Let’s Hold Presidential & Parliamentary Elections On 7th September
In Order To Have Time To Resolve Election Disputes Before The [Final] President-elect Is Sworn In
By: Otchere Darko
I want to start this article by first congratulating all the people who, in one way or the other, helped to make the just-concluded election petition peaceful and such great success. In particular, Nana Akufo Addo deserves special praise, because of the fact that he could have forced the case to go to the judicial review stage, if he so wished, given the fact that the judges arrived at widely SPLIT DECISIONS on most of the issues; a situation that made it VERY TEMPTING for the NPP leader to have decided in favour of going for a judicial review.
Having congratulated all those who helped to make the court case a success, I now want to bring the attention of Ghanaians to one special problem that came to light during the just-concluded election petition.
*This is the problem of the absence of a constitutionally stipulated electoral time-table for presidential and parliamentary elections, and the consequential challenges that can always arise from these two major national assignments. The 1992 Constitution has no provisions that force the EC, political parties, candidates, petitioners, respondents and judges who directly or indirectly are associated with the conduct of elections and handling of legal issues that arise from them, to carry out certain duties or actions within constitutionally prescribed time-frames, set out by a special electoral time-table known to, and recognised by all Ghanaians. This ‘constitutional vacuum’, in my opinion, unduly leaves the timing of certain crucial electoral decisions and actions to the discretion of public officials, such as the staff of the EC, or members of the Judiciary who, in such circumstances, can exercise [and might, in the last elections and the associated petitions, have exercised] those discretions improperly, at the peril of risking the peace of the nation.
*To address this special problem [of the absence of constitutionally prescribed electoral time-table], I suggest that all future presidential and parliamentary elections should be COMPLETED AND ANNOUNCED, AT LEAST, THREE MONTHS BEFORE THE SWEARING IN DATE OF JANUARY 7TH. It should be noted that the 1992 Constitution, in fact, made a big ‘ANTI-DEMOCRACY ERROR’, by allowing the President-elect to be sworn in even, where there is a challenge to the very office he is being sworn in to hold. Swearing in a President-elect before the Supreme Courts decides the actual winner in cases where the election of the President-elect has been challenged gives rise to a clash between ‘voters’ mandate’ (democracy) and ‘constitutional mandate’ (constitutionalism).
*To prevent such a non-democratic and little thought-through constitutional development from possibly happening, in reality, in future and lead to a denting of Ghana’s enviable democratic reputation, Article 47 of the 1992 Constitution should be amended to allow a provision to be inserted that establishes an electoral time-table which forces the Electoral Commission and all other bodies and institutions associated with the conduct of future presidential and parliamentary elections to take certain actions within constitutionally prescribed time frame. Such a constitutionally fixed Electoral time-table should, in my view, be as detailed as follows below:-
(i) 7th September of the year of elections... holding of first round of both presidential and parliamentary elections.
(ii) From evening of 7th September to Midnight of 13th September..... counting of votes, as well as transmission and collation of all election figures from polling station level to national level.
(iii) From 8th September to 13th September of the year of elections..... completion of elections that could not be completed on 7th September, and the holding of those that, for logistical reasons, could not be held on 7th September, including the counting of votes, transmission and collation of the election figures from polling stations in areas where voting could not be completed, or could not be done.
(iv) 14th September of the year of elections.....declaration by the EC of all the results of the elections, including the crucial presidential elections.
(v) 21st September of the year of elections..... holding of a second-round presidential election where the first round presidential election failed to result in an outright winner.
(vi) From the evening of 21st September to 23rd September of the year of elections.... Counting of votes, transmission, collation and announcing of the results of the second-round presidential election.
(vii) On or before 14th October of the year of elections..... filing of all election petitions by all Ghanaians who want to exercise their rights to challenge any results declared by the EC 14th September, including that of the President.
