HE WAS A GREAT MAN AND ALWAYS BE REMEMBERED WITH HIS PRINCIPLES.
HE WAS A GREAT MAN AND ALWAYS BE REMEMBERED WITH HIS PRINCIPLES.
Mahmoud 8 years ago
Appointing the Chairman and Members of the Electoral Commission
Columnist Asare, Kwaku S
The Ghana Bar Association (GBA) has called upon the President “to seize the opportunity of the appointment of a new Chairman of the ... read full comment
Appointing the Chairman and Members of the Electoral Commission
Columnist Asare, Kwaku S
The Ghana Bar Association (GBA) has called upon the President “to seize the opportunity of the appointment of a new Chairman of the Electoral Commission (EC) to appoint a person of integrity who is perceived as capable and just and who will not pander to political pressures from any quarters.” According to the GBA, such an appointment will boost the image and credibility of the Commission.
I agree with the GBA on the attributes that the new Chairman of the EC must possess and strongly disagree with those who argue that the GBA’s call is, “at this time, highly unnecessary and uncalled for.” The tenure of Dr. Afari Gyan, the current Chairman of the EC, ends in November 2015 and it is not out of place for the GBA, or other stakeholders, to remind the appointing authorities to emplace a mechanism that assures that a competent and independent person can be identified and appointed.
Nevertheless, I am concerned that the GBA’s call overestimates, perhaps misunderstands, the President’s role in the appointment of the Chairman of the EC and has the potential to mislead the President into taking actions that will be ultra vires and inconsistent with his powers under the Constitution.
I start by acknowledging the breadth of the President’s appointment power under the Constitution. However, the nature of the power is position dependent, ranging from absolute, where the President acts alone, to perfunctory, where the President is required to appoint someone nominated by another body. For instance, the President has the power to appoint 11 members of the Council of State, 4 members of the Judicial Council and 2 members of the Police and Armed Forces Council. That power is absolute in that it is exercised solely at the discretion of the President without the involvement of any other constitutional body. On the other hand, the President appoints some officers, such as the Auditor General, in consultation with the Council of State while others, such as ministers, are appointed with the prior approval of Parliament.
The framers of the Constitution have imposed varying levels of constraints on the President’s appointment power for democratic, governance, prudential and historical considerations. Analyzing and understanding the nature of the President’s appointment power is, therefore, important to assuring that the power is exercised in the manner dictated by the Constitution.
In the Table below, I describe my understanding of the constraints that the Constitution imposes on the President's appointment power ranging from a Level 1 power (pure or absolute power) to a Level 10 power (perfunctory or ministerial power). In addition to the pure and perfunctory powers, I identify other appointments for which the President wields consultative, shared, or approval power. Consultative power means the President is required to consult another body prior to making an appointment. Shared Power means another body has to approve the President’s nomination. Approval Power means the President approves a nomination made by another body. Perfunctory power means the President is required to appoint persons nominated by other bodies. That is, the President has no involvement in selecting the nominee and no discretion in the appointment. Thus, the appointment power is merely ministerial involving no more than a mandatory appointment letter issued by the President. The process for appointing some public officers may involve a combination of powers. For instance, the President may be required to consult with the Council of State, hence a consultative power, and the nominee must be approved by Parliament, hence a shared power.
In addition to the Level and Nature of the power, the Table also provides the language employed by the Constitution and the positions for which the appointments are made. On close inspection of the Table, one observes that, as a general rule, the more independent the appointee is supposed to be in the performance of his task the more perfunctory the President's power. Such appointees also tend to have good-behavior life tenure. Conversely, the President typically acts alone to appoint persons who are part of bodies set up to advise him. These appointees tend to serve at the pleasure of the President or have tenure that is tied to the President’s. In effect, the nature of the President’s appointment power is remarkably nuanced and underscores the framers’ intention to subject the power to intricate and ingenious checks and balances.
As can be seen from the Table, the President’s power to appoint the Chairman and Members of the EC is at level 9a, which means that the power to make that appointment is perfunctory or ministerial. This is because Article 70(2) provides that, “The President shall, acting on the advice of the Council of State, appoint the Chairman, Deputy Chairmen, and other members of the Electoral Commission.” The plain and ordinary meaning of Article 70(2) is that the President is obliged to act on the advice of the Council of State in appointing the Chairman and Members of the EC.
