DISQUALIFICATIONS AND THE 2016 GENERAL ELECTIONS

Ghana Elections of Record - A service of @penplusbytes as part of its African Elections Coverage of Ghana Elections 2016

DISQUALIFICATIONS AND THE 2016 GENERAL ELECTIONS

Introduction

It has been a lingering week of anxiety for the disqualified candidates, a week marked by a flood of legal questions and simulation of many scenarios of constitutional crisis against the immovable determination by the EC to uphold what it considers its sacred duty with the day of Ghana elections, December 7 looming large at the background. In fact, there has been a succession of prickly nudging of the EC laced with caustic criticism by the disqualified parties. Not to be left out, the headlines in the media landscape are awash with twists and turns on the disqualifications and the future of Ghana’s nascent democracy. Nonetheless, in moments like this our perceptions have to make sense, our intuitions must be tested by reason and our emotions must be held in check in our bid to methodically analyse the issues.

The Electoral Commission’s Role in the Disqualifications

The genesis of the current ruckus began when the EC found errors that suggested “fraud” in the filing of the nomination forms of 13 presidential candidates out of the lot vying for the Dec. 7 polls. The EC did not wait for a scintilla of a second legal opinion before proceeding to disqualify the said 13 candidates. The Supreme Court as the final arbiter ruled that the EC should give the disqualified candidates a second chance after the errors were corrected. As if this was not enough, the EC handed down a second set of errors detected in the filing of the nomination forms on the deadline for the corrections. Do we have to go through all these?

Organization of political parties is a cardinal part of any true democracy. No election can be held without political parties. It is for this reason that in 1992, Ghana opted for the re-introduction of true multi-party democracy with clear roles for the executive, judiciary and the legislature. This system has deepened our blossoming democracy and helped it to thrive for the past 24 years. In fact, the beauty in diversity came to the fore when one democratically elected party peacefully handed power to the other twice under the fourth republic. Nevertheless, there appears to be a toxic reservoir of distrust between the political parties and the electoral governing body depending on who is at the receiving end of the ECs sharp arrows.    

The EC as a constitutional body is charged with running elections in Ghana. It is made up of 7 commissioners with or without legal training and has been supervising elections in Ghana since 1992. The 7 commissioners make decisions regarding pertinent electoral issues with pieces of advice from their legal department. The current chairperson of EC came into the job as a lawyer and a former Chairperson of National Commission on Civic Education (NCCE): one of the key institutions responsible for civil education in Ghana. Those who know her and had ever worked with her testify that she prizes her reputation for integrity and rises above partisan party politics. However, her decision to disqualify 13 presidential candidates and the persistence at the law courts appears to fit the hubris-nemesis syndrome. Indeed, just like the mythical Icarus driven by hubris, she has driven the EC too close to the supreme law of Ghana and has crushed into a flooded river of near public contempt. At this stage common sense must prevail when dealing with mistakes: "Stop the bleeding and put it behind you by apologizing. You don't careen from one self-inflicted wound to another on an hourly basis." No single individual or body knows the truth of the law.

The Public Regulation CI 94 as the Determinant of the Disqualification

The disqualification of some presidential candidates, the reversal of the decision by the High Court and the subsequent appeal by the EC to the Supreme Court was based on the provisions of CI 94 and the 1992 Constitution of Ghana. From the statement issued by the EC on the disqualification, Dr. Nduom was disqualified on the basis that one of his subscribers (Richard Asida) breached Regulation 7(2) (b) by endorsing the form in two different districts. Interestingly, another part of the same law requires that the EC check for errors and when identified must grant permission for the errors to be corrected within the window of the submission period. The question is how long did it take the EC to identify the errors when Dr. Nduom submitted his form? Time being an important ingredient here, why did the EC not ask Dr. Nduom to wait for the forms to be checked and corrected? As for the criminality of the subscriber, the EC could have handed the case to the appropriate institution for action to be taken as the EC indicated in its own statement. Similarly, Hassan Ayariga’s disqualification was about no evidence of hometown or residence and two of his subscribers also subscribing for another candidate. 

