Gabby Asare Otchere-Darko

Some highly respected members of the New Patriotic Party have been arguing that the national leadership of the party, in choosing a date for the election of the 2012 presidential candidate of the party, must stick to the letter of the party’s constitution. This is a responsible statement, ordinarily.

However, their interpretation of the constitution is that the flagbearer must be chosen in (rather than by) December 2010. Some also argue, with some ostensible generosity, that the National Congress to elect the presidential candidate can be done ‘earlier’ but certainly not earlier than September 2010 because of the time the constitution provides for nominations to be filed. The fundamental canon of interpretation is that where the words of a statute have a plain and straightforward meaning and the words are reasonably capable of only one meaning that one literal meaning must be given. Thus, if a constitution’s language is plain and clear, the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion.

Chapter 12, Clause 1 of the NPP constitution reads as follows:

1. The election of the Party’s Presidential Candidate shall be held not later than twenty-four (24) months from the date of the national election. The date and venue for the election shall be decided by the National Council, provided, however, that the National Council may, on appropriate occasion, vary the date.

What this means simply is that the only major check on the party, in concluding on a date, is to choose the next flagbearer before December 7, 2010. In theory, it could have been done last year. In practice, it must be done anytime this year before December 7.

It is therefore up to the National Council, which incidentally meets this Wednesday, to take a decision on the date for holding the National Congress. That date should only take two things into consideration: one, allowing for reasonable period of time for people to file their applications for nomination and for candidates to campaign. Two, when would it be practicable to hold a National Congress of some 114,200 delegates with its attendant cost to the party and how that would be funded?

This is because Clause 2 of the same Chapter 12 of the NPP constitution also imposes another time requirement. It reads:

2. Not later than six (6) months prior to the holding of the election, the General Secretary shall give notice inviting applications from Members for nomination as the Party’s candidate to contest for the office of the President of the Republic. The Notice shall be displayed in a conspicuous place in the Party’s Constituency, Regional and National Offices and shall specify the closing date for application, which shall not be more than five (5) months to the holding of the election.

This Clause has been curiously interpreted to mean that notice should be given 6 months before the holding of the election to choose a presidential candidate. But the literal meaning of Chapter 12 Clause 2 is that notice inviting applications or notice to open the filing of nominations should not be longer than 6 months. It goes on to say that the closing date for nominations should not be longer than 5 months. The operative time frame here is one month. This means that the period for application of nomination should not exceed one month.

There is also another constitutional consideration. Chapter 12, Clause 5(a) of the NPP constitution states that “Where there are more than five contestants for nomination as the Party’s Presidential Candidate, a Special Electoral College shall cast their votes by secret ballot for the first five contestants to be short-listed.”

By some calculations, the Special Electoral College (SEC) should consist of not more than 588 delegates. They comprise of members of the National Council, the National Executive Committee, the Regional Executive Committees (160), the National Council of Elders (15), Members of Parliament (107), three representatives of each of special organs of the Party, past National Officers, 3 representatives each from every external branch (30), Founding Members during the registration of the Party at the Electoral Commission and all New Patriotic Party card bearing Ministers when the Party is in government. Thus, whichever date is given could be affected by the number of people who opt to file in the period available for the filing of nominations. Yet, this need not arise if the SEC conference is held one day after nominations closed. The date for Congress need not be disturbed by the possibility of a conference of a Special Electoral College.

The root of the constitutional provision which seems to limit the period for applications to one month could be traced to 1992. One could even look at the 1998 Congress, the last Congress when the party was in opposition. The National Council decided to hold that crucial Congress in October 1998, two months after the new national officers, under Chairman Odoi Sykes, were elected. Thus, the candidates had only two months to campaign officially – a period which arguably contained and controlled a campaign that was feared to cause the party some irreparable harm.

This understanding is further underlined under Clause 3 (b), (c) of the same Chapter 12 which deals with nominations when the party is in government. 3 (b) When the Party is in government, the election of a Presidential Candidate shall be held not later than 11 months before the national general election.

It goes on to say that in that 11 month window, notice for applications shall be strictly 3 months, with nominations closing after the first month. It reads:

c) Notice inviting application for the members for nomination as the Party’s candidate shall be given three (3) months prior to the holding of the National Congress and shall close after two (2)months.

Here, aware of the shorter window that the constitution provides for the presidential nomination when the party is in power, it gives a clear unambiguous specific period of 3 months from the opening of nominations to the casting of ballots. Moreover, what is constant here and consistent with Chapter 12 (2) is the one month period it provides for applications to be opened.

This can be construed to mean that whichever date is chosen by the National Council it should give one month for the filing of nominations and an additional period for campaigning. Going by 2007, that additional period could be two months; going by 1998, that additional period should be at least one month.

To show that the relevant provisions under Clause 3 are dealing specifically with the period that the party is in office, Clause 3(d) stipulates:

d) Any Minister, National Officer, and District Chief Executive (DCE) who files to contest to become a Presidential Candidate of the Party shall resign his/her position

In interpreting the party’s constitution, the National Council should always turn to one cardinal canon before all others. It must presume that the framers of the constitution say in the constitution what it means and mean in the constitution what it says there.

As reasoned in Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996), "In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage."

There is no ambiguity in the NPP constitution as to when the National Council may decide to hold a National Congress. There may be practical and sectional-interest driven reasons why some may want it sooner and others later. But, let them not seek to advance that sectional cause by importing into the constitution words and meanings that are not there.

The author is the Executive Director of the Danquah Institute, an ideological think tank based in Accra. gabby@danquahinstitute.org