OccupyGhana, a pressure group, say they are disappointed in the Auditor-General’s failure to issue surcharges in the 2019 and 2020 Auditor-General’s report.
Both reports did not issue any surcharge and disallowances, and according to OccupyGhana, that constitutes contempt of the Supreme Court and a High Crime.
“We write to demand that you forthwith, issue disallowances and surcharges to all persons you have identified as having been either engaged in, or responsible for the illegal use of government funds in your 2019 and 2020 Audit Reports.
“This is because, you are bound to do so, and any omission constitutes both contempt of the Supreme Court and a high crime under the Constitution.”
OccupyGhana, under whose name the seminal OccupyGhana v Attorney-General was decided, the case which reaffirmed the powers of the Auditor-General to issue surcharges and disallowance after its audits, say they are surprised that despite the reports from the Auditor-General being “replete” with irregularities, leading to loss of State funds, disallowances and surcharges had not been ordered.
“The Reports are replete with ‘irregularities’ that have led to the loss of huge amounts of government funds, which article 187(7)(b) of the Constitution calls (i) ‘expenditure which is contrary to law,’ (ii) sums ‘not been duly brought into account and (iii) ‘loss or deficiency [through] negligence or misconduct.’’
“Sir, once you determined these had taken place, you did not have any discretion: you must disallow and surcharge. In 2017, the Supreme Court held in OCCUPYGHANA v ATTORNEY-GENERAL that the exercise of your power to disallow and the surcharge is ‘mandatory, and no longer permissive,’ and could no longer be ‘at the whims and caprices of the Auditor-General.’’
Therefore, the group is demanding immediate issuance of surcharge and disallowances in instances where such orders can be made in 2019, and 2020 Auditor-General reports, where irregularities have been identified.
Some watchers, including leading OccupyGhana members and anti-corruption campaigners, have expressed worry that the powers of the Auditor-General to issue surcharges and disallowances, seem to have exited with Daniel Domelovo who was forced by the presidency to retire.
Under the tenure of Daniel Domelovo as Auditor-General, many disallowances and surcharges were ordered, including one against then Senior Minister Yaw Osafo Marfo, an order which was overturned later by a court.
Under acting Auditor-General Johnson Akuamoah Asiedu, no surcharge and disallowance have been issued.
Mr Johnson Akuamoah Asiedu has since been confirmed as the substantive Auditor General by President Nana Akufo-Addo.
Below is a copy of the letter
OCCUPYGHANA WRITES TO AUDITOR-GENERAL
Our Ref: OG/2021/004
7 September 2021
The Acting Auditor-General
Office of the Auditor-General
Ministry Block ‘O’
P O Box M 96
DEMAND TO ISSUE DISALLOWANCES AND SURCHARGES
We write to demand that you forthwith issue disallowances and surcharges to all persons you have identified as having been either engaged in or responsible for the illegal use of government funds in your 2019 and 2020 Audit Reports. This is because you are bound to do so, and any omission constitutes both contempt of the Supreme Court and a high crime under the Constitution.
The Reports are replete with ‘irregularities’ that have led to the loss of huge amounts of government funds, which article 187(7)(b) of the Constitution calls (i) ‘expenditure which is contrary to law,’ (ii) sums ‘not been duly brought into account’ and (iii) ‘loss or deficiency [through] negligence or misconduct.’
Sir, once you determined these had taken place, you did not have any discretion: you must disallow and surcharge. In 2017, the Supreme Court held in OCCUPYGHANA v ATTORNEY-GENERAL, that the exercise of your power to disallow and surcharge is ‘mandatory, and no longer permissive,’ and could no longer be ‘at the whims and caprices of the Auditor-General.’
That is why we are disappointed that although your Reports identified breaches, you have largely dithered on both the exercise of your powers and your compliance with the mandatory injunctions of the Supreme Court by (i) merely threatening to exercise the powers, without actually exercising them, (ii) making bare recommendations, and (iii) inexplicably deferring to others by asking them to exercise your powers.
You cannot return to the pre-2017 regime where successive Reports contained a similar litany of plain theft of government funds, yet Auditors-General were content to make impotent recommendations that no one regarded, followed or enforced.
The Supreme Court, to ensure that we do not slip back, (i) made specific, binding consequential orders or directions that require that you ‘SHALL TAKE STEPS TO RECOVER’ funds spent or lost, and (ii) ordered the Attorney-General to also ‘TAKE ALL NECESSARY STEPS TO ENFORCE THE DECISION OR STEPS TAKEN BY THE AUDITOR-GENERAL.’
Thus, each omission to disallow and surcharge by you is a blatant contempt of the Supreme Court. It is also a ‘high crime’ under the Constitution because article 2 says you ‘SHALL DULY OBEY AND CARRY OUT THE TERMS’ of the Supreme Court’s consequential orders or directions, and that your ‘failure to obey or carry out the terms of an order or direction made or given… CONSTITUTES A HIGH CRIME.’ The punishment for each high crime is imprisonment of up to ten years without the option of a fine, followed by a ten-year ban from being elected or appointed to any public office.
Based on the foregoing, we demand that you immediately issue disallowances and surcharges for each instance where the Reports found and disclosed ‘irregularities.’ We are copying the Attorney-General in this letter, to put him on notice that when you have complied, we shall require him, in line with the same injunctions, to take the enforcement steps that the Supreme Court ordered and directed.
This is the least that the people of Ghana can expect from our Auditor-General and Attorney-General.
Yours in the service of God and Country
The Speaker of Parliament
The Attorney-General & Minister of Justice
Office of the Attorney General
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