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Opinions of Saturday, 26 December 2020

Columnist: Kwaku Azar

Matters arising out of the EC’s election eve Guan directive

Prof Stephen Kwaku Asare Prof Stephen Kwaku Asare

I woke up to a long post to the effect that the LI to create the Guan district was birthed on 9th November 2020 so the EC had no time to create the Guan constituency. This long post also tells us parliament went on break and recites the time deadlines for a CI to ripen.

Thus, according to this long post, the birth of the Guan district and the parliamentary break effectively terminated the fundamental right of the Guan voters to have a seat on day 1 of the 8th Parliament. Or, at least, excuses, if not justifies, the termination.

I demur, emphatically.

Once the EC has registered and issued writ of elections, it cannot vary, by a mere directive, the number of constituencies for the impending general election.

Otherwise, districts can be strategically created and parliamentary breaks can be strategically taken to abort voters’ right to participate in the parliamentary general elections.

Rather, once the writ of elections has been issued, new constituencies can be created, by CI only, but must come into effect only for the next general election (2024).

It also goes without saying that a CI, and a CI only, can reassign voters. Not directives, not press releases, not prayers and not wishes. This is an important property of law that our administrative bodies and public officers have difficulties grasping.

There was a Court case in June 2020 called Dzate where the Court ordered the EC to amend CI 95 for it to take effect on January 7, 2021. The purpose of the order was to realign the constituency and regional maps (see paragraph on Oti below).

So there was plenty of time to carry out the Court’s order. The notion that the EC could only act after the creation of the district in November is therefore fanciful. But assuming that was not just a made-up reason, the corresponding notion that our MPs can decide to go on break fully aware that it could cost some voters their right to representation is itself offensive!

The problem here existed long before the new district was created on 9th November. When the Oti region was created, the affected areas were assigned to that region even though they belong to the Hohoe Municipality in the Volta region.

Dr. Bamba pointed this anomaly out as far back as 2019. His argument was essentially endorsed by the SC in the Dzate case and the Court ordered the EC than to amend the CI on the constituency boundaries to align it with the CI on the creation of the Oti Region.

So the new district creation and time argument are entirely unpersuasive, especially when the Dzate case in June 2020 highlighted the same problem.

Parliamentary representation is fundamental and cannot be upset by creating districts and crying time crunch. Put another way, the right to be represented in Parliament is not subject to when districts are created and whether parliament is on break.

That is why the voters continue to be registered in and voted in a constituency. It is an assault on democracy itself for some people to belong to a no man’s land in a general election.

It is true that the Presidential vote is tallied on a country-wide basis. That notwithstanding, voters are still assigned to constituencies for purposes of managing the election. So one cannot just show up anywhere to vote for President.

The EC cannot register voters at a particular constituency and announce on the eve of the election that these voters should vote for President at that constituency and go elsewhere to vote for MP or in this case not to vote for MP. This is a recipe for chaos.

The current split Parliament is a real-time illustration of the consequences of barring some voters from taking part in the general elections. In this case, the EC’s unlawful directive may very well determine who becomes the Speaker and who is majority versus minority in Parliament.

Let us not excuse, justify, trivialize, propagandize or otherwise politicize the disturbance of the fundamental right of some Ghanaians to be represented in Parliament.

If we cannot insist on such a basic and taken for granted right then we should stop all pretences that we are democratic or that we believe in constitutional governance.

Let this sink in. Nothing can put voters in a no man’s land for a general election. Certainly, not the creation of districts, not an EC directive and not parliamentary breaks.

Lastly, the proposed cure by the EC of creating the constituency after the inauguration of the 8th Parliament is no cure at all. Rather, it is another assault on the constitutional directive that a constituency cannot be created to become part of the Parliament that predates its creation. The rationale for this prohibition is too obvious to elaborate.
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