Domelevo was retired by law

(Full letter sent to the CSOs by President Akufo-Addo)

We refer to your press conference of 10″ March, 2021 in connection with this matter.
The Office of the President is aware that the retirement of the former Auditor-General, Mr Daniel Yaw Domelevo, has generated considerable discussion in the public domain and particularly, on social media, with suggestions that the Government is not committed to the fight against corruption. The narrative of this discussion focuses on unfounded allegations that Government had targeted Mr Domelevo and wanted him out of office at all cost. This narrative, pushed by persons who should know better in civil discourse of this nature, has been based on untruths, deliberate misconstruction of the facts and complete disregard for the rule of law that we, as Ghanaians, have subscribed to. It is in view of the above that the Office of the President has found it necessary to respond to the Coalition of Civil Society Organizations Against Corruption, to correct the misconceptions bandied around In the public domain, and to give the Ghanaian people, who deserve a public discourse based on accurate facts, an opportunity to discern for themselves the true picture in this matter.
Circumstances surrounding his appointment

At the outset, it is important to set out, in full, the circumstances that led to the appointment of Mr Domelevo, to demonstrate that, notwithstanding those circumstances, the President of the Republic was committed to working with Mr Domelevo, and did, in fact, work with him during his term of office as Auditor-General. The fact is that Mr Domelevo was appointed on the eve of the exit from office of His Excellency, former President Mahama. He was appointed on 30th December, 2016, after former President Mahama had overwhelmingly lost the mandate of the people of Ghana to govern in the presidential and parliamentary elections of 7thDecember, 2016. Stranger still is the fact that Mr. Domelevo’s appointment process was initiated on 13thDecember, 2016, a few days after this emphatic rejection. The appointment process for Mr Domelevo was rushed through the Council of State, to enable former President Mahama appoint Mr Domelevo before leaving office. A reasonable and objective conclusion was that, having lost the mandate to govern, former President Mahama appointed Mr Domelevo to office, knowing very well that President Akufo-Addo would be sworn into office in a few days, to pursue a particular agenda. To support this agenda of the former President, one needs to examine, critically, the wording of the letter dated 13thDecember, 2016, from the then Chief of Staff, Julius Debrah, to the Council of State. It is important to reproduce the entire letter below for ease of reference:

“APPOINTMENT AS AUDITOR-GENERAL
H.E. the President has nominated Mr Daniel Domelevo to replace Dr Felix Kwame Aveh as Auditor-General and would appreciate the opinion of the Council of State thereon.
The change is as a result of some unforeseen developments.
Kindly lay the request before the Council of State for consideration and communicate the decision for the attention of H.E. the President.
The inconvenience caused by the change is very much regretted.
Mr Domelevo’s curriculum vitae is attached.”
It is clear from the above letter that the former President had consulted the Council of State on appointing Dr Felix Kwame Aveh as Auditor-General. It is also clear that the consultation process was done before the December 7, 2016 elections. Mr Domelevo was not the intended Auditor-Generalprior to the election of December 7, 2016. Dr. Felix Kwame Aveh was the Auditor-General that former President Mahama intended to appoint if he had won the election of December 7, 2016. But he lost the election. Indeed, In notifying the Council of State of the reason why former President Mahama was seeking to replace Dr. Aveh, the then Chief of Staff stated that “we change is as a result of some unforeseen developments.” It is fair to conclude that the “unforeseen developments” was no other development but the painful loss of the election of December 7, 2016. After losing the election, it became necessary for former President Mahama to change his nomination for Auditor-General, with the sole aim of saddling the then President-elect, Nana Akufo-Addo, with an Auditor-General, whose allegiance was to former President Mahama, instead of the nation.
The Council of State met on Monday, 19thDecember, 2016, and considered and endorsed former President Mahama’s replacement for Auditor-General as he requested. By letter of the same day, the Council of State conveyed its decision to former President Mahama. Mr Domelevo was subsequently sworn into office and appointed on 30th December, 2016, eight days prior to former President Mahama’s departure from office. It must be noted that Mr Domelevo, hitherto, was not an auditor, and had not been engaged in auditing. Before his early retirement from the public service in 2010, he was the Director of Payroll at the Controller and Accountant General’s department.

