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Opinions of Thursday, 14 July 2005

Columnist: Antwi, William

The Right To Vote: Bloody Legal And ?Commonsensical Nonsense?!

The NPP government?s attempt to amend PNDC LAW 284 to make room for Diasporians like me - after we have practically fled from the inequalities, inadequacies and humiliation embedded in our system - to register and vote, has torched off a political and legal storm. In the process, some sane constitutional principles and eminent citizens of our society are being unfairly attacked in a most disrespectful manner by individuals who want their parochial and selfish agenda to trump over reality and commonsense - which, of course, form part of any well- intentioned interpretation of constitutional provisions.

It is particularly striking that these individuals are so confused and conflicted that they continue to hedge the issues we are confronted with: The harder they desperately try to refine their ?absolute right to vote theory?, the more they display their lack of understanding of the constitutional principles involved in the issue.

The narrow, but remarkable issue here is whether the government is acting unconstitutionally by not providing the necessary facilities to enable majority of Ghanaians living abroad to register and vote in elections and referenda in our dear country. In other words, is the government trampling on Diasporians? right to register and vote by not putting in place registration centers and voting polls in the foreign lands we have voluntarily chosen to reside? Put another way, is the government acting contrary to the dictates of the constitution via Article 42?


Article 42, the subject matter of this controversy, states that ? EVERY CITIZEN of Ghana of eighteen years of age or above and of sound mind has the right to vote and is entitled to be registered as a voter for the purposes of public elections and referenda? - the emphasis is mine. Indeed, it is constitutionally absurd that some Ghanaians including our Attorney General, Prof. Kwaku Azar and Mr. Henry Kwasi Prempeh of the NPP corrupted CDD have argued rather fruitlessly and unrealistically that the entrenched right as conceived under the said Article 42 is ?without qualification,? ?absolute,? or ?unconditional.? In their view it is the ?mother of all rights.? Which means that it is superior to all other rights identified and entrenched under our still living constitution. Their absolute right theory is plagued with many legal minefields. Suffice here to state that their incredible assertions should be dismissed as mere elitist balderdash and legal trash! In fact, their position is a very lazy way of interpreting Article 42! How on this God?s earth can anybody talk about the right to vote as the mother of all rights and that it is superior to all the other rights enshrined in our constitution? Just because it is entrenched? What about the other entrenched individual rights like the right to free speech and express? Of course, unless they want to convince us that the right to vote is not a fundamental individual right? Are those entrenched rights not subject to some legal restraints?

Amazingly, they are telling us that because Article 42 is a ?stand alone? provision, all rules of constitutional interpretation should take a back seat! What intellectual insult! Have they lost their capacity to think through their mischievous statements before attaching their names to them? The truth is, can we truly enjoy this so-called superior right in the midst of hunger, disease, deprivation and humiliation? Or, in the midst of any hostile environment created by our greedy and senselessly corrupt leaders? Simply put, they should tell the majority of our people who are ill-fed, ill-clothed or ill-sheltered and can?t pay their hospital bills, their wards? school fees, which right is superior!

To be very charitable to the Kwaku Azars of Ghana, we found their position very disturbing and worrisome. They have taken the interpretation of the constitution to very absurd levels. In fact, they want us to be robotic in our interpretation of the constitution without regard to the constitutional fact that the general language employed in constitutions is a tool to help us resolve issues based on the peculiar circumstances of each case. Let me here and now put forward the proposition that any constitutional rule that does not take into consideration the objective condition of our country, which, includes the abject poverty of its people, lack of human and technological resources etc.; etc.; vis-a-vis the totality of the constitution should be viewed with a great deal of suspicious. It is apparent that they want us to place all citizens of 18 years and above and of sound mind in one homogeneous, legal classification without regard to the real conditions and circumstances of our dear country and its citizenry. By the very terms of their interpretation and argument, even imprisoned felons and Diasporians are entitled to register and vote in elections and referenda in the country. We think they are dead wrong.


In fact, giving Article 42 its plain and textural meaning will make nonsense of the totality of our constitution. Yes, Article 42 talks in simple language about the right of every citizen of 18 years and of sound mind to register and vote but how do they read this particular article in order to take care of the integrity of the system. For example, how do we as a nation protect the integrity of the system if we allow certified felons to register and vote while serving their prison terms? How can they say that the government is acting unconstitutionally by refusing to provide prisoners with the facilities to register and vote and still talk about the sanctity of the electoral process? Isn?t there a compelling state interest in preventing prisoners from even registering and voting in order to safeguard the integrity and stability of the system?

More to the point: If Mr. A is convicted on a charge stemming from an election fraud, don?t we think it will be in the supreme interest of the nation to bar Mr. A from participating in future elections, at least until he served his sentence and in some cases even after his release from prison to safeguard the integrity of the system? The fortunate truth is that their rights as citizens are basically restricted and constrained when they are convicted and imprisoned. They do not enjoy the same rights as every other citizen. It is therefore an abuse of language to say that because Article 42 calls on all citizens of 18 years and above and of sound mind to register and vote, prisoners too are entitled to register and vote in elections and referenda. What object lesson will we be foisting on our society if Ghanaians like Mr. A are not made to understand the true meaning of a prison term? Is our society not entitled to send a clear, unmistakable message to its citizens that crimes don?t pay and that they will be shut out of the electoral process if they commit certain kinds of felonies? Understanding this issue is not rocket science! It is the integrity and stability of the system we are talking about here and not some book-long interpretation of the constitution which does cruel injustice to reality, commonsense and our common experiences as a nation! Haba, can we please apply a little common sense when it comes to interpreting the constitution? So far so ?good? for the Attorney General?s ?without qualification? legal theory!


