Enforcing a Directive on No Photo-Taking of Ballots in Voting Booths

IMANI recently raised a red flag over the practice where voters use their mobile phone camera in voting booths to photographic evidence of their thumb printed ballots. Some voters present such photographic evidence to third parties, usually politicians, for rewards. The practice however violates Article 49(1) of the 1992 Constitution which clearly states that "At any public election or referendum, voting shall be by secret ballot."

It is therefore very refreshing to hear from the Electoral Commission (EC) Central Regional Director, Philomena Adusei, that “…The Commission will not allow anybody to take pictures during voting in the polling booth” because the practice undermines the secrecy and sanctity of the polls. Notwithstanding this good news, the official position of the EC on the matter is not clear. Some people have also raised questions about whether the EC has adequate legal framework to enforce a ban on photo-taking in voting booths.
On Facebook, I had an interesting discussion with Franklin Cudjoe, Kofi B Bentil, H Kwasi Prempeh and others about how the EC could enforce the constitutional provision banning voters from using their cameras (usually mobile phones with camera) in the voting booths, in order to guarantee free and fair election results.

Kofi B Bentil suggested that the EC should issue a signed official statement ordering all Election Officers to prevent voters from using their cameras in the voting booth, and also give the Election Officers directives on how to go about it. Franklin Cudjoe also suggested that a warning from the EC to the public is enough because there are already many relevant codified laws. Citing Article 19(11) of the Constitution, H Kwasi Prempeh however urged us to probe further whether there is adequate legal framework that could enable the EC to successfully cause the arrest and prosecution of voters who might be determined to contravene a directive from the EC to its officials to enforce the ban.
I took the challenge from H Kwasi Prempeh and probed further. To facilitate research on such a matter, the EC has made available on its website almost all the legal regulations governing elections. In the course of my research, and the Facebook discussion, it became clear that there exist solid written statutory rules that the EC could use if it so desires to enforce Article 49(1) and protect the secrecy of votes. It does not appear that the EC needs a new Constitutional Instrument to enforce a ban on photo taking of ballots in voting booths.

Should the EC decide to issue a directive to its Election Presiding Officers to enforce the no-photo taking in voting booths, the following legal rules could provide the framework for the EC to successfully prosecute voters who violates its warning or directive.

First, from Article 42 of the 1992 Constitution, it is noted 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.” However, Article 45(c) of the Constitution makes the EC the only state agency with the authority “to conduct and supervise all public elections and referenda.” Voters do not have any right in law that allows them to use their cameras to provide photographic proof of their vote to third parties.

Second, in the context of Article 49(1) which specifies that "voting shall be by secret ballot", Section 31(3) of PNDCL 284 of 1992 outlines the following crucial "Requirement of secrecy" that should guide EC officials and voters:

(3) No person shall –
(a) interfere with or attempt to interfere with a voter when recording his vote; or
(b) obtain or attempt to obtain in a polling station information about the candidate for whom a voter in that station is about to vote or has voted; or
(c) communicate at any time to any person any information obtained in a polling station about the candidate for whom a voter in that station has voted or is about the number, if any, on the ballot paper given to a voter at that station; or
(d) directly or indirectly induce a voter to display his ballot paper after he has marked or selected it so as to make known to another person the name of the candidate for whom he has or has not voted.
Section 31(5) of PNDCL 284 goes on to specify the following sanctions that should be applied to any person who flouts the requirement of secrecy: “A person who contravenes any provision of this section commits an offence and is liable on conviction to a fine not exceeding ¢1 million or to imprisonment for a term not exceeding two years or both.”
It is clear from the above that the use of camera by some voters to take a photo of their ballots to provide photographic proof of their vote to third parties is a clear violation of the requirement of secrecy of vote. It is hoped that the EC has issued a clear directive to its election officials to enforce Article 49(1) by preventing voters from using their cameras in the voting booths to protect the integrity of the votes. Since the law expressly attaches criminal penalties to a violation of the requirement of secrecy, the EC has a firm statutory basis to proceed to issue a directive to its officials to prevent voters from taking photographic evidence of their thumb-printed ballots. The ball is in the court of the EC to play it well.

Note: I am grateful to Franklin Cudjoe, Kofi B Bentil and H Kwasi Prempeh for giving me their permission to use some of their contributions. Special thanks go to H Kwasi Prempeh for using his rich knowledge of the laws of Ghana to reshape aspects of the draft.

Written by Daniel Appiah (PhD in Politics). Contact: appiah29@yahoo.com