The Catechism of Representation of the People Act

Sun, 1 Jul 2007 Source: Kukubor, Kofi B.

Parliament, by the majority of National Patriotic Party (NPP) Members (MPs), amended the Representation of the People Law (ROPAL), 1992 (PNDCL 284). The amendment received the Presidential assent on the 24th February, 2006. This therefore, became known as the Representation of the People (Amendment) Act (ROPAA), 2006. The Act accords Ghanaian citizens resident outside who are 18 years and older and of sound mind to register to vote in public elections and referenda. Where citizens abroad participate in the electoral process of their homeland, is also referred to as external voting. External voting is defined as the casting of a vote by an elector who is permanently or temporarily outside the territory of the country in which she/he is entitled to vote.
However, the events preceding the amendment of this law, and subsequent reactions and concerns of the opposition parties and a large section of the civil society, cannot be ignored. The purpose of this article is not to determine whether ROPAA is a good or a bad law. The intention is to critically examine the complex and complicated factors that usually characterise the implementation of external voting, and to draw the attention of those who are pushing for the implementation of ROPAA in 2008 Presidential and Parliamentary elections to the inherent dangers that may destroy the peace of Ghana if overlooked.
First and foremost, the case for external voting is often presented as a question of principle, founded on the universality of the right to vote. In all cases, external voting is facilitated by legislation passed by parliament or appropriate political institution. So many reasons for the adoption of external voting legislation have been advanced. Nevertheless, almost all reasons have been the result of political opinion, which have always been controversial and even openly partisan. About hundred countries in the world have provisions that allow for external voting for their citizens resident outside those countries permanently or temporarily. Though some countries have adopted legal provisions for external voting, they are yet to implement them.
According to International Institute for Democracy and Electoral Assistance (IIDEA) (2006) report, an analysis of the history and politics of external voting shows that, the fear of fraud among overseas votes, that is, external votes would make fraud easier has every so often been well-substantiated. For example, France abolished postal voting in 1975 following the incidence of fraud. The implementation of external voting in Chad’s 2001 presidential elections was highly controversial which ultimately resulted in the annulment of votes cast abroad. The external voting has been characterised by accusations of diplomatic and consular agents managing the process in an unfair manner; implementation was done by untrained or inadequately trained staff; and difficulty for opposition parties and independent observers to monitor the external voting. Other historical analysis shows further that external voting provisions have not always proved to be sustainable. For example, Botswana is currently considering abolishing their external voting due to high cost associated with external voting arrangements and low turnout rates among external voters. Furthermore, Cooks Island whose citizens living abroad are more than those at home and therefore created overseas seat in the legislature, had to abolish it in 2004 due to declining support for the overseas seat.
The Legal Framework The introduction of legislation for external voting most often gives rise to political controversy. Concrete theoretical arguments both in favour and against external voting exist. The supporters of external voting argue that, the recognition of the principle of universal suffrage is as a civil right, which can be realised by the widening of political participation. External voting is argued to increase participation in democratic processes and strengthen democratic institutions, which is believed to increase participation that can lead to greater representation, accountability, and legitimacy of governments. On the contrary, external voting contradicts residency requirements of classic voting rights and involve the electoral participation of persons who may possibly not be directly affected by election outcome, and policies of the elected government. It also significantly put into disequilibrium, a country’s (especially, developing economies) budget without any direct or indirect economic benefits to the nation.
In addition, there is no proof that, the widening of political participation leads to accountability and legitimacy of governments. It has also been proven by a research conducted by International IDEA on 213 countries that, widening of political participation has not significantly increased participation. It must be noted that, an important component in legitimizing and making a government accountable through any voting, is electoral justice. Every stakeholder must believe and accept the transparency of the electoral registration; agree on the equality of electoral competition; establish through consensus, the legal conduct of the act of voting; and establish the control mechanisms that ensure all of these critical elements. There is no doubt that, the degree of fairness, transparency and electoral justice of external voting has direct bearing on the totality of the electoral process.
