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US-based Ghanaian lawyer and Professor of Accounting, Kwaku Asare has taken a swipe at both the executive and the Judiciary for their respective roles in the matter involving senior Minister Yaw Osarfo Marfo and Kroll and associates. According to him, the recent decision by the high courts, clearing Osarfo Marfo, and five others of the $1 million dollar refund should at least occupy the minds of many, who are concerned with the rule of law.

The AG, Daniel Domelevo had issued the surcharge against Mr. Yaw Osafo-Maafo, Michael Ayensu, Abraham Kofi Tawiah, Patrick Nomo, and Eva Asselba Mends, all officials of the Ministry of Finance, and a UK firm, Kroll and Associates in a value-for-money audit of some projects to identify wrongdoers and recover assets before being forced to proceed on leave

In a statement cited on his Facebook page, the law lecturer expressed worry such decisions set a bad precedence for independent constitutional officers. Read the full post below

Unfortunately, the high court’s ruling on Kroll and my uncle, General Marfo, will always have an asterisk.

History will not be kind to my good friend, the President, and the Judiciary for this asterisk.

That history will reflect that the Auditor-General (AuG) surcharged Kroll and my uncle $1M for work that in his opinion had not been done. The AuG arrived at that conclusion after not being allowed to examine evidence of the work done.

It was entirely lawful for my uncle and Kroll to seek judicial review of this finding, which they did at the Asare-Botwe high court.

This is when things started falling apart. With global respect to his excellency, he tainted his legacy on constitutionalism indelibly when he ordered the AuG to proceed on an involuntary leave.

With global respect to the Supreme Court, the Justices inflicted mortal wounds on the institution when they failed to act timeously on the application to get the AuG back to work and to restrain the Deputy AuG from performing the functions of the AuG.

Further, with celestial respect to the Supreme Court, it erred as a matter of constitutional law when it allowed an Acting AuG, a position unknown to the law, to appear before it and further directed him to examine the contested evidence in the Kroll case.

This is worsened by the fact that there was a pending case before the Court challenging the constitutionality of the Deputy AuG acting as AuG.

Was the Court’s recognition of the Acting AuG prejudicial to the pending case? You be the judge of that!

Having so erred, the apex Court left the Asare-Botwe high court no option but to drink from the poisoned lake and take the Deputy AuG’s testimony on the disputed evidence.

Few will take seriously the proposition that the Acting AuG’s evidence on this matter was free from bias. Under the circumstances of his “appointment,” his independence in appearance, if not, in fact, was compromised irreparably.

It does not help this threat to independence when evidence that was not available and had become the basis of a surcharge suddenly appears when the AuG is disabled and an Acting AuG is enabled!!

This sordid affair sets constitutionalism back by decades and will, or at least should, occupy the minds of many, who are concerned with the rule of law.

In the premise, my uncle and Kroll won a pyrrhic victory, his excellency laid his bed in the dark pages of our constitutional history, and the Court reminded us that Akoto never dies!

Sadly, independent constitutional officers, current and potential, will learn the wrong lesson —— play ball or get played!