Domelevo’s leave unconstitutional — Supreme Court
President Nana Addo Dankwa Akufo-Addo breached the 1992 Constitution when he directed a former Auditor-General, Daniel Yaw Domelevo, to proceed on leave in 2020, the Supreme Court has declared.
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In a unanimous decision yesterday, a seven-member panel of the apex court also held that it was unconstitutional for the President to have appointed an acting Auditor-General when Mr Domelevo was still in office.
“We declare the directive by the President appointing an acting Auditor-General when the substantive Auditor-General had not retired or been removed from office purportedly in accordance with Article 146 of the 1992 Constitution as unconstitutional, null and void,” the court declared.
Unconstitutional directive
It was the considered view of the court that the directive by the President for Mr Domelevo to proceed on leave which was contained in a letter dated June 29, 2020 and signed by the Executive Secretary to the President, Nana Bediatuo Asante, violated Articles 70 (1), 187 (7) (a), (12) (13) and 146 of the 1992 Constitution and was, therefore, null and void.
Article 70 (1) of the Constitution deals with the power of the President to appoint certain public officers, including the Auditor-General. Article 187 (7) (a) stipulates that the Auditor-General shall not be subject to any control or direction when performing his functions.
Article 187 (12) makes it unconstitutional for the salaries, allowances and right of leave of absence of the Auditor-General to be varied to his disadvantage during his tenure in office, while Article 187(13) states that the Auditor-General can only be removed from office per the procedure set out for the removal of Justices of the Superior Court as stipulated in Article 146 of the Constitution.
No consequential orders
However, the highest court of the land did not issue any consequential orders or put an injunction on the directive of the President as sought by the plaintiffs.
It was the considered view of the court that Mr Domelevo had retired and, therefore, such reliefs by the plaintiffs were moot.
The court did not immediately give the full reasons for its decision, which it said would be filed at the court’s registry by June 21, this year.
Justice Nene Amegatcher presided over the seven-member panel, with Justices Prof. Nii Ashie-Kotey, Mariama Owusu, Avril Lovelace- Johnson, Gertrude Araba Esaaba Sackey Torkornoo, Prof. Joy Henrietta Mensa-Bonsu and Emmanuel Yonny Kulendi, as members.
The suit culminating in the judgment was filed by nine civil society organisations.
They include the Centre for Democratic Development (CDD-Ghana), the Ghana Integrity Initiative, (GII), the Citizen Movement Ghana, the Africa Centre for Energy Policy (ACEP), and the Parliamentary Network Africa.
Others are Penplusbytes, the Media Foundation for West Africa, SEND Ghana, and One Ghana Movement.
Background
On June 29, 2020, President Akufo-Addo directed Mr Domelevo to proceed on his 123 accumulated leave days from 2017 to 2019, with effect from July 1, that year.
Mr Domelevo replied the President in a letter dated July 3, 2020, asking the President to reconsider his decision on the basis that it was unconstitutional and was not in the best interest of the Office of the Auditor-General and the nation at large.
In a subsequent reply by the President, signed by Mr Bediatuo on July 4, 2020, the President extended the leave of Mr Domelevo by 44 days by adding the leave days of 2020, bringing the total leave days to 167.
After persistent calls by CSOs and other interest groups for the President to reconsider his decision did not materialise, the nine CSOs invoked the original jurisdiction of the Supreme Court to interpret and enforce the 1992 Constitution.
It was the case of the CSOs that the directive by the President for Mr Domelevo to proceed on leave, as well as the appointment of Johnson Akuamoah Asiedu as acting Auditor-General were unconstitutional.
The CSOs urged the Supreme Court to declare the two acts as unconstitutional and also put a perpetual injunction to restrain the President from directing Mr Domelevo to proceed on leave, and also to appoint an acting Auditor-General.
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