It has emerged that the Audit Service Board instigated the president’s order for the Auditor-General (A-G), Daniel Domelevo to proceed on 123 days of accumulated leave starting July 1, 2020.

A statement from the Presidency explained that the decision is based on sections 20 (1) and 31 of the Labour Act, 2003 (Act 651), which apply to workers, including public office holders such as the Auditor-General.

The Board Chairman of the Audit Service, Prof Duah Agyeman whose similar encounter under the Late Prof Mill’s administration was cited in the statement told JoyNews’ Gifty Andoh Appiah that the board was left with no choice but to push for the decision.

According to him, several attempts by the board to get the A-G to go on his leave since his appointment into office in 2016 had proven futile.

“What happened in this situation is that we had discussed leave schedules for all staff, and when it came to the Auditor General we asked him when is he ready to go on leave.

"He said we cannot ask him to go on leave because we did not appoint him, so anytime we told him to go on leave he will say he will not go because we did not appoint him so now it is the appointing authority who has asked him to go,” he said.

However, some Ghanaians have reacted to the President’s decision to compel the Auditor-General to go on his accumulated leave.

According to Law Professor, Henry Kwasi Prempeh, the relationship between the President and the A-G cannot be interpreted as a mere employer-employee relationship “as opposed to a relationship of high substance and consequence mediated by the Constitution and the principles emanating from that document.”

According to him, due to the peculiar nature of the President-Auditor General relationship, the former cannot dictate when the Auditor General is to take a leave.

“The mere fact that the President "appoints" a certain constitutional officeholder, who, like every other occupant of a public office, is paid from public funds, does not thereby create between the two a simple employer-employee relationship in which the President is the employer and the other the employee.

“Otherwise, what is to stop the President from ordering, say, a Chief Justice or an EC or a CHRAJ commissioner or chair to proceed on accumulated leave or do any other act that employers ordinarily can command their employees to do?  I doubt that the Constitution makes, or intended to make, a President Employer-General of all holders of public office in this land,” he said.

Prof Stephen Kweku Asare who is a D&D Fellow in Public Law and Justice at CDD-Ghana also stated that the Auditor General cannot be forced to either take or forfeit his leave.

“The law is abundantly clear that the AG’s right to leave of absence cannot be varied to his disadvantage. The reason for the law is to protect his independence,” he said.

According to Prof Asare, “there must be a compelling reason to force the AG to take his leave. His leave conditions must be determined by the more specific Audit Service Act not the general Labour Act (generaliaspecialibus non derogant).”

He further stated that considering the fact that certain actions of the Auditor General seem to be clashing with the Executive, “any attempts to remove the AG will offend separation of powers, constitutionalism and the growing of our institutions.”

However, the board chairman of the audit service Prof Duah Agyeman said to the best of his knowledge, the President’s action is not to remove the Auditor General from office, but is rather in fulfillment of the constitution.