By Kofi Ata, Cambridge, UK February 28, 2015

Friday February 27, 2015, the Supreme Court (SC) ruled that the Electoral Commission (EC) of Ghana has acted and is acting unconstitutionally with the organisation of the District Assembly Elections scheduled for Tuesday March 3, 2015. What made the ruling damaging to the credibility of the EC and its leadership, particularly, the Chairman is the fact that it was a unanimous decision of the seven member panel (see, “SC blocs District Assembly Elections”, Ghanaweb, February 27, 2015). This article is to discuss the implications for the EC with reference to the belligerent attitude of Dr Afari-Gyan.

Article 51 of the 1992 Constitution states, “The Electoral Commission shall, by constitutional instrument, make regulations for the effective performance of its functions under this Constitution or any other law, and in particular, for the registration of voters, the conduct of public elections and referenda, including provision for voting by proxy”. Constitutional Instruments do not come into force until they are laid before Parliament for a specified period of time. This could be from 21 days more after being laid before parliament. Though a Constitutional Instrument (CI) is often not debated on the floor of Parliament as with bills, the time requirement for its maturity is to enable members of the house to inspect it and raise any concerns they may have and for the necessary amendment/ corrections and omissions to be made prior to it comes into force.

From the facts of the Supreme Court case, the EC laid CI 85 before Parliament but failed to wait for the required maturity date before starting work on organisation of the District Assembly (DA) elections. For example, electoral areas were demarcated whilst CI 85 had not matured. What is unpardonable and potentially a threat to democracy was that the EC closed nominations for the DA elections before CI 85 became effective. In effect, though the EC laid CI 85 before parliament, it had no intention of respecting what is constitutionally required of it.

As a result, one Mr Benjamin Eyi Mensah from the Efutu District in the Central Region who wanted to contest as the Assemblyman for the Eyipeh Electoral Area was disqualified because he missed the arbitrary nomination closing date set by the EC by a day when in reality CI 85 had not even come into effect, so he challenged the decision of the EC to close nominations before CI 85 came into effect.

All efforts to persuade the EC that it was acting unconstitutionally and therefore should allow the nomination forms of Mr Mensah fell on death ears. According to his Attorney, Hon Mr Afenyo-Markin, who is also an MP, he personally wrote two letters to the Chairman of the EC, Dr Afari Gyan but did not even receive an acknowledgement (see “DA elections cancellation: Afari Gyan ignored wise counsel-layer”, Ghanaweb, February 28, 2015).

This reminds me of his “go to court” attitude in 2012. A Member of Parliament and an Attorney representing a client as well a constituent in such an important constitutional matter writes to you and you totally ignored him. Is that folly, pure arrogance or sheer disrespect on the part of Dr Afari Gyan? Though Dr Afari Gyan was not under any duty to reply to the two letters, as a matter of courtesy he could have at least, acknowledged receipt of the letters and add that either he has referred the letters to EC’s Attorney for advice or since the matter was before SC, he would not want to say anything that may prejudice the case. Instead, he showed utter contempt to the honourable member and totally ignored him.

This matter is very important and both Mr Mensah and Hon Afenyo-Markin should be applauded for their actions. It’s a victory for democracy in Ghana. The Electoral Commission should know that it cannot deprive Ghanaians of their constitutional rights through arbitrary decisions without regards to constitution. If Afari and his Commissioners have some false belief that the EC makes CIs but not applicable to the EC itself and so they can act to suit their whims and caprices, then, they are deluded. The message is clear and loud that the EC is not above the law and must act within the laws of the land.

I have talked about the need to importance ofdifferentiating authority bearing obligations and rights bearing enjoyment in a previous article on constitutional matters. Authority bearing obligations by their very nature are restricted to the selected few and powerful in society such as the Executive, Legislature and the Judiciary, EC and others. Authority bearing obligations such as the making of CI by the EC are restricted to those intended for and by very their nature could not be expanded in their interpretation and application. On the other hand, rights bearing enjoyment such as Civil and Political Rights are for all or the majority including the poor and the weak in society. Their full enjoyment by all and anyone meant for is expanded to cover everyone that is entitled to them and not restricted. That is why I argued strongly against the No Verification, No Vote as unconstitutional. What the EC did (denying Mr Mensah his civil and political rights) is to expand its obligation bearing duty to curtail the rights bearing enjoyment of Mr Mensah which is unconstitutional.

This case brings into focus, the intransigence of some Ghanaian institutions and public officials to act without regards to laws of the land. In addition to the EC other state institutions such as the Ghana Petroleum Authority act with impunity as if there are no laws regulating their activities. The ruling is also an indictment on the general indiscipline and lawlessness in Ghana. The EC’s defeat is self-inflicted that could have been avoided.

It appears the EC Chairman and Commissioners have taken for granted the five-four SC affirmation of the declaration of the 2012 Presidential Election results and given them false assumption that the EC can win any constitutional challenge at the SC. This is a warning that the EC must act within the law. The writing was on the wall but either because of arrogance or intransigence, Afari Gyan refused to reason and admit that until the CI 85 had come into force, the EC could not close nominations.

With the administrative errors exposed at the 2012 presidential petition hearings at the SC, one would have expected the EC would have acted with extra care in the future organisation and management of elections, Sadly, it appears the EC has not learnt any lesson/s and continues in their usual belligerency, which should be a concern for all Ghanaians. Ghanaians expect nothing but clean, transparent organisation and management of the 2016 parliamentary and president elections from the EC.

This decision could not come at the worst time for Dr Afari Gyan, just months away from his retirement as the Chairman of the EC. This is another blow to his reputation. He seems to have outlived his usefulness, become arrogant and even disrespectful to Ghanaians. To simply ignore a letter on a very important constitutional matter from a member of parliament and an Attorney representing a client is folly and he will leave the EC with his reputation gored by this decision and the lapses in the 2012 presidential elections.

Kofi Ata, Cambridge, UK