Supreme Court ruling on Domelovo’s case: How does it portend for our democratic future

On Wednesday, May 31, 2023, the Supreme Court in a unanimous decision declared as unconstitutional the directive from the presidency that forced former Auditor General Mr. Domelevo to proceed on leave. This news got to me through a friend's text message whom I had had a banter with on the matter when Mr. Domelevo was asked to proceed on leave came up in 2020.

The court also declared as unconstitutional the president’s appointment of an acting Auditor General while there was a substantive Auditor-General.

This ruling was after some civil society groups sued the Attorney General after the presidency in July 2020 asked the then Auditor-General, Daniel Domelovo to proceed on an accumulated leave.

According to sources, when Mr Domelevo pointed this out as unlawful, his leave was further extended from 123 days to 167 effective July 1, 2020.

Some CSOs at the time raised objections regarding the government's decision to compel Mr. Domelevo to proceed on leave. Since the government wouldn't acquiesce to their demands, they filed a suit to invoke the powers of the Supreme Court on the matter.

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

The case was heard by Justices Nene Amegatcher, Prof. Ashie Kotey, Mariama Owusu, Lovelace Johnson, Gertrude Torkonoo, Prof Henrietta Mensah Bonsu and Emmanuel Kulendi.

After this ruling, I have sighted another letter written by the Atta Mills government on 9th April, 2009 and signed by Mr. Bebaako-Mensah, then Presidential Secretary ordering former Auditor-General, Mr. Duah Agyemang to proceed on leave.

This therefore suggests that when governments are elected into office, they tend to have problems with appointees of independent institutions. The 2023 unanimous decision of the Supreme Court sets the records straight and clearly delineates the boundaries as to what politicians can do or not regarding independent institutions of the State.

When President Obama visited our dear motherland, he encouraged us to build strong institutions and not just strong men. This is a testament of fact.

The seven justices who sat on the matter were appointed by this current President and their ruling silences the critics who have been impugning the integrity of the apex court when rulings don't go in their favour.

A case in point was when former President John Mahama was addressing a group of lawyers in August, 2022 where he described the image of the judiciary as “so badly has the image of our Judiciary deteriorated, that many of our citizenry openly make mockery of our justice system and of our justices. The phrase ‘Go to Court’ is these days met with derisive laughter, instead of hope that one will truly get justice.

“If people are not poking fun about politics and inducements being used to sway the hand of justice in the lower courts, then it is poking fun and making statements about the 7-0 of the ‘Unanimous FC’".

Recently, the Chief Justice nominee, Justice Gertrude Esaaba Sackey Torkonoo faced the appointments committee of Parliament, the matter of unanimous ruling from the apex court was put to her to elicit her response. She succinctly averred “Whenever you encounter a unanimous decision, it tells you that the law is totally on the side of the position taken by the court, that every member of the court in fidelity to their judicial oath cannot take a different position, it tells you that, that is what the law is. So the only response is to learn from what the law says, it is not a matter of bias, it is a matter of the legal position.”

So, on this matter, the position of the law was overwhelmingly in favour of the CSOs who took the matter to the Supreme Court. It sets the tone for how governments must conduct themselves when they assume power especially how they deal with independent institutions of state.

To be able to build strong institutions we should allow for continuity and not use political gerrymandering to always have our way. As my good friend Kofi Kunadu, ATL FM Programmes Manager said "NDC Government with President Prof. John Evans Atta-Mills in 2009 set the governance precedence by asking the Auditor General, Mr. Edward Dua Agyemang, to proceed on leave effective 15th April, 2009 to take his accumulated leave of 264 days... You should know that the court doesn't decide on matters that have not been brought before it..."

We can agree to disagree in our public discourses. Indeed we can even subject Supreme Court rulings to public opprobrium, but it doesn't change anything. In a democratic dispensation like our own, he who feels aggrieved and has the means should always proceed to court to test the law to put all of us on the straight and narrow.

Ghana can applaud the CSOs for taking such an initiative. That is how we can build on our democratic experiment and douse the ugly noises and the overly cacophony that is normally associated when such things come.

Politically motivated transfers, step asides, proceed on leave have become a regular feature of our democracy when governments change hands and the time to stop is now.

Our path as a country regarding how we deal with the Auditor-General's office has been charted for us and no other government can do otherwise. If we allow politicians to always have their way as has happened to two of our previous Auditor-Generals, then our forward match as a shining example in Africa would be dashed.

Mr. Daniel Domelovo Speaking after the court ruling intimated “This ruling makes me feel good that even though the president made it clear that I don’t appreciate the issue because I am not a lawyer, here is the case the Supreme Court is upholding my position”.

He adds “from my point of view, I scanned the constitution and didn’t see any such position that at any point in time when the President is not happy with you, he should appoint an acting Auditor- general, so I thought it was not the right thing. Now, those in whose mouths it lies to interpret the Constitution have spoken and I can only thank God. It comes as a very big birthday present to me, you know tomorrow [Thursday, June 1st] is my birthday”.

Kudos to the CSOs and the Supreme for upholding the law and making our country great and strong.