The Attorney-General’s Office has been named as a defendant in a suit seeking to set aside the 167 accumulated leave days of Auditor-General, Daniel Domelovo, which took effect from July 1.
The office of the Auditor-General and Johnson Akuamoah, who is acting Auditor-General, have also been named as defendants.
A fellow in Public Law and Justice at the Ghana Centre for Democratic Development (CDD-Ghana), Prof. Stephen Kweku Asare, wants the Supreme Court to rule that the President’s directive is inconsistent with or is in contravention with the letter and spirit of Article 187(7)(a) of the Constitution, 1992.
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Background
The Office of the President on July 4 extended the accumulated leave period of the Auditor-General from 123 days to 167 effective July 1, 2020.
This came in the wake of concerns raised by Mr Domelovo over the directive to take his accumulated leave because his work, according to him, is embarrassing the government.
A letter by Mr Domelevo dated July 3, 2020, outlined a series of reasons why he believes the directive leaves much to be desired including what he described as “bad faith” on the part of the Presidency.
Prof Asare case
Prof. Asare is one of the key legal analysts who called out the move by the Presidency describing it as unconstitutional. He argues the office of the Auditor-General is a very important position which should not be toyed with. He maintains annual leave is by nature voluntary. He explains it is a right earned by an employee that should not be available to the appointing authority to be deployed as a sanction to exercise disciplinary control.
He further states that the directive by the Presidency amounts to constructive removal which the courts must remedy. He makes reference to Section 20(1) of the Labour Act, 2003 (Act 651) as part of his case. This section states that “every worker is entitled to not less than fifteen working days leave with full pay in any calendar year of continuous service.” Section 31 of the same Act adds that “any agreement to forgo such leave is void”. Prof Asare contends that this leave is an entitlement of the employee and cannot be forced on him by an employer.
Portions of the writ said: “Even though disguised as a directive to take accumulated annual leave of 167 days, the directive is actually a suspension of the Auditor General who is being asked to pay for the suspension by a forced debit to his accrued vacation account.”
It will be recalled that Johnson Asiedu Akuamoah was asked to act in the stead of the substantive Auditor-General. Prof Asare says this is inconsistent with the constitution. He says Mr Akuamoah has not taken the Oath of the Auditor General and cannot be said to be acting in that position when there is a substantive A-G.
Reliefs
Prof Asare wants a declaration that except for stated grounds in article 146 of the 1992 Constitution, the Auditor-General’s tenure cannot be disturbed
by Presidential directives, whether couched as accumulated leave,
involuntary leave, suspension, interdiction, temporary removal,
disciplinary control, or however styled, and he may remain in office
until he attains the compulsory retirement age of 60 years.
Also, a declaration that the President’s directive to the Auditor-General to
hand over all matters relating to his office to Mr Johnson Akuamoah
Asiedu is inconsistent with or is in contravention with the letter and
spirit of Articles 187(1) and 187(7)(a) of the Constitution, 1992.
Other reliefs
A declaration that the President’s appointment of Johnson Akuamoah Asiedu to act as the Auditor-General is inconsistent with or is in contravention of the letter and spirit of Articles 187(1), 187(7)(a).
An order directing the President, his agents, assigns, privies, servants
and whomsoever of whatever description to cease and desist from
issuing directives to the Auditor-General.
An order directing the President, his agents, assigns, privies, servants
and whomsoever of whatever description to cease and desist from
exercising disciplinary control over the Auditor-General.
An order directing the President, his agents, assigns, privies, servants
and whomsoever of whatever description to cease and desist from
assessing the work, including the financial administration, of the
Auditor-General.
An order directing the Auditor-General to resume performing his
constitutional functions.
An order directing Johnson Akuamoah Asiedu to cease and desist
from performing the role of an Acting Auditor-General.
An order invalidating any decisions taken by Mr. Akuamoah
Asiedu subject to ratification by the Auditor-General.
An order of interlocutory injunction to restrain Mr. Johnson
Akuamoah Asiedu from performing the functions of Acting Auditor-
General, pending the final determination of the substantive suit.
An expedited hearing of the motion for injunction and the substantive cause given the important financial watchdog role played by the Auditor-General and the irreparable harm that any delay will cause to the financial systems and the integrity of the Constitution.
Any other reliefs that this Court deems necessary in the exercise of its legal
and equitable powers.
Cost for court expenses and legal service fees.