I’m mandated to offer legal advice to Auditor-General – Attorney General
The Office of the Attorney-General and Ministry of Justice has implored Civil Society Organisations (CSOs) to carefully examine the position of Ghana’s laws on matters before raising “unjustified public alarm” of violations by the Attorney-General or any public institution.
In a statement issued in Accra on Wednesday, the Attorney General, Godfred Yeboah Dame, said the “the default in doing so affects the image of the nation in the eyes of the international community, particularly its anti-corruption ratings”.
The statement was in response to a press statement issued by the Ghana Center for Democratic Development (CDD-Ghana) on February 10, 2023, titled: “The Akuffo-Addo (sic) Government must cease its continuous assault on the Office of the Auditor-General”.
CDD-Ghana in the statement chastised the Attorney-General over his comments regarding the publishing of audit reports on government’s COVID-19 transactions by the Office of the Auditor-General before Parliament debated and referred it to an appropriate committee of Parliament in accordance with article 187(6) of the Constitution.
The Attorney-General said in addition to “various wrong propositions of law”, CDD-Ghana characterised its (Attorney-General) opinion “as part of a domineering superior posture that the Akuffo-Addo (sic) administration has adopted in dealing with the constitutionally independent office of the Auditor-General”.
It said CDD-Ghana also perceived the Attorney-General’s letter as an effort to “undermine the independence of the Office of the Auditor-General and other independent constitutional bodies”.
“Quite bizarrely and in tune with the fundamentally incorrect constitutional theories bandied about by CDD-Ghana, a Vice-Chair of the Board of CDD-Ghana stated on a radio programme, ‘News file’ on Joy FM, that, the Auditor-General is not part of the Audit Service of Ghana but a separate creation,” the statement said.
Mr Dame said the CDD statement contained “palpable errors” and that its press release “sought to distort the relationship between the Attorney-General and the Auditor-General in the constitutional architecture of the Republic and has far-reaching implications for Ghana’s record in rooting out corruption”.
The Minister said contrary to the “strange view” of CDD-Ghana, “the letter and spirit of laws governing the work of the Auditor-General makes him part of the Audit Service of Ghana and, therefore, a regular member of the public services of Ghana to whom the Attorney-General can give advice pursuant to his mandate under article 88 of the Constitution.”
He noted that Article 189(2) of the Constitution provided a clue when it stipulated that: “The appointment of officers and other employees in the Audit Service, other than the Auditor-General, shall be made by the Audit Service Board, acting in consultation with the Public Services Commission.”
That provision, the Attorney General said, dealt with the appointment of officers and all employees in the Audit Service, including the Auditor-General, and clearly provided that, with the exception of the Auditor-General, all had to be appointed by the Audit Service Board acting in consultation with the Public Services Commission.
“With the clear cue provided by article 189(2), a contention that the Auditor-General is not part of the Audit Service, or a member of the Public Services is pointless and absurd,” the Minister said in the statement.
He said Section 2 of the Audit Service Act, 2000 (Act 584) laid the issue to rest when it listed the Auditor-General as the first member of the Audit Service, saying: “The members of the Audit Service are (a) the Auditor-General, and (b) the other persons employed in the Service.”
“It is thus clear that the propositions of CDD-Ghana and its board members can only result from an inadequate reading of the laws of Ghana, including the Constitution and the Audit Service Act,” the statement added.
The statement said it was astonishing that CDD-Ghana disputed the propriety of the Attorney-General rendering legal advice to the Auditor-General and construed same as “an interference with the independence of the Auditor-General”.
It noted that a proper reading of the Constitution, especially the provisions on the Public Services of Ghana, “leads to the inescapable conclusion that the Attorney-General is fully vested with the constitutional function of giving legal advice to all the Public Services specifically listed in article 190(1) of the Constitution, including the Audit Service, and such other public services as will be established by law.”
“Article 295 indicates that the public services listed in article 190 and other public services established by Parliament pursuant to its legislative powers, are part of the civil offices of government.”
The statement said it ought to be pointed out that the functional independence of the Auditor-General under article 187(7)(a) of the Constitution did not confer immunity from legal advice.
“Legal advice to a constitutional body cannot under any circumstance be construed to amount to interference with the performance of its constitutional functions.”
It said a view to the contrary implied that an independent constitutional body had absolute freedom to act in any manner it desired, except when a court of law had ordered, even when its legal adviser (whether public or private) was of the opinion that its actions were in conflict with the law.
The statement said it was implicit in the constitutional duty of Parliament to debate the Auditor-General’s reports and appoint a committee to deal with any matters arising from it.
“This constitutional function of Parliament cannot be wished away by a narrow, simplistic and erroneous reading of the Constitution by CDD-Ghana or any civil society organisation,” it said.