Shortly after assuming office as President of the Republic, President Akufo-Addo became seized with these facts and the strange circumstances surrounding the appointment of Mr Domelevo. Nevertheless, the President invited Mr Domelevo to a meeting in the presence of their mutual friend, the current Minister for Energy, Hon. Dr. Matthew Opoku Prempeh, MP, who introduced Mr Domelevo to the President. At that meeting, the President encouraged Mr Domelevo to continue his work as Auditor-General and pledged his support for the work of the Audit Service and the Auditor-General. Mr Domeievo has, indeed, publicly acknowledged the truth of this assertion.
The President has never held the view that the work of Mr. Domelevo was embarrassing his government. On the contrary, the President has always been a strong advocate for the Office of the Auditor-General because he believes the work of the Auditor-General is necessary for ensuring that the country’s financial resources are used prudently, and the public purse is protected. As a matter of fact, and of public knowledge, the President ensured that Mr Domelevo was provided the necessary resources required for the efficient running of the Audit Service, because the President considered the work of the Audit Service a critical part of good governance. It was, thus, not surprising to hear Mr Domelevo acknowledge these efforts of the President during theOccupyGhana Anniversary Lecture held at the British Council on 14th June 2019, where he stated emphatically that he had been supported immensely by the President, as follows:
“The Executive has been very supporting, and I said itin Egypt; I said the problem about Africa is that we set up all these structures and we don’t fund them but in Ghana, I have received, not everything that I wanted, but a substantial increase in support. So, if we are doing something, which you people say you’ve heard, from Ghana, is because the Government is resourcing me. So, when you go back resource your agencies that are fighting corruption. Don’t just go and establish them. Fanfare and that’s the end. So, I must say the Executive has played its part. I hope you are aware when there was a change in government, the first, one of the first announcement we heard was a ban in procurement of vehicles, is that not it? But this was the time that Government gave us (Audit Service) the permission to buy 34 vehicles to support the Audit Service. We had never bought 10 vehicles in the history of the Audit Service before. But this permission was granted. Up to today, some are struggling with financial clearance to recruit staff, but Government gave us permission on two occasions. As at today, we have recruited, from 2017 to date, more than 400 additional staff to support us to do our work. That is the practical way of fighting corruption. It’s not by the slogans. I’m not saying the Slogans are not good, they are good, but after the slogan, it must be supported by systems and actions that we require to go.”
From these words of Mr Domelevo, it is obvious that the support he received from the President was unprecedented in the history of the Audit Service. Mr Domelevo considered the support from the President as the “practical way of fighting corruption”, and not by mere slogans, as some of the civil society organisations in your coalition have been engaged in. This cannot be the position of a government that had targeted Mr Domelevo and wanted him out at all cost. That assertion is completely baseless and must be totally disregarded.
Kroll Associates U.K. Limited
Before addressing the matters involving Kroll Associates U.K. Limited (“Kroll Associates”), it is important to introduce to Ghanaians Kroll Associates, its work and the reasons for their engagement by Government. Kroll Associates is a reputable global firm that, among other things, assists companies and governments in investigations to identify wrongdoers, recover assets and seek legal remedies. The Kroll Associates team is made up of experts with extensive experience in areas including fraud and corruption prevention and detection, money laundering investigations, asset tracing and recovery. Due to the nature of the investigative methods employed by Kroll Associates, its work is usually not made public until Investigations are completed and prosecution or other legal steps have been initiated. It is based on Kroll Associates’ experience and international reputation in these areas for achieving results that led Government to engage them to assist in investigations into alleged corrupt acts of former President Mahama’s government.

The Kroll Associates matter has been misconstrued and misinterpreted deliberately in the public domain so much that a patently false picture has been painted to the effect that Mr. Domelevo was targeted because of the disallowance and surcharge in the matter involving Kroll Associates and Hon. Yaw Osafo-Maafo, the former Senior Minister, who was tasked with coordinating aspects of the investigations into financial impropriety and corruption allegations during the tenure of former President Mahama. Even worse is the patently absurd assertion by a popular public commentator that the courts were being used to frustrate the work of Mr Domelevo. It is, therefore, essential to outline the facts in the matter involving Kroll Associates to you as well as for the benefit of the public, to correct the misconception in the public space:

