Fixing The Country: Open Letter To The Citizenry Of Ghana On Some Relevant National Issues With Some Related To Matters On The 1992 Constitution -Part 38

Fellow Compatriot, once again let me say ayeko to you for upholding, preserving, protecting and defending the 1992 Constitution, despite the difficulties especially the hardship we have gone through for the past 30 years and still going through and the end of it is in suspect. It is heartwarming to appreciate that we have done so and will continue to do for the sake of the stability of the Fourth Republic which is anchored by the 1992 Constitution, which is an embodiment of our popular sovereignty and thus made us to tolerate the mismanagement of this Country by corrupt persons of the country especially Technocrats, civil services and some politicians of previous NDC, previous and current regimes of the NPP and their accomplices in both public and private life.

Folks, beside the mismanagement of the economy coupled with corrupt acts which have caused and are causing serious havoc to the national economy, both the COVID-19 pandemic and the Russia-Ukraine War, have caused further deterioration of the economy. This state of affairs coupled with chaos in the Small Scale Mining Sector which has caused and is causing serious havoc to the environment and the economy, are a multifaceted threat to National Security, hence a threat to the existence of the citizenry of Ghana. The Church which some of us regard as both salvation and refuge center has also become an exploitative house thus further worsening the plight of the citizens.

The above complex situations have made some of us to lay our frustration on the 1992 Constitution, thus heightened a demand for replacing of the 1992 Constitution with a new one instead of the use of the avenue for amendment which the constitution provides. Jettison the 1992 Constitution will be a breach of Article 3 of the Constitution which is on the Defence of the Constitution and thus will tantamount to a coup in the State of Ghana or death of the Fourth Republic of Ghana which is anchored by the 1992 Constitution.

To douse the frustration of some of the citizenry, It is envisaged among others, sunshine (transparency) in the governance of the Country, participatory and monitoring of the governance to ensure the right thing, provisions of facts for vibrant public discourse on national issues or stakeholders engagement. An amendments of the Constitution especially some or all of the Non-entrenched Clauses as in Article 291 to demo an attempt to meet the aspirations of the Citizenry, This must be coupled with constant civic education on national issues as required in Article 233 of the 1992 Constitution by collaborative efforts by the underutilized National Commission for Civic Education (NCCE), the media, political parties etc are some of the ways forward.

Furthermore, the guarantee of fundamental human rights and freedom especially but not limited to the General fundamental freedoms as stipulated in Article 21 of the 1992 Constitution which includes freedom of speech for people to ventilate their frustrations or off load the ’’ waste baggage’’ from their heads will be a very great value to the State. Hence, we should be very grateful to the media houses which give opportunities to the citizens to make contribution or ventilate their frustrations. We should also be very happy with the various social media platforms by the IT Revolution. Folks, although the IT Revolution is transforming and modernizing the means of communication of information nationwide within a split of a second provided there is good network, the NCCE is still relevant, so there is the need for us to demand the resource of the NCCE so as to act effectively as required by the Constitution.

Fellow Compatriots, although the deadly COVID-19 pandemic caused a high death toll and damages to life in the past and it is still threating our existence, let us see it as a game changer because it has given us a lot of lessons (a) though it demanded solitary those days, it gave a lesson of fellow feeling/ love for one another, (b) the realization of the importance of some provisions of the 1992 Constitution especially Article 36 on economic objective, hence the current Administration’s policy of one constituency one ambulance was well thought and well-timed that facilitated the rapid movement of casualties and after 63 years of independence, which created the State of Ghana, an Administration of Ghana has seen the importance of the provision of hospital in over 100 Districts within 2 years or so with the mantra of Agenda 111 Hospitals to ensure every District has a hospital.

It taught us that (c). Age is just a number. (d). Need for contingency vote or stocks/ preparing for the future, (e). The capacity to be resilience, (f). restored trust in God and that God is not residing only in the Church or the Mosque or in Kumasi or in Ghana but He is with us everywhere globally hence the preaching of the gospel and teaches of the Quran by our pastors and Imams/sheiks respectively can reach us everywhere without congregation at Brick and Mortar facilities or a particular location.

