Theophilus Donkor v Attorney General: A new dance for a new President and appointees of a previous Government

It’s final. Both Parliament and the Executive were wrong. No longer must some public servants leave office simply because there has been a change in Government.

Since the advent of the Fourth Republican Constitution, in-coming and incumbent governments bring and appoint their “men” to head public boards and corporations. When they lose power, the succeeding government removes all those men and replaces them with their own “men.” The Presidential (Transition Act) 2012 (Act 845), which automatically removed certain appointees from office once the term of the appointing President ended, was seen as giving legitimacy to the practice.

On 12th June 2019, the Supreme Court delivered its decision in “Theophilus Donkor v Attorney-General [Unreported, Suit No. J1/08/2017, 12/06/19], which explained that the wholesome removal of persons appointed into public office upon assumption into office of a new President was, to some extent, unconstitutional. The decision is important because it clarifies the position on the category of persons, whose appointment may or may not be terminated upon the assumption of office of a new President. The Court held as follows:

I. Members of governing boards of statutory boards and corporations appointed in accordance with article 70(1) (d) (iii) of the Constitution were not members of the Public Service and their tenure was not governed by articles 191 and 195 of the Constitution and therefore they may be removed at any time by the President.

II. A public service officer appointed in accordance with article 195 of the Constitution may not be removed except in accordance with their employment terms and conditions or for “just cause” as provided under articles 191 and 195 of the Constitution.

III. To the extent that section 14 of the Presidential (Transition) Act 2012, (Act 845) requires Chief Executives or Directors-General (howsoever described) of public boards or corporations to cease to hold office upon the assumption of office of a newly elected President, same is declared to be unconstitutional and void for being in contravention of articles 190 and 191 of the Constitution.

Effect of decision

By this decision, the Supreme Court has clarified the position on who may or may not lose their position upon the assumption into office of a new President. The previous practice of automatic removal of government appointees to statutory bodies/boards, chief executives of public bodies, dissolution of boards of statutory bodies upon assumption of a new President must stop. Chief executives may only be removed in accordance with the terms of their appointment or with just cause.

The only persons who are automatically removed are those specified in the Schedule of Act 845. Persons appointed as: (i) institutional representatives; (ii) members of the public services; and (iii) chief executives are not automatically removed. Governing bodies/boards are not automatically dissolved.

A potential problem that may arise from Theophilus Donkor is the situation where a new President may be “forced” to work with a chief executive appointed by a previous President, who does not share the same ideology, goals or vision or is a member of a different political party.

It may also lead to a situation where an incumbent President upon losing an election and before leaving office decides to appoint into vacant chief executive positions, their cronies who support their agenda with the aim of frustrating a new President. Alternatively, the exiting President may decide to legally terminate chief executives and appoint people into office with the aim of frustrating the new President.

Thus, it is important to have clear termination terms in the appointment letters of chief executives that enable new Presidents remove them easily.

Decision, Labour Act and Article 191(b) of Constitution
The Labour Act, 2003 (Act 651) allows termination without reasons by giving notice or salary in lieu of notice. Parties may also agree on mutual termination.

Act 651 applies to all workers and employers except the Armed Forces, Police Service, Prison Service and the Security and Intelligence Agencies specified under the Security and Intelligence Agencies Act, 1996 (Act 526). Thus, it would seem that Act 651 may be applied in removing a chief executive of a statutory body covered under Act 651 by simply giving notice or salary in lieu of notice. However, such chief executives are public officers and may only be removed with just cause under Article 191(b) of the Constitution or under their terms of appointment. Thus, the power to terminate without reason under Act 651 will not apply to them.

Currently, the provisions of Act 651 on termination of employment are usually captured in appointment letters of chief executives and it is hoped this remains unchanged.

Overall, Theophilus Donkor is an important decision that clarifies and provides a roadmap on how appointees to statutory bodies are to be treated when a new President assumes office. However, even though it provides a good roadmap, it is not devoid of pitfalls and has the potential of leading to some conflicting situations.