1. By letter dated 22th August, 2019, the Ministry of Finance requested progress reports on the contract performance by Kroll Associates for audit inspection. In that letter, the Ministry of Finance referred to paragraphs 50 and 52 of the Auditor-General’s report on the Ministry of Finance for the year 2018 in respect of payments to Kroll Associates, which stated as follows:
a. In paragraph 50 of the report asserts:
(i) That although there was no evidence of work done, the Ministry in 2018 paid an amount of GHS 4,890,000,00 to the company
(ii) That though the contract was signed in September, 2017 some of the invoices attached to the payment vouchers predated the award of the contract.
b. In paragraph 52 of the report;
(i) recommends that in view of the non-performance of Kroll Associates in executing the contract, the contract should be abrogated and any monies paid to the company recovered immediately,

The Ministry of Finance was of the view that, even though the agreement was signed on 29thSeptember, 2017, the agreement stated in article 3 that it was to take effect form 13th February, 2017 in accordance with the letter of intent dated 2ndFebruary, 2017.
2. By letter dated 23% August, 2019, the then Senior Minister, Hon. Yaw Osafo-Maafo, responded to the Ministry of Finance and stated, among others, as follows:
“Since September, 2017 Kroll has been working with the Government of Ghana to undertake extensive and thorough investigations of allegations of wrongdoing, and providing evidence of assets recoveries for possible prosecution. Kroll’s assignments also include building capacity for the transfer of skills and supporting Ghana in its efforts to reduce corruption, and advising on preventive techniques structures to prevent corruption and asset dissipation. As paragraph 3 of your letter points out, a Letter of Intent was signed on 2nd February, 2017 which allowed Kroll to commence work with effect from 13th February, 2017. Kroll has since 2017 worked diligently and consistently and their fees have been paid against the investigations they have conducted and value of assets Kroll has identified and secured. All payments were property invoiced for settlement. I trust this information. Provided will be sufficient to enable you to respond to the Auditor-General’s report.”

3. By letter dated 24thSeptember, 2019, Mr Domelevo notified Hon. Yaw Osafo-Maafo and Kroll Associates of his intention to disallow/surcharge. His reason for the notice was that a sum of GHS 4,869,421.87 (equivalent of USD 1,031,460.50) had been paid to Kroll Associates with no proof of work done. He stated further that the agreement had not been approved by the Public Procurement Authority and Parliament.
4. By letter dated 8thOctober, 2019, two weeks later, Hon. Osafo-Maafo responded to Mr Domelevo’s notice dated 24thSeptember, 2019. He stated that approval had been obtained for the agreement and attached a copy of the approval to his letter. He also provided proof of work done by Kroll Associates and stated that the reports of work done by Kroll Associates had been submitted to the Office of the Senior Minister, COCOBOD, Bank of Ghana and the Economic and Organised Crime Office. He provided a breakdown of the work done by Kroll Associates in respect of COCOBOD, which had resulted in the case in the High Court against Dr Stephen K. Opuni and Mr Seidu Agongo. He indicated that Kroll Associates was still investigating some matters that were confidential, privileged and classified security matters, which could not be disclosed at that stage. Hon. Osafo-Maafo, however, invited Mr Domelevo to inspect the work done by Kroll Associates at his office. The letter states as follows: “They are, however, available at the office of the Senior Minister for your inspection.” Hon, Osafo-Maafo’s response was the very epitome of transparency and clarity.
5. Despite the above information and invitation to inspect, and without any response to it, Mr Domelevo arbitrarily issued a Notice of Specification and Certification of Disallowance and/or Surcharge dated 22ndOctober, 2019 against Hon. Yaw Osafo-Maafo, M/S Kroll Associates U.K. Limited, Mr Michael Ayesu, Mr. Abraham Kofi Tawiah, Ms Eva Asselba Mends and Mr Patrick Nomo, for a refund of the total amount of GHS 5,510,353.73.
6. The persons mentioned in the Notice of Specification and Certification of Disallowance and/or Surcharge dated 22ndOctober, 2019, appealed against Mr Domelevo’s decision.
Mr Domelevo refused to file the necessary legal processes within the stipulated time, and, therefore, contempt proceedings were brought against him pursuant to Order 54A Rule 5 (1) and (2) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) (as amended by C.1. 102). The Court, per its ruling dated 12thMay, 2020, held that Mr Domelevo was in contempt of court within the meaning of the Rules, and cautioned and discharged him. The Court, however, had this to say about Mr. Domelevo’s conduct:

