By Kofi Ata, Cambridge, UK June 20, 2015

The debate over who should appoint and how the appointment of the next Chairman of the Electoral Commission (EC) should be made began in April 2015. There were those who were of the view that the President ought to consult stakeholders prior to making the appointment, whilst others were concerned with who should make the appointment. That is, the interpretation of Article 70(2) of the 1992 Constitution (“the President shall, acting on the advice of the Council of State, appoint the Chairman, Deputy Chairmen, and other members of the Electoral Commission”). This article is an assessment of the implications of the current petition before the Supreme Court (SC) on this constitutional matter.

I am aware that one runs the risk of being charged for contempt of court for discussing cases before courts but this rule does not normally apply ton cases of constitutional interpretations before a SC. In fact, the Justices benefit from varied legal opinions expressed by the public. It is within this context that I contribute to this national debate.

There are two schools of thought on the constitutional interpretation of Article 70(2). One, which claims that the words “acting on the advice of the Council of State”, mean it should be the Council of State and not the president that must search, identify and select a suitable candidate and advise the president to appoint him/her. This group believes that the advice of the Council of State is binding on the president. On the other side are those (including myself) who believe that the accurate interpretation of Article (70)(2) should be guided by the past. That is, how previous appointments under Article 70(2) were made (see my article “Is Nana Akufo-Addo Experiencing Amnesia?”, Ghanaweb April 22, 2015).

In fact, until I read the postponement of the SC case brought by Citi Fm’s Parliamentary Correspondent (Mr Richard Dela Sky) for the accurate interpretation of Article 70(2), I was unaware that the matter was before the SC (see “SC petition on appointment of EC chair hearing postponed”, Citifmonline/Ghanaweb, June 11, 2015). Indeed, I wondered why President Mahama was delaying the appointment of Dr Afari-Gyan’s replacement who would have benefitted from working with him for some time before his retirement.

In my opinion, the case before the highest court of the land is the easiest ever to come before it. However, it also presents the SC with a big dilemma. Why do I say so? Simply put, with the exception of the Chief Justice, either all the remaining Justices of the SC or some of them were appointed under a similar Article. Article 144(2) states, “the other Supreme Court Justices shall be appointed by the President acting on the advice of the Judicial Council in consultation with the Council of State and with the approval by Parliament”. Here, I am interested in only the first part of the three staged appointment processes of the other Justices because it is the same as that of the EC Chairman’s appointment. These are the words “acting on the advice of the Judicial Council”.

The question for the Justices who are sitting on this case must pose and answer is, who searched, identified and selected them for appointment as Supreme Court Justices? Was it the Judicial Council as being suggested by the first school of thought or the President as being claimed by the second school of thought regarding the interpretation of the words “on the advice of”? My guess is, it was the president and not the Judicial Council that searched, identified and selected them for their appointments. I say so because from the criticisms of President Mahama’s recent nominations of two SC Justices by the Ghana Bar Association, I do not believe that had the search, identification and selection been done by the Judicial Council the two nominations would have attracted that many criticisms. Again, had the Judicial Council done the search, identification and the selection previously, it would have advised President Mahama on the recent nominations accordingly. The Council’s failure to do so suggests to me that it is the president that must do the search, identification and selection of a candidate for appointment/nomination and not the other way round.

The dilemma for the SC Justices is that having been searched, identified and selected by a president and not the Judicial Council, would they not be committing judicial suicide should they interpret Article 70(2) that, it must be the Council of State and not the President that must search, identify and select a candidate for the appointment of EC Chairman? This is because such interpretation would render their own appointments unconstitutional if they were searched, identified and selected by a president and not the Judicial Council.

The reason for the title of the article is not because I believe the suit would not improve constitutional democracy in Ghana but because, irrespective of the outcome, the president of the day will always have his or her way regarding constitutional and other public appointments for various reasons. It’s similar to the saying that “the minority can have their say but the majority will have their way”. Why?

The first reason is that, Ghanaian institutions are weak and often controlled by the Executive because of the problem of appointment by patronage. For example, the Council of State is chaired by an appointee of the president and most likely to be a member or supporter of the party in government. Moreover, the president appoints a reasonable number of members of the Council of State. There are also other members such as Chiefs who often do the bidding of the government of the day for reasons of wanting and securing development in their areas. For these reasons whether it’s the Council of State or the president who searches, identifies and selects a candidate for appointment as the EC Chairman is irrelevant because the president will always have his man or woman to appoint. Who in Ghana really believes that the Chairman of the Council of State and pro NDC members on the Council of State such as Ama Benyiwa Doe will stand in the way of President Mahama having his preferred candidate appointed as Chairman of the EC?

In addition to the above, public appointments in Ghana including judicial ones are by political patronage for favours. The Ghana Bar Association has recently expressed its concern over such patronage and I provide two typical examples. Many Ghanaians believe that some senior judicial appointments are for favours done to the appointing authority. Though that does not necessarily mean those appointed are not qualified.

Since the criticisms of the two recent Justices of the SC nominations by President Mahama, I have done some elementary web search on Justices Appau. From his background, it was not strange that he was appointed a High Court Judge by the then PNDC because and like myself, he was an active participant of the PNDC government. I also came to the conclusion that he was rewarded by the Kufuor administration with appointment as Appeal Court Judge for presiding over the failed Yaa-Na murder trial and for setting the accused free. I make no apology for the serious accusation against soon to be SC Justice Appau and he is free to sue me in the UK for my accusation. Again, President Mahama has rewarded him for Chairing the Judgement Debt Commission by nominating him to the SC. The second example of appointment for favours is that of the Chief Justice. I now believe the perception among some Ghanaians that the Kufuor government also appointed the Chief Justice as reward for Chairing the Inquiry into the disappearance of cocaine and exonerating any official involvement, though I have no doubt that she is well qualified.

I am not suggesting that appointments by patronage do not happen in the developed democracies or are necessarily bad. They do but the difference is that in the developed democracies once appointed, the appointees assert their independence. The other difference is that in the developed democracies, the patronage is more of ideology than for favours, especially when it comes to judicial appointments. For example, in the US, presidents nominate Justices of the SC on ideological, political and competence. No US president would nominate a SC Justice who is dialectically opposed to the president’s ideological and or political persuasions.

In conclusion, whether the SC rules in favour of the petition, that is, it should be the Council of State or the president that must search, identify and select a candidate for appointment as the next EC Chairman, it would make no difference because the president of the day controls the Council of State and would always have his or her preferred candidate appointed. For me, what is more important in this debate is the urgent need for strengthening constitutional and public bodies of accountability to assert their independence as well as the ability of public appointees to be independent of the appointing authorities.

Kofi Ata, Cambridge, UK