Auditor General can surcharge but must wait for ratification from Parliament – Kan-Dapaah

The National Security Minister, Albert Kan-Dapaah has raised contentions in a Supreme Court ruling ordering the Auditor General to surcharge anyone who is found culpable of misappropriating public funds.

In a unanimous ruling in June 2017, a seven-member panel of the Apex court noted that the Auditor General must act on its annual report and take steps to retrieve any public fund found to have been misappropriated.

Pressure group, Occupy Ghana had sued the Attorney General as well as the Auditor General accusing them of refusing to surcharge persons who are said to have misappropriated monies belonging to the state amounting more than GHS40 billion.

But addressing the opening session of the African Organisation of English speaking
Supreme Audit Institutions, AFROSAI-E, in Accra, National Security Minister Albert Kan Dapaah argued that the decision of the Supreme Court is subject to urgent review since the Auditor General remains accountable to the legislative house.

“Any attempt to distance the Auditor General from parliament is fundamentally wrong and dangerous. It’s always been the case that the report of the auditor general be deemed to be conclusive until it is ratified by the legislature. The auditor general can disallow and report to parliament as per article 107 which stipulates that the auditor general reports to parliament. Indeed, the auditor general can also prescribe a surcharge but must await ratification from parliament before implementing any such surcharge.”

Additionally, Mr. Kan Dapaah described the precedence as absurd and fundamentally wrong.

“In the real world it will be absurd for an auditor to start implementing his report when his findings and recommendations have not been communicated to the who employed him to undertake the audit. It is fundamentally wrong.”

On the issue of whether the mandate of the Auditor-General ends at submission of recommendations of the report to Parliament, this is what the Supreme Court had to say in their ruling on June 14, 2017:

“the Auditor-General’s powers of surcharge and disallowance are constitutional and therefore have to be on a higher pedestal and given pride of place. When we consider the combined effect of Regulations 34, 35, and 57 respectively of the Audit Service Regulations, 2011 C I. 70, which deals with Audit observations and reporting, consequences of not responding to an audit observation and issue of management letters after completion of an audit assignment respectively, it becomes very clear that these roles and functions are different in scope and magnitude from the Auditor-General’s report envisaged and stipulated in articles 187 (2) (5) respectively of the constitution.

“Whilst management letters are issued by Branch and sectorial heads within two weeks of an audit assignment, containing their findings, recommendations and conclusions of their assignment to the management of the entity and copied to the officials and the organisations, that of the Auditor-General is wider in scope as it is submitted to Parliament and has far reaching effects and consequences as is stipulated in articles 187 (7) (b) of the Constitution.

“Audit observations per Regulation 34 (1) of C. I. 70 on the other hand are formal audit observations issued at an audit location in the course of the audit. In this respect, the audit team is enjoined under Regulation 34 (2) (a) & (b) of C. I. 70 to take steps to discuss with the audited organization the findings and recommendations arising from the audit and also obtain written responses from the audited organization.

“Thus, these activities occur at a lower level and earlier stage of the process which culminated in the Auditor-General’s report submitted to Parliament. It is thus therefore quite clear that Audit observations, and Management letters are different in context, scope and magnitude from the Auditor-Generals’ report as stipulated in article 187 referred to supra.

“From the above discussions, it is quite apparent that the Auditor-General has an obligation to ensure that his powers of disallowance and surcharge duly exercised by him under article 187 (7) (b) of the Constitution are complied with by the public entity or officials directly affected by the exercise of his powers of surcharge and disallowance.”