Public Officers' Retirement Age; A Case Study With Martin Amidu's Age Suit

This article is very well researched, analytical, educative and comprehensible.

All the "Articles" I made mention in this article are of the 1992 Constitution of Ghana.

The purpose of this article does not seek to attempt an influence of the verdict of the retirement age suit of Mr. Martin Alamisi Burnes Kaiser Amidu with respect to his position as the Special Prosecutor at the Supreme Court, it is only an analytical article meant to analyse with some of the Articles of the 1992 Constitution of Ghana and through that assume;

a) if the retirement ages of the various Public Officers are fixed or differ from each other?

b) the retirement age of the Special Prosecutor.
After the thorough analysis with some of the Articles of the Constitution, I came to the conclusion that;

a) the retirement ages of the public officers are not fixed.

b) the retirement age of a Special Prosecutor is not sixty (60) years or a maximum of sixty-five (65) years on a contractual basis with the government of Ghana.

Aside my conclusion, some of the interesting issues raised, analysed and explained are;

a) the differences between a Public Office, a Public Service and a Civil Service.

b) why the retirement age of the Auditor General (A-G) is 60 years, or otherwise a maximum of 65 years.

Below Is The Full Article
One of the controversies most people have with the 1992 Constitution of Ghana is the difference between a "Public Office" and a "Public Service" under Articles 190 and 286 respectively, so I will help quench this ambiguity before I proceed with the article.

Public Office and Public Service are both defined under Article 295 as;

a. Public Office includes an office the emoluments attached to which are paid directly from the consolidated Fund or directly out of moneys provided by Parliament and an office in a public corporation established entirely out of public funds or moneys provided by Parliament;

b. Public Service includes service in any civil office of Government, the emoluments attached to which are paid directly from the Consolidated Fund or directly out of moneys provided by Parliament and service with a public corporation.

A careful analysis of the definitions of Public Office and Public Service will easily point to a fact that a Public Service is more like a subset of a Public Office. A former acting boss of the Commission on Human Rights and Administrative Justice (CHRAJ), Mr Richard A. Quayson during a corruption workshop in 2015 explained Public Office in a similar manner as a position of trust; which may be elective or appointive, political office holding or mainline civil or public service position.

Subject to Article 190 Clause 1, the Public services of Ghana comprise of;

a) The Civil Service
b) The Public Corporations other than those set up as commercial ventures

c) The Public Services established by this Constitution

d) Such other Public Services as Parliament may by law prescribe.

Note, Civil Service is under Public Services in Ghana as proven above. Article 295 Clause 1 explains Civil Service includes service in both central and local government. Article 190 Clause 2 also explains Civil Service in a similar context. Under the Civil Service are Services such as Judicial Service, Immigration Service, Education Service, Prisons Service, Parliamentary Service, Health Service and others as shown under Article 190 (1) a.

A Public Officer is one who holds a position in a Public Office, example; President, Police officer, Teacher, Doctor, Minister of State, Electoral Commissioner, Speaker of Parliament, Board member and others.

Procedures through which one can become a Public Officer are;

a) Election, example; Member of Parliament, President and others.

b) President's appointment in consultation with a body such as the Council of State, other times acting on the advice of other bodies such as the Judicial Council, Public Services Commission and others, and sometimes with an approval by parliament, example; Electoral Commissioner, Ministers of State, Inspector General of Police, Chief Executive Officers, High Court Judges and others.

c) Delegation by the President to a governing body of an institution to do the appointment.

d) A power by a governing body of an institution to do the appointment.

With an analysis of some Articles under the 1992 Constitution of Ghana which talks about the terms and conditions of specific Public Officers, one can easily conclude that the retirement age of the respective Public Officers and categories of Public Offices differ from each other.

Below is my proof to the above assertion;
After a careful study of the retirement ages of the respective Public Officers, I wish to place them under two categories, and they are; Public Service Workers and Non Public Service Workers. Note, these two classes are terms coined by myself just for the benefit of my analysis in this article.

1) Public Service Workers: they are public officers who work under the public service, example: Judicial Service, Education Service, Prisons Service, Parliamentary Service,the Health Service, Legal Service and others as listed under article 190 Clause 1.

2) Non Public Service Workers: they are public officers who do not work under the public service, example: President, Minister of State, Member of Parliament (MP), Board Member and others as listed under article 286 clause 5.

