“Contemporary practice of Public Administration must spin on humanistic theories and realities. So Public Administrators and Investigators must act humanely”- P.A. Korto (2020)
I salute you, Mr. Daniel Domelevo: Auditor-General of Ghana and thank you for the good work you are doing for mother Ghana. The principal functions of the Auditor –General are well catered for in article 187 of the Constitution, 1992. The constitutional relevance of your office and its functions are therefore not in dispute.
Specifically, article 187 (7) of the Constitution protects your office from unnecessary interference. The provision states that the Auditor-General (Mr. Domelevo, my emphasis) shall not be under the control and direction of any other person or authority. Article 187 (7) (b) of the Constitution also clothes your office with the power to disallow any unlawful expenses and surcharge for same.
However, the Auditor- General does not wield unfettered power. As such, without prejudice to article 187(7) , the Constitution makes an omnibus provision at article 295 (8). It states that the autonomy offered your office does not preclude a court from exercising jurisdiction in relation to the any question regarding the performance of your official duties according to law. In my opinion, article 295 (8) is on the ground of judicial review of administrative decisions and actions.
Your Auditing Of Public Accounts
Mr. Domelevo, article 187 (2) of the Constitution mandates you (Auditor-General) to audit various public accounts and report on the findings to Parliament. It states, “The public accounts of Ghana and of all public offices, including the courts, the central and local government administrations, of the Universities and public institutions of like nature, of any public corporation or other body or organization established by an Act of Parliament shall be audited and reported on by the Auditor-General.” Section 11 (1) of the Audit Service Act, 2000 (Act 584) reaffirms article 187 (2) of the Constitution.
Mr. Domelevo, it is on the foregoing legal basis that you audit the health institutions in the public sector. The public health institutions under the Ministry of Health come under the Ghana Health Service and Teaching Hospitals Act, 1996 (Act 525).
Apart from the Act 525 hospitals, I am sure you equally audit the quasi-government health facilities in Ghana. By quasi-government health facilities, I mean those hospitals such as 37 Military Hospital and Police Hospital that are managed by other Public Services other than the Ghana Health Service (GHS) and the Civil Service (MOH). To this end, nobody should dictate to you as to how and when your work should be done. By this piece therefore, I do not intend to do so. Not even slightly.
However, the accounts you audit are not in a vacuum but rather within humanly managed organizations. I mean that human institutions are bound to make errors and exceptions to the rules also abound hence this my appeal to you prior to your auditing of the 2020 public hospital transactions.
Health Sector Is Handling A Crisis
You would agree with me, Mr. Domelevo, that the Covid-19 pandemic has created a crisis in the public health sector of many nations across the globe and Ghana is no exception. Many people have come to the conclusion that we are no longer in ordinary times so there may be procedural changes to the way things have been done as enshrined in law. It is therefore possible that in handling the Covid-19 situation, most of the public hospitals may in 2020 deviate from what the financial and other laws say about public financial management procedures.
Definitely, an act or action in contravention of the law amounts to an illegality or an ultra vires act, which will need to be remedied sometimes with punitive measures such as surcharge, placed under your auspices by the Constitution. This is exactly in consonance with the letter of the law. However, the spirit of the law demands from every law enforcer such as the Auditor- General to investigate and consider the time (time of war or time of pandemic) and the impetus that led to the breach of the law by the lawbreaker. In your case, the possible lawbreakers are your auditees, the public hospitals inclusive.
Mr. Domelevo, the public health sector is handling the viral pandemic disease coupled with presidential lockdowns in this 2020. We do not even know yet when the crisis will end. In the heat of the Covid-19 moment, I foresee that most of the public hospitals may breach the law in their attempts to save lives swiftly. The following breaches may occur.
- Breach of the Public Procurement Act especially in a time that healthcare commodities are scarce and there are resultant price hikes. Sole sourcing may occur since most health commodity suppliers have run out of stock.
I do not know whether or not you will spare the public hospitals during your audit of their 2020 transactions on the basis of Section 40(1) of the Public Procurement Act, 2003 (Act 663) as Amended with Act 914 of 2016.
That Section touches on single-source procurement. My thinking is that even if the public hospitals violate the letter of the section under reference, with regard to their procurement actions in the battle against Covid-19, you need to authorize your “boys” (your auditors) to switch to the spirit of the law, mindful of the catastrophic circumstances.
