President Akufo-Addo, on Monday further weakened his much-trumpeted claim of incorruptibility by directing the celebrated Auditor-General, Daniel Yaw Domelevo, to proceed on his accumulated annual leave of 123 working days, sparking a wave of controversy in the country.
Mr Domelevo's leave takes effect from today, Wednesday, July 1, 2020. But many see the President's directive as a calculated attempt to sack the man leading the protection of the public purse, especially so when he had questioned the Senior Minister, Yaw Osafo Marfo's US$1 million forensic investigations contract to Kroll & Associates.
The auditor general is a friend to Special Prosecutor, Martin Amidu, alias Citizen Vigilante, who is yet to be heard of the manner his friend is being treated by the Akufo-Addo government.
But many say, Mr Amidu himself is living on the edge, having lamented about lack of cooperation from government, lack of financial resources to hire competent personnel among other things.
A statement from the Communications Directorate of the Jubilee House, further directed Mr Domelevo, whose activities have received commendation from the Diplomatic Community in Ghana, the Catholic Bishops Conference, the media and civil society organizations such OccupyGhana led by Lawyer Ace Ankomah, is to hand over all matters relating to his office to his Deputy, Johnson Akuamoah Asiedu.
"The President of the Republic, Nana Addo Dankwa Akufo-Addo, has directed Mr. Yaw Domelevo, the Auditor-General, to take his accumulated leave of 123 working days, according to records available to the Presidency, with effect from Wednesday, 1st July 2020."
Nana Addo's decision to ask the Auditor-General to take his leave is said to be based on sections 20 (1) and 31 of the Labour Act, 2003 (651).
The statement signed by the Director of Communications at the Presidency, Eugene Arhin, indicated that the Auditor-General, has taken only nine out of his 132 working days of his accumulated annual leave since assuming office in December 2016.
The directive is being justified with a precedent set by former President, John Evans Atta Mills, when he asked the then Auditor-General, Edward Dua Agyeman, to also proceed on his 264 accumulated annual leave in 2009.
But that justification has been shot down, because the late President John Atta Mills, asked the current Board Chairman of Audit Service to proceed on leave and was not allowed to come back because at the time, of the decision he had long passed his mandatory retirement age of 60, but maintained in office by the Kufuor administration, despite huge protest.
Interestingly, Duah Agyeman, has reportedly said Daniel Domelevo is to blame for an Executive Order directing him to take his accumulated leave.
The Board Chairman, told Accra-based Joy FM that the board was left with no choice but to push President Akufo-Addo to issue the directive.
"What happened in this situation is that we had discussed leave schedules for all staff, and when it came to the Auditor General, we asked him when is he ready to go on leave.
"He said we cannot ask him to go on leave because we did not appoint him, so anytime we told him to go on leave he will say he will not go because we did not appoint him, so now it is the appointing authority who has asked him to go," a news item carried by Joy FM quoted Prof Agyeman.
Prof Agyeman's views are similar to that of anti-graft campaigner and former Executive Director of the Ghana Integrity Initiative (GII), Vitus Azeem, who has said it is unfortunate on the part of Mr Domelevo, has been forced to take his accumulated 123 leave days.
According to him, knowing what the labour law says, Mr Domelevo, should have acted and taken his annual leave and not to have allowed it to accumulate.
He also questioned why the board of the Audit Service, waited to allow the period to accumulate before raising issues with his failure to go on leave.
However, law Professor, Henry Kwasi Prempeh, has said the relationship between the President and the Auditor-General cannot be interpreted as a mere employer-employee relationship "as opposed to a relationship of high substance and consequence mediated by the Constitution and the principles emanating from that document."
"The mere fact that the President 'appoints' a certain constitutional office holder, who, like every other occupant of a public office, is paid from public funds, does not thereby create between the two a simple employer-employee relationship in which the President is the employer and the other the employee.
"Otherwise, what is to stop the President from ordering, say, a Chief Justice or an EC or a CHRAJ Commissioner or Chair to proceed on accumulated leave or do any other act that employers ordinarily can command their employees to do? I doubt that the Constitution makes, or intended to make, a President Employer-General of all holders of public office in this land," he said in a Facebook post.
I find it interesting that the President and his lawyers would treat the relationship of the President to the Auditor-General, an independent constitutional officeholder, as some mundane "employer-employee" relationship regulated by everyday labour or employment law, as opposed to a relationship of high substance and consequence mediated by the Constitution and the principles emanating from that document. The mere fact that the President "appoints" a certain constitutional officeholder, who, like every other occupant of a public office, is paid from public funds, does not thereby create between the two a simple "employer-employee" relationship in which the President is "employer" (master) and the other his "employee" (servant). Otherwise, what is to stop the President from ordering, say, a Chief Justice or an EC or a CHRAJ commissioner or chair to proceed on accumulated leave or do any other act that employers ordinarily can command their employees to do? I doubt that the Constitution makes, or intended to make, a President Employer-General or HR-General of all holders of public office in this land.
Prof Stephen Kweku Asare, who is a Fellow in Public Law and Justice at CDD-Ghana, has also stated that the Auditor-General, cannot be forced to either take or forfeit his leave.
"The law is abundantly clear that the AG's right to leave of absence cannot be varied to his disadvantage. The reason for the law is to protect his independence," he also wrote on Facebook.
According to Prof Asare, "there must be a compelling reason to force the AG to take his leave. His leave conditions must be determined by the more specific Audit Service Act, not the general Labour Act."
He further stated that considering the fact that certain actions of the Auditor General seem to be clashing with the Executive, "any attempts to remove the AG will offend the separation of powers, constitutionalism and the growing of our institutions."
It is in the interest of the President to protect the independence of the Auditor General. Any attempts to remove him from office, no matter how clever, will be seen as interference with his work and will irreparably tarnish the President's record.
Once appointed the Auditor General must be allowed to hold office until the age of sixty years subject to an Article 199(4) extension for a 2+2+1 post-retirement tenure.
On the record, I also urge the President to grant the Auditor General this Article 199(4) dispensation.
The law is abundantly clear that the AG's right to leave of absence cannot be varied to his disadvantage. It is equally clear that the AG is not subject to the direction or control of any other person or authority.
The reason for the law is to protect his independence. The constitutional amendment of 1964 that brought the AG under the control of the ministry of finance and the ensuing political interference in the work of the PAC all informed the 1992 constitution framers in making him report directly to Parliament's PAC, designed to be chaired by a ranking member from the opposition party.
Thus, the AG cannot be forced to take his leave or to forfeit his leave by the President. Nor can the President direct or control him in the performance of his work.
There must be a compelling reason to force the AG to take his leave. His leave conditions must be determined by the more specific Audit Service Act not the general Labour Act (generaliaspecialibus non derogant).
I do not find the Mills' precedent persuasive. Actually, I find it amusing.
Nor do I find sections 20(1) or 31 of the Labour Act as a reasonable basis for forcing the AG to take his leave. Section 20(1) merely provides for a leave entitlement and section 31 merely voids any agreement to relinquish the entitlement.
There are several ongoing audits, including KROLL, MP backpay, etc. where one can reasonably say the AG is clashing with the executive.
Under those circumstances, any attempts to remove the AG will offend separation of powers, constitutionalism and the growing of our institutions.
The President must reconsider and the AG must stand his grounds.
Civil society groups too have a role here. They should, as in Malawi, protest this move to interfere with the functions of the AG, culminating in lawsuits and an injunction preventing the removal of the Chief Justice for the same accumulated leave "offence."
128/1820 is a bona fide scam and sham.