The Supreme Court’s Decision In Martin Amidu’s Case In A Nutshell: In Re: Ayine V Attorney- General (Part 1)

On 13th May, 2020, the Supreme Court gave judgment in the case in which a former Deputy Attorney-General of Ghana, Dr. Dominic Ayine, had sued the Attorney-General, challenging the appointment and swearing in of Mr. Martin Amidu (a former Attorney-General of Ghana) as Special Prosecutor.

Dr. Ayine’s Arguments

The grounds for Dr. Ayine’s case were that, at age 66, Mr. Amidu had already exceeded the retiring age of public officers in Ghana at the time he was appointed, vetted and approved by Parliament and sworn in by the President in February, 2018. According to Dr. Ayine, the position of Special Prosecutor is a “public office” under the Constitution and, therefore, the occupant is expected to compulsorily retire at age 60, or at most, 65 years.1 Therefore, the President’s decision to appoint Mr. Amidu as Special Prosecutor when the latter had already attained the compulsory age for retirement of pubic officers was unconstitutional and ought to be set aside.

The Attorney-General’s Response

The Attorney-General responded by arguing that although Mr. Amidu was appointed as a public officer, he was not appointed as a career public servant; but merely as a public officer who occupies an office the emolu[1]ments of which are paid out of public funds or an office set up by public funds. Thus, Mr. Amidu was appointed under the Special Prosecutor Act2 and not the Constitution. The Attorney-General stated, therefore, that there are different categories of public officers; those who retire at age 60 under the Constitution and those whose retirement is not so fixed by the Constitution. Moreover, the Attorney-General argued, the Constitu[1]tion does not place age limitation on all public office holders and therefore there is no restriction on the President to engage a public officer above the age of 65 years who had previously retired from the public service to hold office in the public service. The Attorney-General concluded that Mr. Amidu’s nomination, vetting, approval and appointment as Special Prosecutor was, therefore, constitutional.

The Supreme Court’s Decision

By a 5-2 majority decision, the Supreme Court held, among other things, thus:

  • The Constitution does not state one compulsory retirement age of sixty (60) years for all classes of public officers.
  • The retirement age of public office holders in the public services is 60 years for majority of the core administrative staff.3 However, in the case of other public office holders who are classified as critical staff, their tenure is fixed in terms of the years of service that are stated in the law appointing them or in their letters of appointment.4 Mr. Amidu’s appointment as Special Prosecutor falls under this second category.
  • A public officer whose expertise is critical to the function of a public service and is above the age of 65 years is eligible to serve a tenure calculated in number of years as could be found in the Special Prosecutor Act. Also, where the exigencies of the service require, any other public officer in the public services can be offered post-retirement employment of up to 5 years in any public office, thereby extending their retirement age from 60 to 65 years.

 

Footnote:

1 See: Article 199(1) of the 1992 Constitution
2 Sections 13 and 16 of the Office of the Special Prosecutor Act, 2017 (Act 959)
3 Public services created under Article 190(1)(d). 4 Public officers appointed under Articles 70 or 195.

ABOUT THE WRITER

Francisca Serwaa Boateng is the Founder & Managing Counsel of FSB Law Consult.

Contact: francisca@fsblawconsult.com | Tel: 0302818433/0208195042 | www.fsblawconsult.com

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