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Opinions of Tuesday, 11 September 2012

Columnist: Ata, Kofi

Has EC lost the Case for the Creation of the 45 Constituencies?

By Kofi Ata, Cambridge, UK

Since Parliament was recalled to deal with urgent matters including the Constitutional Instrument (CI) that would give legal backing to the creation of the proposed forty-five constituencies by the Electoral Commission (EC), there have been heightened arguments for and against the proposal. Almost on daily if not hourly, leading figures in politics, religion, academia, trade union and other sphere s of endeavour offer their views and advice to EC on how to manage the creation of the new constituencies. I have read a number of both objective and subjective articles on Ghanaweb about the same subject, not least, those of my good friend Stephen Kwaku Asare, who gave us an excellent historical overview of the creation of parliamentary constituencies in Ghana and proposed that, there should be a limit on the number of constituencies in Ghana; and Professor Kuruk who has also authored three articles on the legal expositions and or constitutional basis for the creation of the 45 constituencies. This article is a contribution to the debate but from different perspective.

As evident from the title of the article, the main thrust of the debate among Ghanaians is whether the EC is right in creating new constituencies just two, three, or six months from general (parliamentary and presidential) elections. What appears encouraging about this bone of contention is that, none of the two opposing sides is against the creation of the constituencies and neither is questioning the constitutional authority of the EC to create the proposed constituencies. The only issue that they differ on so far, is the timing. Bearing in mind that what divides the two sides is only the when, one would have expected that this matter would have been long resolved. But in Ghana when it’s a case of even minor differences of opinion on policy or operational matter/s on any anything and everything under the sun, no matter how miniature, if the two main opposition parties take different positions, it would drag on until each side entrenches themselves into positions of no return and in so doing, hold the nation to ransom.

For me, whenever I see the two parties at each other’s throat, I have come to understand from experience that both do hide their true intentions for opposing or supporting something. The two parties remind me of a former Democratic Senator, Dale L Bumpers, who famously said, “if you hear someone say, it’s not about money, it’s about money and when you hear someone say, it not about sex, it’s about sex” during the Monica Lewinsky sex scandal and the attempt by the Republicans to impeach the President. In other words, when the NPP says it’s not opposed to the creation of the new constituencies, in reality it’s opposed to it and when the NDC says, there is nothing wrong with the timing, in reality there is everything wrong with the timing. Unfortunately, my article is not about the opposition or the timing because a lot has been said already on the two positions by others and I will not add any value by repeating the same, probably using different words.

The main object of my contribution is to look at the role played by the EC in the current stalemate and the risk to the independence of the EC from the apparent public opinion excuse on how the EC should conduct its affairs.

There is no argument whatsoever about the constitutional authority of the EC to create new parliamentary constituencies in Ghana as enshrined in the 1992 Constitution. Indeed, the EC has created 30 constituencies since the coming into force of the Constitution. However, what is shameful and unacceptable is the sheer incompetency and mismanagement with the creation of the proposed forty five constituencies on the part of the EC. We are aware that the EC made its intention to create the new constituencies known in June 2012 and proceeded to present the requisite Constitutional Instrument [CI or (CI73)] to the Legislature for approval. The Legislature could not approve CI73 because (and we were told) it was full of errors. This is not in dispute is that the original CI73 was withdrawn to enable the EC to correct the errors and resubmit it to the Legislature. The resubmitted CI (renumbered CI78) suffered the same fate as it also contained errors that led to war of words between the majority and minority in Parliament on what should be done.

Bearing in mind the importance of CI, the creation of the new constituencies and the fact that concerns have been raised about the timing, one would have expected that the EC would have made sure that the second CI was absolutely watertight as well as airtight before it was resubmitted to the Legislature by checking that every i was doted and all ts were crossed. For this monumental and catastrophic failure of the EC to do its homework efficiently and submit an unblemished CI to the Legislature, the EC has shot itself in the foot and contributed substantially to the ongoing challenges to the creation of the 45 new constituencies.

For this and that reason alone, I am of the view that the EC has lost its case to create the new constituencies for a number of reasons. First, this is the second time that the EC was submitting CI on the creation of new constituencies to the Legislature under the fourth Republican Constitution and also under the leadership of the same Electoral Commissioner (ECr). So, why this time all these errors? Is the EC sabotaging itself? Second, if the EC cannot get a draft CI correct, how can Ghanaians trust it to get the creation of the constituencies right, let alone conduct credible (free, fair and transparent) elections, especially when the same EC made a mess of the last District Assembly Elections?

These are very serious lapses on the part of the EC that Ghanaians must be asking questions and demanding answers from the EC. Instead, they have been put on the back burner in the discourse of NDC/NPP testosterone. EC’s errors and inefficiency have unintentionally but harmfully given credence to those who oppose the creation of the new constituencies for reason of timing because instead of the CI maturing in either August or September, the earliest that it may now come into force (only the CI) is October.

