Pray THE ATTORNEY-GENERAL MINISTRY OF JUSTICE AND ATTORNEY-GENERALS DEPARTMENT MINISTRIES ACCRA AND THE AUDITOR-GENERAL AUDIT SERVICE OF GHANA HEAD OFFICE ACCRA 12TH NOVEMBER 2014 Dear Madam and Sir, REQUEST FOR THE EXERCISE OF AUDITOR-GENERALS POWERS OF DISALLOWANCE AND SURCHARGE, AND NOTICE OF ACTION Introduction The purpose of this letter is to put you on notice that OccupyGhana, a guarantee company duly incorporated under the laws of the Republic of Ghana, intends to apply for an order of mandamus, if Auditor-General fails to exercise his powers of Disallowance and Surcharge under the Constitution and Audit Service Act, 2000 (Act 584). The Function of Auditor-General As you are aware, under the Constitution and Act 584, the Auditor-General is empowered (and in fact compelled) to take pro-active steps to ensure the accountability of public officers and institutions, as well as to obtain repayment or compensation from those officers or institutions, who or which, through corruption, negligence, maladministration or other dereliction of duty, fail to properly account for public funds at their disposal. Under Article 187 of the Constitution, the Auditor-General is a public office required to audit and report on the public accounts of Ghana and all public offices, including public institutions and any public corporation or other body or organisation established by an Act of Parliament. Further, under Article 187(5) of the Constitution: The Auditor-General shall, within six months after the end of the immediately preceding financial year to which each of the accounts mentioned in clause (2) of this article relates, submit his report to Parliament and shall, in that report, draw attention to any irregularities in the accounts audited and to any other matter which in his opinion ought to be brought to the notice of Parliament. The effect of the above provision is that the Auditor-General is uniquely placed to identify and report on the misappropriation and misspending of public funds. The Functions of Disallowance and Surcharge As part of the Auditor-Generals function, Article 187(7)(b) of the Constitution gives him the power to “disallow any item of expenditure which is contrary to law and surcharge, (i) the amount of any expenditure disallowed upon the person responsible for incurring or authorising the expenditure; (ii) any sum which has not been duly brought into account, upon the person by whom the sum ought to have been brought into account; or (iii) the amount of any loss or deficiency, upon any person by whose negligence or misconduct the loss or deficiency has been incurred.” [Emphases added.] Despite the Disallowance and Surcharge function of the Auditor-General under Article 187 being classified as a “power,” it is nevertheless a function that is mandatory for that office to exercise. Under Article 297 of the Constitution, a discretionary power must be exercised “from time to time, as occasion requires.” In other words, such a power must be exercised with an appropriate degree of diligence, when it is required to be so exercised. Section 17 of Act 584 details that where a Disallowance or Surcharge is made by the Auditor-General, the Auditor-General shall specify (and indeed issue a certificate) to the appropriate Head of Department or Institution, the amount due from a person on whom a Disallowance or Surcharge has been made and require payment of any sum of money within 60 days after it has been specified. It is clear that the purpose of Article 187 of the Constitution as well as sections 17 and 18 of Act 584 is to ensure that there is prompt recoupment of public funds which are identified through the audit process as having been stolen, squandered or lost, whether through corruption, negligence maladministration or otherwise. What is utterly impermissible under the Constitution or Act 584 is for there to be a complete failure by the Auditor-General to exercise the Disallowance and Surcharge function at all, if the audit process has disclosed cases of public funds having been stolen, squandered or lost. Audit Reports: Matters Qualifying for Disallowance or Surcharge We have studied the Auditor-Generals Audit Reports to Parliament for the eleven (11) years between the year ended 31st December 2002 and the year ended 31st December 2012. In that period, the Auditor-General has identified a wide range of stolen and/or misappropriated funds which are due to the public purse. Nevertheless, and quite without explanation, although the Auditor-General is known to have made “recommendations,” OccupyGhana and most Ghanaians are not aware of a single instance in which a Disallowance and Surcharge has been made by the Auditor-General. Demand for Action Accordingly, by this letter OccupyGhana demands that within 30 days: The Auditor-General confirms whether or not, in each of the cases that he has identified in his reports under reference, he agrees that those matters constitute appropriate cases for Disallowance and Surcharge. If, in any of those, the Auditor-General does not consider the case to be appropriate for Disallowance and Surcharge, he must specify his reasons in writing, in accordance with the duty to be candid, which is imposed on him by Article 296 of the Constitution; The Auditor-General exercises his function to apply appropriate measures of Disallowance and Surcharge in each case, giving the requisite statutory notice. Following the expiry of the requisite notice, the Auditor-General exercises his Constitutional powers to refer the matter to the appropriate body for action to recover the sums through the civil court process. By this letter, OccupyGhana puts you on the required 30-day notice that, a failure by the Auditor-General to comply with the requests above will constitute a refusal to act which, we shall contend, is a manifest dereliction of his duties as Auditor-General. Take notice, and notice is hereby served, that OccupyGhana will then make an immediate application for an order of mandamus under the supervisory jurisdiction of the High Court, without further notice to you. Please acknowledge receipt of this letter within seven days. Our rights remain fully reserved. Yours in service to Ghana, ……………………………………….. For OccupyGhana cc. The Chief of Staff Office of the President Flagstaff House Accra
Posted on: Thu, 13 Nov 2014 21:53:31 +0000
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