Who should be the next Electoral Commissioner?

By Kofi Ata, Cambridge, UK April 13, 2015

The Chairman of the Electoral Commission (EC) or the Electoral Commissioner (ECr), Dr Kwadwo Afari-Gyan is expected to retire in June 2015 as he attains the compulsory retirement age of 70. Of late, there are voices from various quarters in Ghana telling President Mahama how he should appoint the next ECr. Others have also suggested who should be appointed. Such directives or suggestions are worrying because these individuals, groups and organisations are virtually urging President Mahama to disregard the 1992 Constitution. This article is a contribution to the discourse.

The first personality to tell the president to set aside the 1992 Constitution in the appointment of heads of public and constitutional bodies was the former Chairman of Commission for Human Rights and Administrative Justice (CHRAJ), Justice Emile Short. On the need for the appointment of an independent Public Prosecutor he said, “I mean not someone who’s been appointed by President in consultation with the Council of State, but somebody who will be appointed with the participation of and in consultation with civil society and bi-partisan parliament, so that we can get somebody who is credible, who is independent-minded and somebody who will not be susceptible to any influence or control of the executive” (see, “A-G's Planned Appeal Of Woyome Case Dead On Arrival – Emile Short”, Peacefmonline; “Woyome Ruling: AG’s appeal will backfire – Emile Short”, Ghanaweb, March 13, 2015).

Let My Vote Count Alliance (LMVCA) has also issued a statement almost intimidating and directing President Mahama on who to appoint as the next ECr and how the appointment must be made (see “Mahama wants to appoint biased EC boss – Group”, Ghanaweb, April 12, 2015). The group also suggested the involvement of stakeholders including political parties and civil society organisations in the appointment of the next ECr.

Whilst on their face value, these suggestions or directives may appear good intentioned, they are in fact, dangerous and a clear breach of the 1992 Constitution because the constitution provides how such public appointments should be made by the president. Any departure from such constitutional requirements without amending the constitution will lead Ghana into a slow slip into constitutional abyss.

These groups and individuals are in effect saying that the constitution should be ignored when it comes to the appointment of heads of public and constitutional bodies. For me, this is not only unconstitutional but also raises a number of (un)constitutional issues such as the blurring of the separation of powers between the Legislature and the Executive. It’s also an insult to the office of the president because some of public institutions are under the Executive arm of government, though independent (EC is not).

According to Article 70(2) of the 1992 Constitution, “the President shall, acting on the advice of the Council of State, appoint the Chairman, Deputy Chairmen, and other members of the Electoral Commission”. Where is the requirement for the president to consult civil society organisations, the Legislature and political parties? Of course, the fact that the constitution does not require the president to consult does not necessarily mean he cannot consult but he should not be compelled to do so by those with a political agenda. The Council of State may undertake such consultations before advising the president.

I also understand why such calls are being made because the 2012 presidential petition unearthed the level of incompetence and lack of honesty on the part of Dr Afari Gyan, particularly his failure to define over-voting when under cross examination. Moreover, the recent fiasco by the EC in the organisation of the District Assembly Elections when Dr Afari Gyan and his commissioners arrogantly refused to reason and attempted unconstitutionally to deny a citizen his civil and political rights to contest the District Assembly election. However, Ghana cannot afford to resolve such problems by unconstitutional means.

Nowhere in the developed democracies do civil society organisations, political parties and the legislature (parliament) appoint heads of public institutions and agencies as being suggested. Again, the legislature does not make appointments for the Executive but vets the nominees of the Executive.

What about the separation of powers between the Executive and the Legislature (parliament) if it is making appointments for the Executive? How will the Legislature carry out its oversight responsibilities over the Executive and public officers if Parliament made appointments for the Executive? On the involvement of civil society organisations, would the post holder not regard himself or herself as having allegiance to the civil society organisations and parliament that appointed him or her? Are these groups and individuals considering such constitutional matters when making these suggestions?

