Appointing the Chairman and Members of the Electoral Commission

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Ugly Akufo Addo 11 years ago

His senses are weak

His senses are weak
AKORA OTENG 11 years ago

Cos of your stupid art., you could not be brave enough to use your name or even your pen- name. People like you are NOT wanted in our discussions and it does not ugur well for the intergrity of Ghana. If Nanas senses are weak ...
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Cos of your stupid art., you could not be brave enough to use your name or even your pen- name. People like you are NOT wanted in our discussions and it does not ugur well for the intergrity of Ghana. If Nanas senses are weak, by winning the Presidential aspirant so convincing ,he is going to get many strong ADVISERS and for you, I think you do NOT have any senses at all and you do not care about how Ghana becomes. PATHETIC!
Abbey 11 years ago

Is the writer the disappointed so called prof whose case died before even arriving at the entrance of the supreme court? So called constitutional expert indeed!!!

Is the writer the disappointed so called prof whose case died before even arriving at the entrance of the supreme court? So called constitutional expert indeed!!!
William 11 years ago

Did the Constitution not say 'adivice"?How does that reduce the import of the call by the GBA? I hope the GBA means the President should give us another "Afari Djan", fearless and with integrity; not someone who will be swaye ...
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Did the Constitution not say 'adivice"?How does that reduce the import of the call by the GBA? I hope the GBA means the President should give us another "Afari Djan", fearless and with integrity; not someone who will be swayed by politicians or unnecessary distractions from any source!!Hopefully Afari Djan should also help recommend competent candidates for the President's consideration. And even provide technical support to the Council State in their deliberations.
Kodjo 11 years ago

The constitution is clear on how the EC is appointed and though your argument may be logical if followed will be a shift from what has become a customary practice and had become accepted as the normal interpretation of how th ...
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The constitution is clear on how the EC is appointed and though your argument may be logical if followed will be a shift from what has become a customary practice and had become accepted as the normal interpretation of how the EC is appointed.

Article 43 (2) of the Constitution says "the members of the Commission shall be appointed by the President under article 70 of this Constitution."

However it says under "Article 70 (2) The President shall, acting on the advice of the Council of State,
appoint the Chairman, Deputy Chairmen, and other members of the
Electoral Commission".

S K Asare's argument is that this should be interpreted to mean the president must act as a rubber stamp once the advisory body had made a recommendation as mandated by the constitution.

That is indeed far fetched and alien to what has been the normal practice even in his US domain.

The standard interpretation of the word "Advice" can be found in US common law jurisdiction where it ruled that the "phrase upon advice" should be regarded as a postnomination rather than a prenomination function.

In requesting confirmation of his first nominee, President Washington sent the Senate this message: "I nominate William Short, Esquire, and request your advice on the propriety of appointing him." The Senate then notified the President of Short's confirmation, which showed that they too regarded "advice" as a postnomination rather than a prenomination function: "Resolved, that the President of the United States be informed, that the Senate advise and consent to his appointment of William Short Esquire...."

The Senate has continued to use this formulation to the present day.Washington later wrote in his diary that Thomas Jefferson and John Jay agreed with him that the Senate's powers "extend no farther than to an approbation or disapprobation of the person nominated by the President, all the rest being Executive and vested in the President by the Constitution."

S K Asare's interpretation and understanding of this word advice in the constitution falls far short of the real interpretation of the word advice in constitutional interpretation even under the jurisdiction he lives in.
George 11 years ago

How did this Asare guy get the professorship at all? Which college is he teaching and continuously misinterpretating constitutional provisions to which he claims he is an expert? How can he hold himself a Prof when he is so m ...
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How did this Asare guy get the professorship at all? Which college is he teaching and continuously misinterpretating constitutional provisions to which he claims he is an expert? How can he hold himself a Prof when he is so myopic?
Mahmoud 11 years ago

Mr. Asare is right. Even Mahama admits that Systems are weak in Ghana and that includes the appointment of our political refrees(EC).

Mr. Asare is right. Even Mahama admits that Systems are weak in Ghana and that includes the appointment of our political refrees(EC).
Kwame Ninsin 10 years ago

Asare is a professor of accounting, not law.
That ought to explain his confusion.