There are two important points about the “advice” contemplated in Article 70(2). First, it is a term of art. Advice, in constitutional law, is a binding instruction given by one constitutional officer to another. It is not “advice” in the everyday meaning of the word. Second, the advice must be in the form of an appointee not some attributes of the appointee. That is, the Council of State is required to give the President a nominee to appoint not advice in the form of, for instance, “Mr. President, we advice you to choose a man of integrity.”
The use of “advice” as a binding instruction has a long history in our Constitutional history. For instance, Section 16 of the 1957 Constitution provides that “the Governor-General, acting on the advice of the Prime Minister, appoints parliamentary secretaries to assist ministers.” Similarly, Section 7 of that Constitution provides that, “any minister may be removed from office by the Governor-General acting on the advice of the Prime Minister.” The Prime Minister at that time was Osagyefo Kwame Nkrumah and the Governor-General was Sir Charles Arden-Clerk [from March to June 1957] and the Earl of Listowel [June 1957 to June 1960]. It was, of course, well established, known and beyond dispute that the Prime Minister’s advice was binding on the Governor-General. Thus, the latter’s appointment power was merely perfunctory and the substantive power of appointment was vested in the Prime Minister. Moreover, it was also understood that the Governor-General played no role in the identification, vetting and selection or removal of the nominees, that power being vested in the Prime Minister.
As another example, both the 1969 (Article 30(2)) and 1979 (Article 37(2)) Constitutions provided that, “the Electoral Commissioner shall be appointed by the President, acting in accordance with the advice of the Council of State.” This simply meant that both President Edward Akufo Addo (1969-1972) and Hilla Liman (1979-1981) had a perfunctory appointment power with the substantive power to appoint the Electoral Commissioner vested in the Council of State. The framers of the 1992 Constitution did not break any new grounds in the process for appointing the Chairman and Members of the EC and clearly intended the meaning of advice as employed in the prior Constitutions.
Nor is that usage and meaning of advice unique to our constitutional history. The phrase originated in the United Kingdom and is still in use many common law jurisdictions. For instance, in the United Kingdom, the Queen appoints senior judges acting on the advice of the Prime Minister. In Canada, the Queen acts entirely on the advice of Canadian Government ministers. In Jamaica, the Governor-General, the Queen’s representative, acts in accordance with the advice of the Prime Minister. In all these cases, it is well understood that the advice given is binding and the Queen and Governor-General exercise only perfunctory powers.
Thus, when Article 70(2) of the 1992 Constitution provides that the President shall act on the advice of the Council of State, it contemplates that the Council of State (Council) will put in place a mechanism to search for, vet and nominate a candidate for the President to appoint. The Council could do so in a variety of ways. First, it could work through a committee of the Council. Essentially, this becomes a Search Committee tasked to identify a short list of qualified persons for the Council to choose from. Second, the Council is permitted to commission experts and other consultants to advise it. It could do so here. Third, the Council could advertise the position or call on citizens, political parties, NGOs, etc. to nominate candidates either to the Council at large or to the Search Committee. Finally, the Council could use my least favorite approach ? choose someone from within the EC, probably from the other members or a respected senior staff.
The important point is that Article 70(2) not only obligates the President to appoint whomever the Council nominates but it also bars the President from sending a name or otherwise consulting with the Council prior to the nomination. This process can be contrasted to the level 2 appointments where the Constitution contemplates a consultative process. For instance, the President appoints the District Assemblies Common Fund Administrator acting in consultation with the Council of State. By creating subsections of Article 70, the framers highlighted that the process for appointing Article 70(1) officers differs from that of Article 70(2) officers.
The rational for assigning the President a perfunctory role in the appointment of the Chairman and Members of the EC is not far fetched. The EC is, in essence the political referee of the quadrennial political games, and it is flawed constitutional design for the President, a key political player, to have an active role in the EC’s appointment. Incidentally, this, in my opinion, is also the reason why Parliament is excluded from this appointment process. It would have been absurd to assign the President a critical role in the appointment process and exclude Parliament, hence the opposition parties, from the process. Thus, a purposive interpretation of Article 70(2) will also support the conclusion that the President’s power to appoint the Chairman and Members of the EC is only ministerial.