If the involvement of civil society organisations and political parties will guarantee the independent of public appointee/s, what about the appointment of the Chief Justice, Supreme Court Justices and other Justices who are expected to be totally independent from both the Executive and the Legislature, yet, they are appointed by the President in consultation with the Judicial Council and not with civil society organisations and political parties? Is the Chief Justice not expected to be the most independent minded of all public officers appointed by the President? Did the then president consult civil society organisations and political parties before nominating the present Chie Justice for vetting by Parliament?

Another problem with the involvement of civil society organisations is, who are they accountable to (Ghanaians, the Executive, Legislature, Judiciary or their financiers)? Who appointed them and who funds them that they should be appointing heads of public and constitutional bodies who report to the Executive or the Legislature? Which civil society organisations do the groups and individuals have in mind, (is it IMANI, IDEG, IEA, Occupy Ghana, CJA, Danquah Institute, etc?). What about those less known?

These suggestions are deviations from what is actually necessary and required to make the appointees effective and independent. What is critical is not who is appointed or how the appointment is made but rather the ability of the appointee to assert his or her independence from the appointing authority (whether the Executive or Legislature, civil society organisations or political parties) after the appointment. Even if the devil is appointed s/he must show by his/her actions in both words and deeds that s/he is truly independent, fair and firm to all parties and interested groups. Heads of public and constitutional bodies irrespective of who appoints them or how they were appointed must assert their independence from the appointing authority once in office. That is how Ghana can ensure that there is accountability and good governance and that is what is lacking.

It is also reported that the Auditor General has proposed the formation of a five-member Joint Working Group (JWG) to work on the format by which the Attorney-General can initiate action through the legal process to recover stolen or misapplied state funds. The group, to be composed of two representatives each from the Auditor-General’s Department and Occupy Ghana, a pressure group, and one from the Attorney-General’s (A-G’s) Department, should be tasked to come up with the format by which the Auditor-General would issue notices of disallowance and surcharge within two weeks (see “Auditor-General proposes joint group to recovery stolen funds”, Daily Graphic/Ghanaweb, April 13, 2015).

The establishment of JWG by the Auditor General, its memberships and role are an anathema to me. There are already the Public Accounts Committee of Parliament, the Attorney General’s Department, Ghana Police and the Judiciary, all with powers to assist the Auditor General in the performance of its duties when it comes to the recovery of stolen or misapplied public resources from individuals and institutions. The creation of JWG is an abdication of duty or monumental failure by the Auditor General, the Legislature and the Executive. What is the constitutional basis of the membership of the JWG? Who is Occupy Ghana accountable to and who elected or appointed them over the public purse? Would they be paid salary or allowances or be reimbursed for their expenses and if so where would the money come from?

Any effort to recover stolen and misapplied state resources and to check corruption by public officials should be welcomed but the right processes and systems must be used. There are already laws, rules and regulations for such recovery and there is no need to reinvent the wheel. This JWG is merely duplication that could be ruled unconstitutional when challenged in the courts. Moreover, what is required is not another level of bureaucracy but ensuring that the existing structures and systems of governance and accountability work and work effectively.

In conclusion, resorting to unconstitutional means to ensuring that the next ECr is unbiased will create more problems than solve them. After all who in Ghana has no preference between NDC, NPP, CPP, PPP, PNC, NDP or any political party, unless those who are making the noise want a saint as the next ECr? No human is free from bias as we all have unconscious bias.

Most or all governments do not appoint those who are hostile to their ideology or policies into strategic positions and Mahama would not depart from that in appointing heads of public and constitutional bodies. However, what is critical is not who is appointed or how the appointment is made but that whoever is appointed becomes totally independent from the appointing authority and any other groups. Civil society organisations MUST not make public appointments so that they can maintain their freedom to hold such public officers accountable. Their direct involvement in Executive decisions will compromise their independence and risk blurring the roles expected them. Moreover, their direct involvement in Executive decisions such as Occupy Ghana in the proposed JWG is suggestive that those capable of making the most noise would be given a place on the Executive table. Civil society organisations who take such offers risk being tainted with the corruption and incompetence of public institutions and be painted with the same brush as the Executive. They risk losing public confidence and trust and to avoid such risks the 1992 Constitution must be respected at all times. We cannot cherry pick only when it suits our interests.

Kofi Ata, Cambridge, UK