RE: PRESIDENT'S DISMISSAL OF GOV'T CEO IMPROPER - AUDIT SERVICE
Our attention has been drawn to a story on your website/news portal, with respect to the above subject matter, published on 15m October, 2018. The story is based on a "strictly confidential Audit Observation Memorandum" dated 9th August, 2018, from the Audit Team Leader to the Chief Executive Officer, drawing attention to an alleged irregular/improper dismissal of the former "CEO" Hon. Gifty Klenam by the President of the Republic. We note that covertly taken photographs of the "strictly confidential Audit Observation Memorandum" were inserted into the story.
We have read the story and the said memorandum and find it necessary to respond and correct the erroneous position being articulated. It is our hope that our response will be given the same prominence as the story and the said memorandum.
We disagree strongly with the contents of the said memorandum and the view of the Audit Team Leader. The view stated, to wit, "the termination of appointment by the President and not the Minister of Trade and Industry, was irregular and improper since the termination was contrary to Section 3 (2) of the Ghana Export Promotion Council Act, 1969 (NLCD 396)," is not supported by law. It remains the Audit Team Leader's view and not a declaration of fact and/or law as stated categorically in the story.
It is important to state, at this point, that the title of the chief executive of the Ghana Export Promotion Authority ("GEPA") is "Executive Secretary" and not "Chief Executive Officer" or "CEO" as stated in the title of the story and the subject matter of the said memorandum. Although in the body of the story and the said memorandum, the correct title, Executive Secretary, is used, the lack of consistency in both documents is worth noting.
Our response to the erroneous position stated in the story and said memorandum are outlined below.
Firstly, it is the President who has the power to appoint and remove the Executive Secretary of GEPA. Article 297 (1) of the Constitution is very clear on the President's implied power to appoint and remove. It states as follows, "In this Constitution and in any other law, the power to appoint a person to hold or act in an office in the public service shall include the power to confirm appointments, to exercise disciplinary control over persons holding or acting in any such office and to remove the persons from office." [Emphasis added.]
This principle is stated further in Section 23 (1) (a) of the Interpretation Act, 2009 (Act 792) ("Interpretation Act"), which states, "Words in an enactment which authorize the appointment of a person to an office confer, in addition, on the authority in whom the power is vested, a power, at the discretion of the authority, to remove or suspend that person."
Therefore, it is incorrect to assert that the President, who appointed the Executive Secretary of GEPA lacks the requisite authority or power to remove the Executive Secretary of GEPA. It is also incorrect to make further categorical pronouncements that the removal of the Executive Secretary was irregular and improper and may give rise to a law suit, out of which judgment debts may be incurred. This is extremely speculative at best and mischievous at worst.
As stated in the said memorandum, the President, by letter dated 18th April, 2017, appointed Hon. Gifty Kekeli Klenam as the Executive Secretary of GEPA. The Audit Team Leader does not dispute that the President had the power to appoint Hon. Klenam and that the President exercised that power regularly and properly. The President, being the proper appointing authority, was, thus, the only person who could remove the Hon. Klenam from office as Executive Secretary of GEPA and not, with all due respect, the Minister for Trade and Industry. The President thereby exercising his power to remove Hon. Klenam, by letter dated Tr' June, 2018, did so in accordance with law.
Secondly, Section 3 (2) of the Ghana Export Promotion Authority Act, 1969 (N LCD 396) ("GEPA Act"), quoted in support of the Audit Team Leader's view, has been interpreted wrongly. It is indeed worrying that the Audit Team Leader will proffer a legal opinion on Section 3 (2) of the GEPA Act, and seek to suggest that an action for damages may be founded on his legal opinion. The said Section 3 (2) of the GEPA Act states as follows, "The appointment of a member of the Council, other that the Chairman, may be terminated by the Minister if the Minister is of the opinion that it is in the interest of the Council to do so."
The use of the word "may" in the said provision does not give the Minister, with all due respect, exclusive power to terminate the appointment of a member of the Council. It is a discretionary, non-exclusive power to terminate the appointment of a member of the Council. According to Section 42 of the Interpretation Act, the word "may" is "permissive and empowering".
The said Section 42 states as follows, "In an enactment, the expression 'may" shall be construed as permissive and empowering, and the expression "shall" as imperative and mandatory." What is important to note here, however, is that although the Minister has a discretionary power to remove a member of the Council, he does not have the power to remove the Executive Secretary in her capacity as Executive Secretary.
The Executive Secretary of GEPA is a member of the Council by virtue of occupying the office of Executive Secretary of GEPA, and thus, when the appointment of the Executive Secretary is revoked, it automatically excludes the occupant of that office from being a member of the Council. Indeed, an absurd situation will be created if the Minister was to remove the Executive Secretary as a member of the Council when her appointment as Executive Secretary has not been revoked by her appointing authority, the President, as her membership of the Council is clearly "ex officio". Similarly, if any of the ex officio institutional representatives cease to occupy the office in their respective institutions, they will no longer be members of the Council.
However, the Minister may exercise the discretionary power to terminate the appointment of an institutional representative on the Council, if he believes that it is in the interest of the Council to do so. And in such a situation, the relevant institution must submit another representative to be appointed to the Council. That is not the case with the Executive Secretary of GEPA.
In any case, by Article 58 of the Constitution, the executive authority of Ghana vests in the President, and the Minister, who is appointed by the President under Article 78, exercises that power on behalf of the President. Thus, the President, being the ultimate appointing authority, may exercise whatever power the Minister has under the GEPA Act. In other words, because the President is the ultimate appointing authority, any action taken by the Minister may be taken by the President but not vice versa.
As far as this Office is aware, Hon. Klenam has not commenced legal action to challenge her removal from office as Executive Secretary, and we have not received any notice from her indicating her intention to do so. In the absence of such legal action or notice, it is premature to speculate or conjecture that legal action will be commenced and that judgment debts may be awarded against the State based on the speculated or hypothetical legal action.
In the circumstances, we will advice the Audit Team Leader to seek legal advice prior to making some of these categorical statements to impugn the President's actions, and to suggest that this Office is engaged in illegal, irregular or improper acts. In the same spirit, we will encourage myjoyonline.com and other news outlets/portals that have carried and entertained this erroneous view of the law, to consult members of the Ghana Bar, who are always ready to educate the public on the laws of this country, prior to publishing some of these stories to put the President and his Office in a bad light.
In conclusion, we state that the removal of Hon. Klenam from office as Executive Secretary of GEPA was not irregular, improper or illegal. Hon. Klenam was removed from office in accordance with the relevant provisions of the Constitution and the law.
Please be advised accordingly.
ROW ESSUMAN, ESQ. COUNSEL
THE ONLINE EDITOR MYJOYONLINE.COM
cc: The Vice President
Jubilee House, Accra
The Chief of Staff Jubilee House, Accra
Secretary to the President Jubilee House, Accra
The Executive Secretary
Ghana Export Promotion Authority Accra
The Hon. Minister
Ministry of Trade and Industry Accra
The Auditor-General The Audit Service, Accra
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