The framers operated on the assumption that the Council is an independent, non-partisan body and could be trusted with the task of essentially appointing the Members and Chairman of the EC. Thus, the Council's independence and integrity are critical to the effectiveness of this appointment scheme. Nevertheless, because the President has a level 1 power to appoint 11 out of the 25 Council members, it is important that any process established by the Council to discharge its Article 70(2) function is transparent and verifiable. Without a high level of transparency and verifiability, it is impossible to know whether the President has acted on the advice of the Council or impermissibly acted in Consultation with the Council. Thus, sound governance and prudential considerations will require the Council to employ a transparent nomination, vetting and selection process. The Council must not only act independently of the President, in the discharge of its Article 70(2) responsibility, it must go the extra mile to be seen to be independent.
In conclusion, the President’s power to appoint the Chairman and Members of the EC is merely a ministerial one. The substantive power of appointment is assigned to the Council of State. The President shall act on the advice of the Council of State means the President is barred from the nomination, vetting and selection process. Those who framed the Constitution were keenly aware of the impropriety inherent in allowing the President, a political player, to play a critical role in selecting the political referee. Nevertheless, out of deference for the office of the President, the framers allowed him, as the Chief Executive Officer, the honour of “appointing” the candidate selected by the Council of State. In this case, all the President is required to do is to issue the appointment letter under the Presidential seal but no more.
We share in the acknowledgement of a great man who did all he could to advance equal representation at the polls, no matter where one lives, or where one comes from.
Well done, Dr. Afari-Gyan, and congrat ... read full comment
Right on time!
We share in the acknowledgement of a great man who did all he could to advance equal representation at the polls, no matter where one lives, or where one comes from.
Well done, Dr. Afari-Gyan, and congratulations for a life well-lived!
Thanks, Israel D. K. Agorsor!!!
Mahmoud 8 years ago
Author: Kafui Ama
Date: 2009-07-23 01:44:06
Please be patient and read this to the end.
It was November 1999 and I'd been Deputy High Commissioner in Ghana for almost a year - the culmination of 15 years' Foreign O ... read full comment
Author: Kafui Ama
Date: 2009-07-23 01:44:06
Please be patient and read this to the end.
It was November 1999 and I'd been Deputy High Commissioner in Ghana for almost a year - the culmination of 15 years' Foreign Office service in Nigeria, Warsaw and the equatorial Africa department in London.
I'd always been passionate about Africa and had immersed myself in its minutiae. Nevertheless, my father, who had a timber yard in Ghana in the Sixties, offered a little extra counsel before I departed, aged 40. 'If you see any good-looking girl, aged about 30, light skinned, whatever you do, don't touch her - she could be your sister!'
Not that this was a big concern for me. My most pressing duty was the 1999 State Visit by the Queen and the Duke of Edinburgh, Enhanced Coverage Linking the Duke of Edinburgh, -Search using: Biographies Plus News, Most Recent 60 Days, accompanied by Robin Cook, the then Foreign Secretary. It was a three-day blur of activity, the teeming crowds displaying an uncomplicated and old-fashioned reverence.
A warning that the Duke was averse to looking at things without useful purpose proved absolutely right. As we stood looking at the strip of brass laid in a churchyard that marked the line of the Greenwich Meridian, he said to me: 'A line in the ground, eh? Very nice.'
Ghana epitomises much of the best of Africa, but also throws into relief the tragedy of the continent. It has maintained its higher education and has fewer extremes of wealth than elsewhere. But at independence in 1957, Ghana was richer than Argentina, Brazil, Malaysia or Singapore. Today, those countries are at least ten times as wealthy.
Corruption, cronyism, economic mismanagement, irresponsible lending by the West and the dumping of cheap food all did for Ghana. When I arrived with my wife Fiona and children Jamie and Emily, Ghana had been ruled for 20 years by Flight Lieutenant Jerry Rawlings.
