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Opinions of Thursday, 16 April 2015

Columnist: Kennedy, Arthur Kobina

The appointment of the next chairman of the electoral commission

Irmo, SC, USA
15TH April, 2015

Finally, the long tenure of Dr. Afari-Gyan as EC Chair is ending and the process for naming his successor is under way.

Let me state at the outset that the constitution gives too much power to the President in the appointment of certain officers, including the Chief Justice and the Electoral Commissioner. It is mind-boggling that the President who requires the consent of Parliament to appoint a Minister can appoint an Electoral Commission with no other constraint than the advice of the Council of State--- which is effectively a creature of the President. However, regardless of what we feel, that is what our constitution says and we must respect it. Those who think this does not serve the public interest, like I do, must work to change the constitution. For now, those who want to appoint members of the EC must work to win elections. Elections have consequences and what we are witnessing, is part of the consequences of elections.

There have been calls for the President to consult widely, which are in order.
In addition, others, including some legal experts are suggesting that the Council of State should initiate a search for a new Chair of the EC under the guise of “advising the President.” According to the proponents of this outlandish theory, the framers of the constitution intended for the advice of the council of state to be binding on the President in this matter. According to this theory, when the 1992 Constitution stated that in article 70(2) that “The President shall, acting on the advice of the Council of State, appoint the Chairman, Deputy Chairman and other members of the EC”, what they meant was that the council could, on its own, look for candidates, vet them and present them to the President. This is notwithstanding the fact that Presidents from Rawlings to Mills have made these appointments routinely without the necessity to be bound by the Council of State. Of course, the constitution never expected the Council of State to go around searching for candidates. The commonsense meaning of the clause is that the President, after finding candidates, may consult the council, collectively or individually, in part or in whole in making the appointment. The constitution never obligates the President to accept the advice of the Council of State. If they intended for the Council of State to consent to the appointments in question, like Parliament should consent to the appointment of Ministers, they would have said so. Indeed, even in the NPP, whose constitution requires the Presidential candidate to appoint his running mate in a similar manner, I have never heard of anybody, independent of the flag-bearer, searching for running mates to present to the flag-bearer.. Why would we expect that of the President when we do not require that of our flag-bearer? If that was the proper way to do it, why did we not ask President Kufuor to do the same? Indeed, the examples cited of the Governor General and Nkrumah and later of Busia do not hold water. They amount to comparing apples to oranges. Even in the United States, where article 2 of the constitution requires the President to appoint judges with the “ADVICE AND CONSENT” of the Senate, the Senate would never think of going to search for candidates on its
own. That is quite properly, the prerogative of the President.

Those who are reading all kinds of dire scenarios into this appointment must, to quote President Kufuor, “pipe down”. Both major parties won elections under Afari-Gyan, who was appointed by Rawlings under the current system. Therefore, regardless of who is appointed EC boss, whoever does their work well, amongst the two parties can win elections.

Instead of focusing on things beyond our control, we in the NPP must unite, learn from our mistakes and the Nigerian experience, be humble and work hard and victory shall be ours in 2016.

Finally, let us pray that the President, with the advice of the Council of State, will appoint a successor to Afari Gyan who will have the confidence, not just of the political parties but also, of the public.

May God guide all of us and the President as we move forward, together.