Some highly educated Ghanaians, academics among whom are PhD holders coming across as Attorney at Law, politicians who are themselves lawyers and supposedly think tanks, tribesmen and democratic interest groups, have been expressing their views on the President’s candid directive to Auditor-General Daniel Yao Domelevo to proceed on his accumulated paid annual holiday leave.
Sadly, some of these persons who should have known better, to base their explanations on the law, are rather twisting things to fool the less educated ones either for their selfish interests, hidden agenda or to prove that they are a force to reckon with in Ghana.
Without mentioning names, some Ghanaian Accounting and Law professors, have come out to belittle themselves in the eyes of discerning Ghanaians by their destructive criticisms of the President’s directive to Auditor-General Daniel Domelevo to take his accumulated paid annual leave. In so doing, they were reading their own meanings into the directive. Some of them said, the President has sacked Mr Domelevo because the NPP government feels very uncomfortable with the strict anti-corrupt posture of the Auditor-General Daniel Domelevo. Others said the President has no right to direct the Auditor-General to proceed on leave because he is a Constitutional entity that nobody in the country can control or give directives to.
The above goes to tell how hollow-minded and educated-illiterates some Ghanaians are despite having their chains of paper qualifications that their fellow countrymen value greatly and subsequently kowtow to them, holding them in high esteem, seeing them as tin gods to be venerated at all times.
There was another PhD holder who argued that rights and privileges in law or in contractual terms are not enforceable unlike conditions. Therefore, nobody can compel Mr Domelevo to proceed on leave. It is one’s choice to avail him or herself of a right or privilege due him or her. The same person can decide to forgo that right or privilege without anyone being able to challenge them since such a stance or action does not constitute not an infraction.
These professors who see themselves as authorities in certain fields, therefore, whatever they say must be swallowed line, hook and sinker, have goofed. They have difficulty reading, understanding and interpreting the law, one may say, going by their averments.
I am not a lawyer but for the fact that I can read and do research to gather information to support my arguments, being someone who aspires to achieve justice for the downtrodden, especially, for those that are maliciously illegally being trampled upon in the ongoing Kumawu chieftaincy dispute, I can see how erroneous and mischievous some of the expressions by the so-called professors are. Their views as expressed are out of sync with Ghana laws.
May the public readers please permit me to quote extensively from the relevant laws to buttress my argument.
The Auditor-General, by the Ghana 1992 Constitution at Part III - The Auditor-General, and under Article 187 (THE AUDITOR-GENERAL), Sections 1, 12 and 13, reads:
(1) There shall be an Auditor-General of Ghana whose office shall be a public office.
12) The salary and allowances payable to the Auditor-General, his rights in respect of leave of absence, retiring award or retiring age shall not be varied to his disadvantage during his tenure of office.
13) The provisions of article 146 of this Constitution relating to the removal of a Justice of the Superior Court of Judicature from office shall apply to the Auditor-General.
From the above, although the Auditor-General is a Constitutional entity, it is completely wrong to say that nobody can do anything to him. The Constitution states clearly how he can be removed from office if he breaches certain stated laws or becomes infirm, etc. See Section 13 of Article 187 as quoted above and Article 146 as below.
146 REMOVAL OF JUSTICES OF SUPERIOR COURTS AND CHAIRMEN OF REGIONAL TRIBUNALS
(1) A Justice of the Superior Court or a Chairman of a Regional Tribunal shall not be removed from office except for stated misbehaviour or incompetence or on ground of inability to perform the functions of his office arising from infirmity of Body or mind.
In this instance, the President has not removed Mr Daniel Domelevo from office but simply directed him to take his accumulated paid annual leave. Since Mr Domelevo is a public officer, as stated in Article 187 Section 1, he is subject to some sections of Ghana Labour Laws like any other public officer unless specified otherwise by the Constitution. As long as he was appointed to his office by the President, the President in like manner following the law and without prejudice, direct him to conform to the laws as stated in relation to his office.
The Ghana Labour Law states clearly as follows:
Labour Act, 2003
Rights of a worker:
10. The rights of a worker include the right to:
(c) have rest, leisure and reasonable limitation of working hours and period of holidays with pay as well as remuneration for public holidays;
20. (1) In any undertaking every worker is entitled to not less than fifteen working days leave with full pay in any calendar year of continuous service.
(2) The expression “full pay” means the worker’s normal remuneration, without overtime payment, including the cash equivalent of any remuneration in kind.
Agreement to forgo leave to be void
31. Any agreement to relinquish the entitlement to annual leave or to forgo such leave is void.
The Ghana Labour Act, 2003, makes it compulsory for a worker to have their annual leave without any ifs or buts. It is stated in Section 31 as cited above. Therefore, for a professor to come out to say it is not an obligation for one to avail themselves of their right but can relinquish them is false when it comes to taking your paid annual holiday in Ghana.
Yes, in America or Europe, the laws may make it possible for you to lose your holiday if you do not take them within the accrued holiday year. In the same way, your employer may vary your booked holiday period depending on the difficulty of finding a replacement to do your work at that moment but the employer cannot let you forgo your holiday which is your right as stated in your terms of contract.
