OccupyGhana doubts GHS 2.2bn recovery claims by Auditor-General

CivIl Society Organisation (CSO), OccupyGhana, has expressed doubt over claims by the Auditor-General that it has retrieved some GHS 2.2bn out of some GHS 4bn disallowed from 2017 to 2020.

In a statement issued on Monday, October 3, 2022, OccupyGhana noted its doubt on the recovery claims by the Auditor-General, was based on variations in a story published in the Daily Graphic newspaper and letters written to the CSO regarding the amount disallowed and recovered.

“A close reading of the story, and comparing its contents with information the Auditor-General provided to the pressure group, letters dated June  14 and  July 4, 2022, gives OccupyGhana  much cause for concern, grounds to doubt the veracity of recovery claims, and bases to question the legality of some of the steps  the Auditor-General claimed to have taken,” it said.

OccupyGhana further in the statement asserts that, the setup of a recoveries account with the Bank of Ghana into which some GHS 908,653 out of the GHS 2.2bn recovered has been paid, is illegal, given the fact that Section 17(2) of the Audit Service Act, payments of disallowances are to paid to the Audit Service and not into any special account.

“Section 17(2) of the Audit Service Act demands that a sum specified by the Auditor-General to be due from any person shall be paid by that person to the department or institution.

““This formality requirement is stated in section 17(1) of the Audit Service Act, 2000 (Act 584), which mandatorily demands that you ‘shall specify to the appropriate head of department or institution the amount due from any person upon whom he has made a surcharge or disallowance and the reasons for the surcharge or disallowance.’

“Section 17(6) then reinforces this formal requirement by saying that in any recovery proceedings, ‘a certificate signed by the Auditor-General shall be prima facie evidence of the facts certified.

“To compound matters, you informed us, in your letter to us dated 14 June 2022, that you had (i) decided that before you issue the formal specification/notice, you will first issue a notice of intention to disallow, and (ii) established a committee that ‘is collecting evidence from the various audit teams before proceeding with the notice of intention to disallow and/or surcharge and follow it up with disallowance and surcharge certificates where appropriate,” it said.

Adding that, Auditor-General cannot claim to have disallowed any expenditure, without the formal documentation required of it by both the Supreme Court and the Act.

OccupyGhana is therefore demanding for specifics, details and particulars of alleged disallowances and retrievals from the Auditor-General.

The pressure group wants names of the people involved, amounts allegedly retrieved from each of them, and when and how the said retrievals occurred.

The demand constitutes  the exercise of  OccupyGhana’s right to information under both the Constitution and the Right to Information Act, 2019 (Act 989).

Read details of statement below:

Our ref: OG/2022/037

30 September 2022

The Auditor-General
Auditor-General’s Department
Accra

Dear Sir

RE: AUDITOR-GENERAL RETRIEVES GHȻ2.2BN – REPRESENTS DISALLOWANCES FROM 2017 TO 2020

Our attention has been drawn to headline stories in several newspapers (and more specifically in the Daily Graphic and published on 18 September 2022 on graphic.com.gh), following your meeting with Civil Society Organisations and your press interviews, that your office has disallowed Ȼ4 billion and ‘retrieved’ Ȼ2.2 billion from those disallowances between 2017 and 2020. You also disclosed that you have opened a recoveries account with the Bank of Ghana, into which Ȼ908,653 has allegedly been paid.

Ordinarily, this should be good news that shows that finally, you are beginning to exercise the disallowance and surcharge powers that the Constitution vests in your office, and which the Supreme Court has mandatorily injuncted you to exercise every time the circumstances listed in article 187(7)(b) of the Constitution come up in the course of your audits.

However, a close reading of the story, and comparing its contents with information you have provided to us in your letters dated 14 June and 4 July 2022, rather give us much cause for concern, grounds to doubt the veracity of your claims, and bases to question the legality of some of the steps you claim to have taken.

AUDITOR-GENERAL’S RECOVERIES ACCOUNT

We were also struck by your claim that ‘two months ago,’ you opened the above-named account with the Bank of Ghana, and that a ‘recovered’ sum of Ȼ908,653 has allegedly been collected into that account, as at 7 September 2022. You do not disclose the source of the amounts ‘recovered’ into this account, and whether or not it forms a part of the Ȼ2.2 billion allegedly ‘retrieved.’

What is more concerning to us is that section 17(2) of the Audit Service Act demands that ‘a sum specified by the Auditor-General to be due from any person shall be paid by that person to the department or institution.’ From this provision, your alleged recoveries into the above-named account are illegal. The persons affected are to pay the amounts ‘to the department or institution’ and not to any special account that you may have opened.

Kindly take steps to rectify this at your earliest convenience.

ALLEGED DISALLOWANCE

The terms ‘disallowance’ and ‘surcharge’ are constitutional terms that have been specifically defined by the Supreme Court in OCCUPYGHANA v ATTORNEY-GENERAL. From that decision a ‘disallowance’ is when ‘the Auditor-General will formally refuse to accept or allow any item of expenditure that is contrary to law, etc.’ A surcharge is the subsequent event when ‘the Auditor General now proceeds to impose an extra charge as penalty for the retrieval of the amount or expenditure that he has refused to allow or accept, because it was contrary to law.’ Clearly, disallowances or surcharges do not exist in a vacuum. They require formal processes.

This formality requirement is stated in section 17(1) of the Audit Service Act, 2000 (Act 584), which mandatorily demands that you ‘shall specify to the appropriate head of department or institution the amount due from any person upon whom he has made a surcharge or disallowance and the reasons for the surcharge or disallowance.’ Section 17(6) then reinforces this formal requirement by saying that in any recovery proceedings, ‘a certificate signed by the Auditor-General shall be prima facie evidence of the facts certified.’

To compound matters, you informed us, in your letter to us dated 14 June 2022, that you had (i) decided that before you issue the formal specification/notice, you will first issue a notice of intention to disallow, and (ii) established a committee that ‘is collecting evidence from the various audit teams before proceeding with the notice of intention to disallow and/or surcharge and follow it up with disallowance and surcharge certificates where appropriate.’

Clearly, you cannot claim to have disallowed any expenditure, without the formal documentation required of you by both the Supreme Court and the Act. Further, you cannot claim to have ‘retrieved’ any sums unless and until you have issued surcharges.

That is why we are struck at the blinding speed with which you have transitioned from setting up the committee, to the committee concluding its work, to issuing your notice of intention to disallow Ȼ4 Billion, to issuing your disallowance certificates, and to retrieving Ȼ2.2 billion (without surcharge certificates), and all between June and now. We are therefore curious to know how these headline disallowances and consequent ‘retrievals’ occurred.

We therefore respectfully demand, in the exercise of our right to information under both the Constitution and the Right to Information Act, 2019 (Act 989) that you provide to use the specifics, details and particulars of the alleged disallowances and retrievals that have taken place since you assumed office as Acting Auditor-General and then as Auditor-General, providing the names of the people involved, amounts allegedly retrieved from each of them, and when and how the said retrievals occurred.

Yours in the service of God and Country,

OccupyGhana

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