Is Prez Mahama Right to Appoint new EC Chair....

.... whilst Article 70(2) Suit is still before the Supreme Court?

By Kofi Ata, Cambridge, UK June 27, 2015

The appointment of Mrs Charlotte Osei as the new Electoral Commission (EC) Chairwoman has raised some concerns from certain Ghanaians because of the ongoing Supreme Court (SC) suit seeking interpretation of Article 70(2) by Mr Richard Dela Sky, of Citi Fm. Hon Alexander Afenyo-Markins, MP and Attorney for Mr Sky and Hon Dominic Nitiwul, MP and Deputy Minority Leader have both criticised President Mahama for his action and sought to impugn the president’s action as unconstitutional, disrespectful to the judiciary/SC or contempt of court (see “I’m disappointed in new EC appointment – Afenyo Markin”, Ghanaweb/adomfmonline, “New EC boss: Mahama has set trap for Supreme Court”, Ghanaweb/joyfmonline June 26, 2015 and “EC job: Mahama’s timing was wrong – Nitiwul”, Ghanaweb/citifmonline, June 27, 2015). Prof Stephen Asare also criticised the appointment as lacking transparency and verification (see “New EC Boss appointment lacks transparency – Prof Asare”, Ghanaweb/kasapafmonline June 26, 2015). Some panel members on Saturday’s Joy FM’s Newsfile equally questioned why the president did not wait till the SC ruled on the Article 70(2) suit and justified their query by comparison with the SC suit, “Mr Benjamin Eyi Mensah versus EC” when the SC ordered EC to stop any further actions on the organisation of the District Assembly Elections including publicity whilst the legality of CI 85 was being challenged at the SC. This article is an attempt to address the concerns raised above as contribution to the debate on Article 70(2) appointments.

There is nothing in the ongoing Article 70(2) SC suit that prevents the president from performing his constitutional duties by powers given him under that Article for three reasons. First, the plaintiff did not seek an injunction to that effect and the SC has not given any such directives. Secondly, a suit seeking interpretation of a constitutional clause or law does not necessarily and automatically suspend that clause or make it unconstitutional until the interpretation is given by the SC. A typical example was the legality of same sex marriage in the US. Whilst the suit was pending before the US Supreme Court, it did not stop some States from banning or legalising same sex marriage until the Justices gave their ruling on June 26, 2015. Third, the understanding of a constitution/law is deemed to be right until proven otherwise by a competent court of jurisdiction (the SC for constitution), unless such understanding through action/s and omission/s are irrational and not what is reasonable in a democratic society. For that matter, President Mahama’s understanding of Article 70(2) and his actions are rational, reasonable in a democratic society and therefore considered legal and constitutional until the SC rules otherwise.

Regarding the concerns of Prof Stephen Asare, there is nothing in Article 70(2) that requires or mandates the appointing authorities to make the appointment processes transparent and or verifiable. These are neither in the letter or spirit of the law, though there is nothing wrong if the appointing authorities decide to do so. Therefore, this concern has no basis in law and at best, frivolous.

On the question of whether the president’s action amounts to contempt of court, the concerns raised by some Newsfile panel members and the comparison with Eyi Mensah versus EC at the SC, there is no case to answer by the president because there is a fundamental difference in the two SC cases. That is, Eyi Mensah versus EC on CI 85 and Dela Sky versus Attorney General on Article 70(2). Let me briefly explain the difference and why I am of the view that the president’s action is not contempt of court.

As stated earlier, a suit does not always automatically amount to stay of execution, particularly in constitutional cases requiring accurate interpretation/s of the law. For that to happen in constitutional cases, the matter in dispute must meet the threshold of irreparable damage and or irrecoverable loss being caused to a citizen or an interested party. That is, without the stay of execution, irreparable damage and or irrecoverable loss would be caused to any of the parties involved or interested in the disputes, particularly in matters of life and death cases or imminent death.

In the case of Mr Eyi Mensah versus EC, Mr Eyi Mensah had been disqualified from registering as a candidate for the District Assembly elections by the EC using CI 85 which was unconstitutional and rendering his disqualification illegal. Had the stay of execution not been ordered by the SC, the EC could have gone ahead and organised the elections without Mr Eyi Mensah being able to participate as a candidate had the case dragged on at the SC and subsequently got a judgement in his favour as he did. Sadly, he would have had no recourse to recover the damage or loss to him. For that reason it was imperative for stay of execution to prevent the EC from continuing with the organisation of the elections as was rightly directed by the SC. In fact, other Ghanaians who also could not register as candidates for the same illegal action of the EC would have suffered similar irreparable damage and or irrecoverable loss had the stay of execution not been placed on the EC.

On the contrary, in the case of Sky versus the Attorney General regarding the accurate interpretation of Article 70(2) or the proper procedure for the appointment of the EC head, no citizen including even the plaintiff or corporate body in Ghana can show that should stay of execution not be placed on the Attorney General/President, s/he or they would suffer irreparable damage or irrecoverable loss as a consequence of the president appointing a new EC head before the SC made its judgement on the matter. What damage and or loss would be or has been caused to Mr Richard Dela Sky, any Ghanaian citizen or corporate body that is and or would be irreparable and or irrecoverable as a result of President Mahama’s appointment of the new EC head whilst the suit is still pending at the SC? None whatsoever. If any, then they must go to court and prove it.

For the above difference, there is no need for stay of execution and for other reasons stated earlier, President Mahama was absolutely right under the powers conferred on him by Article 70(2) to appoint the head of the EC whilst Article 70(2) suit is still pending at the SC. He has not committed contempt of court, neither has he disrespected the judiciary/SC or acted unconstitutionally. Finally, the president’s action should not have any impact on the Justices’ ability to make an independent, objective and impartial judgement on the case before them.

In conclusion and for the reasons and explanations stated herein, those who have raised these concerns have no basis in law and are therefore either being mischievous or are simply ignorant on this particular suit at the SC. Comparing the two SC suits (CI 85 and Article 70(2) is tantamount to comparing apples with oranges.

Kofi Ata, Cambridge, UK