This is because Covid-19 treatment fits into what section 40 (1) of the Procurement Law refers to as a catastrophic event. The same section has described the public hospitals’ procurement actions due to catastrophic events as exceptional circumstances.
- Most Public Hospitals may stock commodities beyond the required quantities, mindful of the swift price hikes and acute shortages of certain healthcare commodities.
- Some public hospitals may end up buying goods and services from suppliers or consultants who are not Value Added Tax (VAT) registered. In this case, public hospital managers will be compelled to transact business with non-VAT registered suppliers in order to save lives because those are the only suppliers who have stock to supply the hospitals.
- Most of the public hospitals may have expired products after the Covid-19 era supposing they could not use all the items before the end of the pandemic.
- Most public hospitals may deviate from the procurement rules, tendering procedures and obviously, the procurement methods.
- Cash purchases may also abound and with a huge cumulative or multiplier effect on the finances.
Per the laws that guide the auditing of the public accounts, I know you and your auditors should be normally concerned and have the urge to enforce the laws to the letter. However, my open letter to you is to enable you to start thinking ahead. It is to help you think as to which possible approaches to use in the application of the spirit and not the letter of the law in your auditing of the public health sector for the year 2020 (the pandemic year). We are not even sure if the pandemic will go beyond 2020 or not.
From my foregoing submissions for your information, I want to make some recommendations for your consideration. Again, my recommendations are not binding on you and I do not intend to prejudice or be sinful to the constitutional and other statutory provisions relating to your independent work as the Auditor-General. I am just thinking aloud in a futuristic manner. Be that as it may, I recommend that:
- Refer to article 187 (4) of the Constitution and come out with a special dispensation for adherence by the public hospitals. Should you issue no special regulations and you carry out the audit the normal way in the health sector for the year 2020, the Public Accounts Committee (PAC) may consider the breach of law observations under clemency.
- Issue no special dispensation but be flexible with the audit of the 2020 transactions in the public health sector in the name of the spirit of the law when the time is due.
- Introduce a pre-audit of transactions in the public hospitals in 2020 so you guide them as to what is the way out. Audit must not always be punitive or a fault finding mission. That is why we have operational and compliance audits among the audit typologies.
- Liaise with Parliament and waive public health sector auditing for 2020 due to the crisis. This recommendation sounds untenable or weird on grounds of transparency and accountability but it can be one of the options to be considered.
- In auditing the public hospitals for 2020, sole –sourcing without adherence to procedure and procurement from non-VAT registered suppliers in the Covid-19 era should be treated lawful or legal in the spirit of the law.
- Your auditors should foresee panic buying, possible overstocking and its resultant product expirations at the hospitals. In that case, you have to plan how to deal with such scenarios if they tend to be the case in some of the public hospitals due to the Covid-19 pandemic. Fall on the spirit and not the letter on the law should you encounter such scenarios.
Uncle Dan, I am done even though I am not also called Dan. I hope that the open letter gets to you and I hope that it ignites your futuristic thoughts for the health sector audit for the year 2020.
- Much as you do not wield unfettered power,
- Much as article 296 of the Constitution provides a guide for the use of discretionary power,
- Much as the tenets of the Public Health Act, 2012 (Act 851) are not inconsistent with the Constitution thereby rendering the law void to the extent of the inconsistency as article 1(2) of the Constitution states,
- Much as the courts frown on ouster clauses,
- Much as article 23 of the Constitution provides that administrative bodies and officials must act fairly and reasonably,
- Much as article 33 (2) of the Constitution provides for prerogative orders or writs including writs or orders in the nature of Habeas Corpus, Certiorari, Mandamus, Prohibition, and Quo Warranto _
The public hospitals may seek for judicial review of your audit findings on the basis of article 187 (9) of the Constitution. It stipulates, “A person aggrieved by a disallowance or surcharge made by the Auditor-General may appeal to the High Court.” It is on this basis that I draw your attention to the post Covid-19 audit in this piece.
By this piece however, I do not encourage managers of public health facilities to disregard the provisions of the financial and audit laws guiding their business transactions. I rather entreat them to do the right thing and not to abuse the catastrophic and urgent nature of events in the Covid-19 period. Be law abiding, public hospital managers.
Until then, I say:
~Asante Sana ~
Author: Philip Afeti Korto
Email: [email protected]