The 3rd July letter seeking to exercise disciplinary control over the Auditor-General has 5 problems.
- Article 297(a) power to discipline appointees does not apply to the AG or other independent bodies. The only mode of disciplining them is Article 146.
- A person who is appointed as a Constitutional officer must perform his duties. He cannot delegate his duties. Nor can those duties be assigned to someone else. Thus, the notion of Acting Auditor General is alien to the Constitution.
- The Board of the Audit Service has no control over the Auditor General. They cannot give him instructions. Nor can they report him to the President for discipline when he fails to carry out their directives.
- The President has no power to assess the AG’s work. That power belongs to the Parliament. Thus, it is extremely disturbing for the Presidency to say forcing the AG to take paid leave provided a “collateral reason for the appointing authority to assess his work.”
- It is hard for me to understand how a constitutional officer will be asked to proceed on 167 days leave so that someone else will act for him.
- The Auditor General can assign anyone of his 6 directors (they are called Deputy AG) to represent him at a meeting of the Board of the Audit Service. This person does not have to be one who is “acting for” him as AG when he is away.
For instance, if the Board is discussing Audits of Districts Assembly, it will make sense to send the Deputy in charge of the audit of district assemblies while the Deputy in charge of Finance and Administration “acts for” him as AG.
In fact, depending on the agenda he can send more than 1 person to the Board meeting, with each appearing depending on the issue. This does not mean 2 people represent him at the same time. Rather, 1 person will represent him depending on the issue.
This is why the Act says “The quorum at a meeting of the Board shall be four including the Auditor-General or in the absence of the Auditor-General, the person acting on behalf of the Auditor-General.”
It is tempting to read this quickly as “The quorum at a meeting of the Board shall be four including the Auditor-General or in the absence of the Auditor-General, the person who is for the time being acting as the acting Auditor-General.”
This, of course, will lead to a quick mistake.
Whoever the AG sends to the Board meeting acts on his behalf at that meeting. If there is another meeting next week, he could send someone else to act on his behalf.
There is nothing in the statute that suggests there must be an acting AG before the AG can be absent from a board meeting; and when so absent he must only send someone acting as AG
The person acting on behalf of the Auditor-General at the Board is not the person who is at the time being acting as Auditor General.
Absence here means absent from the board meeting. So it it is possible that he is in town but cannot attend the Board meeting. Thus, nobody may be acting as Auditor General. He may be in his office busy with something else!!!!!
“Acts for” in quotes because of 2. above.
128/1820 is a bona fide scam and sham.
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