Another important eye opener or lesson which an audit report by the Auditor General of a fund dedicated for combating COVID-19 pandemic revealed that we should not trust some of our Technocrats, civil services, some politicians and their accomplices in both public and private life, because, they are always looking for the chance especially the lucrative opportunity created by a state of emergency like the COVID-19 pandemic to loot the State. Hence, a need for the way forward for correcting the wrongs.

Folks, the lessons the COVID-19 pandemic has taught us warranted or should be seen as a Game Changer for as to change our attitude to Patriotic, Honest, Disciplined, responsible, and hardworking citizens who always think of the Nation First after God, think big, think positive and are innovative or work to upscale businesses, as wells as respect for each other.

Folks, some of the blame for the state of affairs in the Country could be attributed to some of the provisions of the 1992 Constitution and the very large number of the gullible populace. Hence, these two areas need to be addressed collectively by us, the Citizenry of Ghana, through amendment of the 1992 Constitution, active participating in and monitoring of the governance of this Country. These calls for honest public education on real issues to ensure active involvement by the Citizenry in the public discourses on national issues, hence you need to come on board the vehicle driven by the website of Modern Ghana for authentic facts and the ways forward for correcting the wrongs.

Fellow Compatriot, our Country is suffering from unsustainable debt, hence debt distress situation, so as stipulated in the holy Bible at Ecclesiastes 1:9 that ‘What has happened will happen again’ so once again in the life or history of this Country, our robbing Peter to pay Paul Government, is seeking for the attainment of macroeconomic stability from the IMF which suggests that both our economy and the robbing Peter to Paul Administrations (governments) of both the NDC and NPP in the Fourth Republic or since 1993 with the ritual Cocoa syndicated loan for the fortification of the Cedis against the Dollar and donor support to the national budget since 1993 demo that we were not truly independent. Hence, the future or the stability of this Country under their administration lied in the bosom of the leaders of the developed countries and Agencies providing an economic bail out or supporting this Country financially. Hence, the mantra of the hitherto Better Ghana Agenda of the NDC and now the Ghana Beyond Aid of the NPP for national economy development by our Leaders did not succeed because they were mere slogans to fool the citizenry, since they rather led the economy to the doldrums/downturn to be followed by the ritual IMF bailout support. The situation therefore demo buffoonery acts by our Leaders.

As stated above, one of our nation’s problems may be attributed to some of the provisions of the 1992 Constitution. Thankfully, we have all agreed that there is the need to amend or tweak the 1992 Constitution to ensure effective economic emancipation of this Country as well as meet the current state of affairs driven by the IT Revolution which has called for effective digitization and digitalization of issues/ processes of our nation.

Out of the three arms of Government, Parliament is the deliberative arm or body. So, Parliament by Article 289 of the 1992 Constitution is granted the power to amend the Constitution by an Act of Parliament. For its amendment, the Constitution has divided the various provisions into two types, namely the Entrenched Articles covered under Article 290 which requires a referendum as the final process for the amendment and the Non-entrenched Articles of the Constitution as under Article 291 which can easily be amended by Parliament without the costly and tedious referendum. .

Folks, the first amendment of the 1992 Constitution took place in 1996 by the Constitution of Ghana (Amendment) Act 1996 (Act 527), ten articles were amended in 1996, including Article 8 to allow Dual Citizens but the affected persons are not allowed to hold certain offices. Also, since 1996, one or two rulings of the Supreme Court by interpretation have caused or signified an amendment of the affected provision of the Constitution but the demand for further amendments of the 1992 Constitution heightened and reached a zenith in 2010. Thus it became a matter of a considerable public interest, this motivated the then President of Ghana, the late President Mills to trigger Article 278 and established a Constitutional Review Commission (CRC) which consulted with the people of Ghana on the operations of the 1992 Constitution with the view to causing amendments of the Constitution.

