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Feature Article of Thursday, 27 March 2014

Columnist: Asare, Kwaku S.

Is it time to Reform our Moribund Election Laws?

S. Kwaku Asare

No matter where one stood on the 2012 Article 64 election petition, there is considerable consensus that it exposed the inadequacies in our election system and highlighted the need for a complete overhaul of our election laws. Nevertheless, several months after the Supreme Court’s confusing verdict, there appears to be no serious effort by Parliament to undertake a reform of our election laws. This parliamentary inertia can prove to be very costly because the petition taught us two other lessons: (i) aggrieved parties in an Article 64 petition cannot count on the Supreme Court to deliver a timely and rational decision; (ii) there are no election rules. In turn, these lessons suggest that any future election disputes are likely to be resolved by extra-judicial mechanisms, which is a frightening prospect that can and must be avoided by adopting bipartisan proactive and prophylactic measures now. In this article, I present eight items that must be on the reform agenda.

The Election Calendar: Under our laws, a President is inaugurated on January 7, quadrennially (with the first such inauguration in 1993). For inexplicable reasons, the Electoral Commission (EC) has chosen to schedule general elections on or around December 7, with any runoff scheduled on or around December 28. That leaves one month or one week, as happened in 2000, for the transition from one government to another. This tight schedule is not only problematic; it is also an avoidable problem, which is exacerbated when there is an Article 64 petition requiring the Chief Justice to simultaneously swear in a President and empanel her colleagues to determine whether the person being sworn in is validly elected. Fortunately, the fix for this problem is neither hard to figure out nor does it require funding from any country. We must simply alter the election calendar, as I suggested in 2002 following the Ayawaso East and Wulensi election disputes in 1997 and 2001 respectively (http://www.ghanaweb.com/GhanaHomePage/features/artikel.php?ID=22740).

The general elections and runoffs can be held in the first and last week of October respectively, leading to a 3 months window, between the elections and the inauguration, for the transition and to resolve any election disputes. The calendar, of course, will also fix a hard deadline for all the courts, including the Supreme Court, to resolve any election related disputes. In my opinion, no good Court should take 8 months to resolve a dispute over a claim that has a 48-month useful life. Moreover, one only has to read the Supreme Court’s opinion in the 2012 Article 64 petition to concede that a protracted hearing does not guarantee a defensible or rational opinion.

Statement of Poll and Declaration of Results: Affectionately dubbed the pink sheet, this is the record of ballots issued (to the polling station and voters), spoilt, unused and rejected (classified into 5 categories). The range of serial numbers of the ballots issued to the polling station, the numbers of voters on the polling station register and the number of voters on the Proxy voters list are also recorded on the pink sheet. Some of the pieces of information are to be recorded on the pink sheet at the start of the poll; others are to be filled in before counting commences and others at the completion of counting. However, there is no mechanism to determine when these columns are actually recorded on the pink sheet. Some columns are to be added and the sum recorded, although the pink sheet reminds whoever is recording that sum that it must be equal to some number previously recorded elsewhere on the pink sheet.

The pink sheet is not only needlessly complex but it also invites needless errors and requires the manual entry of information that should be prepopulated. For instance, column B tracks information about the Voters’ Register and the number of voters on the Proxy Voters List. This information is independent of what happens on the polling day and requires the presiding officer to manually record information from the applicable registers. Column B should be prepopulated. Similarly, asking someone to add a column of numbers (e.g., C1+ C2+ C3+ C4) and telling the person the sum should be equal to a number in another column (e.g., A1) is poor ballot accounting. The person will likely record the number in A1 as the sum without doing the summation. Or if the person does the summation and it does not agree with the number in A1, he will play with the other numbers to achieve reconciliation.

Our elections will continue to produce absurd results as long as the pink sheets remain the primary and sole source of the collated results. As it became clear during the hearing of the election petition, even the Chairman of the EC has difficulties interpreting the information on the pink sheet. Thus, simplifying and rationalizing the pink sheet must be an integral part of any meaningful election reform. The pink sheet must be freed from worthless information and avenues for errors. In addition, high quality carbonless paper must be used that allows multiple copies of the pink sheet to be distributed to the interested political parties, candidates and the pool of reporters.

