Legal luminary, Stephen Kwaku Asare popularly known as Kwaku Azar has criticized the Supreme Court over its ruling that the Auditor General cannot surcharge Waste Management Company, Zoomlion.
According to Kwaku Azar, the Apex Court failed to consider the entirety of the constitutional provision that empowers the Auditor General to surcharge in delivering its judgement.
In his analysis of the constitutional provision, he posited that the Supreme Court limited itself to only a section of the provision which empowers the AG to surcharge public officials for financial inappropriate.
He believes the Apex Court would have arrived at a different decision if it had interpreted the entirety of the constitutional provision which, he argued, gives the AG the legal authority to surcharge not only public officials but private individuals and businesses.
“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 AG to surcharge Zoomlion,” he concluded.
Kwaku Azar stated “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.”
In a unanimous decision, a seven-member panel of the supreme Court presided over by Justice Jones Dotse ruled that the Auditor General lacks the legal authority to surcharge the waste management company.
The decision of the highest court of the land follows a referral of an aspect of an appeal case at the Appeals Court for interpretation at the Apex Court.
The Appeals Court is adjudicating on a High Court ruling which dismissed Zoomlion’s quest to overturn a 184 million surcharge slapped on it by the Auditor General.
An audit into the accounts of NHIA by the Auditor General, Daniel Domelevo revealed that the waste management company was allegedly paid over 18 million cedis without recourse to due process. The Auditor General, therefore, issued a disallowance and surcharged Zoomlion to return the money alleged to have been wrongly paid to it to the state coffers.
But the Apex Court on Thursday, December 3, 2020 held that the powers of the Auditor General to surcharge cannot be extended to Zoomlion which is a private business.
Reacting to the ruling, the legal luminary disagreed with the Supreme Court.
Though the detailed judgement containing the reasoning behind the verdict is yet to be published, Kwaku Azar is convinced that the Auditor General has the legal authority to surcharge Zoomlion and any other private business as well as private citizens if they are found culpable.
