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Opinions of Saturday, 20 February 2016

Columnist: Afedo, James Kofi

Is the EC chair in breach of the constitution?

I have followed with keen interest, the recent discussions regarding allegations of misconduct on the part of the Chairperson of Ghana's Electoral Commission, Mrs. Charlotte Ama Osei. Her supposed offence? Well, for allegedly keeping a prior appointment as a board member of the Ghana Reinsurance Company Limited while starting work as the new Chairperson of the Commission.

This discussion started when a known youth activist of the opposition New Patriotic Party, Richard Kwasi Nyamah and his pressure group called Progressive Nationalist Forum made the allegations against Mrs. Osei and called on her to refund all allowances paid her as a member of the Ghana Re's board. He claimed Mrs. Osei's decision to keep that board appointment was in breach of Article 44(4) of the 1992 Constitution.

Although the Company responded to the claim by indicating that Mrs. Osei had left the Board appointment effective December last year, it appears that did not satisfy Mr. Nyamah, leading to his reported petition to the President of the Republic, Mr. John Dramani Mahama to commence proceedings (under Article 146) towards the removal of Mrs. Osei from office as the Chairperson of the Electoral Commission.

The key question to be considered in this article is whether or not Mrs. Osei was in breach of the said Constitutional provision. The article will examine all the relevant legal provisions on the matter and conclude that on the face of the legal evidence, Mrs. Charlotte Osei may not have acted in breach of the Constitution.

What exactly does Article 44(4) of the Constitution say? It provides that "The Chairman and the two Deputy Chairmen of the commission shall not, while they hold office on the Commission, hold any other public office."(Emphasis mine)

The most important question to be answered herein is what exactly amounts to public office as provided for in Article 44(4) (supra)?

It is worthy of note that the Constitution itself provides us with a clue to the answer, as can be found in Article 295. It says "public office includes service in any civil office of Government, the emoluments attached to which are paid directly from the Consolidated Fund or directly out of moneys provided by Parliament." (Emphasis mine)

Firstly, it is my respectful view that Mrs. Osei's appointment as a board member, could not be a service in a civil office of Government. Neither was any supposed allowance(s) earned from such appointment paid directly from the Consolidated Fund nor directly out of moneys provided by Parliament. Any allowances, could only have come from the company's profits from its business operations. Hence it would be difficult to describe such a source as a public fund.

Secondly, Section 14 of the Public Office Holders (Declaration of Assets and Disqualification) Act, 1998, (Act 550) also provides the additional definition of what is meant by public office. It says "public office includes an office the emoluments attached to which are paid directly from the Consolidated Fund or directly out of moneys provided by Parliament and an office in a public corporation established entirely out of funds or moneys provided by Parliament". This Act essentially gives effect to the Constitutional provision in Article 286.

Article 295 of the Constitution defines a public corporation as "a corporation or any other body of persons established by an Act of Parliament or set up out of funds provided by Parliament or other public funds."

Additionally, Section 3 of Schedule 1 of the Act 550 (supra) and Article 286 of the Constitution provide a complete list of all the public offices subject to the Act. The most relevant provision for our purposes is Section 3(i) of the first schedule (same provision in Article 286(5)(i)) which names among public offices, the positions of "chairman, managing director, secretary, general manager, and departmental head of a public corporation or company in which the Republic has a controlling interest." It must be noted that this provision clearly excludes the position of a board member. Nevertheless, it is public knowledge that Ghana Reinsurance was established by the State Insurance Company (SIC) with a 100% controlling interest of Government. But to equate a board membership of a public corporation to a service as a public officer, when both the Constitution and other relevant provisions did not appear to intend so, could be misleading.

From the foregoing, it is not in doubt that Ghana Reinsurance is a limited liability company which is 100% owned by the Government of Ghana. Per the website of the Ghana Re, its board members are appointed by the sole shareholder, which in this instance is the Government.

However it must be said that nowhere in all the relevant legal provisions cited above is the appointment or membership of a board of a corporate entity, and for that matter a public corporation in which the Republic holds a controlling interest cited or included as a public office. In other words, both Article 286 and Act 550 did not mention a board membership as a public office. So Mrs. Osei's continued membership of the board of Ghana Re could not be interpreted to mean the holding of a public office, when there seems to be no sufficient legal justification for such interpretation.

Therefore, although Article 44(4) of the Constitution precludes the Chairman and the two Deputies of the Electoral Commission from holding any other public office, it is my respectful submission that nowhere in the Constitution or in any other law is it provided that holding a board appointment on a public corporation amounted to holding a public office. Any such suggestion may amount to a journey into legal fishing.

Yes, the Constitution per Article 146 (3) empowers the President on receipt of a petition for the removal of a Justice of a Superior Court to refer the petition to the Chief Justice who shall determine whether there is a prima facie case. But it is my respectful submission that in this instance, it may be difficult for the petitioners to get exactly the result they seek.

Perhaps another option available to them would be to seek interpretation of Article 44(4) of the Constitution at the Supreme Court in case they feel unsatisfied with a negative outcome to their petition. When that happens, I am certain that the Supreme Court will be looking at the law in its totality, from its letter and spirit or literal and purposive lenses and make the relevant declarations in that regard.