The framers of the 1992 Constitution provided a whole chapter on the Amendment of the Constitutions which covers Article 289 to Article 292. Unless clearly stated by the Constitution as in section (1) of Article 278 of the 1992 Constitution for the creation, mergers of Regions, Article 278 of the 1992 Constitution actual deals with incidents of public interest, say on public safety, public order, public morality, so, It is debatable whether the use of Article 278 of the 1992 Constitution as a process for the Amendment of the 1992 Constitution was the right action. Notwithstanding this, the Constitutional Review Commission did a very good job and presented the views of the citizenry to the then Government of the Day of the Administration of the late President Mills.

Folks, the CRC report provided facts on the demand of the citizenry for the amendment of numerous provisions of the 1992 Constitution. Democracy or Democratic rule or a Constitutional rule is based on the concept of majoritarainism or majority carries the day. Lucky for us, we had or have a history of how the 1992 Constitution came into existence. That was first by the establishment of a Committee of Constitutional Experts chaired by Professor or Dr Susibribi Krobea Asante, the Paramount Chief of Asante Asokore which initiated the drafting of the Constitution and even the powerful Military regime of the PNDC led by then strongman Chairman Rawlings (the late Papa J) which was not guided or prevented by any law but by the use of common sense, appreciated the matter, so the members of the PNDC declined or did not make any change or insert input nor open the report of Committee of Constitutional Experts, which was well-sealed and supported with signatures.

On receipt of the report, the PNDC established a Consultative Assembly as the next system and handed over the sealed report to the Assembly of 258 members who represented the interest of the Nations, with the exception of the NUGs and the Ghana Bar Association which refused to provide Reps for their one slot or seat each.

The well constituted Consultative Assembly with the mandate conferred on it and with the nominated documents including the Report of the Committee of Constitutional Experts, previous Constitutions of Ghana etc designated as reference material, jettisoned or rejected some of the recommendations of the Committee of Constitutional Experts including a President and a Prime Minster sharing executive Powers which the Assembly saw as a recipe for disaster due to the character of the Ghanaian predominantly arrogant.

The Consultative Assembly rather tweaked the 1979 Constitution, among others, opted for an Executive President and a Vice President as a spare tire, hence with zero executive powers, the ceding of the Economy Planning of the hitherto Ministry of Finance and Economy Planning to a National Development Planning Commission as the Economy Management Team (EMT) with the Vice President not a member of the EMT. Hence, the Minister of Finance as members of the NDPC, is not required to work under or take or act on inputs from the Vice President, aside any contribution accepted at the Cabinet by the President.

The Consultative Assembly courted for public discourses on the draft provisions of the 1992 Constitution and upon completions of its deliberations on the provisions, submitted its document to the PNDC which again saw that it has no power to effect any change or review the report of the Consultative Assembly and so the PNDC handed it over to the Chairman of National Commission for Democracy (NCD), the late Justice Annan who then negotiated with the Consultative Assembly for the addition of the Indemnity Clause by lifting same from the 1979 Constitution, the parent of the 1992 Constitution and added the PNDC to the list of previous Military Regimes. The NCD then caused the organization of a referendum for the majority of voters or people to own it as an expression of popular sovereignty. It was duly approved by over 70% of the Voters, followed by a mandatory assent to the document as the 1992 Constitution by the Chairman of the PNDC in 1992. Hence, the Constitution was never made to please the late Papa J. What rather seemed that was done to please the late Papa J may be the amendment of the Constitution in 1996 to strip the Vice President of Ghana from chairing the Police Council, Defense Council and the Prison Council as in Article 201, Article 206 and Article 211 respectively due to the misunderstanding between the then President of Ghana on the ticket of the NDC and the then Vice President, the late ex-VP Ekow Arkah on the ticket of a minority Party in alliance with the NDC , as wining machinery for the 1992 Election.

Based on the above historical details, it was expected, that the regime of the late President Mills should have EITHER set up a competent Committee or a mini Consultative Assembly, with the Attorney General as the Chairman, with his Deputy as a member to look into the recommendations and draft appropriate bills OR the regime should have simply drafted bills on the amendment as usual to go through the mill for Parliament, the appropriate Arm of Government as stipulated by the 1992 Constitution to take appropriate actions for the amendment of both Entrenched Articles as covered under Article 290 and the non-entrenched Articles of the Constitution as covered under Article 291. After which the President is required to assent to it without alteration, veto or delay.

