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EC slot: Prof Asare advises Akufo-Addo, Council Of State

Kwaku Azar 44332 Professor Kwaku Asare United States-based Ghanaian law Professor

Tue, 3 Jul 2018 Source:

President Nana Addo Dankwa Akufo-Addo must be careful about who he appoints as the new chair of the Electoral Commission (EC), Professor Kwaku Asare, a United States-based Ghanaian professor, has said.

In a post on Facebook, Prof Asare said: “I readily concede that the opportunity to name members of the EC is one that is too tempting, from a transactional leadership perspective, to ignore.

Read full post below

In 2015, I stated that the constitutional provision relating to the appointment of members of the EC should be read carefully not literally.

Based on that, I argued that the appointment of the EC chair is substantively the job of the Council of State and not the President. I was emphatic then, as now, that the President’s role in both the appointment and removal of the members of the EC is merely ministerial!

My reasoning was simple — that “advice” is a term of art and constitutes a binding instruction to a constitutional officer. Further, as a prudential matter, I maintained that reading the Constitution to allow a President to appoint the political referees can only lead to chaos.

I also suggested that the Constitution contemplates that the Council of State will put in place a transparent and public mechanism to search for, vet and nominate a candidate for the President to “appoint.”

I distinguished between the President’s power of appointment as Head of State and Head of Government. When the President appoints or removes the EC members, it is in his role as Head of State. He announces the appointments and removals, although he does not have much to do with them and may very well even disagree with them.

I suggested that the search of the EC chair and members could be done in a variety of ways:

(1) The Council could constitute a search committee of its members to identify a short list of qualified persons for the Council to choose from.

(2) The Council could commission experts and other consultants to advise it. For instance, the Council could ask the Public Service Commission to identify a short list of qualified students.

(3) The Council could advertise the position or call on citizens, political parties, NGOs, etc. to nominate candidates either to the Council at large or to the Search Committee.

Finally, I urged the Council of State to use a public and transparent process that will give the populace confidence in their work and its binding advice to the President.

My advice fell on deaf ears to disastrous consequences that we are all now witnessing. We can learn the proper lessons and move forward or we can continue with the opportunistic misinterpretation of those articles.

The Council of State must now assume its proper role in the appointment of the members of the Electoral Commission.

If, however, the Council of State is proving that it is unable or unwilling to perform this role, then it is time to amend the Constitution to assign the role to the Public Service Commission. Alternatively, if we prefer that the politicians do the appointment then the nominee must be subjected to parliamentary scrutiny with a 2/3 super majority vote needed for confirmation.

In the meantime, the President has the opportunity to engage with the nation on the proper process for appointing and removing the members of the EC.

Already, considerable mischief is being done by some in blaming him for removing the EC members, even though it is plain that he had no role whatsoever in that process.

I readily concede that the opportunity to name members of the EC is one that is too tempting, from a transactional leadership perspective, to ignore. Further, there is the uninspiring excuse of following the wrong precedent —- my predecessors did it why not me?

I demur!

The President must also be wary of the numerous voices that will urge him on to appoint X or Y. It is not part of his task to appoint the referees of the political game! Leave that to the Council of State, who must justify its existence by naming commission members with the wisdom that the Constitution assumes it possesses.

It is because of all of the above that I call on the President to play a transformational role in leading the nation to properly interprete the constitutional provision pertaining to appointing members of the EC.

Da Yie!

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