Asare is a professor of accounting, not law.
That ought to explain his confusion.
Kofi Ata, Cambridge, UK 11 years ago

Azar, first, it's unfortunate that Ghanaweb is unable to display your table with the article but I have had the opportunity of looking at it on Facebook. Second, whilst I agree with you that the practice in Ghana from 1957 to ...
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Azar, first, it's unfortunate that Ghanaweb is unable to display your table with the article but I have had the opportunity of looking at it on Facebook. Second, whilst I agree with you that the practice in Ghana from 1957 to 1960 was exactly what you described, I disagree with you that the same did happen under the Second and Third Republics. In fact, in the Second Republic, I believe it was the Prime Minister who had powers to appoint and not the ceremonial President Edward Akufo-Addo. In the Third Republic, the current practice was what actually happened.

The examples of Canada and Jamaica are different because they follow the British system. In the UK, the Prime Minister recommends or nominates some appointees to the Queen for approval. To avoid the potential for the Queen to reject the Prime Minister's nominee, the Prime Minister in some cases will consult the Queen's advisers before the nominee is made public. This happened in the last appointment of the Head of the Church of England. Most public appointments in the UK are done by the Independent Public Appointment Commission and does not involve the Queen but rather the Prime Minister and Ministers who give the final approval.

You also have to remember that though Ghana is currently operating a hybrid of Presidential (USA) and Westminster types of governance, it is more Presidential than Westminster. Moreover, knowing very well that the 1992 Constitution was made for Rawlings or made to fit his style of governance, I would be surprised if the President was merely expected to appoint the nominee of the Council of State as the EC or head of any other constitutional body. That is neither here no there.

Whilst your argument may sound logical, I disagree with you that was the practice in the Second and Third Republics. Again, your argument that the framers did not want any political influence in the appointment of the EC and since the President was a political figure, the appointment duty of search and nomination was given the the Council of State instead, as well as the Legislature being excluded from the appointment process is weak in view of some of your suggestions. In fact, that argument is defeatist with your suggestion that the Council of State could advertise the position for people to apply and political parties and NGOs could make nominations. If political parties could make nominations, would that not be political influence? Why can political parties nominate but a President cannot because he is a politicalfigure? Are political parties in Ghana apolitical or churches? If the nominee of a political party is appointed would that appointee not be considered an appointee of that party and would that be seen to be fair by other political parties?

In fact, this suggestion is dangerous because it would politicise the position of EC and should not be entertained. The suggestion of NGOs or any other group and body making nominations is equally bad. There should be no such establishment nomination or appointment because that would not be independent. The appointee could be seen to owe allegiance to the group or body that nominated him or her. However, I agree to the position being advertised for all qualified Ghanaians to apply but as individuals and not as candidates or nominees of political parties, NGOs or professional bodies.

My personal view is that the President has too much powers over public appointments and that should be reduced to the minimum and instead an Independent Public Appointment Commission be established to do the search through open and competitive processes (advertise, shortlist, interview and recommend two or three candidates to the President or Ministers to make the final decision in consultation with the Council of State).

For the above reasons, I agree with Kodjo that you misinterpreted the words "on the advice of". The correct interpretation of these words and in the minds of the framers is realised if and only if Article 43(2) and Article 70(2) are read together. They cannot be read separately but concurrently.

I enjoyed reading your arguments and let's continue the debate as it enriches and strengthens Ghana's democracy.
Justice Amissah 11 years ago

Kofi Ata, you said you disagree with the author on who appointed the EC in the 2nd Republic. You are offering an opinion and the author is quoting from the Constitution. It makes no sense for .you to disagree with a fact, whi ...
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Kofi Ata, you said you disagree with the author on who appointed the EC in the 2nd Republic. You are offering an opinion and the author is quoting from the Constitution. It makes no sense for .you to disagree with a fact, which suggests you really do not understand what is going on,

The subtle point there, I believe, is that the ceremonial president making the appointment shows that it was the Council if State who was responsible for the appointment.

The author has made a sophisticated argument. I was skeptical but he has persuaded me.

