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Opinions of Wednesday, 16 November 2016

Columnist: Asamany, Joel

An open letter to Mrs Charlotte Osei, the chairperson of the Electoral Commission

By Joel Asamany

With less than a month to the general elections in Ghana, the ruling and affirmation by the Supreme Court in favour of Dr. Paa Kwesi Nduom, in the case of The Republic v. Charlotte Osei and Electoral Commission; Ex parte Dr. Nduom by the erudite judgment by Eric Kyei-Baffour, Justice of the High Court, could not have come as a welcome relief to all true lovers of democracy and peace. The majority decision by the Supreme Court was sound and solid and resonated so well to the admiration and frenzy of all Ghanaians.

The stakes, no doubt, are extremely high, and the anxiety of every well-meaning Ghanaian is whether or not the nation would pass the litmus test safely as usual.

There are some who are of the opinion that the current Chairperson of the Electoral Commission in particular and the Commission in general have had a lot of flaks ever since the former assumed the role and so needed to be spared . She could only be spared around this period of our democracy at the peril of our national peace.

Why are we here?

The Electoral Commissioner is by law an unbiased umpire and in the case of the presidential election, a Returning Officer as stipulated by Article 63 of the Constitution. This same Article gave guiding rule of which 29th and 30th September, 2016 were given for submission of nominations. After 10 clear days, Ghanaians got the news of some qualified and disqualified presidential candidates.

The disqualified ones were largely cited for errors on the face of their records, multiple endorsement plus forgery. These are issues of criminality by the Criminal Offences Act 1962 (Act 29), sections 158 and 166 as second degree felony, hence the Electoral Commissioner referred the offenders to the Attorney-General for prosecution. Among the disqualified presidential candidates include, Dr. Paa Kwesi Nduom of the Progressive People’s Party (PPP).

The latter sought a 5 minute audience with the referee, Mrs. Charlotte Smith-Keelson Osei to explain what he claimed were clerical errors and possible ratification but that was not to be.

Dr. Nduom was left with no option than to resort to the High Court of which in his reliefs, inter alia, alleged, the rule of natural justice (audi alteram partem) was breached. Dr. Nduom won and by judicial review on an administrative body such as the Electoral Commission is, was told to stay within the remit of its mandate and not arrogating to them powers it does not wield.

Indeed there was a breach of the Regulations governing the conduct of elections, the Representation of the People Law, 1992 and Public Elections Regulations 2016, CI 94-regulations 5(2) which states; …. “All questions relating to the elections should be addressed to the Returning Officer …. .”

Regulations 9(2) (a)(b) “The returning officer shall inform a candidate that the candidate’s nomination is invalid where (a) the particulars of the candidate or the person subscribing to the nomination paper are not required by law; or (b) the nomination paper is not subscribed to as required by law, and shall give the candidate an opportunity to make amendments or any alteration necessary, within the stipulated nomination period.”

None of the candidates could ever contemplate that an endorsee would endorsed twice for different aspirants. In any case, if it so happens, by the Regulations they were to make the necessary corrections and not to be denied the chance to contest.

Notwithstanding the above ruling it was glaring and umbrage that the Electoral Commissioner has some bones to pick with some of the presidential candidates. She was just not willing to give them listening ears and even want the Supreme Court to quash the verdict of the High Court.
The utmost concern is the imminent threat to national peace of which by the implied conduct of the Electoral Commissioner, pose to this great nation of ours.

Our national peace cannot always be stretched to its widest limit in every election, and cannot always be conducted at the cost of tension.

Why is the Electoral Commission and Mrs. Charlotte Osei declining to go by the directives of the High Courts and inventing things that are not in the domain of her influence?

What does Mrs. Osei stand to lose if the rest of the disqualified candidates were allowed to correct their anomalies?

It would be recalled that Dr. Nduom and his PPP took the Electoral Commission to court over outrageous filing fees. The Electoral Commissioner appeared unhappy with their conduct hence, the reason of this show of where power lies syndrome. Hassan Ayariga, on his part, used unprintable words on the Electoral Commissioner which are highly condemnable and reprehensible, after his initial disqualification.

The Chairperson of the Electoral Commission was on record to have made certain prejudicial statements a bout Mr. Ayariga’s chances. This action, was uncalled for coming from the Chair of the Electoral Commission, whose office is coterminous with that of Justice of Court of Appeal by virtue of Article 44(2).

Peace is non-negotiable commodity. Ghanaians around this time are democratically living in total fear. Is it the price for democracy? The Electoral Commission is seemingly lackadaisical in its approach in meeting the time frame towards 7th December and giving croncrete assurance of credible elections. Can the Electoral Commission’s house be in order before the time for credible polls?

We cannot pretend to be flippantly oblivious of our fragile peace at this time. Every decision of the Electoral Commission is time bound. A case in point was how the country paid an amount of GH¢90 million in waste as a result of the belligerent nature of the then Electoral Commissioner in the botched District Level Elections 2015.

With less than 30 days to elections, we do not know which firm is printing our ballot papers. Those who have the custody to the ballot papers and onward transportation to the various constituencies, through the districts? The accredited local and international observers and media outlets? Has the electoral register been served to all parties in both hard copy and CD ROM?

Which organisation is tasked for results transmission electronically? All these questions are begging for answers. Things cannot be done in haste. It is not the case of counting and declaring the results of the special voting prior to the main elections.It has the tendency of influencing the overall voting pattern.

There is a thin line between peace and anarchy. The flagrance display of excessive legal clout just at the corner of the main elections would not inure to the well being of the nation.

