On December 3, 2020, the Supreme Court of Ghana will rule on a very important matter involving a private company that received public funds.
The Auditor-General has disallowed payments made to Zoomlion by the National Health Insurance Authority to the tune of ¢184.9 million in respect of a fumigation exercise.
Together with the surcharge that has been calculated using the bank of Ghana interest rates, the total disallowance and surcharge amount comes up to ¢411 million.
Article 187 (7) (b) (i) of the 1992 Constitution allows the Auditor-General to “disallow any item of expenditure which is contrary to law and surcharge, the amount of any expenditure disallowed upon the person responsible for incurring or authorising the expenditure.”
The Supreme Court will be ruling on “whether or not in the exercise of his function, under Article 187 (7) (b) (i) of the 1992 Constitution, the Auditor-General can make a surcharge against a person other than a public officer.”
In the Occupy Ghana Vs. The Attorney General Case, the third relief sought by OccupyGhana was, “That upon a true and proper interpretation of Article 187 (7) (b) (iii) of the Constitution, the Auditor-General is bound to issue a disallowance and surcharge where government suffers or incurs a loss or deficiency through the negligence or misconduct of any person so that the value of the loss or deficiency is recovered from that person (whether or not a public servant).”
In the ruling of the Seven Member Panel Chaired by the former Chief Justice, Justice Sophia Akuffo, with the current Chief Justice as a Member, the Supreme Court granted Relief 3 of OccupyGhana, “That upon a true and proper interpretation of Article 187 (7) (b) (iii) of the Constitution, the Auditor-General is bound to issue a disallowance and surcharge where the Government suffers or incurs a loss or deficiency through the negligence or misconduct of any person.”
The Supreme Court went on to state in the consequential orders that, “Thirdly, the Auditor-General shall also take steps to recover the value of the loss or deficiency from the person or persons by whose negligence or misconduct the losses or deficiencies were incurred, (whether or not the person is a public servant).”
In 2009, Zoomlion had challenged the mandate of the Commission on Human Rights and Administrative Justice (CHRAJ) to investigate the company on a corruption complain filed by a whistleblower from the Tanor South District of the then Brong Ahafo Region.
Zoomlion argued that it was a private company and CHRAJ had no mandate to investigate it. The court ruled in favour of CHRAJ and Zoomlion was investigated.
Adverse findings were made but the Attorney General, Gloria Akuffo, is yet to respond to my letter requesting what has happened to that report two years after CHRAJ submitted it to her.