Folks, unfortunately or shockingly, the late President Mills, arrogantly assumed some veto powers or constituted himself as an Appellate Court and erroneously acted unlawfully when he alone reviewed the work of the Constitutional Review Commission through a Government White paper, when he was fully aware that deliberation of a bill into a law or amendment of a provision of the Constitution is the sole preserve of Parliament, so the review of the report of the CRC by the late President Mills was unlawful because he was neither granted power to do so by the 1992 Constitution nor the action grounded in law enacted by Parliament.

It is unfortunate that the current atmosphere of economy doldrums suggests this time is not appropriate for massive amendments of the Constitution, especially the affected Entrenched Articles as reflected in the report of the CRC which may be considered as still valid. Thankfully, we are in the era of the IT revolution, so the report CRC is available in the internet so I wish to recommend that we should study it and bring to the front burner those Articles which can easily be amended. So that we can collectively request that the serious entrenched clauses like the one on emolument of Article 71 Office Holders and Article 86 and Article 87 of the 1992 Constitution which ceded the Economy Planning which hitherto was part of system known as Ministry of Finance and Economy Planning to underutilized or disused National Development Planning Commission (NDPC) and its functions respectively to be amended during the next Presidential and Parliamentary election in 2024 so as to reduce both cost and stress. This will require extensive public discourses on the details of the amendment, I will support by acting as one of the Champions, so keep visiting the website of Modern Ghana.

Folk, the Auditor General’s report on the fund established, accrued and dedicated for combating the COVID-19 pandemic, speaks volume of likely massive mismanagement and likely corrupt acts. Thankfully, the new Minority Leader in Parliament has promised for a public probe on the fund dedicated for combating the COVID-19 pandemic, we need to support him and ensure this is done.

But, instead of commending Mr. Johnson Akuamoah Aseidu, the Auditor General for very good audit reports as reflected in both the 2021 Audit report which covered from Jan 2017 to 31 December 2020 and now the Fund for combating the COVID-19 pandemic submitted and available on net as at date, it is very unfortunate that his competency has come under attack by some members of reputable CSOs, some members of the Intelligentsia especially one Dr Daniel Appiah of University of Ghana Business Studies (UGBS) and one Lawyer Kweku Paintsil or for that matter Joy news, since that was the medium used to attack the competency of Mr Johnson Aseidu, the Auditor General.

The public needs to understand or learn among others, the essence of auditing and content of audit reports,, which is fact finding report to ascertain whether a financial transaction as provided by financial statements were fairly conducted in conformity with financial policies and regulations guiding the financial transaction through application of appropriate accounting principles), the mechanism of auditing used by the Auditor General for the voluminous financial statements in order to buy time, the submissions in the audit report and the Risk Owner of the Audit Report.

So, due to the number of Financial Statements or public Institutions to be audited, in order to buy time, for timely submission of the Audit Report to the Risk Owner, that is Parliament, the Auditor General used External Auditors from competent private audit firms or agents for the auditing work, hence only facts/findings/observations, opinion and recommendations will be included in an or his Audit Report to satisfy the relevant provisions of the 1992 Constitution and the relevant law that is section 20 of the Audit Service Act 2000 (Act 584) covering the Audit work by the Auditor General. The affected persons need to be educated that by the section (5) and Sections (6) of the Article 187 of the 1992 Constitution, the Risk Owner is Parliament so only the facts/find.

Folks, for matters on Disallowance and Surcharges as required at Section (7) (b) of Article 187 of the 1992 Constitution, will thus make the Auditor General as the Risk Owner, so matters of this kind will not appear on the Initial Audit Report to Parliament due to the legal ramifications with the associated feet dragging/delays if the matter is sent to a Court, so it will be time consuming and may take years for disposal action. So, Section (7) (b) of Article 187 of the 1992 Constitution can only be triggered after the Auditor General has submitted the Audit Report to Parliament otherwise it will be unconstitutional and unlawful to do so.

