Election Reform Process needs more transparency, Inclusiveness and Rationality

Various Justices of the Supreme Court of Ghana have highlighted the need for and importance of reforming the country's electoral process to prevent the problems that characterized the 2012 general elections. For instance, Justice Jones Dotse has stated that,

In order to give validity and raise our elections to a high pedestal, I think it will not be a bad idea if IPAC and indeed the entire country will consider proposals aimed at legislation to ensure that, security features are enhanced on the pink sheets, to make them identifiable to a particular region, constituency and polling station just as it is with the polling station codes... Situations such as those recounted by Dr.Afari Gyan about how pink sheets for the December 2012 elections were ordered, printed and distributed are so bizarre that it could have been a recipe for disaster. Urgent steps should therefore be taken to reform the electoral landscape promptly to ensure a clean, fair and a level playing ground."

The Legal Committee of the NPP USA hereby affirms our unwavering commitment to participating in the quest for free, fair, incident-free and acceptable elections in Ghana. Thus, we concur with Justice Dotse and all those who in various ways have called for enhancing and reforming the election process. We also strongly endorse Justice Dotse's views on the urgency of reforms, which involve the whole country culminating in electoral reform legislation. We believe that an essential prerequisite for effective reform is a process that is inclusive, rational and transparent. Such a process is reflective of the zeitgeist, which calls for broader consultation on election reforms.

It is against this background that we express our deep and grave concern about the manner in which the Electoral Commission (EC) is proceeding with election reform, including, but not limited, to the recent inauguration of a 10-member committee made up of commission members, selected political parties and civil society organizations to examine proposals for electoral reforms.

We are perplexed that the EC has chosen to set aside the advice given by Justice Dotse that any electoral reform should involve the whole country and opted for an opaque process, evidenced by the composition of the 10-member committee. It is regrettable that 30% of the seats on this committee have been reserved for members of the EC (Georgina Opoku Amankwaa, Deputy Chairperson of EC responsible for Finance and Administration; Rebecca Kabukie Adjalo, member of EC; and Christian Owusu-Parry, Director of Public Affairs of EC). Moreover, the committee is to be chaired by Ms. Georgina Opoku Amankwaa. Without prejudice to whether the use of an EC appointed committee is the proper process for election reform, we believe that EC members should participate, if at all, on such committees on an ex officio basis and without any voting rights.

We observe with heightened anguish that the EC does not provide any explanations and it remains unclear to us how the 3 civil society organizations (CDD, IDEG and IEA) were chosen to be part of the committee. While we believe that civil society organizations (CSOs) and other individuals, including the long suffering disenfranchised ROPAA beneficiaries, should participate in this process, we strongly hold the view that the EC should have no power to choose the CSOs for the election reform committee, assuming, of course, that the EC even has the power to constitute the committee.

Needless to say, the EC's arbitrariness in composing this committee has already led to threatened court action by the Progressive People's Party (PPP). Rather than take this threat as an opportunity for sober reflection, the EC, in characteristic fashion, has dared the PPP to go to court, asserting that "the committee is a committee of the Commission so the decision to have four political party representatives, three civil society representatives and three people from the Commission was the decision of the Commission." We find such an attitude to be dysfunctional, quiet apart from being premised on questionable legal foundations. We encourage the EC to read Justice Dotse's opinion, especially the parts relating to involvement of the country aimed at leading to legislation.

It is our fervent belief that a framework and guiding principles need to be agreed upon before the committee, assuming that is the appropriate vehicle, begins its work. We believe it would be in the greater interest of the process and enhance public confidence in the exercise even if this calls for the suspension of the committee's activities pending an agreement on a framework. Accordingly, we strongly recommend that the following issues need to be resolved and/or clarified by the EC prior to the commencement of the committee's work:

· An agreement on the composition and chairmanship of the committee, assuming there is agreement that this is the proper path to election reform. · The terms of reference and scope of the committee's work. · The effect of the committee's recommendations on the EC (are they binding or not binding on the EC?). · Procedures at the committee's meetings (e.g., is voting on any and all issues by a simple majority?). · The timeline for election reform · The role of Parliament in election reform. In particular, should a committee of Parliament spearhead this reform and invite experts to provide testimony and advice on the way forward, culminating in election reform legislation? This is an important question where legislative reform is contemplated.

It is by now well known and accepted by all that the 2012 Voters' register is patently flawed. During the election petition, a bewildered nation listened to the Chairman of the EC, as he attempted unsuccessfully to reconcile and justify the disparity in the total number of registered voters ostensibly compiled at different times during the 2012 election cycle. In 2008, Chairman Afari Gyan observed that a voter registration rate of 56.69% is statistically unacceptable. We agree! This is why we reject the 2012 Voters' Register, which indicates a statistically implausible registration rate of 56.20%.

Justice Atuguba has urged for an early compilation of the register, which must be made available to the political parties as early as possible. We agree with the learned Justice and reiterate that a valid voters' register is essential for free and fair elections. There is a national consensus that the organization of elections is fundamental to the integrity and stability of our entire constitutional governance and democracy.

Accordingly, we call on the EC to, as a matter of urgency, jettison the fatally flawed 2012 register and take immediate steps to put a machinery in place to register voters for the 2016 elections. We are willing to provide specific suggestions to the EC to curtail the registration problems that have bedeviled prior voters' registers.

Recently, some legal scholars have raised important questions about the appointment of the electoral commissioner. Article 70(2) provides that, "The President shall, acting on the advice of the Council of State, appoint the Chairman, Deputy Chairmen, and other members of the Electoral Commission." The plain and ordinary meaning of Article 70(2) is that the President is obliged to act on the advice of the Council of State in appointing the Chairman and Members of the EC. Article 70(2) contemplates that the Council of State (Council) will put in place a mechanism to search for, vet and nominate a candidate for the President to appoint. The Council could do so in a variety of ways. First, it could work through a committee of the Council. Essentially, this becomes a Search Committee tasked to identify a short list of qualified persons for the Council to choose from. Second, the Council is permitted to commission experts and other consultants to advise it. Third, 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, the Council could choose someone from within the EC, probably from the other members or a respected senior staff. We believe the spirit of the times demands a consultation process on the part of the Council of State that is transparent and involving of all major stakeholders in the process.

Given the pendency of Chairman Afari Gyan's retirement, we believe this is an important issue that must be discussed as part of any serious election reform.

To conclude, NPP USA is committed to election reform but strongly believes that the reform must proceed in an inclusive, rational and transparent fashion. We also believe that 2016 voter registration should be decoupled from election reform and steps must be taken to initiate the registration process. Finally, we believe the important legal questions have been raised about the process for appointing the EC members. These issues cannot and must not be swept under the rug. The current opaque process being employed by the EC, including the recent inauguration of a 10-man committee chaired by a handpicked EC official is not a viable path to serious and endurable reform.

.......signed.....

Nana Kwaku Agyei Yeboah, Chairman of NPP USA

To Editors: For more on this please contact Prof Stephen Kwaku Asare on +13523396175