OccupyGhana® announces that on Wednesday 22nd June 2016, it filed an action at the Supreme Court against the Attorney-General (and ultimately the Auditor-General) for declarations that upon a true and proper interpretation of Article 187(7)(b) of the Constitution, the Auditor-General is bound to issue a Disallowance and/or Surcharge where:
- there has been any illegal expenditure incurred on behalf of the Government, so that the amount unlawfully expended is recovered from the person responsible for, or who authorised the expenditure disallowed;
- any person fails to bring any sum into the Government’s account, so that the amount is recovered from that person; and
- 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).
The Writ seeks a further declaration that the Auditor-General’s omission, failure, refusal or neglect to issue any Disallowances and Surcharges in respect of the above, and as appears in his successive Reports since the coming into force of the Constitution, violate the Constitution.
Finally, for an order of the Supreme Court directed at the Auditor-General to issue Disallowances and Surcharges to and in respect of all persons and entities found in his relevant, successive Reports to have engaged in any of the above.
On 12th November 2014, OccupyGhana® wrote to the Auditor-General, reminding him of his powers of Disallowance and Surcharge under the Constitution, demanding that he exercises them. Subsequently, OccupyGhana® engaged severally with the Auditor-General, with a view to assisting in putting in place the structures upon which he would exercise those powers. Regrettably, after a dozen letters and exchanges, and one publicized meeting on 27th March 2015, the Auditor-General has not taken any steps to exercise those powers, which would lead to the recovery of huge sums of money for the State.
Losses to Ghana
A study of the Auditor-General’s Reports on the Audit Service’s website (www.ghaudit/org) reveals that between 2003 and 2014 (figures for 2009 are not available), the total losses to Ghana from what the Auditor-General describes as “irregularities” arising in Government Ministries, Departments and Agencies was Two Billion, Four Hundred and Forty-Eight Million, Nine Hundred and Sixty-Eight Thousand, Nine Hundred and Twelve Ghana Cedis, and Twenty-Nine Pesewas (GH¢2,448,968,912.29). This is alarming, more so when we discovered further that for just the four years, 2009 and 2012 to 2014, amounts lost to Ghana from “irregularities” in Public Boards, Corporations and other Statutory Institutions was Five Billion, Seventy-Two Million, Six Hundred and Eighty-Six Thousand and Seven Hundred and Sixteen Ghana Cedis (GH¢5,072,686,716).
From our projections, since the promulgation of the Constitution, the total losses to Ghana arising from “irregularities” in Public Offices, Central and Local Government Administration, Public Institutions, Public Corporations and Statutory Bodies, possibly exceeds Forty Billion Ghana Cedis (GH¢40,000,000,000).
Dilatory Conduct of Officials
To date, we have seen no commitment towards ensuring that these huge losses are recovered. The annual rhetoric and recurring refrain of the Auditor-General has outlived its usefulness: “the cataloguing of financial irregularities in my Reports… has become an annual ritual that seems to have no effect.”
Indeed, at the 27th March 2015 meeting between the Auditor-General and Officials of the Audit Service, OccupyGhana® and representatives of the Attorney-General’s Department, the Officials conceded the duty to exercise the power of Disallowance and Surcharge, and asked for help from OccupyGhana®. They proposed a Joint Working Group with membership drawn from the Audit Service, Attorney-General’s Department and OccupyGhana®, to help put in place the structures and measures for the final implementation of the Disallowances and Surcharges Regime. The Auditor-General confirmed this in writing by a letter to OccupyGhana® dated 8th April 2015.
To facilitate this work, the OccupyGhana® legal team compiled and submitted to the Auditor-General and Attorney-General, a detailed Working Paper as the template for action. OccupyGhana® also duly nominated its representatives to serve on the Group. But the Joint Working Group was never constituted. No work has been done to date, despite repeated pressure from us, and written and verbal assurances from both the Auditor-General and Attorney-General that work would commence.
We are finally persuaded that this inaction is willful.
Engagement with the Rules of Court Committee
In the interim, OccupyGhana® wrote to the Rules of Court Committee, to inquire about the rules of court required under Article 187(10) of the Constitution to regulate appeals from the Auditor-General’s Disallowances and Surcharges.
After ascertaining that no rules had been enacted, and at the request of the Committee, the OccupyGhana® legal team drafted the rules and submitted them to the Committee. We are happy to learn that after review by the Committee, a draft Bill to amend the High Court (Civil Procedure) Rules, 2004 (CI 47) to incorporate these rules (and based on our draft) is currently before the Legislative Sub-Committee of Parliament. We take this opportunity to urge Parliament to expedite action on enacting these rules into law.
Time is Running Out
Our concern at the lack of progress from the Auditor-General is heightened by the fact that Section 4(1)(f) of the Limitation Act, 1972 (NRCD 54) prescribes a six-year limitation period on legal actions to recover any such monies. Arguably, losses that occurred before 2010, and have not been paid, are forever lost to Ghana, even if the Auditor General would take action today.
This is what compels us to take this drastic action at this time; to provide opportunity to recover, at least, some of the long-standing losses to the State. This action however, is taken reluctantly. All our non-contentious engagements with the Auditor-General have failed to yield the desired results. It appears that the Auditor-General will not exercise these powers given him under the Constitution unless compelled by the Supreme Court.
We are therefore left with no other option than to commence court proceedings.
We wish to assure Ghanaians of our commitment, resolve and determination to hold public officials accountable to the people of Ghana. We do not resort to court actions lightly. However, we will not hesitate to deploy our full arsenal of actions available to us, should the need arise.
We entreat the support and prayers of the good people of Ghana as we seek to convince the apex court of our land that our cause is just and that our course is right.
Yours in the service of God and Country