In a judgement delivered yesterday, the seven-member panel said the order affected both public officials and private individuals found to have looted state coffers.

Per the court’s order, the Auditor-General must surcharge any individual who is found to have expended public funds unlawfully.

The Supreme Court further ordered the government’s prosecution arm, the Attorney-General’s Department, to ensure the enforcement of the orders by initiating criminal prosecution when necessary.

Already, the Auditor-General has the mandate, under Article 187 Clause 7 (b) of the 1992 Constitution, to surcharge individuals found to have used public money unlawfully.

Therefore, the apex court’s judgement is basically telling the A-G to do what he has already been mandated by the 1992 Constitution to do.

Per the judgement, the Auditor-General’s annual reports, which normally expose malfeasance in the use of state finances, will not become talk shops but rather tools to retrieve the misappropriated funds.

The seven-member Supreme Court panel presided over by Ms Justice Sophia Akuffo, gave the consequential orders of the judgement yesterday, with the reasons in the full judgement, which had been deposited at the court’s registry.

Other members of the panel were Mrs Justice Sophia Adinyira, Mrs Justice Vida Akoto- Bamfo, Mr Justice Jones Dotse, Mr Justice A.A. Benin, Mr Justice Anin Yeboah and Mr Justice Sule Gbadegbe.

Occupy Ghana’s suit
Yesterday’s judgement by the court was in relation to a suit filed by the pressure group, OccupyGhana, in 2016 against the Auditor-General and the Attorney-General.

The group claimed that although the Auditor-General had been given the legal backing under Article 187 Clause 7 (b) of the 1992 Constitution to disallow the use of state funds in a manner contrary to law and also surcharge persons found to have used state funds unlawfully, it had failed to do so.

According to the pressure group, its research revealed that since the promulgation of the 1992 Constitution, the Auditor-General had failed to surcharge people which it found to have misappropriated public funds to the tune of GH¢40 billion.

The legal action, according to the group, became necessary when the Auditor-General failed to surcharge looters of state funds, despite several letters from OccupyGhana urging it to do so.

In its writ, the group claimed that “upon a true and proper interpretation of Article 187(7)(b)(i) of the 1992 Constitution, the Auditor-General is bound to issue a disallowance or surcharge where there has been any item of expenditure on behalf of the government that is contrary to law, [and] the amount unlawfully expended is recovered from the person who was responsible for, or authorised, the expenditure disallowed’’.

It was of the view that “upon a true and proper interpretation of Article 187(7) (b)(ii) of the Constitution, the Auditor-General is bound to issue a disallowance and surcharge where any person fails to bring any sum into government account, and the amount is recovered from the person by whom the amount should have been brought into account”.

According to the pressure group, “the failure, refusal or neglect by the Auditor-General to issue any disallowances and surcharges in respect of (i) unlawful items of expenditure, (ii) amounts not brought into account, and (iii) losses and deficiencies incurred through negligence and misconduct as set out in successive reports of the Auditor-General issued since the coming into force of the Constitution are violations by the Auditor-General of his/her obligations under the Constitution’’.

OccupyGhana, therefore, sought the Supreme Court to order the Auditor-General “to issue disallowances and surcharges to and in respect of all persons and entities found in successive reports of the Auditor-General to have been responsible for or to have authorised unlawful items of expenditure, not bringing sums into account or having caused loss or deficiency through negligence or misconduct, in accordance with Article 187(7) (b) of the Constitution”.

Response

In an interview, a member of the pressure group, Mr Ace Ankomah, stated that the judgement by the Supreme Court was not a victory for OccupyGhana but rather for the fight against corruption.

“We urge all Ghanaians to rise up and occupy their democratic space for God and country. If each of us does a little, together we will do much,’’ he said.