The Attorney-General’s Unsolicited Advice To The Auditor-General: Why The Attorney-General Gets It Wrong

The Legal professional-Typical (the “AG”), Godfred Dame, has taken issue with the publication of a specific audit report on the governing administration of Ghana’s COVID-19 expenditures covering the period March 2020 to June 2022 by the Auditor-Standard. In a letter dated February 8, 2023, resolved to Auditor-Normal, Johnson Akuamoah Asiedu, the AG argued that the publication of the audit report was incorrect and wrongful in legislation and recommended the Auditor-Standard to withdraw the report from its web page. The Ghana Heart for Democratic Development (CDD-Ghana) in response, published a press statement on February 10, 2023, describing the AG’s posture as “shocking”. In a push assertion dated February 15, 2023, the AG seems to have taken issue with CDD-Ghana also.

In this piece, I shall catalogue the essential arguments the AG canvasses in his publications and deal with them for the reasons of public instruction.

In his letter to the Auditor-Common, the AG argues that

1. “…It is only immediately after fulfilling the constitutional prerequisite of distributing the Auditor-General’s report to Parliament, the subsequent debate by Parliament thereon and conclusion of work by the proper committee of Parliament, that the report of the Auditor-Normal could be regarded as ultimate and applicable action may be taken thereon.”

2. That “…In gentle of the constitutional provisions pertaining to the responsibility of the Auditor-Basic following the preparing of audit studies, I look at a publication of the COVID-19 audit report or certainly any audit report notably when identical has not been possibly regarded by Parliament or referred to a committee of Parliament, untimely.”

Response:

One, by statutory layout, the Auditor-Basic is required to publish audit reviews on community accounts “as soon as the experiences have been introduced to the Speaker to be laid just before Parliament” (Section 23 of the Audit Assistance Act, 2000 (Act 584)). Nowhere in the Audit Provider Act or any other law, including the Constitution, is it even recommended that the Auditor-Typical have to wait until finally his report has been laid prior to or debated by Parliament ahead of he may make it community. A report laid right before Parliament is a community document to which the community are not able to be denied entry

Two, the Lawyer-Normal seems not to absolutely appreciate the nature of auditing procedures and the phase at which an audit is finalized. His recommendation that the Auditor-General’s report is finalized only right after it has been debated by Parliament adhering to the summary of the Public Accounts Committee’s (PAC) function is not supported by the legislation or even accounting procedures. The Auditor-General is neither demanded by law (statute or Constitution) nor global finest apply to wait around for the final result of hearings initiated by PAC ahead of he can make community an audit report. Additional, the worldwide audit standards are very clear. As aspect of the audit course of action, an auditor is necessary to talk in creating to the management of auditee-entities any observations and or major deficiencies in inner controls discovered. Primarily based on the responses from the management of auditee-entities, the audit report might be modified in which vital.

A few, contrary to the Inside Audit Agency (IAA) which is portion of the Government department and acts as its “internal auditor”, the Office environment of the Auditor-Standard, is by constitutional design, an “external auditor” assigned by the Structure, not Parliament, to audit public accounts. The obligation placed on the Auditor-General in short article 187(5) of the Structure to post his report to Parliament inside 6 (6) months immediately after the conclusion of each economical yr is to help Parliament to verify irrespective of whether community money have been used in accordance with legislation (the Appropriations Act, et al). The prerequisite for the Auditor-Typical to post his report to Parliament are unable to, underneath any instances, be interpreted to indicate he have to wait for the consequence of hearings initiated by PAC to make public an audit report. This kind of an interpretation would be inconsistent with the protections the Constitution presents the Workplace of the Auditor-Common as an independent constitutional entire body (write-up 187(7)(a) of the Constitution).

Four, if people implicated in the Auditor-General’s report really feel aggrieved, Parliament is not the appropriate discussion board to seek out redress. The Courts are. Similarly, any  person surcharged by the Auditor-Standard pursuant to an audit report can seek redress at the Courtroom. The ideal treatment for hard any disallowance or surcharge issued by the Auditor-General has long been established by statute and offered judicial blessing . (Occupy Ghana v. Lawyer-Standard [2017-2018] 2 SCLRG 527).

In his push statement directed at CDD-Ghana, the AG also argues that

3. “Contrary to the unusual see of CDD-Ghana, the letter and spirit of guidelines governing the perform of the Auditor-Basic make him portion of the Audit Support of Ghana and, as a result, a frequent member of the community expert services of Ghana to whom the Attorney-Basic can give guidance pursuant to his mandate underneath article 88 of the Structure.”

Response:

This assertion by the AG is not only unusual but exposes a shocking absence of understanding of the constitutional architecture of the Office environment of the Auditor-Standard as an Impartial Constitutional Physique (ICB).

