EC to Disenfranchise some Ghanaians in the Diaspora

By Kofi Ata, Cambridge, UK

Last Saturday 12 November, I heard something very important and of great interest to Ghanaians in the Diaspora that I believe should not pass without comment and critical analysis. According to the Editor-In-Chief of the New Crusading Guide, Mr Abdul Malik Kwaku Baako, he has a copy of a policy document on the implementation of the Representation of the People’s Amendment Act 2006 prepared by the Electoral Commission as its implementation plan for the Act. The Act (common referred to as ROPA), amended the Representation of the People’s Law 1992 (PNDCL 284) to enable Ghanaians resident abroad to register to vote in national elections and referenda. Though the Act has been on the statute books since its passage in 2006, it was not implemented during the 2008 General elections for financial and logistical reasons and it will not be implemented for the 2012 general elections. However, the Electoral Commission is making plans for its implementation in subsequent elections and referenda after the 2012 elections, that is, hopefully in 2016. It is some aspects of the proposed implementation policy plan by the Electoral Commission that should give concern to Ghanaians in the Diaspora.

Mr Kwaku Baako claimed on the Joy FM Newsfile programme that he had an unsigned copy of Electoral Commission’s ROPA policy implementation plan document and read some sections that gave me a lot of concern. Among others, one of the eligibility criteria for registering Ghanaians resident abroad to vote will include “a valid resident permit”. In other words, Ghana’s Electoral Commission has decided to disenfranchise any Ghanaian citizen residing abroad without a valid resident permit. The document also states that the Commission will seek assistance from the appropriate authorities (including immigration) in those countries that registration will take place to assist them to identify and verify the resident permit as valid. This will be in addition to proving your Ghanaian citizenship. Though this eligibility criterion would not affect me, my concern is that the proposal by Electoral Commission is in breach of the 1992 Constitution and the Representation of the People’s Amendment Act 2006. Second, if I sit unconcerned, what would stop the Electoral Commission from introducing another requirement that may negatively affect my democratic rights in the near future? For example, one day someone within the Commission could introduce another criterion that, to be eligible to register and vote from abroad, Ghanaians resident abroad should show evidence that they visit Ghana at least, once a year.

First and foremost, the PNDC Law 284 gives every Ghanaian citizen of 18 years and of sound mind the right to vote. There are only three eligibility requirements (Ghanaian citizenship, at least, age 18 and being of sound mind). These requirements are no different in ROPA. So why is the Electoral Commission introducing a new requirement that would disenfranchise some Ghanaians in the Diaspora? In my view, the proposed criterion is illegal and unconstitutional and should not be allowed to stand. We must pose the question, “what was in the minds of legislators who framed ROPA?” Did they intend to let the Electoral Commission insert a new requirement at the point of implementing? The answer is, emphatically No. The legislation is unambiguous. Though the Electoral Commission has powers to disqualify individuals who violate electoral laws and procedures from voting, those powers do not confer on the Commission a blanket authority to disenfranchise communities for no crime committed. Being an illegal resident abroad has never been and will never be a crime in Ghana. In any case, even if being an illegal immigrant in a foreign country is an offence in that country, since the Electoral Commission intends to register Ghanaians abroad at Ghana’s missions and consulates abroad and because those missions are considered part of Ghana and observe Ghanaian laws, the illegality will not be applicable in the Ghanaian missions and consulates. In other words, one’s illegal status is not a matter for Ghana, so what is the offence that would disqualify such illegal immigrants from registering to vote? Again, for the information of Electoral Commission, when Ghanaians abroad visit the various Embassies, High Commissions and Consulates for assistance, officials in those Embassies, High Commissions and Consulates do not require them to provide evidence of valid resident permit before receiving assistance. The only requirement is proof of Ghanaian citizenship.

By this proposal, the Electoral Commission is rewriting the legislation that conferred rights on Ghanaians abroad to vote in national elections and referenda. In other words, by default, the Electoral Commission is attempting to abrogate to itself the powers of Parliament (Legislature) by introducing a new law in Ghana through the back door and this cannot and must not be entertained in Ghana. The introduction of this criterion could also amount to interpretation of the legislation by the Commission. That also is not the role of the Commission but that of the Judiciary. If the Electoral Commission is unclear of the law or its role, the appropriate course of action is to seek clarification from the courts but not act illegally. This proposal is even contrary to UK electoral procedures. For example, as a Commonwealth citizen and non-UK citizen when I arrive here as a foreigner in the 1990s, I had the right to register and vote in local and national elections and referenda in the UK. Since then I have registered and voted in all local and national elections and referenda and no one has ever requested my valid resident permit before registering to vote. These days, I register on line. I am not suggesting that Ghana adopts the UK system but the criterion proposed by the Electoral Commission is bizarre, illogical, irrational, illegal and unconstitutional.

The Electoral should not be allowed to treat Ghanaians in the Diaspora with contempt because they make a significant contribution to the economic, social, political and cultural development of Ghana. This proposal has no sound basis even in terms of cost. For example, the proposal that registration will take place only in countries where there are Ghanaian missions and consulates with a minimum of at least, five hundred Ghanaian residents is reasonable and acceptable for financial reasons. On the other hand, if the proposed valid resident permit is allowed to stand and implemented, it would make cost per head expensive since less Ghanaians abroad may qualify. Again, if law enforcement officers and immigration personnel in those countries are requested to assist in the validation of the resident permits, it will come with cost to the Electoral Commission. Is that a prudent way of using Ghana’s scarce resources by spending it on foreign agencies?