Kofi Ata, Cambridge, UK 11 years ago

Justice Amissah, the fact that someone quotes from constitution does not necessarily mean s/he is right on the interpretation or application, let alone what actually happened in reality. I was young during the Second Republic ...
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Justice Amissah, the fact that someone quotes from constitution does not necessarily mean s/he is right on the interpretation or application, let alone what actually happened in reality. I was young during the Second Republic but showed interest in current affairs at the time to know what happened and was old enough during the Third Republic and knew what happened. In the Second Republic it was the Prime Minister (Dr Busia) who made such constitutional appointments and not the ceremonial president (Mr Edward Akufo-Addo) as stated in the article. Again, in the Third Republic which was Presidential, it was the President (Dr Limann) who made such constitutional appointments and not the Council of State as being suggested in the article. I was not giving an opinion but facts. What really did happen and not what is being suggested. I do understand the issues being discussed and what has been and is now going on. So please do not tell me that I do not understand what is going on. You can disagree with me and agree with the writer but do not to tell me that I do not understand what is going on.
Kwaku Azar 11 years ago

Kofi

I think Justice's point is that the Constitution says the President shall appoint acting on the advice of the Council of State. But we all know that the president was ceremonial and did not have any substantive power

Kofi

I think Justice's point is that the Constitution says the President shall appoint acting on the advice of the Council of State. But we all know that the president was ceremonial and did not have any substantive power
Kwaku Azar 11 years ago

Kofi

A concurrent reading does not change much. Article 43 is a broad appointment power that is subject to the specific processes in Article 70. In Article 70, the President appoints either in consultation with or acts on ...
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Kofi

A concurrent reading does not change much. Article 43 is a broad appointment power that is subject to the specific processes in Article 70. In Article 70, the President appoints either in consultation with or acts on the advice of. Acting on the advice of is a term of art.
Kwaku Azar 11 years ago

The US language is dramatically different from ours. It says the President "shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Su ...
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The US language is dramatically different from ours. It says the President "shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law."
Kodjo 11 years ago

I disagree with your opinion on the interpretation of the role of advisory bodies under the Ghana constitution especially the role of the council of states who are a subordinate body under the president and who appoints its ...
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I disagree with your opinion on the interpretation of the role of advisory bodies under the Ghana constitution especially the role of the council of states who are a subordinate body under the president and who appoints its leader.

The constitution of Ghana is based on the US model.Ghana is a unitary republic with an executive presidency and a multiparty political system so even though the language may not be exactly the same we are a reflection of what is implied in their Constitution.

The question is what is the role of advisory bodies as recognized under executive presidents like the US whose Constitution informed ours.The held views which is not in dispute is that the role of the advisory body is a post nomination function rather than a pre-nomination function.

The Constitution has defined who could be eligible for that office and the role of the advisory body is to ensure that any one selected by the president meets that criteria.What the council of state can do is to decline the nomination if the nominee does not meet the criteria as mandated but have no constitutional role of nomination and appointment as you want us to believe.the act of nomination is exclusively the President's.

By importing the colonial Westminster precedents,a country that has no Constitution and base its rule of law on convention and parliamentary laws compound your confusion because they have no relevance to our constitution.
Kwaku Azar 11 years ago

The Constitution of Ghana is not based on the US Constitution. Even if it were, there is no language in the USA Constitution that commands the President to act on the advice of a Council of State. In fact, there is no Council ...
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The Constitution of Ghana is not based on the US Constitution. Even if it were, there is no language in the USA Constitution that commands the President to act on the advice of a Council of State. In fact, there is no Council of State in the USA. In the USA, the President has the power to nominate. The Senate has the power to advice and consent. The President does not act on the advice of the Senate.

Ghana's Constitution is based on our collective constitutional experience and it adopts wording from the 1957, 1960, 1969 and 1979 constitutions as needed.

When the Constitution says someone must act on the advice of another body, it simply means that someone must act on the advice that other body. This is as plain as it can get.

This language has been used over 500 years and the meaning is fairly well settled.
Tetteh Quarshie 11 years ago

Deep thinking. There is hope for the country.

Deep thinking. There is hope for the country.
Esi 11 years ago

I know my people,not everyone will accept even the BEST.

I know my people,not everyone will accept even the BEST.
KBK 11 years ago

Asare, aka Azar, would have been very believable if he had been a very neutral commentator on our politics. Unfortunately, he is not, which spoils much of his analyses on this forum.

All what he is saying here is that, Mah ...
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Asare, aka Azar, would have been very believable if he had been a very neutral commentator on our politics. Unfortunately, he is not, which spoils much of his analyses on this forum.

All what he is saying here is that, Mahama, because he is NDC man and not NPP man, doesn't really have so much powers in appointing the next Electoral Commissioner as the GBA suggestion is making him out to be. Of course, everyone can quote and interpret the constitution to suit his partisan needs. That's what Asare is doing here.