Very first, the Auditor-Normal of Ghana is established below the 1992 Constitution (the “Constitution”), as below the antecedent constitutions (1957 and 1969), as a unipersonal office the business office and its occupant are, in the eyes of the Constitution, just one and the similar. This simple fact distinguishes the office environment of the Auditor-Typical from the other ICBs these types of as the Electoral Fee (EC), the Nationwide Commission for Civic Instruction (NCCE), and the Fee on Human Rights and Administrative Justice (CHRAJ), all of which are multi-member bodies with the mandate and functions of the entire body reposed in the body and its customers performing alongside one another. Ghana, in influence, follows the “sole commissioner” product when it comes to the office of the Auditor-Typical.

Less than the terms of Article 187(2) of the Structure, the electricity and responsibility to audit and report on the community accounts of Ghana is reposed completely in that one particular officeholder referred to as Auditor-Common who is appointed pursuant to Posting 70(1) (b) and who, “before moving into the duties of his office,” took and subscribed to the Oath of the Auditor-General set out in the Next Agenda to the Constitution.” (Article 187(16)).

Next, the Audit Services, recognized separately under Report 188(1) of the Structure, exists to give the Auditor-Typical with the expert and administrative staffing and assistance he needs to discharge his duties correctly. Instructively, the Constitution reposes no auditing accountability or electrical power in the Audit Assistance or any other person independent of the Auditor-Basic. The motive is basic: The Audit Provider is the instrumentality with and by way of which the Auditor-Standard is anticipated to complete his capabilities and work out his powers. Just as the Judicial Assistance exists to provide the Judiciary in the performance of its features, so does the Audit Services exist to assist and serve the Auditor-Normal to make sure the productive and efficient discharge of his constitutional mandate. The Framers have been cautious to organize the marriage concerning the Auditor-General and the Audit Provider in such a way as to keep away from divided obligation or divided accountability for the supreme audit operate. Notwithstanding the existence of administrative Deputy Auditors-Standard in the Audit Provider, the Auditor-Common of Ghana continues to be constitutionally a just one-man or woman workplace, with all the constitutional powers and prerogatives of the business vested in that one particular person appointed to the position of Auditor-Normal in accordance with Short article 70(1) (b) of the Constitution.

In Transparency Intercontinental v Lawyer-Standard & 2 Some others [Petition No 388 of 2016, 16th February, 2018], the Higher Courtroom of Kenya, the superior court docket clothed with authentic jurisdiction to hear and figure out constitutional fits beneath the Structure of Kenya has celebration to pronounce on the unipersonal position of the Office of the Auditor-Typical. At situation in Transparency International was the constitutionality of particular provisions of Kenya’s Public Audit Act, 2015. Portion 12 of the Community Audit Act, 2015, experienced produced the placement of “Acting Auditor-General” and approved the President of Kenya to designate, on the advice of the Public Expert services Fee, the senior most individual in the Auditor-General’s place of work as the “Acting Auditor-General” to exercising the comprehensive powers of the Auditor-Basic in the absence of the Auditor-Common. Segment 15 of the Act also established a position of “Senior Deputy Auditor-General”. Like Ghana’s, the Structure of Kenya (2010) supplies for the appointment of an Auditor-Common (in accordance with a recommended constitutional technique) but purposely will make no provision for a Deputy Auditor-Standard.  Plaintiffs in Transparency Global challenged as unconstitutional the generation by statute of equally the new “Acting Auditor-General” placement and the placement of Senior Deputy Auditors-Normal.   The Courtroom held that the Structure of Kenya establishes and acknowledges as Auditor-Typical only that 1 man or woman bearing that designation who is appointed to that place of work in accordance with the Short article 229(1) of the Kenyan Structure. In the words of the Court docket:

‘. . . the petitioner argued that the position of Acting Auditor Standard is unconstitutional simply because only just one individual is acknowledged by the Structure as Auditor General and I concur. The Constitution works by using the word “an” Auditor Basic, which means an individual and not folks. The Structure does not mention other substantive positions. Despite the fact that the Constitution will allow the Auditor Basic to recruit his individual employees and in accomplishing so, should develop staff members organizational structure for the performance of his functions and exercising of powers…’

The AG also argues that

4. “A proper studying of the Structure, especially the provisions on the General public Expert services of Ghana, potential customers to the inescapable summary that the Attorney-Common is completely vested with the constitutional function of providing authorized tips to all the General public Solutions precisely detailed in report 190(1) of the Constitution, including the Audit Services, and these types of other public companies as will be established by law.”

Reaction:

Even though the AG is clothed with the obligation of instituting and conducting all civil situations on behalf of the point out, the Supreme Courtroom has held that to keep away from conflicts of curiosity and to maintain the ideas of separation of powers and checks and balances, Independent Constitutional Bodies (ICBs) are entitled to employ the service of, retain, and act on the tips of their decided on counsel. They can also sue and be sued in their own identify (Amegatcher v Lawyer-General [2012]). As a result, although the AG may look for to present unsolicited information to the Auditor-Common, this kind of tips can, and in this scenario have to be disregarded as getting lawfully flawed.

The writer is a attorney.

Email: [email protected]

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