“I find, that knowing what Is required as the Auditor-General, in circumstance where the doer must also have intended or at least forseen probable of their non-action, especially when C.I, 102 is one of the primary legislations with which he routinely works, exercises his jurisdiction and discretion, a failure or refusal to file the required documents and reply to the Notice and Grounds of Appeal within the mandatorily stipulated time or as soon as he did have notice of same, would be willful… In sentencing the Respondent [Mr Domelevo] the Court has in mind the very crucial role of the Respondent [Mr. Domelevo] in our country and would not wish to dog him or discourage him or his office in the performance of his duties with a harsh custodial sentence, especially in the midst of the Covid-19 Pandemic. The court also notes that the documents in contention were eventually filed on the 31st of January, 2020. The court would, in the circumstances rather caution and discharge the Respondent [Mr Domelevo], and warned him to have as business like, serious and timeous an attitude to appeal and challenges to the decisions he makes as he would the surcharges and disallowances, as he cannot choose which part of the Rules he uses in carrying out his statutory duties to obey and which ones he would like to ignore, disregard and disrespect. One cannot approbate and reprobate by in one breadth holding his own statutory institution in high esteem, while his actions (or inactions) would undermine the work of the Court, another institution of State.”

7. Pursuant to an application for special directions filed by Kroll Associates on 18 February, 2020, the Court, on 25 May, 2020, determined that, in the circumstances, the matter of the status of the documents to be examined and whether or not they are prejudicial to national security was to be referred to the Supreme Court since it had exclusive jurisdiction to do so.
8. By letter dated 11th August, 2020, the Registrar of the Supreme Court notified the High Court of the holding of the Supreme Court as follows:
“Having informed the Court that the special confidential documents which necessitate the Learned Trial Judge to make a reference to this Court have been inspected by a team from the Audit-General, representing the Acting Auditor-General and found same to be satisfactory, this court is the Court is moot and the reference is accordingly struck out.”
9. The High Court, consequently, upheld the appeal on all the grounds and in its judgment dated 29th October, 2020, held as follows:

“Eventually, in the ensuing exchanges, the Senior Minister, Hon. Yaw Osafo-Maafo (as his name is spelt therein) (the 1st Appellant in Suit No. CM/MISC.0315/2020, wrote Exhibit AG 12 (also attached as Exhibit D to the Appeal) a letter dated & October, 2019 which concluded inter alia thus; “The work of Kroll Associates under the agreement include asset tracing and asset searching … which will be produced in as evidence for the prosecution and are therefore considered as privileged and confidential Information and reports. They are, however, available at the office of the Senior Minister for your inspection … They will be available after the investigations for your inspection and study.” The Respondent [Mr Domelevo] upon receiving this and other correspondences rather opted to issue a notice of specification and certification of disallowance and/or surcharge against the Appellants in the consolidated matters before the Court without taking up the offer or opportunity to inspect the documents. No reason was given for the refusal, and nothing else was heard from the Respondent, other than the issuance of the notice that has culminated in these appeals. Eventually however, when the matter was referred to the Supreme Court, not only did the Respondent’s office now agree to inspect the documents, they also expressed satisfaction with the work done… Clearly, both appeals relate to the surcharge and/or disallowance issued on the basis of no work having been done by Kroll Associates. It is dear then, that had the Respondent [Mr Domelevo] not been hasty, and had the Respondent’s office taken up the offer to inspect the documents which would be made available for inspection, the whole issue of whether or not work had been done would have been resolved without this convoluted and tortuous legal battle. Eventually, the Respondent has declared that “we were satisfied with the work done”. That has apparently settled the matter before the court regarding the issue of whether or not the work was done which merited the payment of the subject matter of disallowance and surcharge.”
The Court continued thus:

“In this case, however, the Auditor-General had clearly engaged the office of the Senior Minister directly to a point. There is however no clear reason on the record to show why he did not complete the engagement and decided to withdraw his co-operation without consummating the engagement already commenced. It must be put on record that for any and every person in public office who exercises discretionary power of any Sort, under Article 296 of the 1992 Constitution; (a) that discretionary power shall be deemed to imply a duty to be fair and candid; and (b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law… In this case, this Court holds the view that the Respondent [Mr Domelevo], in order to observe due process and to prevent any procedural lapses, ought to have at least communicated his refusal to inspect the documents for stated reasons before going ahead to issue the notices that have given rise to the Appeals before this court. Without going into any further detail, since by their eventual agreement to inspect the documents the Respondent’s office have tacitly acknowledged the error of their ways, I hold that the Respondent [Mr, Dometevo] failed to abide by the well-known rules of natural justice of giving the Appellants the opportunity to be heard.”