It is not for nothing that people who have co-existed check-by-jowl woke up to engage in internecine bellicose, unless there was lingering unresolved issue. Nobody thought elsewhere in Kenya, Sierra Leone, Rwanda, Burundi, Somalia, and Cote d’Ivoire etc. would have gone through such horrific moment in their nascent development all because of unavailable even field.

Ghana is not far from those unfortunate bitter experiences. Reminder of threat to national peace was when National Democratic Congress’ supporters marched to the Electoral Commission’s office in 2008, occupying the premises with club and sticks, with the General Secretary in a war-like dress for two days. Radio Gold was pivotal in such assemblage. Elections were held thrice before the winner was declared, with the last being the result of Tain District Electoral Commission’s office raised down by fire, courtesy, irate youth.

Justice Adzakuma of a pro New Patriotic Party’s pressure group, Let My Vote Count, has to spend his entire life with one eye since the other was gouged out of it socket by a stray bullet. People are stockpiling unlicensed arms in the country. Do not ask me for any evidence. The evidence is on the impounded truck loaded of arms in Kumasi last year. Small Arms Commission, are not in operation for nothing, they have the requisite records and statistics.

I can only sympathize with Mrs. Charlotte Osei at this time. She should live up to her star billing together with their legal team. In our settings, issues are better adjudicated by women of age (abrewa). Although, some of the reforms by the Commissioner are good, for instance, the lifting of the strong room and the live telecast, all in sync with transparency.

A change of the Electoral Commission’s chair at this time by some is not a worthwhile call, but I suggest that in future, such appointments must be done in a succession order with the deputies who have accumulated substantial experience promoted without necessarily going for an outsider.

The election is not about the change of Electoral Commission’s logo of independence of Article 46, which was palpably tangential and misconstrued. Of course, Article 54 makes the Commission’s administrative expenses etc. charged on the Consolidated Fund. The Electoral Commissions chair is also amongst Articles 70 and 71 office holders which her emoluments are charged on the Consolidated Fund.

Consolidated Fund by Article 295 can be moneys provided by parliament, i.e. public funds. These are moneys belongings to the state from the tax payer of whose voice the Electoral Commissioner must adhere. The ruler of an administrative body, the Electoral Commission, derives its rulership from the rule.

At times, the majority decision of the parties at the Inter-Party Advisory Committee (IPAC), binds on both the parties and the Commission, must we then say on that basis, that the Electoral Commission is not independent? The legislature that determines the budget for the Electoral Commission through the Interior Ministry, of course, is the representative of the citizens. The cost of botched District Level Election was not borne by independent Electoral Commission.

No Electoral Commission’s commercials are aired on our televisions as part of their constitutional requirement of educating the voting public per Article 45(d).

National Peace Council, Christian Council of Ghana, Catholic Bishop Conference, Ghana Pentecostal Council, Ghana Muslim Mission, National House of Chiefs, Civil Societies et al. must not sit on the fence. In 2012, it took the National Peace Council’s intervention before final results were declared by Dr. Afari-Gyan, when Ghana was on tenterhooks then. Was the independence of the Electoral Commission taken away? Constitutional avoidance rule is needed as sagacious management of egos and imminent danger.

There are already scepticisms and pent up motions, going forward into the elections. I salute the National Peace Council’s recent intervention when the Electoral Commission was obstinate in complying with the Supreme Court’s full directives during the encounter with other candidates. The Electoral Commission still want to find additional errors to disqualify them albeit, the directives of the Supreme Court.

In Accra Hearts of Oak Sporting Club v. Ghana Football Association (1982-83) GLR 111, Korsah J, as he then was, held that, where the principles of natural justice were breached, there was no forum superior to the courts where redress could be sought.”

The rule that no condemnation should be pronounced behind the back of a man who has had no opportunity to appear and defend his interest either personally or by his proper representative dates back from the time of Adam.

God asked of Adam: “where art thou? Have thou eaten of the tree whereof I commanded thee that thou should not eat? And the same question was put to Eve also. We are not told whether any question was directed to the serpent.

But then it was not a man and the rules of natural justice probably did not apply to it. Exactly the ruling in both Dr. Nduom and Mr. Ayariga cases.

Again, anybody of persons having legal authority to determine questions affecting the rights of citizens, and having the duty to act judicially should give adequate notice to persons likely to be affected by their proceedings or decisions, so that they might prepare their case, appear at the inquiry and make representations on their own behalf. The Electoral Commission is not a law unto itself. The Constitutional Instrument (CI 94) was made by the power conferred this Constitution (Article 295), i.e. the basic law, grundnorm.

The courts can only give guidance which both the High Court and the Supreme Court did. The Electoral Commission must adhere to the directives of the Supreme Court’s majority decision to observe the doctrine of Rex Judicata (all litigation must come to an end). The Electoral Commission must act in accordance with Articles 23 and 296 in the exercising of its discretionary power so as to be seen to be fair and reasonable, inits institutional, procedural and substantive limitations. We need Ghana in peace and not pieces and the Electoral Commissioner must not be seen to be settling personal scores in guaranteeing credible polls acceptable by both actors and the whole country.

Our nation’s peace cannot be experimented on anybody’s alter ego. Blood must not flow because of elections. Once more, let us tell the world of how far we have traversed the path of democracy with maturity.

Finally, what would have happened in this country if the errors the Electoral Commission used for disqualifying other parties,were so committed bys either the NDC or the NPP and further disqualification?. Your guess could be as good as mine. Discretionary powers must not be capriciously used thereby going ultra-vires. You dare experiment national peace on our own risk.

Writer's e-mail:Jhezoba28@yahoo.com