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Opinions of Thursday, 14 May 2015

Columnist: Atiemo, Obeng Paul

Who Succeeds Dr. Afari Gyan (Ghana’s Electoral Commissioner)

TITLE: Who Succeeds Dr. Afari Gyan (Ghana’s Electoral Commissioner) – Article 70(2) in Perspective

The dispute which characterized the aftermath of the 2012 general elections for which reason the Supreme Court was invoked evidently has prompted the interest of many Ghanians as to who should Head the Electoral Commission after Dr. Afari Gyan retires in June 2015.

Article 70, Clause 2 of the Constitution 1992 states "The President shall, acting on the advice of the Council of State, appoint the Chairman, Deputy Chairmen, and other members of the Electoral Commission".

The constitutional provision (supra) sets out how the appointment of the Head of Ghana's Electoral Commission ought to be made; but for suspicion, the wording of Article 70(2) has been subjected to various interpretations notwithstanding the explicit wording of the provision.

Basic, yet paramount to constitutional or statutory interpretation is the literal interpretation rule as applied by Annin JSC, when he stated in the case of Sallah v. The Attorney General, GLR (1970) that "Where the words of a statute are themselves precise and unambiguous, they must be expounded in their ordinary and natural sense". Same rule was applied by Sowah JSC in the case of Tuffour V. AG (1980) GLR 637-667.

Many schools of thought have emerged on how Article 70(2) of the Constitution 1992 should be interpreted.

A section has argued that the effect of the punctuation (comma) after the "shall" in article 70(2) applies to the appointing authority of the President and not esteeming the advisory role of the Council of State. The President therefore is required to make the appointment of the Electoral Commissioner with or without consideration to the advice of the Council of State. In effect, the proponents are of the view that, appointment of the Electoral Commissioner is the sole mandate of the President.

Another school of thought argues that the appointment made by the President pursuant to article 70(2) must be subject to the advice of the Council of State; therefore, if the Council of State objects to the President's choice, the President has no other option than to reconsider his stance and re-nominate. It is argued again that, it is the Council of State that makes the nominations for the President to merely make a ceremonial appointment. Impliedly, the vested power of the Council of State to reject or accept the President’s nominee positions them as the appointing authority of the Electoral Commissioner.

For all intents and purposes, it is undisputed that the President will take into consideration a wide range of issues before confirming the appointment of the Electoral Commissioner.

The 1968 Constitutional Commission stating the usefulness of the Council of State indicated at paragraph 365 & 366 of the 1968 Proposals of Constitutional Commission for a Constitution for Ghana, that “…The functions that have been entrusted to the President are of great importance. They impose onerous responsibilities on the President. We do not think anyone man, even the President, should be asked to shoulder such responsibilities single-handed. That is essentially the reason for recommending such a fairly small body of prominent citizens of proven character and ability to advise the President.”

The Committee of Experts that drafted the 1992 Constitution at paragraph 43 & 45 of its report stated that “recent constitutional arrangements in Ghana have recognized the validity of the case for a non-partisan advisory body, comprising eminent personalities, which would counsel and aid the principal organs of state in the discharge of their constitutional functions. This institution is analogous to the Council of Elders in our traditional political system. 45.“However, except for certain categories of appointments, any advice or recommendations furnished by the Council of State was not binging.”

Framers of the 1969 and 1979 Constitution(s) in Article 30(2) and Article 37(2) respectively provided that "The Electoral Commissioner shall be appointed by the President, acting in accordance with the advice of the Council of state".

To my mind, the draftsmen of the 1969 and 1979 constitution(s) prescribed the same procedure for the appointment of the Electoral Commissioner and its membership just as it is provided in Article 70(2) of the 1992 Constitution. The varied use of "acting in accordance with" and "acting on the advice of" in the 1969/1979 and 1992 Constitutions respectively have the same effect (from a literal view). "Acting on the advice of" means "compliance to stated instructions issued" and "acting in accordance with" means "acting in conformity with" (Macmillan Dictionary – 2009-15 referred).

A fair interpretation of the phrase "the President shall, acting on the advice of the Council of State" as contained in Article 70(2) therefore would warrant a look at how this wording in other parts of the constitution 1992, is interpreted and applied.

Article 144(2) states, "the other Supreme Court Justices are to be appointed by the President acting on the advice of the Judicial Council, in consultation with the Council of State and with the approval of Parliament". There has been appointments and swearing in of judges to the Supreme Court under this fourth republican Constitution although some of the appointments have in the past been characterized with partisan protests.

An enacted precedent on appointing an Electoral Commissioner in Ghana under the fourth republican constitution is that of Dr. Afari Gyan who after serving as a member of the Committee of Experts (committee that drafted the 1992 constitution) was appointed as deputy Electoral Commission and later as Head of the Electoral Commission when the constitution 1992 came into force.

Evidently, the constitution 1992 vests so much powers in the president.

The 2009 Constitution Review Commission stating their reasons on the need for a review of the constitution 1992 (page 6 & 7 of its Maiden Press Conference Report) amongst many admitted that “flaws in constitutional design and practice have led to too much power concentrated in the president, thus, undermining systems of checks and balances. Executive dominance has impeded the effectiveness of oversight institutions such as Parliament and independent constitutional commissions." 7. “research conducted by many non-governmental organizations reveals that there are potentially close to 40 changes that need to be made to our constitution. (1) a review of the provisions of chapter 8 of the constitution to determine whether there should be a curtailment of the exercise powers of the Executive president".

It seems that the Committee of Experts, were either influenced by a quest to make the once military leader who had switched garments (military to Democratic leader) as powerful as he was while a military leader or they were influenced by the paternalistic culture of the Ghanaian society (all decisions are made by the father at home) as a result, vesting such powers in the President to make unchallenged unilateral decisions.

It is usually the practice that Presidents make appointments including heads of constitutionally established institutions. In the United States of America for instance, the membership/head of the Federal Electoral Commission is appointed by the President and confirmed by the Senate. In the United Kingdom, the Speaker's Committee, tasked with the duty to scrutinize the Electoral Commission appoints the Head of its Electoral Commission. Notwithstanding the similarities, the distinction is that whiles a bi-partisan body is required by law to confirm the President’s nominee (in the USA), in Ghana, the Council of State, whose membership, many of whom is appointed by the President is required to work hand in hand in the appointment of the Electoral Commissioner.

The constitution 1992 provides in article 2(1)(a)(b) that “a person who alleges that (a)an enactment or anything contained in or done under the authority of that or any other enactment or (b) any act or omission of any person; is inconsistent with or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect”. By this, until the above provision is exhausted and a contrary determination is made by the Supreme Court, the guiding precedent remains that the President makes the appointment (fair or foul).

The stakes on the outcome of the 2016 general elections is high hence the quest for political parties to unreservedly have an interest in who becomes the head of the Electoral Commission.

If there ever is a test case to justify the need to trim down the powers of the President, I trust this is it. Institutions must be made to work devoid of political interference. I am of the opinion that the appointment of persons into sensitive offices such as the Electoral Commission must be vested in an independent body of persons, the Council of State whose nominations should be confirmed by a bi - partisan institution, preferably Parliament House. This way, I trust elements of politically motivated suspicion will, to a greater extent, be minimized.

Atiemo Obeng Paul
The author is a Law Student at Central University College