By Kofi Ata, Cambridge, UK September 5, 2015

Media report in Ghana indicated that two candidates were disqualified from contesting the District Assembly Elections (DAE) because they were over seventy (70) years old. Until I read this report, I assumed that there was no upper age limit to contesting public elections (District Assembly, Parliamentary and Presidential) in Ghana provided one met the Constitutional criteria for the respective election. In fact, since the fourth republic, there has been no upper age limit for contesting elections in Ghana. However, the Constitutional Instrument 89 (CI 89) that was used for this month’s DAE for the first time set seventy (70) years as the upper age limit for candidates. This article IS analysis of the potential risk this precedent could pose for the 2016 Presidential election should the Electoral Commission (EC) decides to follow this precedent for the 2016 Presidential Election.

Messrs Emmanuel Onoman and Edward Yorke incumbent Assembly members for Airport-Ridge and Adra electoral areas respectively in the Sekondi-Takoradi Metropolis were disqualified by the EC because they were above seventy years of age. Mr Stephen Opoku Mensah, Western Regional EC Director confirmed the disqualification of the two candidates in an interview with the Chronicle and explained that the disqualification was in compliance with the Constitutional Instrument (CI 89) regulating the conduct of the District Level Election. According to him, aspirants who have attained the age of 70 years and above were not eligible to contest the elections. He added that hitherto, the Constitutional Instrument (CI 75) which was ruled unconstitutional by the Supreme Court was silent on the issue of age, but the new CI 89, is very much clear on the age factor, hence the decision to disqualify them (see, “Aspiring Assembly Member dies after Disqualification”, The Chronicle/Ghanaweb, September 2, 2015).

Article 62 of Ghana’s Constitution states, “A person shall not be qualified for election as the President of Ghana unless; (a) he is a citizen of Ghana by birth; (b) he has attained the age of forty years; and (c) he is a person who is otherwise qualified to be elected a Member of Parliament, except that the disqualifications set out in paragraphs (c), (d), and (e) of clause (2) of Article 94 of this Constitution shall not be removed, in respect of any such person, by a presidential pardon or by the lapse of time as provided for in clause (5) of that article”.

Article 46 reads “Except as provided in this Constitution or in any other law not inconsistent with this Constitution, in the performance of its functions, the Electoral Commission, shall not be subject to the direction or control of any person or authority”. Article 51 also 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”.

Though there is no upper limit age in Article 62, there is nothing in the 1992 Constitution that stops the EC from putting an upper limit age when it comes to the Constitutional Instrument that will regulate the 2016 Presidential Election under Article 51. From the above, it is my view that the upper age limit in CI 89 is not only a dangerous precedent but could be a direct threat to Nana Akufo-Addo’s presidential ambition if repeated in the CI for the 2016 Presidential election. What I find disturbing is the fact that CI 89 was laid in Parliament for at least, thirty (30) parliamentary sitting days before it matured, yet not a single Parliamentarian raised objection to the 70 years age limit. Why did the EC choose the magic number 70 as the upper age limit? Was there any scientific or medical reason/s for that or is it because Nana Akufo-Addo will be 72 years old by 2016? Was 70 deliberately chosen to disqualify him from contesting the 2016 presidential election? I know readers will find my concern as without basis because CI 89 will not be used for the 2016 presidential election. My answer is, there is nothing to stop the EC from repeating the upper age limit so we do not have to wait till 2016 before debating this subject because it could be too late.

Of course, under Article 46, Nana Akufo and the NPP could go to the Supreme Court to challenge any such arbitrary upper age limit of 70 because Article 62 mentions only a lower age limit of forty (40) years but no upper age limit. It is also my view that upper age limit will be inconsistent with the 1992 Constitution. However, the EC could successful argue that it has the right to do so under Article 51 and in fact, has done so once through CI 89 by disqualifying candidates for the 2015 DAE without any objection. Though the DAE is very different from the Presidential since the lower age limit is 18 years of age for the DAE, I suspect Nana Akufo-Addo and NPP could have a fight on the hands at the Supreme Court if the EC repeats the 70 years upper age limit in the CI for the 2016 Presidential Election.

It appears Nana Akufo-Addo and NPP have not been paying attention to this minor but very interesting development by the EC. Had the MPs subjected the draft CI 89 to proper scrutiny when it was laid in Parliament, the 70 years upper age limit would have been spotted and questioned. The EC Chairman could have been invited by the House to explain the rationale behind the 70 years and why not 75 or 80. If the EC’s explanation/s was/were not reasonable, the EC could have been persuaded to reconsider the 70 upper age limit to either increase it or do away with it as the Constitution only sets lower age limits.

Has failure by Parliament, particularly NPP MPs to hold the EC accountable left this matter too late for Nana Akufo-Addo? I do not think so because in my view, the intention of the framers of the Constitution was not to set any upper age limit for public elections. If they so wished, they would have done so and not left that open. For this reason, a successful challenge of any upper age limit of 70 in a future CI for the 2016 Presidential Election is feasible. This is particularly so as there are very few upper age limits for presidential candidates across the world. The EC would have difficulty in justifying and persuading the Supreme Court to affirm an arbitrary 70 years upper age limit in Presidential Election CI.

Though I am not here to make a case for Nana Akufo-Addo, my belief in and respect for Civil and Political Rights make me worry when I come across such mischievous or diabolical attempts to deny a citizen his/her civil and political rights. For example, I suspected the Judgment Debt Commission report, which made adverse finding against Nana Akufo-Addo without a hearing could also have been used to disqualify him from contesting the 2016 Presidential Election under Article 94(2)(d). Thank God, President Mahama’s failure to issue a White Paper on the report within the mandatory sixty days has rendered any such diabolical plan redundant as that would now be unconstitutional.

In conclusion, the seventy year upper age limit in CI 89 could be harmless and may not be repeated in a CI for the 2016 Presidential Election. Nonetheless, it is a worrying development that should not be ignored but watched with an eagle eye. Its inclusion in a 2016 President Election CI will be regarded as purposefully to disqualify Nana Akufo-Addo. Such disqualification will backfire as Nana Akuffo-Addo, NPP and their supporters will not stand aloof to be prevented from challenging President Mahama for the second time. It will be misguided and irrational decision that could result in civil disobedience in Ghana. Finally, Nana Akufo-Addo and NPP should wake up to some of these intrigues before it’s too late.

Kofi Ata, Cambridge, UK