Mopping the Supreme Court Mess: The election architecture designed by the Constitution and other laws have some important properties to ensure free and fair elections. Some of the key requirements are (i) each registered voter is entitled to one ballot, which should count for no more or less than one vote, assuming the ballot is properly cast. Thus, overvoting (counted ballots in excess of issued ballots; or counted and/or issued ballots in excess of registered voters) is strictly impermissible; (ii) registered voters are to be verified by the EC’s pre-announced verification mechanism agreed to, in advance, by all parties. In the last election, this was the expensive biometric registration and verification and the concomitant well-known policy of no verification no vote (NVNV); (iii) at any public election, there is to be a Presiding Officer for each polling station who must supervise the counting of the ballots and sign a statement declaring the results of the election immediately after the close of the poll; (iv) only a citizen of Ghana can challenge the validity of the election of a President-elect and only the respondents named in the petition can respond to the petition (see CI 74); (vi) the Court shall sit from day to day, including Saturdays, Sundays and public holidays to expeditiously determine a Presidential election petition (see C.I. 74).

As we found out from the Supreme Court in August 2013, none of these elaborate requirements matter! Overvoting is legal, thus the electoral commission can “legally” declare that a candidate procured 100 votes in an election where only 20 ballots are cast. Voters need not be verified in accordance with the preannounced verification scheme. The Presiding officers need not sign the declaration (“shall sign” does not mean “shall sign”). Curiously, on each of these flagrant violations, majority of the Court sided with the Constitution, although for unknown reason these counts did not matter to the Court at all.

Busy body political parties are free to join presidential election petitions, notwithstanding what the constitutional instrument says. The Court will sit when it wants to sit and the Court will not sit on Fridays, Saturdays, Sundays and public holidays. In consequence, the Court will not determine presidential petitions expeditiously. In fact, the Court will resolve it in 8 months, which is 1/6 of the life of the disputed claim.

To put it mildly, the 2012 Presidential Election Court has bastardized the Constitution and our election laws and has created a big mess! However, there is no reason to live with the mess. Parliament can fix the mess by enacting appropriate laws that stipulate in very clear terms the consequences of overvoting, absence of the presiding officer’s signature, etc. Fortunately, there is precedence for cleaning up the mess left by the Supreme Court. For instance, Parliament repealed the criminal libel law in response to various absurd Supreme Court decisions to send journalists to jail for their editorial opinion. In that regard, Parliament must also mop up the Supreme Court’s “contempt” mess by enacting legislation that makes it impossible for the Court to search for, persecute and incarcerate citizens who criticize the Court’s mess.

Creation of Constituencies: Under our laws, there is no limit on the number of electoral constituencies. Moreover, each constituency has to be represented by a member of parliament (MP) and it is the EC that has the power to prescribe the number of constituencies. We have seen the EC increase the number of constituencies from 200 to 275 over a short period of time even as MPs complain that they lack resources, including office space.

It is difficult, if not impossible, to understand why the EC, which has no power of taxation or control over the country’s resource envelope can be allowed to have the power to impose such financial burdens on the country (even Parliament is not allowed to do that). Even more troubling, the EC has chosen election years as its preferred period to create constituencies, frequently increasing the political temperature in the country and detracting from its core mission of organizing free and fair elections.

Fortunately, a simple constitutional amendment to cap the number of MPs will address this problem and lead to considerable cost savings while increasing the resources available to MPs (see http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=249847). Further, in my opinion a well-resourced 140-member parliament should suffice and will outperform a poorly resourced 275-member parliament that depends on NGOs to set its agenda and to draft bills for its rubber-stamping.

Constituency Malapportionment: According to our laws, the number of inhabitants in each constituency shall be as nearly as possible equal to the population quota (see Constitution, Article 47). This is nothing more than the affirmation of the principle of one-person one-vote. It assures that the Party whose policies appeal to most voters has the majority seats in parliament rather than the party that is most favored by the EC’s apportionment.

