Consequently, it is our opinion that unless the incumbent occupying the office of the Auditor-General, duly appointed by Article 70(1)(b) and sworn into office as prescribed in the 2nd schedule of the Constitution, 1992, has vacated the position through resignation, retirement, death, or removal by Article 146, any action taken by the President or any person purporting to act on behalf of the President to designate another individual as "Acting Auditor General" or in a similar capacity would be in contravention of the Constitution and null and void.
Direction to an independent officer to proceed on leave
Hence, the Auditor-General cannot be compelled to proceed on leave by any authority, especially where the effect of the directive was to interfere with the performance of his constitutional mandate. As the Malawian case, supra noted, “The issue of leave administration is purely an internal matter….” Consequently, it is our opinion that the issue of leave of the Auditor-General is an administrative matter within the purview of the Auditor-General and his Management. The directive of the President requesting the Auditor-General to proceed on leave under sections 20 and 31 of the Labour Act 651 violated the functional and institutional independence of the Auditor-General.
Meaning and extent of the independence of a constitutional office
Judging from the essence and sensitivities surrounding the responsibilities bestowed upon the Auditor-General by the Constitution, it becomes evident that functional independence is an indispensable prerequisite for the proficient execution of their duties. It will be impossible for the nation to achieve or sustain the independence of these constitutional bodies if the constitution is interpreted to whittle down the concept of separation of powers and the equally salutary principle of checks and balances envisaged by the framers of the Constitution.
Presidential power of disciplinary control over an independent officer
Given that the removal of the Auditor-General is addressed explicitly in Article 146, it follows that the President's ancillary power under Article 297(a) cannot be applied to the removal of the Auditor-General and other Article 70 office holders. By extension, the President's ancillary power to exercise disciplinary control cannot be invoked in this context, as it would undermine the intended safeguards and independence of the Auditor-General's office. Thus, to align with the constitutional framework, it is reasonable to interpret that the President's disciplinary control does not extend to the Auditor-General or other similar appointments, as any disciplinary action is subject to specific provisions outlined in the Constitution, i.e., Article 146. The directive to proceed on accumulated leave, albeit temporal, interfered with the day-to-day functions of the Auditor-General. Since it did not comply with Article 146, the directive constitutes a constructive removal and, therefore, unconstitutional.
Relationship of the Auditor-General to the Audit Service Board
The significant role that the Auditor-General plays is the reason why his tenure has been secured and cannot be disrupted by directives from any authority, such as the Presidency or the Audit Service Board, to proceed on work leave. Though the Auditor-General is a necessary member of the Audit Service Board, which in his absence cannot meet and transact any business, he is not subject to the direction or control of the board whose role is limited to corporate governance, the overall performance and discipline of the Audit Service staff excluding the Auditor-General.
It is evident that the Constitution, 1992 guarantees the security of tenure for the Auditor-General, similar to that of a Superior Court Judge. The Constitution explicitly outlines the circumstances under which a Superior Court Judge (and, by extension, the Auditor-General) can be removed from office. This clear and unambiguous specification ensures that the Auditor-General can only be removed from office in accordance with the prescribed procedures.
