The Attorney–General (A-G) has described as “frivolous” a suit by a former Deputy Chief of Staff, Ms Valerie Sawyerr, over certain audit findings on alleged procurement breaches during her time as a board member of Ghana National Gas Company (Ghana Gas).
In her application for judicial review filed on October 8, 2018, Ms Sawyerr wants the Accra High Court to quash the said audit implicating her on the grounds that there were statutory breaches, as well as breaches of the rules of natural justice.
Attached to the application as respondents were the A-G, the Economic and Organised Crime Office (EOCO) and ACP K.K Amoah (Retd), the Executive Director of EOCO.
But the A-G, in its statement of opposition signed by a Deputy Attorney-General (A-G), Mr Godfred Dame, says Ms Sawyerr has failed to prove her case and is, therefore, not entitled to the grant of the judicial review remedies that she seeks.
“Her application is grossly incompetent and should be dismissed,’’ the A-G said.
Ms Sawyerr’s case
Ms Sawyerr was a member of the Board of Directors of Ghana Gas between August 2011 and January 2016.
On October 19, 2017, EOCO engaged a private firm, Morrison and Associates, to conduct a forensic audit into some state organisations, including Ghana Gas.
As a result of the forensic audits, EOCO, on September 25, 2018, invited Ms Sawyerr by text message to meet ACP (Retd) Amoah for questioning with regard to ongoing investigations into the activities of Ghana Gas.
Report making rounds indicated that the forensic audit report alleged that there were procurement breaches at Ghana Gas, as well as inflation of contracts sums and non-performance of contracts.
Other allegations included non-enforcement and breach of contract.
It is, however, the case of Ms Sawyerr that the recruitment of Morrison and Associates to audit the accounts of Ghana Gas is a violation of the country’s laws since the 1992 Constitution gives the Auditor-General the sole authority to audit the public accounts of Ghana
The applicant further stated that the Auditor-General, Mr Daniel Yaw Demelevo on October 1, 2018, responded to her official enquiry indicating that he had not commissioned Morrison and Associates to audit Ghana Gas and did not have the report she was requesting.
She also contends that under the Public Procurement Act, 2003 (Act 663), it is only the Public Procurement Authority that has the power to investigate alleged breaches of procurement laws.
Ms Sawyerr further argues that EOCO did not give her a fair hearing and, therefore, its investigations breached the rules of natural justice and was unlawful.
The applicant also contends that the appointment of ACP (Rtd) KK Amoah as Executive Director of EOCO contravenes Article 199 of the 1992 Constitution, since he is above the age of 60.
In its response, the A-G first raised a preliminary legal objection describing the application as “incompetent” due to the joining of ACP (Rtd) Amoah as a respondent.
According to the A-G, EOCO’s Executive Director is a public officer and, therefore, cannot be sued in that capacity.
The law, the A-G stated, enjoined all persons taking legal action against the government or public officials to direct such actions against the A-G, who is the principal legal adviser to the government.
“Article 293 of the Constitution prevents a public official from being held personally liable for suits arising in the course of the performance of his professional or public functions,’’ the A-G argued.
On the issue raised by Ms Sawyerr that it is only the Auditor–General that can audit the accounts of Ghana; the A-G argued that “Ghana Gas is a private company limited by liability owned by the Ghana National Petroleum Corporation.
“Therefore in terms of the Constitution, specifically Article 187(2), and Section 11 of Act 584, Ghana Gas is not subject to the audit powers of the Auditor–General,’’ it said.
It is also the case of the A-G that the engagement of Morrison and Associates by EOCO did not breach any procurement laws since the audit firm was not procured with public funds.
“It was to be paid out of the accounts of Ghana Gas, which is not part of the public funds of Ghana,’’ the A-G argued.
With regard to the appointment of ACP Amoah (Retd) as EOCO boss, the A-G contends that his appointment is lawful, and rather Ms Sawyerr is being “mischievous’’.
“Article 99(4) of the 1992 Constitution, the A-G argued, allowed a public officer on retirement to be engaged “for a limited period of not more than two years at a time but not exceeding five years in all,’’ it argues.