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4th January 2019

OCCUPYGHANA® salutes Auditor-General on Disallowances and Surcharges and urges the prosecution of persons found culpable

OCCUPYGHANA® salutes Auditor-General on Disallowances and Surcharges and urges the prosecution of persons found culpable

OccupyGhana® has received and studied a copy of the first ever Special Audit Report of the Auditor-General on Disallowance and Surcharge. This is the report as at 30th November 2018, that mentions how much has been saved to the nation in Disallowances, how much has been surcharged, and how much has been recovered. We salute the Audit Service, led by the current Auditor-General for this. We are however concerned that there appears to be little effort at prosecuting those who have committed these infractions, and call upon the Attorney-General to commence prosecutions in this regard.

The heart of every Ghanaian would be gladdened at the saving of the net total of GHS 5,445,676,134.53, which some government officials fraudulently claimed was owed on various government contracts, but which had been already paid. This attempt to fleece Ghana of this colossal sum was only stopped by the Auditor-General issuing Disallowances. Further, the recovery of GHS 67,137,517.86 as a result of the Auditor-General’s Surcharges and recovery efforts must be lauded by all Ghanaians. Meanwhile, there are Surcharges of almost half a billion Cedis outstanding, waiting for enforcement.

For us at OccupyGhana®, this Report and the developments it contains are a major manifestation of the victory Ghana won in OCCUPYGHANA V. ATTORNEY-GENERAL, where the Supreme Court stated emphatically that:

“…the Auditor-General is expected to NAME the persons who commit irregularities etc., under article 187(7)(b) and section 17 of Act 584 respectively, RECOVER the amounts from them and thereafter those persons be made to FACE appropriate punishment. THAT SHOULD BE THE WAY FORWARD” [Emphases added.]

For us, this Report is also the culmination of the journey that started on 12th November 2014 when we first wrote to the Auditor-General then, demanding the exercise of the Disallowance and Surcharge powers given to that office by the Constitution. We cannot forget the quick 13th November 2014 response of the Acting Auditor-General then, first reminding us of the independence of the office and then offering to educate us “on the validity or otherwise of matters raised in your letter concerning disallowances and surcharges.”

We vividly remember our 25th November 2014 response in which we pointed out to the then Auditor-General that his independence did “not preclude the power of the court from inquiring into whether or not you have performed your functions according to the Constitution.” We reminded him that the Constitution “places a mandatory duty on administrative bodies and officials like you to comply with the legal requirements imposed on you, and then vests in persons dissatisfied with your work, such as us, a right to seek redress by commencing court proceedings against you.” We concluded that “simply, either you have done your work or you have not done your work.”

What followed this initial fiery exchange of letters, was a year and a half during which the then Auditor-General pretended to collaborate with us to institute the Disallowance and Surcharge regime, but failed to take any concrete steps. He even formed a Joint Working Group with us, which was never duly constituted and never worked. It was not as if we were just spoiling for a fight. That is why in this period, we were honoured with the opportunity to draft and submit to the Rules of Court Committee the rules that were finally passed into law as the HIGH COURT (CIVIL PROCEDURE) (AMENDMENT) (NO. 2) RULES, 2016 (CI 102). This law inserted a new Order 54A in the High Court Rules to regulate Disallowances and Surcharge appeals, in compliance with article 187(9) and (10) of the Constitution. It was therefore with great reluctance that on 21st June 2016, we filed the action titled OCCUPYGHANA V. ATTORNEY-GENERAL (WRIT NO. J1/19/2016) in the Supreme Court.

In its seminal judgment dated 14th June 2017, the Supreme Court rejected each defence that was put up, including challenging the jurisdiction of the Court to hear the matter. The Court granted each of the reliefs that we sought, pointing out that “…the ‘may’ in article 187(7)(b) of the Constitution, 1992, becomes a mandatory ‘may,’ and no longer permissive. This affords us the opportunity to enforce the provisions of article 187(7)(b) which will deepen probity and accountability.”

For us that was not a personal victory or even a vindication. It was a colossal victory for Ghanaians who would read, on a yearly basis, a merely journalistic recount by the then Auditors-General to Parliament of blatant stealing of national wealth, accompanied by obviously impotent recommendations, and which saw no tangible or concrete results. What was even more painful were these words that featured prominently and repeatedly in each of the Auditors-General’s annual report:

“The cataloguing of financial irregularities in my Report on MDAs and Other Agencies has become AN ANNUAL RITUAL THAT SEEMS TO HAVE NO EFFECT…” [Emphasis added.]

We applaud the bold steps taken and results obtained by the current Audit Service under the leadership of the current Auditor-General, Daniel Domelevo. We urge them not to relent in enforcing the judgment of the Supreme Court, prevent, where possible, the theft of the nation’s monies, and recover for Ghana whatever is stolen.

We conclude by urging the Attorney-General to commence the prosecution of the persons who either caused, attempted to or conspired to cause these losses to Ghana. The Supreme Court was clear that there must be “appropriate punishment” and stated thus:

“…the Attorney-General is hereby ordered to take all necessary steps to enforce the decision or steps taken by the Auditor-General… to ensure compliance including in some cases criminal prosecutions.”

The Auditor-General appears to have done his part. The ball is now firmly in the court of the Attorney-General.

Yours, for God & Country,