The Office of the President, through correspondence with the Office of the Chief Justice, has offered an explanation for the decision by the Mahama-led National Democratic Congress government to vary the current levels of salaries of Judges and Magistrates of the nation’s Lower Courts to their disadvantage.

According to a letter signed by the Chief of Staff, Prosper D K Bani, the new levels of salaries members of the Lower Bench have been enjoying for close to a year now, and which was used to employ new Judges and Magistrates in July this year, “was inadvertently approved.”

Investigations carried out by the New Statesman indicate that, beginning this month, the 49 affected Circuit Court Judges and 145 Magistrates could see over 50 percent cut from their current salaries.

This has generated tension and anger among the Judges and Magistrates, with some of them threatening to resign if the decision is implemented while others say they will remain at post and adopt lackadaisical attitude towards their work.

The new salary levels was communicated by the Finance Minister, Seth Terkper, to the Controller and Accountant General for implementation in a letter dated February, 27, 2013, after the President had accepted recommendations for the increase from a Presidential committee set up by the late President John Evans Atta Mills, to review the pay levels.

The letter reads in part: “Following His Excellency the President’s acceptance of the recommendations of the Presidential Committee on emoluments for Article 71 Holders and the Report of the Presidential Committee of Emoluments for Justices of the Superior Court of Judicature, approval is, hereby, given for the salary levels in Appendix A to be used to effect the payment of salaries of the Lower Court Bench.”

The letter further instructed: “The effective date of implementation is 1st January, 2009. The payment of the outstanding arrears is to be effected in one instalment. We wish to reiterate that the new salary levels are consolidated and, therefore, payment of salary-related allowances should cease.”

Following this directive, the Judges and Magistrates were paid all the outstanding arrears accordingly and have been enjoying the new salary levels for close to a year now. But now the Office of the President says the approval for the payment of the new salaries was “inadvertently” done and so in addition to the decision to pay the Judges and Magistrates the old salary levels, which will see them losing over 50 percent of their current salaries, they are going to refund the “excess payment.”

This was communicated to the Chief Justice in a letter dated April, 10, 2012 and signed by the Chief of Staff, Prosper D K Bani.

The letter reads: “The salary levels for the Lower Court Bench as conveyed in the Ministry of Finance letter No.ERDF/13/SAL.1 of 17th February 2013 was inadvertently approved. The approval has therefore been withdrawn. The members of the Lower Court Bench are to refund the excess salaries paid to them. However, in order not to impose undue financial burden on the members of the Lower Bench it has been decided that the excess payment should be recovered through regular monthly deductions over a period of time.”

Following this directive from the Office of the President, the Finance Minister, Seth Terkper, accordingly wrote to the Controller and Accountant General in November this year, to stop the payment of the new salary levels.

The letter dated November 6, 2013, with the caption NEW SALARY LEVEL FOR THE LOWER COURT BENCH, reads in part: “Please refer to this Ministry’s letter number ERFD/13/SAL.1 dated February 27, 2013, on the above subject (copy attached). In the letter under reference, the Ministry of Finance approved new salary levels for the Lower Court Bench. The Office of the President, per a letter number SCR.A.14/8 dated April 10, 2013(copy attached) has withdrawn this Ministry’s approval and has requested members of the Lower Court Bench to refund the excess salaries paid them.”

The letter further instructed the Controller and Accountant-General: “You are kindly requested to stop the payment of the new levels as indicated in this Ministry’s letter under reference. The modalities for the recovery will be discussed.”

The decision, which appears to be in contravention of the 1992 Constitution, is likely to end in the Supreme Court. The New Statesman can state on authority that a concerned citizen is preparing to challenge the legality of the action by the Mahama government. The concerned citizen will come under Article 2(1) a & b to seek a declaration that the action by the government contravenes Article 127(5) of the 1992 Constitution.

Article 127(5) states that “The salary, allowances, privileges and rights in respect of leave of absence, gratuity, pension and other conditions of service of a Justice of the Superior Court or any judicial officer or other person exercising judicial power, shall not be varied to his disadvantage.”

Article 2(1) a & b states that “A person who alleges that an enactment or anything contained in or done, under the authority of that or any other enactment; or any act or omission of any person, is inconsistent with, or in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”