Has the EC Lost its Fair Referee Ambit ...

.... In Ghana's Democracy?

Former President Rawlings said has said that “a democracy that cannot protect the sanctity of its electoral process is engaging in a fraudulent electoral coup d’état.” He has also stated that "equally destructive is the unfortunate practice of using money to buy the conscience of the electorate.” On these two backdrops I want to pose a question whether going forward from the current petition at the Supreme Court, the Electoral Commission can be trusted with any future elections in the state in which it is.

Our Constitution has given a sanctimonious responsibility to the Electoral Commission to be in charge of the single most important element of our democracy which is the conduct of elections every four years for the citizens of Ghana to choose who they want to represent us. The Electoral Commission has the duty of acting as the referee and ensure that all resources are put at the disposal of the electorate and determine by the rules of the game, the representatives the people have chosen. Free and fair election should not be just about the manner people queue to go and vote, but must also reflect in the manner in which results are collated, audited and declared. However in manning such an institution, Ghana's Electoral Commission has become infested with corrupt elements who allow their consciences to be bought either by money or political patronage to such an extent that the people go to the polls and they declare their own results irrespective of the outcome of the true poll. General Obasanjo has been credited with a statement that "in Nigeria the people go to vote and WE declare the results" who are the “WE”? In the run up to the December 2012 elections two of the EC commissioners were questioned by the police over bribery allegations. Dr Afari Gyan, the man in the dock right now and who is supposed to be the referee in chief, has beaten a path away from the rules he set for the elections. In court, Dr Afari Gyan has distanced himself from his famous NVNV speech (no verification no vote). He has sought to re-write CI75, the bible he relied on to declare the Election 2012 results. Dr. Afari Gyan cannot remember or is not clear in his mind what "over vote" means, except its classical definition which has no context or practical application. Dr Afari Gyan's EC are now saying in court that the laws governing the elections can be dispensed with and that rules can be made as we go along on an Election Day. In fact the EC in court aided by the President and the NDC as 1st and 3rd Respondents respectively are stating that rules do not matter and thus once a party representative is present at a polling station, whatever goes on there is legal. The EC has become an institution that cannot protect the sanctity of its own electoral process as enshrined in our Constitution and the by-laws under it. They have allowed themselves to be dictated to by the NDC as the party in power or by their own disdain for the choice of the electorates. As this Supreme Court petition travels its length, the judges are confronted with three main options. These are whether to accept the case of the petitioners and declare Nana Akufo Addo the winner, or throw out the petition and maintain the status quo or order a fresh election as the pink sheet exhibits suggest John Mahama did not cross the 50% mark. In event of the third option, can we trust the EC as it is wounded and its sanctity so brutally assaulted in court to hold on to its fair referee ambit? I sincerely doubt it. The danger in the Supreme Court coming out with such a verdict without any consequential orders as to the conduct of the election will be asking the Electoral Commission to cut off the "head of the snake they wounded in the first attack". Tis would be dangerous and Ghana's democracy will suffer an everlasting destruction.

As the days and weeks trudge on it is becoming clearer and clearer that whether we call them errors, oversights, mistakes, institutional failures, foreign materials or excess votes, some things are clear - there were violations, omissions, malpractices and irregularities and surely they impacted on the outcome of the elections. The petitioners have succeeded in exhibiting to the nation that not all that glittered in December were gold. The government seems paralysed about the fact that the writing is on the wall. The NDC unashamedly is going round the country with fresh John Mahama t-shirts knowing that their best likely outcome will be a re-run. And they know that a re-run with the EC as presently composed will be their best chance of returning to Jubilee/Flagstaff House.

The current Supreme Court case has also forged a unique bond among the respondents- to wit- John Mahama, Electoral Commissioner and NDC. This bond is visible in the synchronised way in which they have defended the case. Their lawyers have presented a united front, adopted a common negative stance, equally stubborn to the court, adopted similar CIT towards the court and the petitioners and where one of them has been at fault, the others have stuck to their defence of one another’s action. Tony Lithur and Tsatsu Tsikata’s Rambo style storming of the KPMG count, Quashie Idun’s sublime reception of every suggestion from Tsatsu suggests a blood covenant between or among the three respondents. Will the three agree to any form of “divorce” prior to a re-run? I doubt it. “Till death do us part” seems to be the promise they will never back from, at least with an EC presently composed. A new Commissioner (female) has just been sworn in to replace Mr. Safo Kantanka in a quiet manner that has not even hit the news.

The trust and reputation of the EC have been so seriously damaged that for them to be allowed to hold any future elections there must be root and branch overhaul of the entire Commission. We cannot trust our democracy into their hands. The judges have a responsibility to ensure that a proper control mechanism is put in place for the conduct of any future elections if they are minded to give a verdict for a re-run. However if the evidence is overwhelming they must not take any party to case' right to verdict away except for a just cause and in accordance with the rule of law.

Harry Jon Aggrey

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