Assuming a 2012 population of 25 million, the population quota is approximately equal to 91,000. Our laws also appropriately anticipate and accommodate reasonable and unavoidable variance from the population quota to account for means of communication, geographical features, population density, regional, administrative and other traditional boundaries.

For the 2012 elections, the constituency sizes range from 12,082 to 126,659. Thirteen (13) constituencies have over 100,000 registered voters and 12 have less than 20,000 registered voters. These numbers understate the extent of malapportionment as the constituencies with the highest number of voters also probably have the highest number of unregistered citizens, hence inhabitants.

Although no law currently defines what is a reasonable variance from the population quota, it seems obvious that there is something fundamentally wrong and undemocratic with an election that weighs a vote in some constituencies to be worth as much as 10 votes in other constituencies. Such a ratio clearly undermines the principle inherent in using a population quota as a basis for apportionment. This is a problem that Parliament can fix by stipulating an acceptable variance for future elections. For instance, Parliament can stipulate a 10% boundary on either side of the population quota (e.g., 81,900 to 100,100).

Appointment of Members of the Electoral Commission: Under our laws, the seven members of the EC are appointed by the President, acting on the advice of the Council of State. They are not even vetted by Parliament. This is certainly an undemocratic and absurd way to choose a commission whose members are supposed to be independent and whose mission is to promote and safeguard democracy. It is little wonder that the Chairman of the EC acted more like a partisan than a neutral election manager during the hearing of the 2012 election petition. As always, the solution to this problem is both obvious and easy. Parliament must vet the members of the commission and approve nominations by a super majority, perhaps 60% of MPs.

Campaign Financing: Although we universally bemoan the rising incidence and magnitude of political corruption, we seldom acknowledge and address the role that campaign financing plays in corruption. It is crystal clear that our political campaigns have become too expensive with most of the expenditure flowing from the consolidated funds into vote buying. While both activities are unlawful, there is little or no appetite for enforcement, leading to a vicious cycle of political chicanery. Again, Parliament must consider and pass the necessary reforms and hold the enforcement agencies accountable. I have previously provided several ideas on this particular issue (http://www.modernghana.com/news/493165/1/is-it-time-to-impose-campaign-spending-limits-and-.html).

Voter Registration: The EC is charged with compiling and maintaining a register of voters. It has failed to do so! In February 2004, a GNA report indicated that the EC had received ¢80 Billion to undertake the 2004 registration exercise. Talking about that exercise, the Chairman of the EC, Dr. Afari-Gyan said, "we must all pretend as if we have never registered our names before and must join in this major program to once and for all, have a very reliable and credible voters' register."

At that time, I said, "this EC could not get the registration exercise right for 1992, 1996, and 2000. What makes anyone think the EC can get it right in 2004? Unfortunately, one can be incompetent for a long time in Ghana with no consequence. There is no sensible way of registering over 10M people in two weeks. Anybody who thinks he can do it does not understand the process. Haste makes waste. We need an EC who thinks." The reader can now add the cost of flawed new registers for 2008 and 2012. We should not be surprised if we are asked to register again to “once and for all build” the 2016 version of “a very reliable and credible voters’ register.”

The EC has failed! It should not take over 2 decades and over $200 million to build a reliable voters’ register. We need competent people at that commission who can create a credible voters’ register that is subject to periodic maintenance to add new voters and remove invalid registrations (e.g., dead voters). The quadrennial program of asking over 10 million people to pretend that they have never registered to vote before is wasteful.

The common theme in the issues discussed supra is that our election history has been characterized by avoidable and easy to fix problems. If we are a learning society, we must carefully plan and resolve to avoid these problems in 2016. While these problems have thus far not led to major crisis, it is doubtful whether the political temperature in this country can withstand another problematic election. If we fail to address these problems now, we will encounter them in 2016 with, I am afraid, disastrous consequences.

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