But for me, I see the situation in an even greater perspective - one that goes beyond partisan politics. What we need to discuss in Ghana is to have a system that will produce electoral results that do not depend on who the Electoral Commissioner is. Once we have a logistical system in place that will produce the correct registering of eligible votes, voting and counting of votes, it won't matter how independent the Electoral Commissioner is, we shall still get it wrong as we have been doing for a long time now - even beyond the Fourth Republic.

Our problems are worse than Asare is trying to portray here in his partisan (NPP) ways.
Kwaku Azar 11 years ago

Let us say indeed that he is partisan. Does that stop you from showing with logic, cases, illustrations, etc. why his analysis is wrong? Do you think you have addressed the analysis by merely waving the partisan talisman?

...
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Let us say indeed that he is partisan. Does that stop you from showing with logic, cases, illustrations, etc. why his analysis is wrong? Do you think you have addressed the analysis by merely waving the partisan talisman?

Let us these platforms for meaningful debates and stop the silly pranks

KBK 11 years ago

It doesn't matter what cases, illustrations, etc. I cite and with what logic I employ them as long as I think you guys are discussing the wrong issue. You guys are assuming that if the constitution is interpreted correctly in ...
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It doesn't matter what cases, illustrations, etc. I cite and with what logic I employ them as long as I think you guys are discussing the wrong issue. You guys are assuming that if the constitution is interpreted correctly in the choice of a commissioner, it will lead to fairer elections. It won't.

The appropriate question will be: What provisions will make it impossible for the Electoral Commissioner, whether he is independent or not, (elected by the President or not) to be decisive in the declaration of a victor in a close contest? You can think it is a silly prank if you like.

But I still think your partisanship smells too much in your analyses...
Kwaku Azar 11 years ago

The constitution must be interpreted correctly. But you are right that just because the constitution is interpreted correctly does not guarantee fairer elections. In a sense, the constitution says elections should be held eve ...
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The constitution must be interpreted correctly. But you are right that just because the constitution is interpreted correctly does not guarantee fairer elections. In a sense, the constitution says elections should be held every 4 years. That 4 year cycle does not guarantee good governance. But does that mean 4 years should be interpreted as the square of 4 years?
KBK 11 years ago

Oh, c'mon, I never intimated that the constitution can be interpreted in such a way that a square becomes a cube. After all, there are subtle ways of (mis)interpreting the constitution to mean a number of things with the emph ...
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Oh, c'mon, I never intimated that the constitution can be interpreted in such a way that a square becomes a cube. After all, there are subtle ways of (mis)interpreting the constitution to mean a number of things with the emphasis slightly nudged one way or the other. Isn't that why you even wrote the article?

Are you still aching that I called you partisan? How many of us can really help not being one?
NEZER 11 years ago

You know the president is the one who appoints members of the council of state, right? The council of state is the bona fide "property" of the president. It is extremely useless as a control body of the presidency. Don't be ...
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You know the president is the one who appoints members of the council of state, right? The council of state is the bona fide "property" of the president. It is extremely useless as a control body of the presidency. Don't be fooled by the so-called constitutional check and balances. Our Constitution is fundamentally flawed and needs a shake down big time.
Kwaku Azar 11 years ago

Actually the President appoints 11 out of the 25 members of the Council of State. But I agree that people will ultimately have to make the system work. The constitution cannot force people to do their job. There was a time in ...
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Actually the President appoints 11 out of the 25 members of the Council of State. But I agree that people will ultimately have to make the system work. The constitution cannot force people to do their job. There was a time in Ghana when a PNP dominated parliament rejected the budget of the PNP president. There was a time in Ghana when the Supreme Court rejected an attempt by the executive to replace Apaloo.

The council can rise to the occassion!
Kwame Ninsin 10 years ago

You're a very good example of why NPP loses elections.
Booklong nonsense with no relevance to practical democracy and bread and butter issues of the people.
BTW, what happened to the link to your table?
You can't even get ...
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You're a very good example of why NPP loses elections.
Booklong nonsense with no relevance to practical democracy and bread and butter issues of the people.
BTW, what happened to the link to your table?
You can't even get a table right, yet you want to dictate to the President how to exercise his constitutional authority?
What a joke!

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Appointing the Chairman and Members of the Electoral Commission

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