Feature Article of Thursday, 28 February 2013
Columnist: Ata, Kofi
By Kofi Ata, Cambridge, UK
I am sure I will not be mistaken to say that in Ghana the name, Dr Kwadwo Afari Gyan is synonymous with the office he occupies (the Electoral Commissioner, ECr) and the organisation he leads (the Electoral Commission, EC). In fact, it would not be an understatement to also conclude that, Dr Kwadwo Afari-Gyan, hereinafter referred to as Afari-Gyan is one of, if not the most vilified public servant in Ghana. He has earned this infamous accolade from his handling of the December 2012 General Elections (Presidential and Parliamentary). In this post election series, I want to ponder over how the hitherto respected ECr has become such a despised or hated public figure among some Ghanaians and who will replace him if he decides that he has had enough and resigns.
According to the Wikipedia, Afari-Gyan was born on Monday June 18, 1945 and appointed the first Executive Chairman of the EC when the 1992 Constitution came into force. He has remained in office since then despite alleged dissatisfaction of his work and leadership at almost every Presidential Election from the two leading political parties (NDC and NPP). This is because the position of the Chairman, the two Deputies and other members of the EC are protected under the Constitution and cannot be removed at the whims and caprices of the appointing authority, the President. Had it not been this protection I am certain that Ghana would have had at least, three Electoral Commissioners since 1992 (appointed by Rawlings, Kufuor and Mills/Mahama respectively). There is no way the NPP would have maintained an ECr appointed by the first NDC government and vice-versa.
So how did Afari-Gyan end up from being the one of the most respected Electoral Commissioners in Africa, if not the world for his independent minded and no nonsense approaches to be distrustful and potentially facing disgrace in retirement should the Supreme Court nullify the result of the December Presidential Election and also declare it as not free and fair?
The ECr’s unpopularity contest began with the creation of the new forty-five constituencies just months before the December General Elections. NPP and others including public and influential figures were strongly opposed to it and attempted to persuade him to rescind the decision to create new constituencies for various reasons, some very good and rational were advanced for the opposition but to no avail. Legal action was mounted to stop the creation of the new constituencies but that also failed and as strong headed, stubborn and determined that he was , Afari-Gyan had his way and the new constituencies were created just on time for the elections. Meanwhile, the ruling party (NDC) were not passive observers as Afari-Gyan came under criticisms from his adversaries. Indeed, the party’s leadership, members and supporters came to his rescue and defended the EC’s decision.
Afari-Gyan himself did not sit aloof with all the criticisms and attacks on him and in fact, defended himself with his famous question at a press conference in early September 2012, “Everywhere you turn to, Kwadwo Afari-Gyan, Kwadwo Afari-Gyan, Kwadwo Afari-Gyan. What have I done?” (see “Afari-Gyan: Nobody can frighten me”, Peace FM online, and Ghanaweb, September 5, 2012).
The die was cast when Afari-Gyan committed the ultimate sin by mismanaging the general elections as well as refusing to postpone the declaration of the Presidential Election results on the night of December 9 2012 as requested by NPP. His response was that, the party should go to court to challenge his declaration if they are not happy with it, and to court they went. So, the current situation of some level of uncertainty regarding who truly won the December 2012 Presidential Election in Ghana. Since that fateful night, Afari-Gyan has become the enemy number one of the opposition party. He has been called all sorts names including “Sasabonsam”, the Devil, the Nation Wrecker, just to mention only a few.
Others have accused him of being in bed with NDC or connived with President Mahama to rig the election in his favour so that Mahama will give him excellent retirement package. One of Afari-Gyan’s arch critics, Prof Okoampa-Ahoofe Jr in a recent article described what he thinks should happen to him. “We just hope it does not quite come down to such a bleak outlook for Dr Afari-Gyan, not because we believe the man does not deserve to be duly and severely punished with a long prison sentence, for God knows that he surely deserves to be slapped with a remarkably long jail term, but simply because we firmly believe that being promptly relieved of his long-held "sinecure," in retrospect, will be punishment enough”. (see “Wrong Move by Afari-Gyan’s Clansmen”, Ghanaweb February 21, 2013).
Until the details of the allegations against the EC by Nana Akufo Addo et al in their petition at the Supreme Court are examined in detail to establish the veracity or otherwise, it is too early to judge Afari-Gyan, or even unfair. Again, to claim that he connived with the President or his party to rig the elections in their favour so that he could receive excellent retirement package is a manifestation of lack of knowledge on what the constitution says on such matters. Last but not least, for the learned professor to describe the constitutional position of EC Chairman as “sinecure” (a position or an office that requires little or no work but provides a salary) is not only unfortunate but contemptuous of the Constitution and utter disrespect for both the office and the office holder, Afari-Gyan.
