The Auditor-General, Parliament, and the Dearth and Death of Disallowances and Surcharges- My Sunday Dawn jeremiad – Ace Annan Ankomah

I just read Bright Simons’ latest article titled ‘Why Ghana’s “Auditor General Reports” Risk Becoming Circus Shows.’ [https://brightsimons.com/2021/08/22/why-ghanas-auditor-general-reports-risk-becoming-circus-shows/].

I completely agree with Bright re article 181(5). This article of the Constitution, with necessary modifications by the Supreme Court (not Parliament, as the Constitution wrongly provides), subjects only ‘major’ international business and economic transactions involving the government to parliamentary approval. And, what is ‘major’ is determined by the Attorney-General’s non-binding opinion! And, statutory corporations are not covered, except under a distinctly unique Ghanaian application of the ‘alter ego’ doctrine, that statutory corporation was in fact, a shadow of the government, being used to beat the law.

These are neither my words nor interpretation, but those of our reluctantly, ‘legislative’ Supreme Court.

It doesn’t appear to me that the AudG has delved into what I call ‘The Article 181(5) Heptalogy of Cases’ (CCW, Faroe, Balkan, Isofoton, Waterville, Klomegah and Assibey-Yeboah). He doesn’t appear to have tracked the evolution of decisions to see where the interpretation of article 181(5) has settled, currently. If, as I suspect, he is doing an auditor’s ‘plain common sense’ reading and application of the article, he will fall into grave error; and then he will get ‘set side’ by the courts, he will lose his vim and mojo, and Ghana will lose. The AudG needs legal help, urgently. But from where?

Meanwhile, Parliament is still on its 28-year old siesta on its constitutional duty to make the ‘necessary modifications’ to apply article 181(5). This sleep is at the heart of the sheer confusion surrounding that article. Parliament has shirked this responsibility and since Ghanaian nature abhors vacuums, the Supreme Court has stepped in and practically ’legislated’ in place of Parliament.

Yet, in the Balkan case, the same ‘parliamentary’ Supreme Court paused from its all-important ‘legislative duties’ to beg Parliament to wake up. Over a decade ago, the then Attorney-General begged Parliament to wake up. They failed to rouse Parliament from that blissful ‘condition of body and mind that typically recurs for several hours every night, in which the nervous system is relatively inactive, the eyes closed, the postural muscles relaxed, and consciousness practically suspended.’ Sleep is for the weak, those who have little or nothing to wake up for, and those who can afford it.

But the AudG has more problems. Article 187(7)(b) on disallowances and surcharges, does place on the office, some ‘court-quality’ determinations, requiring him to make at least, first impression, burden of proof (preponderance of evidence)-supported judgement calls. He must determine ‘expenditure… contrary to law, ‘negligence,’ and ‘misconduct,’ before he SHALL disallow and surcharge.

He doesn’t have a choice. Once the AudG determines the wrong, the Supreme Court says, courtesy OccupyGhana v AG, he ‘SHALL’ apply the disallowance and surcharge consequences. I believe that this is in the nature of a mandatory injunction, and that every failure, refusal or neglect by the AudG to apply the consequences amounts to contempt of court! And, oh, the Court added that the Attorney-General must prosecute people surcharged.

On this, the AudG appears to me to be struggling, because the quality of the evidence backing some of the audits, clearly do not rise to the level that can hold up in court, when challenged. Word on the ground suggests that the prospects of the disallowances and surcharges being subjected to the now-feared ‘set aside’ by the courts on appeals, is what has led the the obvious dearth in the reports, and pending death and final funeral rights, of disallowances and surcharges.

But one may ask, ‘if the evidentiary bases of some of these findings are weak and not sustainable in court, why would they be fit for Parliament?’ Maybe Parliament doesn’t mind. The Public Accounts Committee will have that annual, ritualised televised sitting, express some righteous anger, adjourn, and then everyone will go back to sleep, to await the next year’s report.

While at it, at the February 2021 vetting of the current National Security Minister, the Minority Leader while cynically claiming that he finds the seminal decision of the Supreme Court in OccupyGhana v AG ‘interesting,’ then goaded the current National Security Minister on, who, purporting to speak as ‘a professional accountant’ called the decision ‘totally wrong,’ claimed that it was Parliament that must disallow and surcharge or at least ratify them, and then urged Parliament to ‘find a way to fight’ the decision!

With this, any smart ‘Acting’ AudG can tell the direction that the wind is blowing, and will agree with T S Eliot that he cannot ‘turn the wheel on which he turns.’ One does not require rocket science to appreciate the AudG’s return to merely making recommendations, something AudG Reports from the pre-OccupyGhana v AG era described as a ‘ritual’ known only for its impotence; but now with even more impotent threats to disallow and surcharge, if…. When?

Meanwhile, Ghana’s disallowances and surcharges regime, at least on paper, has become a beacon and exemplar worldwide. For instance, the World Bank’s 2020 GLOBAL REPORT is unrestrained and effusive in its praise of what the AudG achieved post-OccupyGhana v AG. The Report records the recovery, in a little over a year after that judgment, of “a total amount of GHS67.3 million (USD 13.2 million)” through disallowances and surcharges, and mentions how “this achievement inspired other African [countries] to pass similar legislation on disallowances and surcharges.” Nice one for the history books.

But can we build from here? Or will we rest on our imagined oars, content with how far we have rowed or steered this boat of state in persistently choppy waters? Obey the wind…

From where I sit, if the AudG is going to delve into such matters, he, first, NEEDS a proper, functioning and top notch legal department, which he doesn’t have. The people that the AudG will be up against, can afford some of the best legal minds in the land. They will tie him up in Gordian knots in court. If he tries to obtain private legal help, the procurement laws will be used to stop him. And the results are there for all of us to see: SET ADISE. Or, will the Attorney-General set up a desk in his office that works exclusively with the AudG on the legal aspects of the latter’s work, while the AudG is proceeding against government officials? T S Eliot wrote wisdom… When and whence cometh the independent Attorney-General?

And will Parliament wake up? I’m not holding my breath. Death from asphyxia is reputed to be very painful.

Happy Sunday. If you go to church, or don’t, pray for the AudG!

… they call me ‘Ace’ and ‘too-known’.

PS. Disclosure – what I intended to be a 2-line concurrence with Bright has unfortunately become a long article. My sincere apologies. And, since I was professionally involved in 2 of the ‘The Article 181(5) Heptalogy of Cases’ and then civil-society involved in Occupy Ghana v AG and the drafting of the rules on disallowance and surcharge appeals, kindly take my views on these matters with more than a pinch of salt, if you may.