It has been a ritual of winner takes all politics whereby a political party that wins elections and subsequently go through the transitional process sacks all appointees at the various Ministries, Departments and Agencies.
In the case of Theophilus Donkor v. The Attorney General with the Suit No. J1/08/2017 at the Supreme Court clearly indicated the appointees who can remain in ofdice after the “takeover” by another government.
Invoking the Original Jurisdiction of the Supreme Court on the interpretation of the Supreme Court, the plaintiff sought to know whether;
(a) Whether the President in line with Article 297(a) has the legal authority to remove members of the governing boards of public corporations appointed pursuant to Articles 70(1)(d)(iii), 190(1)(b) and 190(3) of the 1992 Constitution without just cause;
(b) Whether or not section 14 of the Presidential (Transition) Act is inconsistent with articles 70(1)(d)(iii), 190 and or 191(b) of the Constitution, 1992; and
(c) Whether or not article 190(b) of the Constitution, 1992, also applies to the category of officers mentioned in section 14 of Act 845.
The Apex Court of the land held that Officers appointed as chairpersons and offices of the governing bodies of public corporations are not members of the Public Service and their tenure is not governed by articles 191 and 195 (which requires justification for removal) of the Constitution and therefore they may be removed on the assumption of a newly elected president.
The Court also held that Executive Heads of statutory boards and corporations are not affected by section 14 of Act 845. They are public officers under Article 190 of the Constitution. They hold office under terms and conditions stated in their letters of appointment and may only be removed in accordance with those terms.
The interpretation given by the Supreme Court in the above case to officers appointed in accordance with article 70(1)(d)(iii) of the Constitution (i.e. as chairpersons and members of the governing board) is that these persons are not members of the Public Service.
Because these officers only joined the service by virtue of an appointment made by the executive, unlike permanent officers who applied and were taken throughout the usual rigorous selection process. Thus, their tenure is not governed by articles 191 and 195 of the Constitution and therefore they may be removed on the assumption of a newly elected president.
However, heads of statutory boards and corporations even though captured under Section 14 of Act 845 are not affected by section 14 of Act 845 . They are already public officers under Article 190 of the Constitution. They hold office under terms and conditions stated in their letters of appointment and may only be removed in accordance with those terms.
Again, the intendment of Section 14 of the transitional provisions is to ensure that a new President is not saddled with office holders appointed by a previous President who may not believe in the new president’s policies.
But to avoid a situation where the whole nation would be brought to a standstill until new appointments are made, this judgment safeguards the tenure of office appointed as heads of public corporations (other than those of a commercial nature) irrespective of who their appointing master was.
It is therefore important to note that governance and win of “power” is not about moving away each and everyone in a public institution and replacing “party” boys in undeserving positions. The institutions and respective laws must work.
By Saint Ayisi
