A former Chairman of the Electoral Commission (EC), Dr Kwadwo Afari-Gyan has disagreed with a proposal to make the Inter-Party Advisory Committee (IPAC) a statutory body with its functions backed by law.
According to Dr Afari-Gyan, changing IPAC from a mechanism through which political parties offered suggestions to the EC to a body whose functions were backed by law would interfere with the independence of the EC, as enshrined in the 1992 Constitution.
Dr Afari-Gyan, who was instrumental in the formation of the IPAC, said: “The Constitution clearly says that in doing its work, the EC should not take instructions from any person or body external to the commission. The IPAC is such a body. Accordingly, IPAC decisions cannot be binding on the EC. If they were, it would, in effect, amount to nothing less than meddling with the independence of the commission.”
His views were contained in a statement he sent to the Daily Graphic detailing his views on some reforms in Ghana’s electoral system proposed by the largest opposition party, the National Democratic Congress (NDC).
The full statement will be published in the weekend special edition of the Daily Graphic on Saturday, October 2, 2021.
Act on proposals
A stalwart in electoral reforms, Dr Afari-Gyan, however, said despite the EC’s independence, it would be prudent for it to act on proposals of political parties and also implement decisions of IPAC, provided the proposals “enhance transparency, are lawful, practical, cost-effective and satisfy the standards of electoral justice”.
The former Chairman of the EC has wide experience in elections on the continent, having among other positions, served as the Executive Secretary of the Association of African Election Authorities in 1998 and member of the Committee of Experts to advise Nigeria on elections.
The longest-serving Chairperson of the EC in the history of the country, Dr Afari-Gyan, who was Chairman of the EC from 1992 to 2015 and supervised six general elections, said he decided to comment on the NDC’s proposals to enrich the discourse on electoral reforms.
He said discussions on electoral reforms should not be the sole preserve of political parties and the EC.
“The electoral process belongs to the people of Ghana, so it is proper for individuals and groups, particularly election-related civil society organisations, that so wish, to contribute to the discussion,” he said.
He commented on 10 of the 30 proposals by the NDC, with the explanation that the other 20 proposals were administrative issues that could easily be dealt with by the EC without any input from any other body.
Dr Afari-Gyan is not the only person to disagree with the NDC’s proposal on IPAC.
The ruling New Patriotic Party (NPP) has also rejected the idea, describing all the proposals by the NDC as self-centred and adding that the party ought to have used IPAC as a forum to articulate such proposals.
The EC has also indicated that it can only work on the proposals by the NDC if they are made through consensus building by all political parties at IPAC.
The IPAC is a body with representatives from all political parties which interacts with the EC regularly and offers some recommendations to the EC to improve the electoral system.
The NDC thinks that IPAC is an integral part of Ghana’s democracy which has made tremendous contributions to the development of the electoral system, but due to its informal nature, the EC tends to “ignore its concerns or even marginalise it”.
As part of its 30 proposals for electoral reforms, the NDC is calling for the institutionalisation of IPAC, backed by law, through an amendment to the EC Act, 1993, (Act 451), which will spell out IPAC’s composition and functions.
However, Dr Afari-Gyan described the proposal as problematic.
The independence of the EC, he said, was a creation of the highest law of the land – the 1992 Constitution – which could not be changed through an amendment to an act by Parliament.
“Barring a constitutional change, through a referendum, of this entrenched provision, the relationship between IPAC and the EC cannot be changed through an amendment to or the enactment of an act,” he said.
Dr Afari-Gyan noted that as a result of the independence of the EC, decisions of IPAC were recommendations that could be accepted or rejected by the EC.
For example, he said, some time ago, IPAC wanted the EC to make it mandatory for persons to produce their voter’s ID cards before being allowed to vote, but the EC rejected that proposal.
“The EC said no because the card does not create a right; its essence is to facilitate the identification of a prospective voter: the legal requirement for voting is having one’s name in the voters’ register. The EC held that in the absence of the card, the onus is on the prospective voter to satisfactorily identify himself/herself,” he said.
About the NDC’s proposal for Parliament to approve persons appointed as members of the EC, Dr Afari-Gyan was of the view that the proposal must “specify the route to parliamentary approval”.
He said if the NDC wanted a change in the current system, whereby the President appoints the members, on the advice of the Council of State, it must specify which person or authority would make that recommendation to Parliament and whether or not the Council of State would play any role.
“Specifying the route to parliamentary approval will make it clearer to see whether this proposal constitutes an improvement on the current practice,” he said.
Splitting EC into two
The NDC has also proposed that the EC should be divided into two separate bodies – one regulating political parties, to be known as the Office for the Regulation of Political Parties (ORPP), and the other conducting and supervising public elections.
Under the electoral laws of the country, the EC conducts and supervises all public elections, while the Political Parties Act, 2000 (Act 547) mandates it to register and regulate political parties.
Dr Afari-Gyan agreed with the proposal, but was of the view that the said separation should be done with the relationship between the two bodies clearly defined to ensure that the ORPP did not interfere with the independence of the EC, adding that “the decisions of the ORPP cannot be binding on the EC”.
Consent of A-G
The former EC boss agreed with the NDC on its proposal for the repeal of Section 42 of the Representation of the People Law, 1992 (PNDCL 284), which makes it mandatory for the Attorney-General to give his consent before persons accused of electoral offences could be prosecuted.
“I find this proposal to be in order. It does not make much sense to me to give a right to a person or body and then insist that the right can be enjoyed or exercised at the discretion of some other person or body,” he said.
Another proposal by the NDC is for the creation of specially designated courts to deal with offences and also for the quick resolution of electoral disputes.
The former EC boss said such a proposal must be analysed not just with the creation of specialised courts but, most importantly, access to the courts and whether decisions of such courts could be appealed.
“We may also consider the use of a technicality, such as a lawyer sending to the court a writ instead of a petition, to throw out an otherwise genuine election case. In such a situation, the lawyer could be made to pay a fine for the substantive case to be heard,” he said.
Dr Afari-Gyan thought that another proposal by the NDC calling for the EC to be given the power to apply to the courts to remove the names of unqualified and deceased voters from a provisional register when informed by relevant authorities ought to be scrutinised properly.
According to him, the information to be provided by the said “relevant authorities” must be analysed to ensure that those supposed deceased voters were not fake deaths, adding: “A name duly placed in the register is like a sacred cow.”