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Opinions of Wednesday, 9 January 2002

Columnist: Asare, Kwaku S.

Election Dates And Electoral Reform

Almost a year ago, Justice Aninakwa, a Tamale high court justice, declared the election of Mr. Samuel Nyimakan, NDC MP for the Wulensi Constituency, null and void. The declaration was in response to a petition, filed by Mr. Fuseini Zakaria, claiming that Nyimakan was not qualified to be elected an MP for Wulensi Constituency, since he was not resident in or hailed from the constituency, nor had he lived there for a total of five years in the 10 years immediately preceding the December 7, 2000 elections. In other words, the petitioner contended and the court agreed that Nimakan had failed to comply with article 94 (1.b) of the constitution.

As expected and immediately following this ruling, Nimakan asked the Court of Appeal for an order to set aside the entire judgement of the High Court and enter judgement in his favour. Mr. Nimakan contended that the High Court ruling was against the weight of evidence adduced, and that the decision by the trial judge that he does not hail from Kumboni in the Wulensi Constituency is not supported by any evidence.

To the best of my knowledge the appeal is still pending. In the mean time, Mr. Nimakan continues to serve as the MP. If the appeal court should uphold the trial court decision, irreparable damage would have been done to the people of Wulensi, our parliament and our whole system of government. Even if the appeal court sets aside the ruling of the high court, the continued uncertainty surrounding the Wulensi seat has done significant damage to all the parties and to our democracy. Why, one must ask, have the courts failed to act in a timely manner in a matter where timing is of the essence? The right to be an MP has a 4-year useful life and the courts have an important duty to ensure that every day of that useful life accrues only to the rightful occupant.

Alas, such an untenable state of affairs, driven by a judiciary system that appears oblivious of the adage "justice delayed is justice denied," is hardly new. In 1997, George Amoo of the NPP won a court decision that, in essence, declared him the winner of the Ayawaso East parliamentary seat. In spite of the trial court decision, the case got stuck in the appellate process and was never resolved for Amoo to take his rightful place in parliament. The slow, nay impotent, judicial process enabled and ensured that the wrong person served as the MP for Ayawaso East for the full term and thus permanently tainted the second parliament of the fourth republic. At best, this is a stunning indictment of the courts that exist, as an arm of government, to protect the rights and institutions of our democracy!

Of course, it may well be that the courts have a "good" reason for these delays but that still begs the question of why we are yet to have a parliamentary hearing to understand the reasons for these costly delays and how the nation could avoid their recurrence. It is also not clear why the media fails to sustain interest in these matters that are of national importance. In preparing this article, I searched the archives of the leading newspapers on the internet, but was largely unsuccessful in finding any follow-up story on the Nimakan case. This is rather curious.

A few days to the 2000 elections, the electoral commissioner (EC) found himself scrambling to change the dates of the elections apparently because 'Sheikh JJR' did not like the idea that the originally scheduled date fell on one of his opponent's birthday. Considerable debate also ensued on the propriety of holding the elections on a Muslim holiday. Finally, we witnessed the unacceptable and short transitional period between the 2000 presidential runoff and the presidential inauguration. We are yet to fully fathom the consequences of such a short transition.

Rather than wait for 2004 to confront the same issues, I call on the EC and parliament to proactively address these and similar issues in a manner that will allow for better future outcomes. In my opinion, all these problems can be addressed by having a fixed election schedule that delineates the election dates, contest periods, inauguration dates, etc.

I propose the following dates and schedule as a starting point for a national debate:

First Saturday in November: General Elections.

Tuesday 5PM after General Elections: All results and winners are declared.

Next Tuesday 5PM: Deadline for filing all contests (e.g., counting issues).

Second Tuesday in December: Deadline for courts to settle all disputes including appeals.

First Saturday in December: Presidential and other runoffs if needed.

First Saturday in January: Inauguration.

A similar schedule should also be provided by the EC setting forth dates for filing nominations as well as contests of the same. These dates, of course, will precede the general elections but will have a significant window for the electoral commissioner and the courts to resolves any issues bordering on eligibility of candidates.

One can see that if this proposal is adopted only the "Amoo" type cases will arise during the election contest period while the "Nimakan" type cases will be adjudicated before the elections. This will preclude the situation where voters elect a candidate only for their decision to be set aside by the courts on grounds that the elected candidate was not eligible to contest. The wishes of the people, as expressed by their votes, should be respected and set aside rather sparingly. In any event, such a schedule will significantly reduce the probability of the wrong persons serving as our elected representatives with the concomitant cost of tainting our democratic institutions.

Another observation about the schedule is its tightness. The EC is given 3 days to declare all results. This implies that the EC must plan and coordinate his activities with this constraint in mind. Then, prior to the elections, he must present to parliament or other donors a budget that will allow him to organize the elections and declare the results within the statutory defined period. Excuses will not suffice and failure to meet the constraints should come with significant consequences, including replacing him with others who are better able to meet the deadlines. Similarly, under this schedule, the courts are not only empowered to adjudicate electoral disputes but are also asked to do so in a timely manner. The judicial service must plan for and emplace the logistics to meet these deadlines or be held accountable.

The final observation about the schedule is the call for the general elections in the first week in November. The rational for this will be to allow sufficient time to organize any runoffs and still have a decent window for a transition. Our constitution calls for a runoff whenever none of the presidential candidates gets a majority of the votes cast. The likelihood of such an outcome is reasonably possible and we must plan for this contingency in our election schedule. Having presidential elections on 12/28 and an inaugural on the following 1/6 is no way to run a country. In passing, let me note my preference for winning by a plurality as opposed to a majority. But that is a different matter for another day.

We tend to wait for the rains before we eat but we surely do not have to wait for 2004 before we can address these simple issues. Whatever we do or do not do we must never repeat the "Amoo" case, which has now become moot!