Dr. Rainer Akumperigya (PhD) Law has, in Facebook post, indicated that President Akuffo Addo’s directive to the Auditor General (AG) proceed on leave has no constitutional support.
On Monday, 29th June, 2020, HE Akuffo Addo directed the Auditor General of the Republic to proceed on a 123 days accumulated leave, citing sections 20(1) and 31 of the Labour Act 2003, Act 651 and precedence as basis of the directive.
However, the law lecturer strongly opines that the President’s reference to the Labour Act of 2003 is flawed as the AG enjoys special protection analogous to that of the Electoral Commission in relation to independence of its functions and the rigid procedure for her removal akin to a justice of the Superior Courts.
Dr. Akumperigya further ruled out the second reference to late President Mills’ precedence as grounds for such directive. According to him, the precedence lacked a legal justification since Executive decisions especially those not borne out of E.I.s are non-binding on subsequent presidents.
TO WHOM IT MAY CONCERN.
The President’s directive to compel the Auditor General (AG) to proceed on leave has, at least, two direct legal consequences:
1. Constructive removal from office if the net effect results in the AG never regaining his office (contrary to Article 187 (13), Article 146 and section 10 (8) of the Audit Service Act, 2000 (Act 584)
2. Direct interference with the AG’s constitutional functions ( Contrary to Article 187 (7 ) (a)
Reference to the Labour Act, 2003.
The President’s directive is premised on two grounds, which are discussed below:
It may be true that the Audit Service is subject to the Labour Act. This is why: under Article 190 (1), the Audit Service, the Police Service and Prisons Service are all listed as public Services institutions. In its scope of application, the Labour Act expressly excludes Police and Prison Services, and by implication, includes the Audit Service in its scope (Expressio Unius Est Exclusio Alterius-the expression of one thing is the exclusion of the other).
But does the inclusion of the Audit Service under the Labour Act necessarily apply to the Auditor General? The answer is NO. This is why: The AG enjoys special protection analogous to that of the Electoral Commission in relation to independence of its functions and the rigid procedure for her removal akin to a justice of the Superior Courts. Indeed, whilst the independence of the Electoral Commission is clothed on the Commission as an Institution, that of the Auditor General is clothed on the AG herself. That is a remarkable difference worthy of note. This means that what you cannot do to the EC and its Commissioner, you cannot to do the Auditor General.
The Constitution further affirms the invincibility of the AG by expressly excluding the power of the President to remove the Auditor General from the list of members of the Audit Service Board of which the AG is a member. (Article 189 (4). Recognition must be given to this serious constitutional shield.
So far in this note, it is not said that failure by the AG to go on leave is an infraction or not an infraction. For our purpose, let’s assume that it is an infraction. In addition, let’s also stretch the Labour Act to apply to the AG. For purposes of removability from office, this will still not form enough basis for the President to directly act. Compliance with Article 146 is constitutionally mandatory, in which case, the President needs to receive a petition from a citizen based on a compliant of non-compliance with the Labour Act to set the motion for removal similar to the case of removable of the Ex EC chair, Mrs. Charlotte Osei. ( Citizen petition-President receives-forwards to CJ- Prima facie case established-CJ establishes committee-recommendations sent back to President to act).
In no circumstances should it be argued that the Labour Act applies to the AG in much the same way it does to private citizens and employees because doing so will put the Labour Act in direct conflict with the Constitution and subject to being struck down under Article 2.
Reference to Precedent
The second reference is in regards to President Mills’ precedent. This is not a legal justification. Executive decisions especially those not borne out of E.I.s are non-binding on subsequent presidents.
The sort of executive precedents which form soft law for presidential action cannot be seen here either. This action bears all the elements of retaliation rather than following a precedent. In any case, what is the value of an unconstitutional precedent?
In conclusion, the President’s directive to the AG to proceed on leave is unconstitutional.
Source: Dr Rainer Akumperigya