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Opinions of Thursday, 15 February 2018

Columnist: Nana Yaa Ofori-Atta

Nuclear Meltdown

Nana Yaa Ofori-Atta, author Nana Yaa Ofori-Atta, author

It has taken a while to establish the trend but in the silver jubilee year of the 4th Republic, many roads now lead, thankfully, to court.

The Citizen Ghana Movement (CGM) secured a ruling from the Human Rights Court on Friday, February 9th 2018, compelling the Electoral Commission (EC) to insist on the constitutionally mandated requirement of Article 55 (14) and relevant sections (14 and 21) of the Political Parties Act. Filed as well as audited accounts of financial contributions including the assets of our 24 registered political parties must be collected and published by the EC.

Since the EC adopted its 'don't ask and don't tell' approach, the records by political parties of their assets and sources of funding are as current as 2011, Professor Mills was still alive and President of Ghana.

Showing Mettle

When it suits, the EC can act. Blindly. There was the very expensive matter - in cash and in credibility of its branding, faffing around with the logistics required for the Special Voting and compounding this with dithering dangerously in declaring the obvious results of the 2016 general elections.

And when it chooses to, the EC can get its finger out. Blindly. Ahead of the 2016 elections, after it unilaterally disallowed some political parties and thus their candidates from the electoral roll, it was challenged by an active citizen, Dr. Papa Kwesi Ndoum (an aggrieved party) and forced to retreat, by another court.

What CGM has secured with this recent court ruling, largely through self funding, is simple and indicative. The EC cannot continue to fester behind its non compliance of its own mandate by saying that it is the political parties who are not compliant. There is no excuse for the EC's constitutional impotence. The court prescribed mettle.

However, given the current sorry state of the leadership of the EC - its Chairperson and her two Deputies are appearing before a judiciary panel where they are either fighting each other or straining to justify why they should continue to keep their jobs - it is extremely likely, that to deliver the big picture, the CGM will have to return to court.

At stake is the right of citizens to access information we are entitled to, in order to make informed decisions. The political parties and Parliament have definitively failed in enacting a modern forward facing Right to Information Bill. CGM may well deliver that mother lode, but in increments.

Paying the Price

Our Development Partners (DPs) seem to have either finally developed fatigue and/or have heeded the bottom line of our 'Ghana Beyond Aid' mantra. They are sloping off and away from funding touchy governance matters to focusing on the brass tacks of trade and economy, this is where their taxpayers and investors can see benefits. Are we ready as a country, with all the appearances of a functioning democracy, to actually stand in the gap and fund ourselves, the line by line editing required to advance Governance as we want it?

At various points in my professional life, civil society groups like CGM, OccupyGhana, CDD-Ghana, IDEG, Imani Ghana, the Institute of Economic Affairs, Odekro, the Media Foundation for West Africa, CleanGhanaNow, the Coalition Against Sexual Assault and others have and continue to feature for me. Depending on how close they bit to the truth, many of the first generation of CSOs were cynically accused as delivering governance 'tele guided' by DPs. Ghana's increasingly vocal middle class will now actually have to ramp up protest and provide homegrown funding support for others to take up cudgels. In court.

Amicus Curiae

Courts apparently, tend to have certain approaches when it comes to interpreting national constitutions. They begin with the written text. Does it make sense in plain reading, is it cloaked in ambiguity that can create absurdity? If the panel determines that the text is literally wonky, they can move on to other routes including purposive interpretation. Under those horse hair wigs, questions that could exercise the minds of their Lordships may include - what was the purpose of the text, why did the drafters put it there, what were they trying to accomplish, what mischief were they seeking to cure?

When the governing NPP was in opposition, a certain Ransford Franks sued the EC to demand, that in following through with its constitutional mandate to demarcate constituency borders, the EC must also provide the criteria and grounds on which its decisions were made.

A certain Ayine, entered into the proceedings as amicus curiae, a friend of the court who offers up an unsolicited opinion on a matter before the court. Look up this friendly man's resume. He knows his way around. Ayine has advised on tariffs and anti dumping measures for the Ministry of Trade and Industry and sat on the Tender Review Board of the Ministry of Works, Housing and Water Resources. A graduate of Stanford University, this law lecturer at the University of Ghana, consulted for the International Finance Corporation, Oxfam and the United States Agency for International Development. His is also a former Deputy Minister of Justice.

Doing an Ayine

The February 13, 2018 vetting by the Appointments Committee of Parliament proceeded as tabled. Martin Amidu was in the hot seat. Acts of Parliament are regulated only by itself. Once an Act of Parliament is completed and published, an active citizen can do an Ayine and challenge the legality of the Act.

Ayine has resurfaced as MP for Bolga East and Ranking Member for the Constitutional and Legal Affairs Committee. The Honourable Member has served a writ requiring the Court to determine if Amidu, the President's first nominee to lead the newly established Office of the Special Prosecutor, (Deputy Attorney General before Ayine), is eligible or not by virtue of his age, for this job.

Nuclear Meltdown

In matters Franks vs the EC, retired Justice Date Bah and his eminent colleagues were faced with applying either a literal or purposive interpretation of the matter at hand. They came to the learned conclusion then, that notwithstanding the text of the Constitution, the practice served the purpose. Quoting directly from the amicus curiae brief submitted then by Ayine, Date Baah ruled that compelling the EC to address the matters Franks was insisting head on, would lead to the sort of chaos that could result in 'a nuclear meltdown.'

I have no idea how many people are currently in/have previously been in public office, appointed before, during or after they turned 60 and on what contract terms. If decisions they took then/have taken recently/are in the process of/or could take in the future will be confirmed as overwhelming acceptable practice or if these will be undermined when the ruling emerges.

It is for the Court to determine, again, if it will take the clauses of Article 199, literally or purposively. Side with the establishment as they did with Ayine then and avoid a nuclear meltdown or take the other side of him now and we take to the bunkers.

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