“6-month assets declaration extension unconstitutional” – OccupyGhana

Pressure group, OccupyGhana, has said the 6-month extension for the declaration of assets by public officeholders is unconstitutional.

In a letter dated 1 December 2019, written to the Attorney General and Minister of Justice, the group said: “We respectfully write to invite you to agree with us that the concluding sentence of section 1(4) of the Public Office Holders (Declaration of Assets and Disqualification) Act, 1998 (Act 550), which extends by six months, the time for public officeholders to declare their assets and liabilities, is unconstitutional.

“If you agree with us, then we respectfully would further invite you to take steps for the Act to be amended by deleting that sentence so as to bring the Act into conformity with the Constitution.

“However, if you disagree with us, then we would have no option than to bring an action in the Supreme Court under Article 2 of the Constitution for a declaration that that sentence is inconsistent with and in contravention of Article 286(1) of the Constitution”, the group said in its full statement reproduced in full below:

1st December 2019

The Attorney-General & Minister of Justice

Attorney-General’s Department

Accra

Dear Madam:

RE: UNCONSTITUTIONALITY OF 6-MONTH EXTENSION FOR DECLARATION OF ASSETS AND LIABILITIES, AND A REQUEST FOR ITS REPEAL

We respectfully write to invite you to agree with us that the concluding sentence of section 1(4) of the Public Office Holders (Declaration of Assets and Disqualification) Act, 1998 (Act 550), which extends by six months, the time for public office holders to declare their assets and liabilities, is unconstitutional. If you agree with us, then we respectfully would further invite you to take steps for the Act to be amended by deleting that sentence so as to bring the Act into conformity with the Constitution. However, if you disagree with us, then we would have no option than to bring an action in the Supreme Court under Article 2 of the Constitution for a declaration that that sentence is inconsistent with and in contravention of Article 286(1) of the Constitution.

Article 286(1) of the Constitution simply demands the mandatory written declaration by public office holders of their assets and liabilities as follows:

(a) before taking office,

(b) at the end of every fourth year, and

(c) when the term of office ends.

The article provides specifically as follows:

“286. Declaration of assets and liabilities

(1) A person who holds a public office mentioned in clause (5) of this article SHALL submit to the Auditor-General a written declaration of all property or assets owned by, or liabilities owed by him whether directly or indirectly,

(a) within three months after the coming into force of this Constitution or BEFORE taking office, as the case may be,

(b) AT the end of every four years, and

(c) AT the end of his term of office” [Emphases ours.]

In our view, the word “BEFORE” in Article 286(1)(a) means “during the time preceding,” “in advance of,” “ahead of” and “prior to.” Further, the word “AT” in Article 286(1)(b) and (c) expresses the exact time when an event takes place and is synonymous with “on” and “by.”

Thus, the declaration required under Article 286(1)(a) must occur in advance of, ahead of or prior to “taking office.” And the declarations required under Article 286(1)(b) and (c) must occur exactly on or by the fourth anniversary of every appointment, exactly on or by every four years after that, and then exactly on or by the end of a term of office.

The only instance that any public office holder was allowed to make the declaration “after” any of the events mentioned in Article 286(1), related to those who were in office when the Constitution came into force on 7th January 1993, and who therefore had until 6th April 1993 to make their declarations. And because that part of Article 286(1) had lapsed before Act 550 was passed in 1998, the Act does not even mention it.

We understand the principle behind this constitutional provision. Declaring assets and liabilities BEFORE taking office, should mean that every appointing authority, i.e. the Executive, Parliament and Judiciary must insist on the declaration being made to the Auditor-General before any prospective appointee takes office. Indeed, it should be done in good time to allow the declaration to be verified and vetted by the Auditor-General who must then report any adverse findings to the relevant appointing authority before the person takes office. For each of the subsequent declarations, it must occur at the same time as or by the anniversary or end of office.

We respectfully draw your attention to Article 286(7), which also demands that “BEFORE entering upon the duties of office, a person appointed to an office to which the provisions of this article apply, SHALL take and subscribe” the various relevant oaths. If, by the use of the word “before,” a person cannot be said to have assumed office until after taking the relevant oath, then by parity of reasoning within the same Article, that a person can also not assume office until after they have declared their assets and liabilities to the Auditor-General. In other words, under the Constitution, a person is qualified to assume office only after (i) declaring assets and liabilities to the Auditor-General, and (ii) taking the relevant oath.

We have taken the trouble to set these arguments out at length because although section 1(4) of Act 550 reproduces Article 286(1) in substance, it adds words that effectively defer the making of the declaration for up to six months AFTER the events provided for. The subsection provides specifically as follows:

“In accordance with clause (1) of article 286 of the Constitution, the declaration shall be made by the public officer

(a) before taking office,

(b) at the end of every four years, and

(c) at the end of the term of office of that public officer,

AND SHALL BE SUBMITTED NOT LATER THAN SIX MONTHS OF THE OCCURRENCE OF ANY OF THE EVENTS SPECIFIED IN THIS SUBSECTION” [Emphasis ours.]

The inherent contradiction in the subsection is blindingly obvious. A thing that “shall” be done “before” or “at” an event, according to the Constitution, cannot be done after the event on the basis of an Act of Parliament. Our respectful view is that the extension of time provided by section 1(4) of Act 550 violates the clear and express terms of the Constitution. Parliament had and has no power to postpone the declarations that the Constitution demands must happen “before” or “at” an event, to any time “after” the events. The words “before” and “at” can never be interpreted or construed to mean “after.” That six-month extension is definitely inconsistent with and in contravention of Article 286(1) of the Constitution.

It has become a fact that Article 286(1) is noted more for it being ignored and breached, than it being complied with. In our Press Release dated 16th October 2019 and titled “OccupyGhana Demands Assets and Liabilities Declaration by over 40,000 Affected Public Officers,” we stated that in our conservative estimation, there are about 40,000 public office holders who have never done the declarations that are mandatorily required by article 286(1). And almost no one has faced any sanctions for refusing, failing or neglecting to comply.

We hold the view that the unconstitutional six-month extension is largely responsible for this continuing breach. In effect, by the time that unconstitutional extension of time is up, the person is entrenched in or has left the office, everyone has conveniently forgotten to declare or enforce the declaration, and then business continues as usual. Where the Constitution wanted to extend time for complying with its provisions, it did. Where the Constitution does not make any such extension, an Act of Parliament cannot.

We believe that by expressing your agreement with our position, we will all bring this matter to the forefront of national discussion. Better still, agreeing to work for the deletion of the offending sentence in section 1(4) of Act 550 will send the message to all who have not declared that no longer will this blatant breach of the Constitution be tolerated by the government and people of Ghana.

We would be grateful if you could respond to us within 14 days. If this timescale is not feasible, kindly let us know when you propose to provide a response.

Yours in the service of God and Country

OccupyGhana®

cc. The Chief of Staff

Office of the President

Accra

The Auditor-General

Accra

The Controller and Accountant-General

Accra

The Commission on Human Rights and Administrative Justice

Accra