I have always believed sincerely, with all my heart that the independence of the Electoral Commission (EC) is to be operated as a shield to protect it from incumbency abuse, threats and intimidation; and unlawful dismissal from office by the powers-that-be, when regime change through the ballot box is so imminent; and they would not allow themselves to be manipulated into manipulation of the process to maintain the status quo.

Essence of Independence

This insulation of the EC from “the frowns and smiles” of the incumbent is to enable it to organise inclusive, free, fair and credible elections for all participants (not only observers and the victors) to accept the results without any misgivings whatsoever. And same, I sincerely believe; has informed the spirit and letter of the neutrality and independence granted the EC by the 1992 Constitution.

Appetite for exclusion

On Tuesday, October 25, 2016 the EC’s independence came up again, when Lawyer for the EC, raised objection to the powers of an Accra High Court hearing a suit filed by the flag-bearer of the Progressive People’s Party (PPP), Dr. Papa Kwesi Nduom, against the EC, for wrongful exclusion from the 2016 presidential race.

Dr. Nduom is praying the court to order the EC to go through due process of law prescribed in CI 94, to accept his nomination forms for the 2016 presidential elections. Lawyer for the EC, Mr. Thaddeus Sory, argued that the EC is an independent body which cannot take instructions from any other body. So who will check the excesses of the EC? I almost voiced out in court.

Precedent

Not long ago, the Supreme Court directed the EC to delete names of people who used National Health Insurance Identity cards, as form of identification to get their names on the election register because it was not one of the means of identification prescribed by law.

Interestingly, it is the same Lawyer Thaddeus Sory, who represented the EC in the Abu Ramadan case where the direction was given by the Court and complied with by the EC.

The PPP flag bearer is praying for an order for “Judicial Review by way of Certiorari, the decision of the Respondents dated 10th October, 2016, which disqualified the Applicant as a Presidential Candidate… “For the 2016 General Elections, for purposes of having same quashed upon the grounds of… (1) Breach of the rules of natural justice (2) Error apparent on the face of the record and (3) Failing to live the requirement as imposed by law.”

After listening to the oral submissions, for and against, I came out of the court room convinced that the EC had erred by not dealing with the matter in accordance to its own regulations, particularly, on how such matters should be dealt with. I tried to figure out how the EC with all the experience and institutional memory at its disposal, could make such a mistake. But taking into account argument by the EC Lawyer that Dr. Nduom deliberately submitted his forms on the last day to avoid mistakes in the forms being detected, hence the EC action to deny him the opportunity to remedy, I came to the conclusion that the EC had exceeded its powers to disqualify without going through due process.

Best Practice

In all my interactions with Election Management Bodies (EMBs) all over the world, including Ghana, the appetite to exclude people from participating in elections wrongfully has never been contemplated. On the contrary, the EMBs have bent backwards to facilitate the opening up the democratic space for many more to participate as a sure way of safeguarding democracies, especially for emerging democracies like Ghana. Inclusion is a must. It is not negotiable!

Afari Gyan’s Legacy

In less than one year when Charlotte Osei took over as EC Chairperson, from Dr. K. Afari Gyan, she was elected Chairman of African EMBs. I believe her selection was based on the confidence stakeholders had in the work Afari Gyan had done over the years and perhaps the belief that Charlotte Osei could equally deliver. Unfortunately I am not able to buy into the position that Charlotte Osei can deliver free, fair, credible, transparent and accountable elections in Ghana, given her conduct in the office so far.

Her posture from the change of EC logo, refusal to constitute a new voter’s register and the ravenous appetite for exclusion of some presidential hopefuls from the election race give me the impression that she lacks a thorough appreciation of what is at stake. Elections are the vehicles that drive democracies. In every working democracy, there is nothing like unlawful exclusion because the EMB is irritated by comments or actions of a stakeholder.

As soon as you begin to introduce and tolerate exclusion, you put democracy on the wrong path and in harm’s way. You make our dear nation fall short of our democratic credentials. Is that what we bargained for?