Nomination of the EC Chairperson: What are the matters arising?

It has been shown that, using comparative standards, Ghana today has a fast growing democracy in relation to other countries in sub-Sahara Africa and a few other parts of the world; and the present position has been arrived at, not merely by absence of upheavals but by peaceful transition of power by governments under the supervision of the Electoral Commission (EC).

The President of Ghana has nominated a chairperson, deputies, and other members as heads of the EC. This has come after the erstwhile chairperson of the EC and her deputies were removed with the due process of stated misbehaviour. Article 70(2) of the 1992 Constitution provides the course of formal proceedings on how appointments of the EC chair and her deputies should be carried out in consultation with the Council of States.

There are issues which have evolved out of the nominations which needs to be brought to the fore to be addressed:

Restoration of Public Confidence In my opinion, the appointment of heads of independent constitutional bodies, such as an Electoral Commissioner, should not breach public confidence. This is because, the office of the Electoral Commissioner, has the core constitutional mandate to hold our democracy in place. For this reason, the President ought to have had stakeholders’ contributing to the nomination of these Electoral Commissioners to curb public suspicion and mistrust of government’s interests in these nominees, despite the Constitution giving the President the power to make the sole decision in the appointment.

The appointment of Madam Charlotte Osei, as the EC chairperson, although the clear unambiguous terms of the Constitution were not compromised in the absence of crisis or potential crisis, it vitiated the genuine indicator of public trust as the then President rebuffed to engage in a broader consultation in her appointment.

It seems perception is everything when it comes to politics of Ghana. Once upon a time, Madam Charlotte Osei told Ghanaian she wouldn’t vote, in a bid to ameliorate the concern of her objective and impartial work as a chairperson. Yet, that was not enough to save her job. In my view, it showed the highest level of mistrust in our society in the fight for political power.

There are claims by the main opposition party of bias and interest of government in the pre-selection of the EC. This is redoubtable, considering a country where competition for political power becomes so intense and spite with hostilities.

However, the calls on the new EC boss being associated to the ruling party does not sit well in the minds of many. Thus, it is the usefulness of the consequence of her actions as the EC that will determine whether or not she is bias. That is the core of utilitarianism. The end justifies the means.

An allegation of Bias and its Objective Test

The Constitution, 1992, provides under articles 44(1) and (2) that the Electoral Commissioners assume their offices as are applicable to the Justices of the Appeal Court and High Court. Already, there are allegations of real likelihood of bias of the EC in the next general elections regarding government’s interest in these nominees. Perhaps, in order to ascertain the real likelihood of bias, we need to first take a profile look at these nominees.

It is alleged by some members of the opposition National Democratic Congress (NDC) that, the husband of Mrs. Jean Adukwei Mensah is one of the financiers of the ruling New Patriotic Party (NPP) who is the former CEO of VALCO. They also purport that Dr. Eric Asare Bossman has almost always openly chided the party, both in government and in opposition without provocation, which seems to stem from his political party orientation. Ms Adwoa Asuame Abrefa, also, is alleged to be a member of the family of Abrefa Busia, a founding father of the UP-NPP tradition. All these are said to likely cause the bias of the EC as referees of general elections.

In the Supreme Court case of Republic v High Court, Denu; Ex Parte Agbesi Awusu II(2004), it was held that, “the charge of bias or real likelihood of bias must be satisfactorily proved on balance of probabilities by the person alleging them.” Thus, the burden of proof lies on the person claiming the bias.

In our current situation, the objective test that may be applied on such an allegation is the doctrine of ripeness. The doctrine refers to the readiness of a case for litigation; a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.

This test was applied by the Supreme Court in the landmark case of New Patriotic Party v National Democratic Congress (2000). In that case, the plaintiff (NPP) filed a complaint of gross violation of article 94(3) when some civil servants nominations were approved to be parliamentary candidates by the defendant (NDC) in the 2000 general elections. The court held that since the election of these nominees have not been held, it was void in ab initio, i.e., it makes no case from the very beginning for the court to adjudicate.

Here, the allegations of bias may not be ripe to be given a ruling since the proof of bias of the EC is based on future suspicion; and the Supreme Court of Ghana has held in a case of Attorney General v Sallah that mere suspicion does not amount to real likelihood of bias.

Recommendation

Our growing democracy needs to be entrenched to meet the growing demands of the people’s quest for accountable and transparent government. As Justice Sowah brilliantly remarked in the case of Tuffuor v Attorney General (1980):

‘A written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of the people. It 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 politics 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.’

That time has come for an amendment of certain provisions in our Constitution, such as article 70(2), by Parliament. Jurisprudentially, I am of the view that laws are made for the people, not the people for the law. And justice must not only be done, but it must be seen to be done. Although the Constitution gives an executive power to the President to appoint the EC, it ought to be limited with stakeholder’s involvement to observe the checks and balances in our government. When this is done, the confidence of the public in the EC would be restored and the issue of a bias would be allayed.

By: Michael Sumaila Nlasia

Centre for Data Processing and Geo-Spatial Analysis

E-mail: marcusgarvey.snr@gmail.com