Ivy Benson
12 November 2009
Accra — The State Attorney and the counsel for the interdicted Principal Accountant of the Ministry of Youth and Sports yesterday locked horns before an Accra Fast Track Court (FTC), as they argued out their cases on whether or not the President's action, to interdict the Principal Accountant over some financial impropriety at the ministry, was appropriate and within the laws of the land.
While Mr. Godfred Yeboah Dame, counsel for Mr. Adim Odoom, the interdicted Principal Accountant at the Youth and Sports Ministry, argued that the President and the head of Civil Service acted arbitrarily, and shoved away the rules of natural justice in applying sanctions on his client for blowing the cover of the former Minister, Alhaji Muntaka Mubarak, over financial impropriety, Mr. Elikplim Agbemava, a State Attorney rebutted the assertion and stated otherwise.
Arguing his case before the court, presided over by Justice (Mrs.) Novisi Aryene, Mr. Yeboah Dame noted that even though no misappropriation was made against his client, the head of Civil Service asked the applicant to proceed on leave, notwithstanding the fact that his leave was not due.
According to the counsel, his client was made to appear as a witness before the National Security investigation panel set up by the President, noting that the applicant was denied a lawyer on the basis that the exercise was harmless, and the applicant not a subject of the investigation.
Counsel further indicated that his client was not given the opportunity to hear the testimony of the then Minister of Youth and Sports, adding that the President accepted the findings of the National Security panel, and ordered his interdiction for failing to adhere to laid down financial and accounting regulations, without giving the applicant a hearing.
Mr. Yeboah Dame further noted that his client, to date, had not been furnished with the findings made by the National Security investigations, even though he had been affected by it, emphasising that the decision of the President to punish applicant for providing information over impropriety, was clearly the victimisation of a whistleblower.
According to the counsel, so far as the disclosure was made to an official at the seat of government, the person making the disclosure is protected under the law, as the applicant is immune from any act of victimisation from his employer.
The counsel pointed out that it was the duty of the Civil Service Council to determine sanctions against an official when he or she is culpable of any offence, stressing that the President was enjoined to follow the Civil Service Act, if he is to punish an official in the service for wrongdoing, noting, "the President is not the repository of the disciplinary committee, and therefore could not have instituted punishment against the applicant."
In a swift rebuttal, the State Attorney from the Attorney General's Department, Mr. Agbemava, noted that the assertion made by counsel for the applicant was premature, since it was pre-judging the findings of the disciplinary committee that was yet to commence its work on the issue.
According to the State Attorney, the presidential committee was a fact finding committee that heard all persons mentioned in the allegation made by the applicant, noting that the applicant distributed his statement of impropriety against the former Youth and Sports Minister outside those mentioned by the whistleblower act.
Mr. Agbemava further noted that the action of the applicant was borne out of malice, stressing that having failed to comply with the provisions of the whistleblower's act, Mr. Odoom could not be protected under the law.
The State Attorney also noted that the applicant had not filed his statement of impropriety before the court, for it to make assessments as to whether or not the complaint was made in accordance with the whistleblower's act.
Mr. Agbemava indicated that the applicant, as an accountant, could not account for substantial amounts of tax payers' money given the then minister, emphasizing that the applicant did not make the disclosures on reasonable cost under the whistleblower's act.
Explaining further, the State Attorney noted that whistle blowing must be made on certain fundamental principles, and not going round ruining the jobs of colleagues in the office, as the applicant had caused the resignation of the then minister at the ministry.
To Mr. Agbemava, the proper forum, under the laws of the land, was for the applicant to go before the Commission for Human Rights and Administrative Justice (CHRAJ), before coming to court, pointing out that conclusive decision would be made by the Disciplinary Committee, before any action could be taken against the decision of the President.
The State Attorney was of the view that the reports submitted by the National Security investigation, are findings of fact within which the President acted, asserting that misconduct would by unearthed by the Disciplinary Committee, following the National Security investigation on the allegation of impropriety made against certain persons at the ministry.
Mr. Agbemava further observed that the President wields executive power, and makes all appointments, and therefore directs for appropriate sanctions to be applied where needed, asserting that the Head of the Civil Service and the President had not acted arbitrarily, as it was up to the applicant to decide whether or not he was going to appear before the Disciplinary Committee.
The State Attorney emphasised that the applicant had not been dismissed, but was under interdiction, and that the applicant would resume duties when the committee completes its work.
In response, Mr. Yeaboah Dame, counsel for the applicant, informed the court that his client complied with the whistleblowers' act, by initially filing a petition before CHRAJ, before proceeding to the court, stressing that they were not aware of any disciplinary committee that would be looking into the conduct of the applicant. The court has therefore fixed November 23, 2009 for its ruling.
The argument followed an application for Judicial Review against the Attorney-General and the Head of the Civil Service, filed by the applicant, Mr. Odoom, on grounds that he had been treated unfairly, after exposing Alhaji Muntaka Mubarak, then Minister of Youth and Sports, for financial impropriety.
However, the State Attorney successfully had the court's authority for the name of the Head of Civil Service to be detached from a suit instituted by the interdicted Principal Accountant of the Ministry of Youth and Sports, on the grounds that it was an offense against the constitution.
According to the court, the Attorney-General is to be sued for the wrongs of state officials in the course of their official duties.
Mr. Odoom, who describes himself as a whistleblower, is seeking a declaration of the court that the sanction taken against him by the President, and implemented by the Head of Civil Service, was unlawful.
Additionally, the applicant is requesting the court to quash the decision to interdict him, on the grounds that due process was not followed, and, therefore, it was a violation of the relevant laws and disciplinary regulations of the Civil Service of Ghana.
He is further seeking, among others, an order prohibiting the respondents from imposing any disciplinary sanctions against him, on the basis of the National Security report on investigations into allegations made against Alhaji Mubarak, and also requesting the court to grant an order of mandamus to compel the Head of the Civil Service to allow him to resume his normal duties, as the Principal Accountant of the ministry.
Following Mr. Odoom's allegation of financial impropriety against Alhaji Mubarak, the President instituted a National Security investigation into the allegations, and it was recommended that he should be interdicted for failing to observe laid down financial and accounting regulations.
The Applicant was therefore ordered to proceed on leave on July 7, 2009.
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