1) Under the Public Service, one can only hold a position through appointment. Also my analysis with some Articles of the Constitution has attested to the fact that, they don't all have the same retirement age. To help explain this, I will group the Public Service workers under General Public Service Workers and Special Public Service Workers. Note, these two groups are terms I coined myself just to help with my explanation for this article.

A) For the benefit of this article, the General Public Service Workers term I coined are the normal workers who form the majority of workers under the Public Service, and they mostly have their retirement age pegged at 60 years as stated in Article 199 Clause 1 as; a Public Officer shall, except as otherwise provided in this Constitution, retire from the public service on attaining the age of sixty years. A careful read of the above Article 199 Clause 1 explains that if only the constitution states another retirement age of a worker other than 60 years, then that worker will retire at that age instead even though he/she is a worker under the Public Service. But also, where the exigencies of the service require, the worker under the Public Service after attaining the retirement age of 60 years can 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 subject to section 6 of the Constitution of the Republic of Ghana (Amendment) Act, 1996 (Act 527)."

B) The workers under the Public Service that I categorized as the Special Workers are mostly the heads of the various categories of the Public Service. Of these Special Workers, some such as the Inspector General of Police, the Director-General of the Ghana Education service and others retire at sixty (60) years as per the Article 199 Clause 1 while others like the Supreme Court and Appeal Court Judges/Justices retire at seventy (70) years as per their retire age under Article 145 (2) (a).

From the analysis above, it clearly shows that a retirement age of 60 years is not fixed for all workers under the public service.

2) Under the Non Public Service, one occupies a position through either appointment or election, example: a Minister of State is appointed and a President is elected. Also the retirement age differs from one position to another, of which some don't even have a retirement age.

For instance;
a) Subject to Article 94 Clause 1, a Member of Parliament has no retirement age, he can contest for election to hold that position as many times as possible as long as he is above twenty one (21) years.

b) Subject to Article 66 clauses 1 and 2, a President is not binded by an age of retirement, he/she is rather binded by a number of terms he/she can be president, and that is two terms, of which each term is four (4) years.

To make my analysis centering on the Mr. Martin Amidu's retirement age issue with respect to the Special Prosecutor position more meaningful, I will first explain with respect to my opinion why the Supreme Court in 2010 had it right by pegging the retirement age of the Auditor General (A-G) at 60 years when Mr P.C. Appiah-Ofori, New Patriotic Party Member of Parliament (MP) for Asikum/Odoben/Brakwa Constituency in the Central Region contested it at the Supreme Court. Firstly, just like the Inspector General Of Police and the Director-General of the Prison Service under Articles 202 and (207-208) respectively, the constitution is silent on the retirement age of the Auditor General and this can be found under Article 187. The constitution is only explicit on the removal of the A-G on ground of incompetence, bad behaviour and infirmity of the brain or body under Article 187 Clause 13 of which it said it should relate to that of a Judge/Justice of a Superior Court of Judicature as the provisions of Article 146. Note the Constitution under Article 126 (1) (a) defines the Superior Court of Judicature as comprising of the Supreme Court, Court of Appeal, the High Court and Regional Tribunal. Under Article 145 (2) (a), the retirement age of the Judges/Justices of both the Supreme Court and Court of Appeal is seventy (70) years while Article 145 (2) (b) pegs that of the High Court and Regional Tribunal at sixty-five (65) years.

Moreover, the Auditor General (A-G) as a Public Officer is mentioned under Articles 70 Clause 1, 190 clause 1 and 286 clause 5, but a specific retirement age was not stated for those either under Articles 70 Clause 1 or 286 clause 5, but a specific retirement age is stated for those under Article 190 clause 1 (Public Service) as stated for them under Article 199 Clause 1, and as a result binding all such Public Officers under Article 190 clause 1 (Public Service) whom the constitution has not explicitly or implicitly stated another retirement age for it/them. And so, since the Auditor General falls under the Public Service (Article 190 clause 1), and the Constitution also being silent on its retirement age, it therefore means the retirement age of 60 years under Article 199 clause 1 for the Public Service (Article 190 Clause 1) binds the Auditor General.

Further more, I will use the numerous analysis above to help analyse and assume the retirement age of the Special Prosecutor using the office of the Special Prosecutor Act, 2017 (Act 959) and the 1992 Constitution of Ghana as the basis for my analysis.