Now, let?s bring this argument right home regarding the right to vote of Ghanaians living abroad: In a more practical sense, we must ask ourselves whether it is the government which burdened diasporians? right to register and vote or that diasporians voluntarily imposed such burden on ourselves. Offering a yes or no answer to this legitimate issue will surely open the floodgates to understanding the constitutionality or otherwise of diasporians? right to vote.

Before our opponents start fawning all over each other, let?s stress here that the choices we make in life pointedly influence how we realize and enjoy our rights as citizens of the country we all love to call Ghana. It therefore stands to perfect constitutional wisdom to offer here that the government is not under any affirmative or compellable constitutional duty to supplement or for a better use of language subsidize diasporians? right to register and vote for the simple reason that diasporians themselves burdened that precious right. The self-evident truth is that, diasporians burdened the realization and enjoyment of that right when they voluntarily left the shores of our dear country in search of greener pastures abroad instead of staying home and coping with life?s difficult demands. By so doing, they conveniently and constitutionally took themselves out of the scope of Article 42 notwithstanding the fact that some of them are Ghanaians eighteen years and above and of sound mind. This easily explains why the government rightly and legitimately distinguished disaporians from other Ghanaians manning our diplomatic missions abroad, students on government scholarships, military personnel on peace keeping duties outside, etc.; As the NDC rightly pointed out ?this particular category of people were sent out to their countries of posting on special missions on behalf of the state?. The government will therefore be acting unconstitutionally if it fails to provide the necessary facilities to enable this group of Ghanaians to fully enjoy their right to register and vote.

On the other hand of the constitutional equation, if the government decides to provide us with the means to actualize our right to vote outside Ghana, it will just be extending its financial and political largesse and not because the constitution compels it to do so! This situation further explains why it is imperative for the government to seek the political and economic backing of parliament to put in place such a herculean task of providing Diasporians with the means to exercise their right to vote.

>From the foregoing, isn?t it easy for any right thinking Ghanaian to discern that PNDC LAW 284 is in consonance with the true meaning of Article 42? It is easy to dismiss the emotional outbursts of our opponents as mere ranting of disgruntled Ghanaians who want the government to undo their self-inflicted constitutional disability. Isn?t it insulting for this same group of Ghanaians to turn around and accuse the government of an unconstitutional act when they themselves left the country in search of ?elusive? fortunes abroad? What they refuse to recognize is that Article 42 like the rest of the provisions in the constitution is couched in general or broad terms and language. Therefore, to give practical meaning to such language, the legislature - at that time, the Provisional National Defence Council and not the Electoral Commission as they want us to believe - was compelled to enact PNDC LAW 284 to regulate elections in the country. Individuals like Kwaku Azar should get use to the stark fact that LAWS like PNDC Law 284 were enacted to make our constitution work and work efficiently. Without Law 284 how were we going to conduct elections?


1. Do we seriously think we will be enhancing our democracy if we allow diasporians to register and vote when we don?t even have any data whatsoever of the number of Ghanaians living abroad?

2. Again, let me borrow a page from the NDC when they poignantly offered ?if Ghanaians are to be registered without reference to the residence qualification, how are they to be identified with constituencies, especially in relation to the counting of their parliamentary votes??


3. Is this going to be one of those classic cases where diasporians are going to abstain from voting for any parliamentary candidate?

4. And, by the way, do we have the financial, technological and human means to execute this electoral task?

5. And, to extricate themselves from 4 above, haven?t they offered a 25-dollar tax on disaporians who want to register and vote? Have they really considered the constitutional fallout of this patently flawed proposal? When did they start conditioning the right to vote on wealth or our ability to pay? Is wealth or our ability to pay now a qualification for one to register and vote? These people have stopped been funny!

5. Don?t we honestly think that the whole exercise will be fraught with massive ?corruption and maladministration? as Prof. K. B. Asante rightly pointed out?

6. Isn?t it a notorious fact that there are foreigners walking around with Ghanaian passports?

7. Aren?t these some of the pitfalls and mischiefs PNDC LAW 284 sought to overcome when it properly excluded diasporians from registering and voting?

Ladies and gentlemen, what further compelling reasons do our opponents need to establish the impregnable fact that the government should not provide diasporians the facilities to enable them exercise their right to register and vote until we find the right mix of solutions for the problems outlined above! Why does this government want to sacrifice the sanctity of the electoral process just to score some very cheap political point?

Meanwhile, with all their emotional outbursts and loud talk, what is stopping our opponents from testing the constitutionality or otherwise of PNDC LAW 284? Are they that scared of the certain legal whipping they are going to receive from the Supreme Court? Or, is this a case where they can?t even trust our Supreme Court? In fact, these individuals have legal mouth paaaaaaaaaaaaaaaaaaa!

We shall be back.

Thank you.


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