System Design It is very essential that all stakeholders decide on the legal and administrative provisions that govern external voting. This is because the legal and administrative provisions that are decided upon should reflect contextual factors of Ghana. These contextual factors are crucial in determining the design of an external voting system. For example, the issue of who can be registered as an external voter, how these voters will be assigned to electoral districts, and what procedure or mix of procedures will be used for these electors to actually cast their ballots must be exhaustively debated. The foundation for good systems design is a reliable database. Ghana is woefully inadequate in this area. Reliable database is the basic requirement for any elections, whether internal or external and therefore cannot be sacrificed on the altar of political expediency, more importantly, in external voting. How can we determine the country’s eligible external voters scattered around the world without a reliable database?
Apart from the political will to exercise external voting, it is also necessary to define its form. Many decisions and problems relating to external voting are directly linked to electoral system design. The desire to promote external voting should not in any way obliterate the need to examine the options for electoral system design. It is necessary to know that, the adoption of a particular electoral system very often limits the options for external voting mechanisms. For example, the mechanisms that currently control Ghana’s voter registration and vote casting must be critically viewed against any new system design for external voting. The question as to whether, the method of external voting will be by personal voting at an external polling site; remote voting by post, fax, or some form of electronic voting; or voting by proxy have not been thoroughly examined by all political stakeholders and civil society organisations. These options for voting, each has its own advantages. Equally, each poses unique challenges to the implementation of external voting.
In designing the electoral systems design, it is important that stakeholders consider the importance of electoral inclusion, the sustainability of the electoral system, and electoral integrity. In most cases, electoral inclusion, electoral sustainability, and electoral integrity turn to pull in different directions, and a balance is needed to ensure acceptability and trust in the systems design. These are necessary in ensuring the sustainability and validity of external voting.
The issue of citizenship Eligibility to cast an external vote is the same as the general requirements that apply to all eligible voters in a country. However, external voting usually requires extra prescriptions such as, a minimum period of previous residence. In some cases only limited groups of external voters may be eligible to vote, such as diplomats, other public officials and members of the armed forces, and their families. Some countries extend the right to vote, to all their citizens living abroad, regardless of the length of time they have spent out of their home country, while others impose time restrictions or require evidence of an intention to return home.
For example, Norway, Poland, South Africa, Sweden and the United States of America all give their citizens living abroad the right to register to vote irrespective of how long they have stayed away. Some countries impose time limits. Germany imposes 25 years for persons resident in countries that are not members of the Council of Europe, New Zealand, three years for citizens, and 12 months for permanent residents. The United Kingdom permits up to fifteen (15) years, The Philippines require that citizens abroad, who want to register to vote, sign an affidavit of intention to resume actual residence and demonstrate that they do not intend to acquire dual citizenship.
These limitations do not only bother on how these countries define citizenship, but also on how they understand the rights and duties that constitute citizenship. Eligibility to vote cannot be de-linked from citizenship as it determines which classes of people are eligible to cast external votes. Citizenship carries with it a range of rights and duties. One of the key rights of a citizen who is of voting age is the right to vote. However, as per article 41 of the Ghanaian constitution, ‘the exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations.’ Rights and freedoms are so conjoin with duties and obligations that most countries demand a demonstration of concrete commitment towards one’s country as a requirement for registering to vote. This demand is reflected in the limitations of the number of years a person must stay abroad or signing of affidavit as demanded by The Philippines.
Furthermore, citizenship can be acquired by a person in a number of ways. A person can become a citizen by descent, by place of birth, or by naturalization. The question therefore is, have the Electoral Commission (EC), the Inter-Party Advisory Committee (IPAC), and Civil Society Organisations addressed how external voters are to be categorized? How will the EC treat citizens resident outside Ghana, who do not have a set intention to return? What is the EC’s position on citizens temporarily resident outside Ghana who intend to return? Has the EC made appropriate provisions for citizens abroad who may be subject to special circumstances, such as refugees or undocumented migrant workers? What about naturalized citizens who have been granted the right to vote but are permanently outside the country? Is the EC going to rely on anyone who shows up with a Ghanaian passport claiming to have been registered as a Ghanaian or depend only on the particulars of registered citizens in the published Gazette? Is the EC intending to limit the rights of these categories by imposing time limits on the length of absence from Ghana? Furthermore, would eligible external voters require special registration or may be required to register in the same way as all other voters? Conclusively answering the above questions requires several years of deliberations and planning, if the NPP government is really committed to ensuring electoral justice and acceptable democracy.
