A US-based Ghanaian lawyer, Professor Kweku Asare, aka Kwaku Azar, has argued that the Auditor-General has the powers to surcharge Waste Management company, Zoomlion Ghana limited contrary to the ruling by the seven-member panel of the Supreme Court on Thursday.
He believes, it is Article 187(b)(3) that rather empowered the Auditor-General to surcharge Zoomlion, insisting “It is clear that the Auditor-General can surcharge even private citizens. This is why Article 187(b) has three parts.”
The Supreme Court presided over by Justice Jones Dotse on Thursday, December 03, 2020, ruled that the Auditor General has no powers to surcharge Waste Management company, Zoomlion Ghana Limited.
The surcharge was an issue after an audit of accounts of the National Health Insurance Authority made findings that Zoomlion had between the years 2007 and 2018 allegedly been paid a total amount of GH¢184,901,650.00.
The apex court while determining the constitutionality of a GH¢184 million surcharge slapped on Zoomlion Ghana Limited by the Auditor-General’s Department said due to the peculiar fact of the case, the respondent is not liable to the powers of the Auditor-General.
The court, therefore, directed the Court of Appeal to determine the case before it, based on what the Supreme Court has said.
The court said its full reasons would be made ready at the Registry of the Court for the parties to pick up on Friday.
The panel of the apex court was giving an interpretation of the constitutional provision that gives the Auditor-General the power to disallow expenditure and surcharge people.
But the learned lawyer in his argument posted on Facebook said the Supreme court failed to take into account the full complement of the aspect of that law.
“I fail to understand how an Appeal Court will certify the interpretation of only Article 187(b)(1) to the SC and if that is what happened I then fail to understand how the SC will limit itself to that Article when reading the whole Article 187 and its history would have shed light that the framers did not intend private persons to get away with causing financial loss to the State.
As is, Zoomlion is singing “ma de sika no free” and the Court is chanting “catch the Lion if you can.” he said.
Below is the full Post by Kweku Azar
It is clear that the Auditor-General can surcharge even private citizens. This is why Article 187(b) has three parts as follows:
“1. the amount of any expenditure disallowed upon the person responsible for incurring or authorising the expenditure; or
2. any sum which has not been duly brought into account, upon the person by whom the sum ought to have been brought into account; or
3. the amount of any loss or deficiency, upon any person by whose negligence or misconduct the loss or deficiency has been incurred.”
Article 187(b)(1) and (2) are clearly meant for public officers who incur or authorize expenditures or those who are responsible for the accounting of funds. Private persons cannot be surcharged under those Articles.
But Article 187(b)(3) contemplates the usual situation where private persons’ negligence or misconduct cause loss to the state.
As far as I can tell, it is Article 187(b)(3) that empowered the AuG to surcharge Zoomlion.
I fail to understand how an Appeal Court will certify the interpretation of only Article 187(b)(1) to the SC and if that is what happened I then fail to understand how the SC will limit itself to that Article when reading the whole Article 187 and its history would have shed light that the framers did not intend private persons to get away with causing financial loss to the State.
As is, Zoomlion is singing “ma de sika no free” and the Court is chanting “catch the Lion if you can.”
Where is the Professor Ntiamoa Baidu report?
Source: Ghana/ Kasapafmonline.com/102.5 Fm