It is noteworthy that nary a sound of caution or condemnation was heard from you or your colleagues in civil society when Mr. Domelevo was using his office to engage in such unacceptable and unconscionable conduct. Indeed, a less charitable perspective would be that this was a patent abuse of office. Yet, there was no chatter from our friends of Civil Society.
It is important to stress that throughout the entire process, the President had no issue with the work of the Auditor-General in respect of his audit of the Ministry of Finance and the payment to Kroll Associates. The President in no way interfered with the process. With the true and accurate position enumerated above, it is mischievous and unpatriotic on anyone’s part to suggest that it was the Kroll Associates matter that led to the purported ousting from office of Mr. Domelevo. In any event, there are questions begging to be asked: who, ultimately, was the beneficiary of the attack of the Auditor-General on the work of Kroll Associates, an Internationally reputable and well-respected investigative entity, that was engaged to unearth some of the alleged corrupt Practices of the erstwhile Mahama government; was this attack in aid of the fight against corruption; and what agenda was Auditor-General Domelevo serving by this attack? Objective commentators can draw their own conclusions.
It is also worth stating that there were other occasions when the courts found it necessary to interfere with Mr Domelevo’s disallowance and surcharge of individuals and entities. For instance, as recently as December 2020, the Supreme Court, by a unanimous decision in Zoomlion Ghana Limited v. The Auditor-General [2020] DLSC 9926, held that Mr Domelevo’s exercise of the power of disallowance and surcharge against Zoomlion Ghana Limited was wrong and not supported by law.
Accumulated leave

On the matter of his accumulated leave, by letter dated 29thJune, 2020, the President requested Mr Domelevo to take his accumulated leave of 123 working days with effect from Wednesday, 1stJuly, 2020. Mr, Domelevo, by letter dated 3rd July, 2020, informed the President that he started his leave on 1stJuly, 2020 as requested and included his annual leave for the year 2020, which the President accepted in the letter dated 3rdJuly, 2020. It is important to highlight that the President, at all times in requesting Mr Domelevo to take his accumulated leave, acted based on time-tested legal principles, the rule of law and good governance practices, which Mr Domelevo accepted. In the 3rdJuly, 2020 letter, Mr. Domelevo was assured by the President that the decision for him to take his annual leave was not borne out of bad faith but rather, given the publication of the deteriorated relationship between the Audit Service Board and Mr Domelevo, the President, as the appointing authority, was the only person who could request that Mr Domelevo take his accumulated leave, which he did. Again, it is mischievous to allege that by requesting Mr Domelevo to take his accumulated annual leave, he had been targeted by the President. It is important to point out that the President acted pursuant to his understanding of the law and Constitution, and as advised by counsel. We stand by it as legal and proper. The Office of the President also stands by the well-accepted principle of public policy that public servants should take their leave, and not accumulate it. We note, however, that the issue whether the President has authority to request the Auditor-General to proceed on accumulated leave is pending before the courts and we await their views.
Retirement of Mr Domelevo

The matters relating to the date of retirement came to the attention of the Audit Service Board, which, by law, is responsible for administrative matters of the Audit Service. The Board conducted its investigation, and, in accordance with article 23 of the Constitution and the rules of natural justice, invited Mr Domelevo, by letter dated 24thFebruary, 2021, to attend a special meeting of the Board to resolve the disparities in his date of birth, which had come to the attention of the Board. By letter dated 26thFebruary, 2021, which was the date on, which the special meeting had been scheduled, Mr Domelevo declined the invitation, stating as follows:
“Whereas the information you allegedly have is false, and completely irrelevant for purposes of reckoning time for my retirement [compulsorily or otherwise], you are reminded that the Board is not my appointing authority.”

The post Domelevo was retired by law appeared first on The Chronicle Online.

Read Full Story