Appointment of new EC: Broad consultation is not sinful, Mr President

The Electoral Commission (EC) Chairperson and two Deputy Chairpersons have been sacked in accordance with the due process for stated misbehaviour. We are all aware of how their dismissal came about. Naturally, a process to usher in a new EC Chair and two Deputy Chairpersons must begin. The 1992 constitution is clear on how the appointment of the EC Chair and Deputies should be made. Article 70 (2) of the 1992 Constitution says ‘The President shall acting on the advice of the Council of State, appoint the Chairman, Deputy Chairmen, and other members of the Electoral Commission.’

However in a country where competition for political power is so intense and often acrimonious, one would wonder if the decision to appoint three key officers of the constitutionally independent EC should continue to be the ‘sole decision’ of the President.

No real check on President’s appointment power

In my view, the decision to appoint Chairpersons of the EC is the sole decision of the President because the current position of the law as per the Supreme Court decision in Ghana Bar Association v. Attorney General (2015) is that the ‘advice’ of the council of state (as used in Article 70(2)) is not binding. So for a Council of State which is legally toothless and has neither soft power nor public influence, it will most likely be reduced to a rubber stamp in the appointment process.

This means there is no real check on the President’s appointing power in this process especially with a majority in parliament. Therefore in the absence of any real check on the President’s appointing power, it is more likely than not that the President, acting like any rational politician, will appoint someone who will favour his political party. (Please note, the adjective here is ‘any rational politician’)

We can’t reduce every key decision into narrow legalistic arguments

There have been calls for broad stakeholder consultations involving civil society organizations and political parties in a quest to find a new Chairperson of the EC.

3 years ago, ahead of the appointment of Madam Charlotte Osei as EC Chair by then President John Mahama, similar calls were made. My friend, Samson Lardy Anyenini, in an April 24, 2015 article titled, ‘New EC Boss- Mr Prez, avoid the temptation to sin’ argued that such calls were ‘needless’ and the President should avoid ‘sinning’ against ‘the clear unambiguous terms of the constitution’. He wrote, “Those political parties and CSOs advocating and almost demanding any consultations outside of the clear injunction to the President to appoint ‘on the advice of the Council of State’...I say without any equivocation, are ill-advised and must halt the unhealthy unconstitutional crusade.” He still stands by this argument.

Well, I disagree with my Samson on this. We cannot limit ourselves to precise law with the view that every political problem should be settled with ‘unambiguous terms of the constitution’. The governance of a nation cannot be reduced into legalistic arguments. The constitution serves as a signpost for our progress. Absolutely nothing bars the President from engaging in stakeholder consultations in this appointment process if this will ensure the legitimacy of the EC and clothe him or her with the full public approval to execute his or her mandate. There’s nothing unconstitutional nor ill-advised about this.

In the case of Tuffour v. Attorney-General (1980), Sowah JSC famously observed:

‘A written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people’s search for progress. It contains within it their aspirations and their hopes for a better and fuller life. The Constitution has its letter of the law. Equally, the Constitution has its spirit. ...Its language, therefore, must be considered as if it were a living organism capable of growth and development.

Indeed, it is a living organism capable of growth and development, as the body politic of Ghana itself is capable of growth and development. A broad and liberal spirit is required for its interpretation. ...A doctrinaire approach to interpretation would not do. We must take account of its principles and bring that consideration to bear, in bringing it into conformity with the needs of the time.’

If broad stakeholder consultations will give the country an EC Chair and two Deputy Chairpersons who will execute their mandate without fear or favour, then Mr President please feel free. A gentleman’s agreement between the political parties that the appointments will be more consultative with more deliberation in a depoliticized manner is not ‘sinful’ either. If the political class can agree to make this work and not reduce this appointment process to narrow legalistic arguments, we can make some progress.

On April 18, 2015, then NPP presidential candidate Nana Akufo-Addo pointed out to then President Mahama ahead of the former EC Chair’s appointment that ‘all citizens of Ghana have a stake in the appointment...in many other jurisdictions across the world, whoever successfully emerges as head of the Electoral Commission is put through a rigorous selection procedure, which includes wide stakeholder consultation, vetting by a committee, often in public, and finally, approval by a special majority of the legislature. Appointment by the President is then a formality.” Mr President, the ball is in your court now.

The Constitutional Amendment Route: Better late than never

We may decide to go the constitutional amendment route. If we decide to, we could take a cue from other jurisdictions with commendable practices.

Kenya, for instance, advertises the position of Electoral Commission Chair and commissioners. Interviews of shortlisted applicants are then conducted in public. The process then continues as follows:

‘After conducting interviews, the Selection Panel shall select two persons qualified to be appointed as IEBC (Independent Electoral and Boundaries Commission) Chairperson and nine persons qualified to be appointed as members of the electoral body and shall forward the names to [the President] for nomination of one person for appointment as the Chairperson and six persons for appointment as members.

The President shall within seven days of receipt of the names forward the list of nominees to the National Assembly for approval in accordance with the Public Appointments (Parliamentary Approval) Act.

He shall, within seven days of receipt of the names approved by the National Assembly, by notice in the Gazette, appoint the Chairperson and the members of the Commission. The Selection Panel shall stand dissolved upon the requisite appointments being made’

Public interviews of candidates for the EC Chair and Deputy Chairpersons will highlight their professional competence or lack thereof. The public will also have the opportunity to supply any evidence of political bias and give the candidates the opportunity to defend themselves. Subsequent parliamentary approval would allow bi-partisan consensus to develop around the candidates. These reforms will ensure the appointments are not tagged as partisan and the candidates will be free to execute their mandates with full public support.