The Implementation There is no doubt that, the practical implementation of external voting is characterised by many complicated factors. Complex features such as the number of voters; the locations of voters; the distances between the polling stations and the voters’ locations; and the complexity of the voting system cannot be ignored. The election planning involuntarily would become a two-tiered process. The task involved in organising an election in Ghana would now have to be duplicated, under very different circumstances, for external voting. This can result in delays and problems if not properly planned for. This administrative problem in the implementation of external voting may easily be perceived as deliberate acts of fraud. It is also indeed, an avenue to perpetrate fraud. It is important to eliminate any cause for suspicion when planning an external voting by involving all players.
Nevertheless, security and the control of sensitive materials will require extra attention. Procurement and distribution of election materials and equipment, and protecting the secrecy of the ballot needs to be duplicated abroad. Furthermore, the method of data collection and data to be published in the registers need to be agreed among all parties, and procedures established for the appeal process, to ensure accessibility for external voters and which is workable within the overall electoral timetable. For example, Mexico requires that for eligible external voters to exercise their franchise, citizens must have their photographic voting card issued only within Mexico’s borders.
To ensure true representation, legitimatization, and accountability as claimed by the NPP government, regulations need to provide for the widest possible coverage in order to enfranchise a diaspora which combines patterns of geographical concentration and dispersion. Other than that, the idea of external voting will defeat the very purpose of amending the PNDCL 284. In addressing these complex features, will the EC implement the external voting programme by itself, or opt to contract it out? If the EC opts to contract it out, will the organisations responsible for Ghana’s external voting, guarantee the protection of the procedures and processes that must be truthful to the country’s legislation?
Host Country Issues Some complexities may arise when negotiating with host governments regarding potential eligible voters. Particularly when eligible voters are refugees or undocumented migrant workers, agreements can be used to negatively affect the political, economic or social conditions of registered voters, or demographic and registration data on external voters used by host country, for non-electoral purposes. In practice, most countries do not recognise the political rights of migrant workers who lack documentation in their host countries. Furthermore, negotiations with host countries regarding the security of the poll can be compromised particularly, where the host countries have a stake in the outcome of the election. In addition, some governments may only allow external voting to occur within their borders by post or may have policies in place which ban foreign political campaigning.
Observation of External Voting Observation of election and the electoral process fulfills three cardinal purposes: ‘to assess the election against agreed or accepted standards; to provide a presence and visibility which will limit opportunities for irregularities and deter fraud; and to offer analysis, reporting and recommendations to a variety of audiences.’ However, due to geographical dispersion of external voters, the process and the methodology to conduct the observation are fraught with difficulties.
Conclusions It should be observed from the scenario that, organising external voting requires much work, extreme caution, involvement of all parties, and planning over a long period of time. Furthermore, with the exception of Cooks Island, where majority of her citizens stay outside the country, external voting in countries that practice it, always experience low rate participation, high cost, and controversies. A research conducted by International IDEA, clearly revealed that, even where external voting is mandatory (eg. Brazil), participation has been about only five percent or lower of total eligible citizens living abroad. This has resulted in most countries, reviewing the importance and relevance of external voting to their countries. It should be noted that, the primary purpose of any government, is to better the lives of its citizens. The question we need to ask now, is whether external voting at these material difficult moments of the nation, will lead to political, economic, and social betterment for Ghanaians? Do we as a nation have the fundamental infrastructure to smoothly implement this law? It must be noted that, even a good law becomes ugly when it does not have the mandatory platform to perform.
The Ghana Trade Union Congress, the largest civil society organisation in the country, cautioned that, the law should be shelved “until such time that there is general consensus on the matter from our political parties, as well as other stakeholders and, indeed all Ghanaians” (Daily Graphic Friday, November 11, 2005). This is a wise statement.