“Ayine V Amidu Case” calls for an amendment to the Mandatory Retirement Law | Characteristics

I woke up to the news that the Supreme Court (SC) decided the Ayine v Amidu case by a 5-2 majority against the plaintiff.

It is good that this matter, although delayed, has ended. In a democracy, the Court has the last word and has spoken. All other views are just that. He would have voted with the minority because Parliament does not have the authority to create a public service position that subverts the retirement age scheme stipulated by the Constitution.

The Constitution creates two types of public officials, one who can be fired only for cause and the other at will. (See box above). At will, public officials are normally elected or serve at the discretion of elected officials. They may be dismissed at will by the electors or their designators. Because their tenure is dangerous at best, the Constitution does not specify the mandatory age.

Because of this, public officials are normally career officers and can only be fired for good cause. Because their tenure is guaranteed while they act properly, the Constitution establishes a mandatory retirement age. Here, the Constitution itself establishes that a few in this category must retire at age 70, others at 65 and all others at 60. This means that, unless the opposite is included in the group of 70 or 65 years , a public official must retire at 60.

The Special Prosecutor is a public service post for cause. It is not chosen nor does the occupant serve the designators. Clearly, it’s just a specialized prosecution charge.

In my opinion, the fact that the Constitution itself allows some public officials to retire at 65 and 70 does not mean that Parliament can also create posts that set the retirement age beyond 60 or otherwise effectively alter the constitutional retirement scheme.

Otherwise, we are in a regime where all that Parliament must do is create a position of Special Professor or Special Nurse and stipulate that they serve for a period of 10 years, which then allows them to be appointed after mandatory retirement by 10 more years.

It is logically unpleasant that a DPP is mandatorily retired at age 60 only to be appointed to another public service prosecution position for a fixed term. If one is in charge of prosecuting corruption or prosecuting armed robbers, one should not determine the retirement age. At least, that facially absurd regime is not in the Constitution.

Similarly, while the Constitution sets a minimum age of 40 for the President and 21 for a MP, that does not mean that Parliament can also begin to set its own minimum age limits for public service positions.

To me, all of this points to the importance of amending the mandatory retirement law to increase it to 70 and allow people to voluntarily retire at 60.

Prof. Kwaku Asare, Professor of Law and Member of Democracy and Development in Public Law and Justice at CDD-Ghana. The opinions expressed in this publication are solely his and not representative of the opinions of the institution with which he is affiliated.