The discourse clearly points to a choice between principles and convenience. Natural justice is a key part of any law and its adjudication. In this vein, it is important that one adheres to the dictum of “altera tantum parte audita” (hear the other side). Dr. Nduom asked for five minutes meeting with the EC but was turned down. Is that not a flagrant abuse of power in the name of public service? At least Justice Atuguba gave a ‘touchline’ warning of contempt long before sentencing of the recalcitrant social commentators during the 2012 election petition case in the Supreme Court. It appears the EC was not prepared to sacrifice its time to follow its own procedure in the checking and correcting of the mistakes but is prepared to unnecessarily raise the anxiety of Ghanaians through its inactions and actions.

In the case of Mrs. Nana Konadu Agyeman Rawlings, the same article in CI 94 was used where her subscriber was accused of double registration and on an exclusion list therefore not qualified to endorse her nomination form. Her disqualification touches a core issue as far as the electoral register is concerned.   The EC had assured everyone that the voters register has been cleaned especially, those who have registered twice. This was rightly pointed out by the EC in its own statement, which means the subscribers for the NDP candidate do not add up to the required number. This is a matter of clerical error that could have been corrected as a matter of procedure on one hand and recommending that individual for prosecution as a matter of law on the other. It is intriguing to know that the list of people who have done double registration has not been made public and only known to the EC. The EC has kept this list to itself and appears to knee-jerk in its duties instead of being proactive. How could the candidate know those who have done double registration if the list is not a public document? In any case if the EC allows the candidates to correct the errors and file their nominations, will that take away the criminal part of the offence? The answer is a resounding No.

Continuous Litigation and Simulation of Constitutional Crisis

There exist constitutional provisions, which permit ad hoc measures to keep the affairs of the nation running in case of any emergency or war. For instance, let us assume without admitting that the Supreme Court failed to adhere to the timelines of the EC and the case drags on beyond the 30-day interval for notice of poll of Dec. 7. It means the notice of poll as stated in section 16 of CI 94 and Article 63 (2) (a) (b) of the 1992 Constitution will be breached and if the poll is not taken on Dec. 7, the executive arm will cease to exist. In the case where the speaker becomes acting president Article 60 clause 13 stipulates that in the absence of the president and the vice president; the speaker becomes the leader of the nation (only for three months within which a new president must be elected). The worrying part of this scenario is that, the Speaker of Parliament may not have the muscle to wield executive powers to subdue any internal insurgency. 

Acting outside the period of the 3 months window (expiration of the presidents term of office is Midnight 6^th December) may be unconstitutional. However, the counter claim to this scenario is provided in Article 112(4) which states “a general election of members of Parliament shall be held within thirty days before the expiration of the period…” of its first sitting. If this is not done before midnight of January 6, parliament shall also stand dissolved {Article 113 (1)}. Litigation before election is not justification to stop or postpone the election, in any case judges can sit on any electoral dispute even in the morning of the election or at worse ignore it. These impediments and other practical exigencies may pose a constitutional crisis.

In the unlikely event where Ghana is at war parliament is empowered to extend its tenure {Article 113(2)} by 12 months at a time for 4 years. This therefore means that there is enough time for a president to be elected. These are just simulation of different scenarios that fit into the human pattern of logic, however, the 1992 Constitution of Ghana has inbuilt mechanisms to cure any crisis.

Conclusion

The laws of Ghana are created within the context of formal agreements, social facts and historical antecedents, and couched in performative language. A suitable person is appointed and clothed to administer such a law. The citizens of Ghana are interested in the meanings attached and the spirit behind our laws. After December 7, a serious soul-searching and critical scrutiny of the laws governing our elections need to be conducted within the EC about how this whole drama has played out. The nation's flagship agency in our nascent democracy has become a source of worry to many Ghanaians with many lawsuits that spilled into the Supreme Court. The parties that have gone to court and won will bear a lasting grudge against the EC for the near-derailing of their campaigns.

This article is part of a series of publications geared towards contributing to making Ghana’s elections to be issues based and it is made possible with funding from the American Embassy and INDIGO Trust.