The son of a Stirlingshire pharmacist and a local woman, he seized power in a coup in 1979, but claimed to have won presidential elections in 1992 and 1996, despite allegations of vote-rigging.
In his early years, Rawlings unleashed a political terror on Ghana. His campaign against the middle classes resembled Mao's Cultural Revolution. People were persecuted for having savings or two indoor lavatories. Market women were sometimes killed for 'profiteering'.
The Queen's visit delighted Rawlings, who craved international respectability. I, too, was determined to make the most of the trip, by helping ensure Rawlings gave up power by the start of 2001, as the constitution required because he had served two four-year terms.
The Queen's speech to the parliament in the capital, Accra, was to be the focus of the visit and I had contributed to its drafting. It contained the usual guff about a future based upon partnership, but there was a sting in the tail. 'Next, year, Mr President,' the Queen intoned, 'you will step down after two terms in office in accordance with your constitution.' The opposition benches went wild and the Queen stopped, looking in bewilderment at the hullabaloo.
Afterwards, Robin Cook was furious. 'It's a disaster. Who the hell drafted that?'
'Er, I did, Secretary of State,' I said. 'I might have guessed! Who the hell approved it?' 'You did.' Cook's Private Secretary had to dig out the draft he had signed. After the State banquet, I retired to a hotel bar with the Royal Household. The senior staff had withdrawn to allow the butlers, footmen and hairdressers to let off steam.
The party appeared, to a man, to be gay. Not just gay, but outrageously camp. We'd taken the hotel for the Royal party, but allowed the British Airways crew to stay. Now three cabin stewards, two Royal footmen and a Royal hairdresser were grouped around the piano singing hits from Cabaret. I was seated on a sofa and across from me in an armchair was a member of the Household who seemed out of place. The valet looked to be in his 60s, a grizzled NCO with tufts of hair either side of a bald pate, a boxer's nose and tattoos on his arms.
He was smoking roll-ups. I turned to the old warrior and said: 'Don't you find all this a bit strange sometimes?' He lent forward, put his hand on my bare knee below the kilt I wore on ceremonial occasions and said: 'Listen, ducks. I was in the Navy for 30 years.' I think he was joking, but some things are too weird even for me. The lower reaches of the Royal Household are one of them.
One enjoyable aspect of our time in Ghana was the constant stream of visitors. Among them was Peter Hain, the Minister for Africa. Hain, a good footballer, agreed to play in a charity match between children from a community football scheme and the High Commission.
Unfortunately, the ground was hard and the opposition turned out to be super-fit professionals. After a heavy tackle, I went down. Result: a dislocated shoulder. I couldn't move my arm for eight weeks. Other visitors included Clare Short, at the time Secretary of State for International Development.
She was in Ghana to try to persuade it to join a debt relief scheme. At a dinner for her, a Minister had made a speech about how much Ghana had learnt from the British Empire. Short stood up and expostulated: 'The British Empire! Don't tell me about the British Empire. I know about British colonialism. My father was Irish and we know about British colonialism. I'll tell you what the British did to your country. They exploited it, that's what they did. They exploited it.' After a few moments of stunned silence, the dinner continued.
On another occasion we were joined by Bobby Charlton, who came to Ghana seeking support for England's bid to host the 2006 World Cup. He was still an astounding player at 60 and it was good of him to get on the pitch for a local community football programme. Nevertheless, I found Charlton disappointing. He was self-centred and ratty - one of those heroes you wish you hadn't met.
Conversely, Roger Moore, a UNICEF goodwill ambassador, was charming and suave, just as you would expect, with a fund of brilliant stories beginning with lines such as: 'One day, Frank, Dean, Tony and I decided to play a trick on Marilyn ... ' He was also well briefed about children's issues in Ghana and was prepared not just to do PR, but to get his hands dirty helping in refugee camps without a camera in sight.
I was less taken with Jamie Theakston.
The BBC were filming a wildlife programme in Ghana, looking at the endangered green turtle population near Ada. A group of young volunteers had accompanied the BBC team to help the newly-born turtles to reach the ocean. But one girl, in her mid-20s, had streams of mascara running down her cheeks. She claimed Theakston had just broken up with her - yet here he was, surrounded by young women, enjoying the adulation.