The EC and the ECr are the creation of Article 43 of the Constitution as follows: (1) There shall be an EC which shall consist of - (a) a Chairman; (b) two Deputy Chairmen; and (c) four other members. Their remuneration and retirement are also provided for under Article 44 as follows: (2) The Chairman of the EC shall have the same terms and conditions of service as a Justice of the Court of Appeal. (3) The two Deputy Chairmen of the Commission shall have the same terms and conditions of service as are applicable to a Justice of the High Court. Therefore Afari-Gyan and his Deputies’ retirement packages are already taken care of and would not require any further enhancement from the President. I am not in any way suggesting that Afari-Gyan is beyond reproach or above the law and should not be criticised. In fact, I am one of his critics and have posted one article criticising his leadership and management of the 2012 elections (see “Dr Afari-Gyan, What happened?”, Ghanaweb December 19, 2012).
With all the negative criticisms and personal attacks on Afari-Gyan since the announcement of the creation of the forty-five constituencies in 2012 and especially after his declaration of the Presidential Election results, I am sure such personal attacks must have taken a toll on him. In fact, though he appears to be coping very well and taking the criticisms and personal attacks in his stride, the public appeal by his senior brother, Mr Martin Kwasi Addae for his brother to be left alone (see “Leave Afari-Gyan Alone”, Daily Graphic February 8, 2013) could be an indication that all is not well with him.
Again, what is interesting about this national dilemma and what appears to be a vendetta against Afrai-Gyan is the fact that Ghana’s EC is a seven member team of Commissioners led by Afari-Gyan as Chairman? I do not believe that he is such a control freak and a dictator that he runs a one man show. I suspect that as Chairman he acts on the collective decisions of the entire members. If that is the case why personalise the attacks and direct them at him alone? I guess that was why Afari-Gyan asked “what have I done” at the press conference on September 5, 2012. Is it perhaps, the rest are non-entities who just rubber stamp decisions taken by him alone or the belief that the buck stops with him?
The nature of these criticisms and attacks on Afari-Gyan are such that, I have concluded that Afari-Gyan must have written his resignation letter already but only waiting to present it to the President on or shortly after the Supreme Court gives its final verdict on the petition, whichever way it goes. Obviously, his position as Chairman of the EC will be untenable if the Justices nullify the declaration of the presidential results of December 2012. He could even be prosecuted if he is found to have been personally involved in any fraud or rigging. A favourable decision for the petitioners would also make the positions of the remaining members of the Commission untenable and that must lead to a wholesale resignations or dismissals of the entire Commissioners.
As postulated above, whatever happens, Afari-Gyan will resign as Chairman of the EC. The current political environment in Ghana is poisoned to an extent that even if the Justices rule that, despite the administrative irregularities the elections were free and fair and the results stand, my view is that, not only the opposition party but many Ghanaians could no longer trust Afari-Gyan as head of the EC and it would be in his best interest to step down and tender his resignation to the President honourably. Again, looking at his age (to be 68 in four month’s time) he would be better off to leave the hot seat for another person to carry the mantle. He has done his fair share and what Napoleon could not have done.
But my big question is, should Dr Kwadwo Afari-Gyan resign or be sacked for whatever reason at the end of the petition, who will take the poisoned chalice from him? Will the NPP accept any of his two Deputies as the new Chairman or will NPP trust a new appointment of the President? Unfortunately, NPP has no option but accept whoever is qualified and is appointed by the President because Article 70 (2) of the Constitution states: “The President shall, acting on the advice of the Council of State, appoint the Chairman, Deputy Chairmen, and other members of the Electoral Commission”.
Notwithstanding the authority of the President to appoint the ECr as above, I am of the view that whilst Ghanaians continue to debate the presidential petition and await the final ruling by the Justices, some time should be spent on ‘the day after’ or ‘what next’ as far as the positions of the Chairman and or Deputy Chairmen or even the entire membership of the EC are concerned. It is important that this debated is began in earnest now and not wait till the final outcome of the Supreme Court petition.
My suggestion is that for the next Commission Chairman and possibly the two Deputies to have the trust, confident and support of Ghanaians, a special Appointment Commission with representatives from political parties, religious bodies, the Trade Union, National House Chiefs, Civil Society, etc be established to vet potential (eligible) applicants and four or three of the suitable candidates to be recommended to the President who will make the final choice in consultation with the Council of State. I am not sure if this suggestion will require a Constitutional amendment but what do you think?
Kofi Ata, Cambridge, UK