Folks pardon me to reiterate that it is after the submission of the Audit report to Parliament, that the Auditor General will conduct the next course of actions,, he will trigger or act on both Section (7) (b) of the 1992 Constitution on Disallowance and Surcharges and Section 16 of the Audit Service Act 2000 (Act584) and thus become the Risk Owner. Thus mandated to investigate or study his Audit Report and based on abundant and strong evidence he will issue Disallowances and Surcharges Certificates to the affected persons or Agencies for the recoveries and based on strong evidence he will act through the Office of Attorney General or Special Prosecute any offender.

The public and some of the Media Houses must also note that the affected Agencies cited for the irregularities in Audit Reports have Accountants, Internal Auditors, GMs or MDs are Risk Owners of their outfits and therefore are expected to act per relevant provisions of the 1992 Constitution and laws/the Financial management policies and Procurement laws of the State and their Agencies that if not found as the witnesses.

Furthermore, the CEOs and Governing Boards are as stated are also the Risk Owners of their Agencies, so they are required to put internal control measures including the good use of internal auditors and take actions on the Observations on Audit Reports from both the Internal and External Auditors and in the case of audit reports from the Auditor General, the Governing Board is to implement the recommendations and communicate same to the Auditor General for a final or special report on Recoveries (or Disallowances and Surcharges Certificates) and where the monies so recovered can be found.

Folks, pardon me to emphasize that the affected persons need to appreciate that the framers of the 1992 Constitution took cognizance of the legal ramification as well as the magnitude of the numerous public institutions, hence the generation of several Audit reports with the likely associated challenges that may confront the Auditor General, consequently they applied common sense by simply asking the Auditor General to submit Audit reports to Parliament after he or she has examined the financial statements and he or she is only expected to provide to Parliament (the Risk Owner) the findings especially on irregularities , his or her opinions and recommendations as required in section 5 of Article 187 of the 1992 Constitution (this is in clear English and not in French or Latin). Hence, the Auditor General cannot implement and is not to take action on disallowances and surcharges before submitting the initial report to Parliament for the debate.

So Dr Daniel Appiah of UGBS, one Lawyer Kweku Paintsil and others must be educated that the initial Report of the Auditors General to Parliament will not, I repeat will not include disallowance and surcharges. In fact, it will be unconstitutional and unlawful by the provisions of Section 5 of Article 187 of the 1992 Constitution which is in clear English for any competent Auditor General to include disallowances and surcharges in the initial report to Parliament for the debate. The Auditor General can only do so through a Special Audit Report on Disallowance and Surcharges or Recoveries if and only if after he or she has met the requirements at section 5 of Article 187 of the 1992 Constitution. This is what is the global standard hence done globally especially Jamaica, Canada etc by the establishment of a Surcharge Committee and referring the irregularities to the Surcharge Committee to conduct due diligence study of the Audit Report and act as appropriate including the issuance of the Disallowance and Surcharges certificate to the affected persons or Agencies.

I must emphasis that the rectification or checking of irregularities or issuance of Disallowances and surcharges certificates is not the preserves of only the Auditors General. Parliament, the Governing Board after carrying a due diligence study of the Audit Report by the Auditor General, can also constitute the disallowances and surcharges or Audit Review committees to recover sums and put control measures and ensure strict adherence. In the case of the Auditor General, he is required to submit a Special Auditor General Report covering the details of the amount retrieved; case lost in court etc to Parliament and may be a copy to the Executive and or Bank of Ghana.

Fellow Ghanaians, according to Auditor General namely Mr Johnson Aseidu as required at Section (7) (b) of Article 187 of the 1992 Constitution and by Section 16 of the Audit Service Act 2000 (Act 584) which granted power to the Auditor General to in addition to the audit of public accounts, to carry out, in the public interest such as special audits or reviews as he considers necessary, he has duly complied with the requirement and submitted a Special Audit Report on Recoveries on some irregularities in the 2021 Audit report to Parliament. This was done on 03 October 2022 as stated it covered on recoveries made from some irregularities found as expenditures which should be disallowed in the Auditor General reports from 2017 to 2020 as consolidation of recoveries total sum of GHC2,210,802.667.13 made out of GHC4,766,748.48 which were based on the recommendations contained in the Auditor General reports for the said period.