I had bigger concerns, however. Ghana's presidential and parliamentary elections were due in December 2000 and there were signs that its 11 million voters might be preparing for a change of government. Enthusiasm for politics was everywhere. Even in the meanest village, people gathered under the banyan tree listening to FM stations on a battered transistor and arguing about the coming change.
In the West, tired of our politicians' deceit, we no longer much value democracy. It is wonderful to see a people exercising for the first time their power over those who would govern them. Our job was to see the elections were free and fair, with Britain funding a £10 million programme for photo-ID cards to reduce electoral fraud. The exercise eradicated one million fake names.
Another practical new weapon was indelible ink: when somebody voted, their thumb was painted to stop them casting more than one vote. India was the only source of a truly permanent ink that could not be washed or rubbed off. I had also persuaded the Foreign Office to provide experts from the Electoral Reform Society. Further valuable additions were two British MPs, Roger Gale and Nigel Jones.
Rawlings's party, the National Democratic Congress (NDC), put up the vice President, John Atta Mills, as its presidential candidate. The opposition New Patriotic Party (NPP) fielded John Kufuor. There is a tribal element in Ghanaian politics: the Ewe people vote overwhelmingly NDC; the Ashanti overwhelmingly NPP.
It was clear the governing party would not abandon power easily. Alarmed that it would lose, it had the high court declare the ID cards illegal because they disenfranchised legitimate voters. But the ruling was to no avail - the people took over. Polling station officers decided they were going to use ID cards anyway.
When first- round votes on December 7 were tallied; Kufuor had 48.4 per cent against Atta Mills's 44.8 per cent. The opposition was heading for a small majority but, with no candidate exceeding 50 per cent, a run- off was required. Ghana's 30 or so FM stations were vital in bringing democracy, so it was no surprise that the NDC moved against them.
On the evening before the poll, I took Roger Gale and Nigel Jones to visit Joy FM, possibly Ghana's most influential station. We were sitting in the office when an armed posse of Rawlings's security men arrived, saying they were closing the station on the President's instructions.
‘Good evening,' I said. ‘I am Craig Murray, Deputy British High Commissioner, and these gentlemen are Mr Roger Gale MP and Mr Nigel Jones MP, members of the British Parliament.' Gale added: ' Obviously there has been some mistake.
I thought I heard you say that you were closing down the station, but we are here to visit our fellow democracy, Ghana, and democracies don't close down radio stations.' The goons left. Joy FM never was closed. However, the NDC started to think I was a part of their problem and they assigned a secret service team to follow me around.
As the second round on December 28 approached, we discovered a problem: not enough Indian ink. We had paid for more, but it had to be specially made and would not be ready until December 24. This was cutting it tight and action was needed. Chartering a private plane to set off from India on Christmas Eve was easier said than done. Whitehall was in festive mode and unlikely to sanction spending quickly, so I used the Embassy's budget to pay for it.
Ghana's government did not want the Indian ink to get in and I was concerned it would be delayed by customs officials. So on Christmas Day 2000, instead of eating turkey, I stood baking on the airport tarmac. When our plane taxied in, we unloaded the boxes of little ink bottles on to two trucks. I escorted these out of the VIP gateway, helped by a substantial tip to the guards.
The truck drivers then delivered the ink to regional centres for distribution to constituencies. This was a game being played for high stakes, with real danger of civil war.
Hotheads in the ruling party might claim electoral fraud and mount a military takeover. The Ashanti could also react violently to losing. Every embassy was updating evacuation plans. Around 1am, the results started to come in. There was a more or less consistent swing to the opposition candidate, John Kufuor. You could have cut the atmosphere with a knife.
The coolest man in Ghana that night was the wry, chain-smoking Electoral Commissioner, Kwadwo Afari- Gyan, who received constant threatening phone calls instructing him to fix the result. Each time, the Electoral Commissioner replied: ' The result will be what the result will be. I am just making sure it is fairly counted.' Then, taking his umpteenth call, he stiffened. He summoned me to listen: it was his wife. Soldiers had come to their bungalow, taking her and his children hostage and threatening to kill them if he did not deliver the ' right' result.