I do appreciate that the Electoral Commission may not want to be seen as condoling wrong doing by Ghanaians abroad. However, the legal or illegal status of Ghanaians abroad is not a matter for the Electoral Commission but purely a matter for the individuals and their host countries. The proposal could do a lot of damage to the image of Ghana and Ghanaians abroad since it could lead to unnecessary arrest, prosecution and deportation of Ghanaians abroad en masse, which would cause unbearable hardships to individuals and families abroad and in Ghana, especially those who depend on remittances from family members, acquaintances and friends abroad. Last but not the least, en masse deportations will lead to substantial reduction in remittances to Ghana from Ghanaians abroad which will also have adverse impact on investment by Ghanaians in the Diaspora and ultimately on the economy.

The Electoral Commissions should not take Ghanaians in the Diaspora for granted because some of us are willing to safeguard the collective rights of Ghanaians abroad when it comes to the implementation of the Representation of the People’s Amendment Act 2006. The role of the Commission is to encourage Ghanaians to exercise their democratic rights and not to disenfranchise them. Should the Commission not review the proposed criterion of “proof of valid resident permit” but attempt to go ahead to implement it after 2012, then the likelihood of this matter ending up at the Supreme Court is high? To avoid this unnecessary litigation, I suggest that, when the Electoral Commission has completed drafting the policy implementation plan on ROPA, the draft document is made available on the Commission’s website for Ghanaians in the Diaspora to access it and send their comments to the Commission for consideration before implementation. We may have better ideas and cost effective means of implementing ROPA effectively and efficiently. For example, instead of using foreigners to assist with the registration, why not engage Ghanaians in those countries? Even if the diabolical criterion is applied, there are Ghanaians in every foreign country who are able to verify “the valid resident permit” for that country.

These days, reading and listening to media reports and interviews granted by the Chairman of Ghana’s Electoral Commission on various matters concerning preparatory work for the 2012 Presidential and Parliamentary elections, I get the impression that, Dr Kwadwo Afari Gyan is either swollen headed, complacent, tired or does not know the implications of his plans. For example, I have heard him try to assure Ghanaians that Biometric Registration Verification may be unnecessary or is expensive. He claims it would cost at least, an additional $20 million, which the Commission did not have. Has the Commission requested the funds from government and if not what is his excuse for saying it is expensive? Again, regarding the implementation of the Supreme Court ruling on the rights of prisoner to vote, I have heard him say that, prisoners may vote only in the Presidential elections and not the Parliamentary elections. Who gave him that power to decide that prisoners can vote in only Presidential elections? The Supreme Court judgement did not quality the rights of prisoners to vote in Presidential and Parliamentary elections.

What shocked me were the reasons he gave for the decision to consider allowing prisoners to vote in only the Presidential elections. He claimed that if prisoners were to vote in the parliamentary elections, there would be difficulties in deciding which candidates they should vote for because they come from various constituencies across Ghana. What an excuse? Mr Electoral Commissioner, are all voters in the various constituencies indigenous of the constituencies where they register and vote in? No, but they vote for the parliamentary candidates in the constituency where they reside and are registered. So there should be no problem with registering prisoners to vote in the parliamentary elections for the candidates in the constituencies where the prisons are, no matter wherever the prisoners originate from. Prisoners should register and vote for the parliamentary candidates where the prison is based since that is where they reside as all voters in Ghana do. If after registration, prisoners are transferred or released, their votes must be transferred to the constituencies where the new prison is or they reside at the time of elections. Citizens who are incarcerated after registration should be able to transfer their votes to the constituencies where the prison establishment is based. It’s as simple as that. The Election Commission or Commissioner has no powers to vary a Supreme Court ruling on a constitutional matter, misinterpret or misapply the judgement. Another irrational reason he gave was that, allowing prisoners to vote in parliamentary elections would delay the declaration of election results. Give me a break. How many are the prison population in terms of both prison establishments and prison numbers that could delay the declaration of results? In any case, prisons are within the territories of Ghana, so, what is the fuss about prisoners’ parliamentary votes causing delays? If their parliamentary votes would delay declaration of results what about their presidential votes? These reasons are not only unacceptable excuses but also porous and tantamount to electoral manipulation.

My humble advice to the Ghana’s Electoral Commission is this: if unclear about the law they should seek clarification from the judiciary rather than take the law into their hands and misinterpret or misapply it. That is illegal and unconstitutional. I can promise the Electoral Commission that if it decides to allow prisoners to vote only in the 2012 Presidential elections and not in the Parliamentary elections, the matter could go back to the Supreme Court. There is too much at stake in the 2012 General Elections and the Electoral Commission should not take things for granted because Ghanaians would not accept any shoddy work.

We in the Diaspora are eagerly awaiting the implementation of ROP, the day we will be given or rights to register and vote and we will resist any attempt by the Electoral Commission to insert illegal and unconstitutional criterion or criteria to disenfranchise us. We will not accept any second citizen treatment to be meted out to us or divide and rule tactics by the Electoral Commission. WE NO GO SIT DOWN. NEVER!

By Kofi Ata, Cambridge, UK