The Auditor General also claimed that he made Payroll savings of GHC145,087,183.56 based on payroll certification from 2018 to 30 Sep 2022. He also did a good job by opening General Recoveries Account in 2022 for the first time in the Audit Service, with Bank of Ghana and paid the recoveries into this account. According to the Special Report from the Auditor General, namely Mr Johnson Aseidu, the legal unit of the Audit Service lost 14 cases in Court and that the service lost because the evidence gathered to support the disallowance and surcharges certificates were not admissible by the Courts. Hence he has to take measures on future audits to ensure sufficient evidence that are admissible by the Courts before surcharge certificates are issued. He also referred cases amounted to GHC1,560,126.35 to the Attorney General for further action.

Folks, the Supreme Court of Ghana was fully aware of (7a) of Article 187 of the 1992 Constitution, which is clear in plain English that the Auditor General in the performance of his function shall not be subjected to the direction or control of any other persons or authority, so the Supreme Court only reminded him that is gave an advice to the Auditor General by drawing his attention to (7a) of Article 187 of the 1992 Constitution. If the Supreme Court of Ghana did direct the Auditor General, then it was unconstitutional/ unlawful because the Office of the Auditor General which is also a creature of the 1992 Constitution like the Supreme Court is guaranteed Independence at Section (7) (a) of the 1992 Constitution.

Folks, as stated nothing preclude the CEOs or the Governing Boards of State Agencies, to take recovery actions based on the Auditors General report. Consequently, the Ghana Revenue Authority (GRA) took necessary actions including Court action for the retrieval of the money on tax debts of Oil Marketing Companies on levies imposed on fuel consumption which were not paid to the State as observed and recommended for recovery action in the2021 Audit Report on GRA.

Also, when the Auditor General cited Ministry of Finance (MOF), Ghana Revenue Authority (GRA) and Controller and Accountant General’s Department (CAGD) in over GHC3.26Billion tax revenue not accounted for or as irregularities as part of the GHC17billion irregularities in the 2021 Audit Report . A joint audit of MOF, GRA and Controller and Accountant General’s Department (CAGD) found that differences in data generated by different agencies do not necessarily show loss of revenue to the State because the Audit report did not take into consideration the energy sector levies on such as energy debt service, energy debt recovery and sanitation and pollution levy and that these levies totaled GHC3.2Bilion were omitted from the audit report even though the figures were provided to the Auditors sent by the Auditor General to the GRA and that emphasized no revenue was missing. You may wish to authenticate this info so please Google for GRA’s Reactions to issues raised in the 2021 Auditor General’s Report. So we must be careful with our comments on the initial audit reports because of likely errors and it is also subject to be challenged by the affected persons or Agencies especially if the matter was not drawn to the attention of the affected persons or Agencies before submitting to Parliament. That is why we should support for the probe into the fund dedicated for combating COVID-19 pandemic.

At this juncture, I wish to indicate that per an honest study and on your behalf, I declare Mr. Johnson Akuamoah Aseidu the current Auditor General as a very competent Auditor General and bold person and that his performance has surpassed that of his predecessors including one Mr Daniel Domelevo, a former Auditor from 2016 to 2020 or so. This is based on his good work especially as the first Auditor General to conduct the first audit of the work of the Minerals Commission as associated with Small Scale Mining Sector despite our cry about the destruction of the environment by Small Sale mining Operators since 2012 or so , hence our call for banning of Small Scale Mining.

The report is very revealing, it shows gross negligence on the part of the Environmental Protection Agency (EPA) etc because EPA allowed all the so called Licensed Small Scale Mining Companies or Miners since 1999 to operate without environmental permits as demanded by the Environmental Assessment Regulations 1999 (LI 1652), as such no Reclamation Bond for reclaiming or rehabilitation of mined out areas were paid by any of the so called Licensed Small Scale Mining Companies or Miners. Hence their operation was and is illegal.

Best regards.
Major Mohammed Bogobiri (Rtd)