FEATURED: An Open Letter To National Security Minister Albert Kan Dapaah!!!...

07.07.2019 Opinion

Viewpoint On The Recent Judgement On The Case Of Theophilus Donkor Vrs. The Attorney General, Writ No. J1/08/2017. 12th June,2019


Having read the decision of my Lordships on the case of Theophilus Donkor vrs The Attorney General, writ No.J1/08/2017.12th June,2019, with the first concluding part of the decision that reads "1.Members of governing boards of Statutory boards and corporations appointed in accordance with Article 70(1)(d)(iii) of the Constitution are not members of the Public Service and their tenure is not governed by articles 191 and 195 of the Constitution. Therefore, each person may be removed at will by the President. We declare accordingly". As decided by the court, articles 191 and 195 of the Constitution secures the tenure of members of Public corporations and their tenure is fixed according to their contract of engagement and is not subject to the will of any President upon assumption of Office. My central focus is on the tenure of the members of Statutory boards and corporations; with which the instant ruling of the Court has validly declared that such members may be removed at the will, edict or directive of the President. By inference, their tenure is in the hands of the President. What then follows is, whether or not, the removal of members of Statutory boards and corporations be left at the will, edict or directive of the President or by its constitutive Statute.

The President exercises Executive Authority in Article 57 of the Constitution, yet the Executive Authority is not limitless. He is subject to controls. For instance, before he assumes office, he must take and subscribe before Parliament the oath of allegiance and the Presidential oath as set out in the second schedule of the Constitution. By the Presidential oath, the President swears, among other things to protect and defend the Constitution of the Republic and to submit himself to the laws of the Republic and suffer the penalty thereof if he should break the oath. By Article 11 of the Constitution, the laws of Ghana include enactments made by or under the authority of Parliament but do not include Presidential edict, will or directives. It follows that, in swearing to protect and defend the Constitution, the President is swearing to protect and defend statutes like the ones governing appointment and removal of members of Statutory boards and corporations. Constitutive Acts of particular corporations gives the circumstances upon which a governing member may be removed. Their tenure is secured by such statute. For instance, section 10(1) of Act 612 secures the tenure of members of the Board of Bank of Ghana for a period of three years. From the foregoing, I believe the intent of the framers was not to leave the tenure as prescribed by statute at will,edict or directive of the President upon assuming office. In Article 296(b) of the Constitution, it reads, the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law. The implication from article 296(b) is that, the President cannot perform any act without recourse to due process of law; the relevance of procedural law in the exercise of substantive powers. This follows that, a member of the governing body of Statutory boards and corporations may be removed at the circumstances prescribed in the constitutive Statute.

It's trite learning that, a person whose legal interest or right have been infringed upon should be given a fair hearing and equitable reliefs sought for. This follows that, what remedy should be available to a member of a Statutory board and corporations whose tenure/fixed term hasn't ended,yet, upon assumption of new President his membership have been withdrawn?. I believe the contemplation of the framers of our laws was not to deny anyone a remedy or redress whose interest has been eroded. Respectfully, I believe it's not the intent of my Lordships to deny a person whose appointment as member of Statutory board has been withdrawn before the expiration of his tenure a remedy?

One would ask, what then would be the implication of such decision of the President to remove any member at will on the image of corporate governance on state institutions?. It appears that perhaps, the most effective strategy for dealing with the incidence of Executive onslaught on corporate governance is through enforcement of laws(Constitutive statutes) aimed at promoting good corporate governance by my Lordships. Instead of having a body of independent minded experts who can focus properly on the mandate of such corporations and function in accordance; the unfettered access by the President to remove members according to his will would produce compliant individuals who would then become puppet of the President. It would then be said that, Jubilee House has become the Power House where all members of governing body of Statutory boards and corporations shall run for cover to maintain their membership. Likewise, I believe this is not the true intent of my Lordships in their ruling.

In concluding, I believe it wasn't out of nothing that the framers placed "Tenure" in the accompanying respective statutes in the appointment and removal of members. It defines their operational independence and autonomy. It would be a weakness for the Executive Authority to recognize the source of power to appoint but ignore same statute in respect of the circumstances in which power to remove may be exercised. I believe the President cannot add a glose to any of the provisions of the Constitutive statutes that confers tenure in office to members of Statutory boards and corporations by recourse to his executive powers. I believe, state institutions whose governing boards are appointed for fixed terms, the act of any President removing any such member upon assumption of Office according to his will, edict or directive should have been equally declared illegal and flagrant violation of the laws of the Republic of Ghana.

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JUNE 27, 2019.

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