Auditor-General can’t be forced to take his leave or forfeit it – Kwaku Azar argues

Legal luminary, Professor Stephen Kwaku Asare widely known as Kwaku Azar has asserted that, legally, the President of Ghana cannot force the Auditor-General to take his leave or refuse to take it, emphasizing that there must be a compelling reason for the Auditor-General to either take or refuse to take his leave in consonance with the Audit Service Act, not the Labour Act.

His comments follow a directive from President Akufo-Addo asking the Auditor-General Daniel Yaw Domelevo to proceed on his accumulated leave, citing a similar directive that had been issued by the late former President John Atta Mills as precedence.

But Kwaku Azar, the precedence is not persuasive and the resort to the Labour Act as unconvincing.

He has therefore urged the President to reconsider the directive, suggesting alternatively that Mr Domelevo must stand his grounds and refuse to obey the directive.

Full post here:

It is in the interest of the President to protect the independence of the Auditor General. Any attempts to remove him from office, no matter how clever, will be seen as interference with his work and will irreparably tarnish the President’s record.

Once appointed the Auditor General must be allowed to hold office until the age of sixty years subject to an Article 199(4) extension for a 2+2+1 post-retirement tenure.

On the record, I also urge the President to grant the Auditor General this Article 199(4) dispensation.

The law is abundantly clear that the AG’s right to leave of absence cannot be varied to his disadvantage. It is equally clear that the AG is not subject to the direction or control of any other person or authority.

The reason for the law is to protect his independence. The constitutional amendment of 1964 that brought the AG under the control of the ministry of finance and the ensuing political interference in the work of the PAC all informed the 1992 constitution framers in making him report directly to Parliament’s PAC, designed to be chaired by a ranking member from the opposition party

Thus, the AG cannot be forced to take his leave or to forfeit his leave by the President. Not can the President issue other controls or directions to him.

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 (generalia specialibus non derogant).

I do not find the Mills’ precedent persuasive. Actually, I find it amusing.

Nor do I find sections 20(1) or 31 of the Labour Act as a reasonable basis for forcing the AG to take his leave. Section 20(1) merely provides for a leave entitlement and section 31 merely voids any agreement to relinquish the entitlement.

There are several ongoing audits, including KROLL, MP backpay, etc. where one can reasonably say the AG is clashing with the executive.

Under those circumstances, any attempts to remove the AG will offend separation of powers, constitutionalism and the growing of our institutions.

The President must reconsider and the AG must stand his grounds.

Civil society groups too have a role here. They should, as in Malawi, protest this move to interfere with the functions of the AG, culminating in lawsuits and an injunction preventing the removal of the Chief Justice for the same accumulated leave “offence.”