and Attorney-General – Judgement

OCCUPYGHANA V. ATTORNEY-GENERAL
(Unrepoprted, Supreme Court, Writ No. J1/19/2016, 14th June 2017)

Coram: Akuffo, Adinyira, Dotse, Yeboah, Baffoe-Bonnie, Gbadegbe, Bennin JJSC

JUDGMENT (Dotse, JSC read the unanimous judgment of the Court):

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
(i) surcharge 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.

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.”

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:

(i) surcharge 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”, OccupyGhana 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.

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.

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”

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.

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.

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.

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:
(1) enforcement of all provisions of the Constitution, except those provisions contained in Chapter 5 dealing with Fundamental Human Rights, or
(2) the interpretation of any provision of the Constitution; or
(3) an issue whether an enactment is inconsistent with any provision of the Constitution.”

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.

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.

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:-

(1) to audit and report on the public accounts of Ghana and of all public offices. – Article 187(2)
(2) 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).
(3) to audit any public office upon the request of the President acting with the advice of the council of State reference. – Article 187(8).
(4) 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(3)p 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.

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
that permits the creative development of the provisions of the Constitution and the Laws of Ghana, and
(c) 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:-

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.

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.”

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(7) 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.

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.

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.

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) 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, 2016 (C. I. 102) 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:-

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:-

(1) A report on the status of the implementation of the Auditor-General’s report.
(2) 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 its 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 E.R. 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) 73 at page 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 Articles 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.

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:-

(1) 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.
(2) 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.
(3) 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.

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) and (5) respectively of the constitution.

Whilst management letters are issued by Branch and sectoral 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.

Reliefs 4 and 5 are granted in their entirety against the Defendants.

CONSEQUENTIAL ORDERS

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.

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.

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).

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.

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)