(viii) On or before 14th December of the year of elections...... all rulings by courts dealing with election petitions, including the ruling by the Supreme Court relating to any challenge against the President-elect. [This suggestion is based on a presumption that the Judiciary will in future have in existence fast tract courts to handle ALL election disputes.]
(ix) 31st December of the year of elections..... date for seeking of judicial review, where the losers of a Supreme Court ruling on previous challenge against the President-elect have decided to seek judicial review.
(x) 7th January of the year that follows the year of elections...... swearing in of the President-elect, where there has been no challenge against the declaration of the President-elect, or where the ruling of the Supreme Court has resolved any dispute from previous challenges to the President-elect; or where the Supreme Court verdict losers have decided not to seek judicial review.
(xi) 14th January of the year following the year of elections...... the FINAL DECISION of the Supreme Court relating to the judicial review..... a “final decision” that should be seen by all parties and all Ghanaians as having brought all decision processes and all challenges relating to the presidential election to their FINAL CONCLUSION. [This suggestion is based on the presumption that a presidential election petition that goes to judicial review will NOT lead to the acceptance of additional (new) evidence; and, for that reason, the Supreme Court should be able to use fourteen days to reach the final conclusion.]
(xii) 21st January of the year that follows the year of elections..... the swearing in of the final President-elect, [where election disputes or a delayed second presidential elections following a disputed presidential election makes it impossible for the President-elect to be sworn in on the stipulated 7th January of the year following the year of elections].
*Should the Constitution be used to do things that could, ordinarily, be left to the staff of the EC, or judges of the Supreme Court to do? YES is my simple answer to this question. My reason is that we have not reached the stage, on the democratic ‘learning-scale’, at which level we can say, with confidence, that most people in Ghana can be trusted to separate “party politics” from “one’s individual ‘non-private’ national duty”.
*The advantages from such constitutionally stipulated electoral time-table are numerous. Some of these are: Firstly, it will make it IMPOSSIBLE for certain important decisions relating to elections and their timing to be left to the discretionary powers of the EC or judges. This pruning of the discretionary powers of these public officers should NOT be seen to be based on what abuse of powers they (the officials of the EC or members of the Supreme Court) have shown in the past. Rather, it should be seen to be based on what they (the EC officials and judges of the Supreme Court) can, and MAY do in future, through either wilful abuse of their discretionary powers or pure error of judgment that may later have dire consequences on the peace of the nation, and which, therefore, must be prevented. Secondly, such constitutionally stipulated election time-table can also prevent HASTY and UNDEMOCRATIC swearing in of a President-elect whose declaration by the EC can later be made null and void. Thirdly, it will save Ghanaians the agony of deciding as to whether to let a previous loser of a presidential election whose challenge against a previous declared President-elect has been affirmed by the Supreme Court to do only the remaining period from whrer the previously EC-declared winner left off, or whether he should have the full four year term that all elected Ghanaian presidents have.
*Such seemingly long waiting time suggested in this article should be seen as being part of the term of office of the administration existing before the presidential and parliamentary elections, and as such it should be deemed to have no incremental and financial cost, even though it has serious opportunity cost. Literally, therefore, the extra three months being suggested here should not have monetary cost.
*The 1992 Constitution has several weaknesses, or problems that need addressing. Taking actions, by way of constitutional review, to address these weaknesses or problems should be seen by all Ghanaians as A STEP IN THE RIGHT DIRECTION. *Leaving ‘bad laws’ in the Constitution, ‘un-reviewed’, does NOT make such ‘bad laws’ good, over time. Thus, the much-used argument that it is better for us (Ghanaians) to allow time for the Fourth Republican Constitution to be “tested” or “tried” over time is very weak and unconvincing, in my opinion. Let us (Ghanaians) stop diddling over the issue of addressing the several democratic weaknesses and other problems in the 1992 Constitution, because failure to address some of these problematic issues can lead to a situation where the endurance of the voting Ghanaian public, in relation to incidences of electoral dissatisfaction caused by these weaknesses or problems, may in future reach critical and inflammable levels.