I am aware that the Constitution is silent on when (the exact timing) the EC can create new constituencies but I believe the framers of the constitution expected the EC to act in the best interest of the state in order to strengthen and deepen democracy in Ghana but not to cause tension. To me these errors pose a serious threat to parliamentary democracy and a big slur on the integrity of the EC that all political parties and Ghanaians should be concerned about. Rather than the ruling NDC and the opposition NPP joining hands together to take the EC to task for its lapses and make it accountable, they are behaving as two jealous men/women fighting over the same lover. The EC, NDC and NPP have let democracy and Ghanaians down by what is now a collective failure of incompetency on the part of EC, lack of judicious scrutiny of the finished work of EC by the majority in parliament (NDC) and NPP’s wrong timing argument when the reality is that it is opposed to the creation of the new constituencies and not the timing. In fact, as far as the NDC remains in power, the NPP will find ways and means to oppose the creation of new constituencies as the party believes the NDC stands to gain political advantage from it. NDC would have done the same if they were in opposition.

The other thorny issue on this subject which has become an albatross on the EC, NDC and NPP is the worrying and dangerous back door attempt to indirectly or directly interfere in the affairs of the EC by NDC and NPP and therefore shake the foundations of its independence contrary to the Constitution. It scares me to death when those who say the timing is wrong claim that public opinion is in their favour. Where on this planet of ours is public opinion relied upon to decide constitutional and legal matters? If that was, is and should be the case, why did Al Gore lose the US Presidential election against George Bush when public opinion at the time was that he won? Why do people pay taxes when, if left to public opinion the majority will stop or curtail the state’s ability to impose taxes on them? Let’s even bring the public opinion argument home. When in 1979 majority of Ghanaians (including me) hailed the AFRC and shouted “let the blood flow”, did it make the atrocities of that period right because public opinion was in favour? No.

By the way, which public opinion are we referring to? Is it because some leading figures from different walks of life in Ghana say the timing is wrong? I have bad news for them and that is, matters of law and constitution cannot and must not be decided on the basis of public opinion but solely by the application and interpretation of the existing law within the framework of the Constitution. To these opinion leaders, please stop using the public opinion argument because it does not only hold water but also extremely dangerous and an attempt to subverting the Constitution through indirect interference in the work of the EC. The only effective remedy for the stalemate is for those who oppose the creation of the new constituencies for whatever reason or wrong timing, is to go to court to challenge the EC. That will strengthen and deepen rule of law, accountability and democracy which will benefit all and sundry, including the EC.

The only public opinion that matters most and valid in democracy is at the ballot box, where the opinions of every member of society who acts on that opinion by exercising the right to vote has the same and equal value but not this one sided public opinion hijacked by those with influence and power in society, access to the media including the electronic media, are articulate enough to express their views, etc. By the way, what is the opinion of the inhabitants of those areas where the new constituencies would be created? If public opinions within the direct beneficiary areas are massively for or against, would that make it right and will the NDC and NPP respect their opinion if contrary to their entrenched positions?

Why do I accuse the NDC and NPP of interference (direct or indirectly) in the affair of the EC? The NPP has accused the EC of being in bed with NDC because it claims that the errors in the two CIs presented by the EC to Parliament were reminiscent of the NDC government. That accusation should not be dismissed outright or as mischief. In fact, bearing mind the number of erroneous documents the Executive has presented to the Legislature in the past, I am tempted to give the opposition the benefit of the doubt. The errors in the two CIs bear all the hallmarks of the Executive. The foot and finger prints of the Executive’s incompetency would be all over the two CIs if they were subjected to DNA examination. Though this may be speculative and hypothetical on my part, it’s not unjustified.

Indirect interference on the part of the NPP because, it’s leadership and the so-called legal luminaries within the party are aware that, on the evidence before the law, their opposition to the creation of the new constituencies is weak, so they must resort ‘communist inferior tactics’ by intimidation, accusations and under the guise of public opinion to coerced the EC to capitulate under the pressure. That is an attempt to influence the decision of the EC which against the Constitution. Does NPP truly believe in constitutional democracy, separation of powers, the rule of law or the dictat of public opinion? Their behaviour is more or less ‘nerd mentality’ cloaked in public opinion to achieve a goal they are aware, is unconstitutional.

In conclusion, whilst I blame the two political parties for this confusion and endangering Ghana’s constitutional democracy and the independence of the EC, the both EC and Electoral Commissioner (ECr) cannot extricate themselves from responsibility either. In fact, I have no sympathy for the ECr when he questions why people are pointing accusing fingers at him personally and not collectively at the other Commissioners. I worked under a retired soldier (the late Lt-Col J Y Assasie) who once told me that, the good commander is the one who shares successes of his men (I believe he meant women as well) but takes sole responsibility for the lapses of the men under him). The ECr should critically examine his conscience and look in the eyes of Ghanaians if he could honestly hold his hands up and say that, the EC is not to be (partly) blamed for what is happening? Had the EC got the CI right on the first occasion or even the second attempt, who knows where we would have been with the matter? To me, woes of Dr Afari-Gyan and the EC are self inflicted by their incompetent management of the presentation of the two CIs to Parliament.

Ghana deserves better than what NDC, NPP and the EC have offered so far on this important constitutional matter and I pray and hope that the Judiciary will ameliorate the situation and save the country from sliding into the African election syndrome of confusion and post election conflict. At the same time, I am holding my breath, in case the Judiciary also disappoints. I hope I am wrong.

Kofi Ata, Cambridge, UK