The Ghana 1992 Constitution goes on to say under Article 199, thus;
199 RETIRING AGE AND PENSION
(1) A public officer shall, except as otherwise provided in this Constitution, retire from the public service on attaining the age of sixty years.
(4) Notwithstanding clause (1) of this article, a public officer who has retired from the public service after, attaining the age of sixty years may, where the exigencies of the service require, be engaged for a limited period of not more than two years at a time but not exceeding five years in all and upon such other terms and conditions as the appointing authority shall determine.
As a public officer as the Auditor-General is, does this law not apply to him equally as it applies to all public officers? Does the fact of him being a Constitutional entity accord him a waiver from the application of Article 199? I want the Law professors who are the paragon of wisdom and all knowledge to explain that to me as I love to acquire more knowledge to make myself more confident.
When we go further on to the Audit Service Act, 2000 (Act 584), the following are said:
PART II-THE APPOINTMENT, FUNCTIONS AND MODE OF OPERATION OF THE AUDITOR-GENERAL
Appointment of the Auditor-General
10. (1) There shall be an Auditor-General who shall be appointed by the President acting in consultation with the Council of State.
(2) The office of Auditor-General shall be a public office.
From all the above cited laws, the Auditor-General is a public officer, although specially appointed by the President, he is subject to certain regulations as are stated in the Constitution and applied by the Labour Act, 2003.
The fact that many Ghanaians have come to correctly or wrongly perceive Mr Domelevo as an anti-corruption czar in an institutionalised corrupt country, does not give him the automatic right not to respect the common laws of the country but to do as he wants. The law obliges public officers to go on their annual paid holiday leave so he must have his leave, period.
To think that going on leave amounts to his sack from his post must be another topic for discussion on another day but now; that issue does not come into the equation at the moment.
What about the good accounting practices that accountants must observe? Why does he not want to go on leave? Is he the only person most qualified in Ghana to do the job that his absence while on leave will create such a vacuum as to throw Ghana into the deep infinite black hole?
Let us do a bit of comparison, citing how it goes in the United States of America if the appointment of Auditor-General Daniel Yao Domelevo and certain other strategic appointments made by then outgoing President John Dramani Mahama would have gladly been accepted without a challenge. Nonetheless, it was accepted in Ghana why because the Constitution authorises him to do so.
"With the death of Antonin Scalia in February 2016, in the thick of a presidential election year, the Republican majority in the Senate made it their stated policy to refuse to consider any nominee to the Supreme Court put forward by Obama, arguing that the next president should be the one to appoint Scalia's replacement"
"The Thurmond rule, in US politics, posits that at some point in a presidential election year, the US Senate will not confirm the president's nominees to the federal judiciary except under certain circumstances". Although the practice is not an actual "rule", it is intermittently invoked and adhered to. "The Thurmond Rule was raised again in public discourse in February 2016 after the death of Supreme Court Justice Antonin Scalia. President Barack Obama said he would nominate a candidate for the open seat, but with just under one year remaining in Barack Obama's second term, Republicans claimed the Thurmond Rule for categorically refusing to vote on any Obama nominee"
In politics, a lame duck or outgoing politician is an elected official whose successor has already been elected or will be soon. Therefore, in most civilized societies, an outgoing president whose successor has been elected will not dare make important strategic appoints with intent to tie down the hands of the incoming president.
However, in Ghana, then President John Dramani Mahama who had lost the election on 7 December 2016, and was officially due to hand over to his elected replacement, Nana Addo Dankwa Akufo-Addo, on 7 January 2017, continued to make strategic public service appointments. He appointed the Auditor-General in the person of Mr Daniel Yao Domelevo on 30 December 2016, about a week to handing over to Nana Akufo-Addo, the president-elect.
Was he deliberately mischievously tying the hands of the incoming president behind his back? He politically wounded Nana Akufo-Addo by his action. Most of the people he so dubiously appointed after he had lost the election are more or less saboteurs, being purely NDC stalwarts. Nevertheless, some of these so-called learned professors see nothing wrong about it but see it as unprecedentedly wrong and highly condemnable when a public officer is directed in conformity with the law to exhaust his accumulated paid annual holiday by going on leave.
The double-standard lawyers and professors should please study the Ghana 1992 Constitution, Ghana Labour Act, 2003 and the Audit Service Act, 2000 ( ) very well in order not to self-ridicule themselves. They should not presume to be authority on Ghana Laws or even in the domain of their academic studies since they may not have added anything new to what has already been written by someone that they have studied.
The law is the law. It must be interpreted same as it is written in black and white without any attempt to throw dust into our eyes. We should not accept any frivolous interpretations thrown at us as right because the person twisting them is a professor or a lawyer. As long as we are in the information technological world, it is always easier for people like Rockson Adofo to do research to confirm or refute what one is saying if he has the slightest doubt about it.
I am done with this issue about Auditor-General Daniel Yao Domelevo. I like the gentleman very well but the law must be respected. Additionally, Ghanaians should not assume that he is the only anti-corruption czar out there in Ghana. There may be others out there that we will never know until we give them the chance to prove themselves as Mr Domelevo was given a chance.
Thursday, 9 July 2020