Asking Domelevo to proceed on leave unconstitutional, says Supreme Court

A seven-member Supreme Court panel has by unanimous decision, declared the practice where the president directs a serving Auditor General to proceed on leave or to take their accumulated leave as unconstitutional.

The panel presided over by Justice Nene Amegatcher also included Justices Professor Ashie Kotey, Mariama Owusu, Lovelace Johnson, Gertrude Torkornoo, Professor Henrietta Mensa-Bonsu and Yonny Kulendi.

The landmark decision of the Supreme Court followed an application of the Centre for Democratic Development (CDD) challenging a directive of President Akufo-Addo on 29 June 2020, instructing the then Auditor General, Daniel Yaw Domelevo to take his accumulated leave.

The plaintiff contended that the directives were unlawful since the president does not have the power to exercise such disciplinary control over independent bodies.

The court, however, opted not to issue any other orders including stopping Domelevo from proceeding on leave since he has since retired.

The action of President Akufo-Addo followed an earlier directive by former President John Evans Atta Mills that directed the then Auditor General Edward Dua Agyeman on 9 April 2009, to take his accumulated leave.

Relief sought

The Centre for Democratic Development (CDD) in their action filed at the Supreme Court, sought a total of seven reliefs. First, “a declaration that, on a true and proper interpretation of Articles 70(1)(6) and 71), 187(3), (5), (7Xa), (8), (12), and (13), and Article 297(a) of the 1992 Constitution, the directives issued by or on behalf of the President on or between 29th June, 2020 and 3rd July, 2020, instructing the Auditor-General to proceed on “accumulated” leave with effect from 1st July, 2020 for a prescribed number of days determined by the President, are void and of no legal effect, because the said directives are inconsistent with the letter and spirit of the aforementioned provisions of the Constitution as they improperly interfere with the independence and functions of the Auditor General”.

Second, “a declaration that, the purported appointment or designation by or on behalf of the President on 30th June, 2020, of one Johnson Akuamoah Asiedu as “Acting Auditor-General” is void and of no legal effect, as the said appointment stands contrary to Articles 70(1) (b), 187(3), and (7) of the Constitution as well as the Second Schedule to the Constitution”.

Third, “a declaration that, on a true and proper interpretation of Articles 70(1)(b) and 187(3) of the Constitution, the power to appoint, authorize or designate a person or persons to exercise a power or perform a function constitutionally assigned to the Auditor-General is vested solely in the Auditor-General; therefore, the purported appointment of a person as ‘Acting Auditor-General,” and the subsequent performance of the functions of the Auditor-General by such person, without authorization from the Auditor-General violate the letter and spirit of the aforementioned provisions of the Constitution and are void and without any legal effect whatsoever”.

Fourth, “a declaration that, on a true and proper interpretation of Articles, 71(1), 187(12), and 297(a) of the Constitution, the leave entitlement of the Auditor General is, like his salary, are right associated with his office as an independent constitutional officeholder and does not constitute or give rise to an obligation which the Auditor General is duty-bound to assume or else be compelled so to do at the instance and insistence of the president”.

Fifth, “an order of perpetual injunction to restrain the President or his agents from issuing or seeking to enforce on the Auditor-General any directive that has the purpose or effect of commanding the Auditor-General to take his leave or to surrender any of his powers or functions to another person”.

Sixth, “an order of perpetual injunction to restrain the President or his agents from designating or appointing any person as Acting Auditor-General” to exercise a constitutional power or perform a constitutional function of the Auditor – General without authorisation from the sole duly-appointed Auditor-General”.

Lastly, “any other consequential orders that this Honourable Court may deem appropriate under the circumstances”.

By Court 

The Supreme Court in its decision today (31 May 2023), granted relief one by declaring that on a true and proper interpretation of Articles 70(1)(6) and 71), 187(3), (5), (7Xa), (8), (12), and (13), and Article 297(a) of the 1992 Constitution, the directives issued by or on behalf of the President on or between 29th June, 2020 and 3rd July, 2020, instructing the Auditor-General to proceed on “accumulated” leave with effect from 1st July, 2020 for a prescribed number of days determined by the President, are void and of no legal effect, because the said directives are inconsistent with the letter and spirit of the 1992 Constitution as they improperly interfere with the independence and functions of the Auditor General.

The Court also granted reliefs two, three and four but dismissed reliefs five, six and seven which were essentially seeking orders to perpetually injunct and restrain the President or his agents from issuing or seeking to enforce on the Auditor-General any directive that has the purpose or effect of commanding the Auditor-General to take his leave or to surrender any of his powers or functions to another person”.

Reporting by Wilberforce Asare in Accra

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