Domelevo’s leave unconstitutional – Supreme Court declares

Sika Togoh
Sika Togoh
5 Min Read

The Supreme Court has ruled that the directive from the Presidency given to the former Auditor General , Daniel Yao Domelevo to proceed on leave in 2020 was illegal , unconstitutional and in principle , null and void .

In a unanimous ruling on May 31,2023 , a 7 member panel averred that the executive directive breached the dictates of the 1992 Constitution and added the decision to appoint an acting Auditor General whilst the tenure of Mr Domelevo had not ended was not in tandem with the law.

“We declare the directive by the President appointing an acting Auditor-General when the substantive Auditor-General had not retired or been removed from office purportedly in accordance with Article 146 of the 1992 Constitution as unconstitutional, null and void,” the court declared.

It was the considered view of the court that the directive by the President for Mr Domelevo to proceed on leave which was contained in a letter dated June 29, 2020 and signed by the Executive Secretary to the President, Nana Bediatuo Asante, violated Articles 70 (1), 187 (7) (a), (12) (13) and 146 of the 1992 Constitution and was, therefore, null and void.

Article 70 (1) of the Constitution deals with the power of the President to appoint certain public officers, including the Auditor-General. Article 187 (7) (a) stipulates that the Auditor-General shall not be subject to any control or direction when performing his functions.

Article 187 (12) makes it unconstitutional for the salaries, allowances and right of leave of absence of the Auditor-General to be varied to his disadvantage during his tenure in office, while Article 187(13) states that the Auditor-General can only be removed from office per the procedure set out for the removal of Justices of the Superior Court as stipulated in Article 146 of the Constitution.

The court did not immediately give the full reasons for its decision, which it said would be filed at the court’s registry by June 21, this year.

Justice Nene Amegatcher presided over the seven-member panel, with Justices Prof. Nii Ashie-Kotey, Mariama Owusu, Avril Lovelace- Johnson, Gertrude Araba Esaaba Sackey Torkornoo, Prof. Joy Henrietta Mensa-Bonsu and Emmanuel Yonny Kulendi, as members.

The suit culminating in the judgment was filed by nine civil society organisations.

They include the Centre for Democratic Development (CDD-Ghana), the Ghana Integrity Initiative, (GII), the Citizen Movement Ghana, the Africa Centre for Energy Policy (ACEP), and the Parliamentary Network Africa.

Others are Penplusbytes, the Media Foundation for West Africa, SEND Ghana, and One Ghana Movement.

On June 29, 2020, President Akufo-Addo directed Mr Domelevo to proceed on his 123 accumulated leave days from 2017 to 2019, with effect from July 1, that year.

Mr Domelevo replied the President in a letter dated July 3, 2020, asking the President to reconsider his decision on the basis that it was unconstitutional and was not in the best interest of the Office of the Auditor-General and the nation at large.

The resultant legal position taken by the Office of the President to giving the order in line with the Constitution at the time , prompted the above mentioned Civil Society Organizations to take the case to the Apex Court for final determination on whether the President had the powers to give consequential orders to heads of independent constitutional bodies.

The ruling has been widely hailed across the public space, civil society groups and other like minded Ghanaians who indicate that the landmark ruling will help assert the independence of the 7 constitutionally independent organizations from express Executive control.


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