Kwadwo barked down the phone: ' Put their leader on.' ‘Listen you little *****,' he snarled. 'How dare you come to my house and threaten my wife and children. I am sitting here with the British Deputy High Commissioner and he knows what is happening. Now get out of my home before we have you thrown into jail!' The soldier said: ' Yes, sir; sorry, sir.' Kwadwo then told his wife not to worry and calmly returned to his work.
By 3am on the second night only two constituencies were still to declare. Even if every voter there went for Atta Mills, Kufuor could still not be beaten.
The opposition had won - an African country ... had shown that democratic change could be achieved peacefully. Kufuor's eight years as President saw economic growth of more than 70 per cent - the first prolonged period since independence when Ghana was not getting poorer. But Ghanaians chose to exercise their democratic right to change and earlier this month narrowly elected Atta Mills.
Ghana is the only country in Africa to achieve the democratic norm of power alternating peacefully between parties at successive uninterrupted elections.
As I look back on my involvement with Africa over 30 years, I remain most proud of helping Ghanaians to attain democracy. It is an example that sadly, the rest of the continent has so far done little to follow.
But Ghana remains there - a glimmer of hope, an example to others and a rebuke to cynics who claim democracy is not possible in Africa.
asonaba kofi 8 years ago
afari gyan is truly a great African whose good work would be remembered forever.
afari gyan is truly a great African whose good work would be remembered forever.
Jato Kaleo 8 years ago
If Afari-Gyan retires at 70, what is Akufo-Addo still wanting the Presidency (supposed to be even more tedious than EC charimanship) for at a time he will be almost 73 when he assumes office? By the time he finishes his first ... read full comment
If Afari-Gyan retires at 70, what is Akufo-Addo still wanting the Presidency (supposed to be even more tedious than EC charimanship) for at a time he will be almost 73 when he assumes office? By the time he finishes his first term in office, he will be 77. He will still want to stand for a second term because he will say he needs the time "to complete the good work" he is doing. By the time he leaves office after a second term, he will be 81.
Well, let's see how it goes with him - and our country. If he wins next year, that is...
This article contains too many sir, sir, sir. Is it an address to Afari-Gyan or a tribute to be read by others?
LARYEAH 8 years ago
YOU ARE A FOOL, IS AFARI GYAN DEAD. ANYWAY, AFARI GYAN AN IDIOT AND UNPATRIOTIC.
YOU ARE A FOOL, IS AFARI GYAN DEAD. ANYWAY, AFARI GYAN AN IDIOT AND UNPATRIOTIC.
Felicia -Milton Keynes, UK 8 years ago
Well done and God bless you.Enjoy your retirement.
Well done and God bless you.Enjoy your retirement.
HE WAS A GREAT MAN AND ALWAYS BE REMEMBERED WITH HIS PRINCIPLES.
Appointing the Chairman and Members of the Electoral Commission
Columnist Asare, Kwaku S
The Ghana Bar Association (GBA) has called upon the President “to seize the opportunity of the appointment of a new Chairman of the ...
read full comment
Right on time!
We share in the acknowledgement of a great man who did all he could to advance equal representation at the polls, no matter where one lives, or where one comes from.
Well done, Dr. Afari-Gyan, and congrat ...
read full comment
Author: Kafui Ama
Date: 2009-07-23 01:44:06
Please be patient and read this to the end.
It was November 1999 and I'd been Deputy High Commissioner in Ghana for almost a year - the culmination of 15 years' Foreign O ...
read full comment
afari gyan is truly a great African whose good work would be remembered forever.
If Afari-Gyan retires at 70, what is Akufo-Addo still wanting the Presidency (supposed to be even more tedious than EC charimanship) for at a time he will be almost 73 when he assumes office? By the time he finishes his first ...
read full comment
YOU ARE A FOOL, IS AFARI GYAN DEAD. ANYWAY, AFARI GYAN AN IDIOT AND UNPATRIOTIC.
Well done and God bless you.Enjoy your retirement.