First of all, under the paragraph one (1) of the memorandum of the Office of the Special Prosecutor Act, 2017 (Act 959), it reads that the purpose of the bill is to establish the Office of the Special Prosecutor as a "specialized agency" to investigate specific cases of corruption. The paragraph two (2) under the same memorandum says Government intends to establish the Office of the Special Prosecutor by an "Act of Parliament" to investigate and prosecute certain categories of cases and allegations of corruption and other criminal wrongdoing. More over, subject to Section 1 of the Office of the Special Prosecutor Act, 2017 (Act 959), it reads that the Office of the Special Prosecutor is established by this "Act a body corporate" with perpetual succession. The above therefore relate the Office of the Special Prosecutor to either a "Public Corporation other than those set up as commercial ventures" or "other Public Service as Parliament may by law prescribe" as under Article 190 (1) (a) and 190 (1) (d) respectively. Subject to Article 192, it states a Public Corporation shall not be established except by Act of Parliament, and subject to Article 295 Clause (1), a Public Corporation means a corporation or any other body of persons established by an Act of Parliament or set up out of funds provided by Parliament or other public funds.

So by relating the paragraphs one (1) and two (2) under the memorandum, and also the Section one (1), all of the Office of the Special Prosecutor Act, 2017 (Act 959) to the definitions of the Public Corporation, it can easily be deduced that the Office of the Special Prosector is either a "Public Corporation" or a "Public Service as Parliament may by law prescribe". A "Public Corporation" and a "Public Service as Parliament may by law prescribe" both fall under the Public Services of Ghana (Article 190 Clause 1). This as a result clearly shows that the "Office of the Special Prosecutor" is a "Public Service".

Since I have proven that the Office of the Special Prosecutor is a Public Service or falls under the Public Services of Ghana, I will next attempt to interpret the retirement age of the Special Prosecutor. Since the 1992 Constitution Of Ghana did not fix a retirement age for workers who would work either in/under a "Public Corporation" or a "Public Service as Parliament may by law prescribe", all such workers under a Public Corporation will be binded by a retirement age of 60 years as under Article 199 Clause 1, or the maximum of 65 years, unless the constitution states a different retirement age for the said position. So the puzzle now will be to check whether the Special Prosecutor has explicitly or implicitly been pegged with a retirement age by the Constitution.

A scroll through the Office of the Special Prosecutor Act, 2017 (Act 959) reveals under its Section 12 (4) that; the Special Prosecutor has been pegged with a retirement term, and it is; the Special Prosecutor shall hold office on the same terms and conditions of service as a Justice of the Court of Appeal except that the tenure of Office shall be a non- renewable tenure of seven years.

The retirement age of a Judge/Justice of an Appeal Court is 70 years as stated under Article 145 (2) (a). And since the Office of the Special Prosector formed through an Act of Parliament through a power given to it by the Constitution under Article 190 (1) (a) and/or 190 (1) (d) pegged the terms and conditions of the Special Prosector to that of the Justice/Judge of an Appeal Court with the only exception being that one appointed as a Special Prosecutor will need to stay in office for seven (7) years or seize to be in office after exhausting his/her 7 years; with respect to my opinion, it means a person can be appointed as a Special Prosecutor even after attaining the age of 65 years and will only leave the Special Prosecutor office after 7 years. In the same way, a person below the age of 65 years will also only serve for 7 years and leave the office after, even if he/she is as young as forty-five (45) years.

Thank you.
Reference
A) 1992 Constitution of Ghana; Articles 66, 70, 71, 78, 126, 144, 145, 146, 187, 190, 191, 192, 195, 199, 202, 284, 286 and 295

B) Mr Richard A. Quayson (Former Acting CHRAJ Boss), CHRAJ view on code of conduct 2015, Ghana New Agency, 12 November, 2015

C) Office of the Special Prosecutor Act, 2017 (Act 959); Memorandum, Paragraphs 1 and 2

D) Office of the Special Prosecutor Act, 2017 (Act 959); Sections 1 and 12.

Hhhmm, may God praised always
Nana Kwadwo Akwaa
[NPP Activist (Kwadaso Constituency), Political Pundit, Analyst, Researcher]

00233246913905 / 00233209676413
Member, Critical Thinkers International- CTI
Cc:
Dr. Dominic Ayine (Former Deputy Attorney General)
Lawyer Tony Lithur
Mr. Martin Amidu (Special Prosecutor)
Lawyer Gloria Akuffo (Attorney General and Minister of Justice)

The Supreme Court Of Ghana
The President of Ghana
The Parliament House of Ghana
Ghana Bar Association
Ghana School of Law
Citizens of Ghana