Court says no to AG's retiring age

June 3, 2010 (Page 51)

THE Supreme Court by a majority decision yesterday dismissed an application which prayed it to peg the retirement age of the Auditor-General at 70 years.
In its three-hour ruling, the court ruled that the Auditor-General was a public servant and not an office holder under Article 70 of the 1992 Constitution and for that reason his retirement age was 60 years subject to renewal not exceeding five years.
Article 70 office holders include the Speaker and Deputy Speakers of Parliament, the Chief Justice and Justices of the Superior Court, members of the National Media Commission and the Lands Commission, among others.
The court accordingly dismissed an application filed by the New Patriotic Party (NPP) Member of Parliament (MP) for the Asikuma/Odoben/Brakwa Constituency in the Central Region, Mr P.C. Appiah-Ofori, which sought a declaration that by the combined effect of Articles 17, 70, 71, 144, 145, 146 and 187 of the 1992 Constitution and on a true and proper interpretation of the Constitution, retirement age of the Auditor-General was the same as a Justice of the Court of Appeal.
However, the court dismissed Mr Appiah-Ofori’s claim in its entirety and held that the Auditor-General by virtue of the Audit-Service Act, which was passed by Parliament and by virtue of Article 199 of the 1992 Constitution, was a public servant whose retirement age had been pegged at 60 years.
The court also dismissed his claims, which among others prayed it to declare that on the true and proper interpretation of the 1992 Constitution, the Auditor-General is not a public officer within the contemplation of and for the purposes of articles 191, 195 and 199 of the Constitution, but a public officer within articles 70 and 71 of the Constitution.
He also sought a declaration that section 10 (4) of the Audit Service Act, 2000 (Act 584) was inconsistent with and in contravention of the letter and spirit of the 1992 Constitution, and accordingly same be declared null and void but that was also dismissed by six out of the nine justices of the Supreme Court.
The six who dismissed Mr Appiah-Ofori’s suit included Mr Justice W. A. Atuguba, Mrs Justice Rose Owusu, Mr Justice Annin Yeboah, Mr Justice P. Baffoe-Bonnie, Mr Justice Sulley Gbadegbe and Mrs Justice Vida Akoto-Bamfo while the Chief Justice, Mrs Justice Georgina T. Wood, Mr Justice Julius Ansah and Mr Justice Jones Dotse held a dissenting view.
According to the majority, neither Article 199 nor the Audit Service Act which pegged the retiring age of the Auditor-General at 60 was inconsistent with the 1992 Constitution.
However, the three dissenting justices held that the Auditor-General fell under Article 70 office holders, although that Article did not specifically state the retirement age of the Auditor-General.
Reading her reasons, Mrs Justice Wood held that the Constitution omitted the retirement age for the Auditor-General thereby leaving a legally permissible gap to be filled by the court and accordingly granted the reliefs being sought by Mr Appiah-Ofori.
The three were of the view that the office of the Auditor-General was a sensitive one which needed to be protected from political interference.
The court declined to award cost against Mr Appiah-Ofori, who was present in court. The immediate past Auditor-General, Mr Edward Dua Agyeman, was also present in court.
Reacting to the court’s decision, Mr Appiah-Ofori, who filed the suit in July 2007, said he would not give up.
Although he declined to go for review, he stated that he would put his case before the Constitutional Review Commission for redress.
Mr Appiah-Ofori brought the action against the Attorney-General in his capacity as a citizen of the Republic of Ghana.
Mr Agyeman, who said he was currently on leave, declined to comment on the court’s ruling.