This is the full speech delivered by Former Attorney General and Minister for Justice Marietta Brew, on the Constitution Day Public Lecture hosted by the UPSA Law School in conjunction with One Ghana Movement. The event was hosted on the theme, ‘Reflections on our democracy: The Constitution, Elections and the Judiciary.
I stand on all existing protocols and extend my sincerest appreciation to the One Ghana Movement and the University of Professional Studies, Accra for inviting me to this important programme.
Thank you, Dr. Afari Djan, for the thought-provoking and eye-opening presentation and to my senior colleagues for your exciting review (touch on some of the comments if you recollect them).
In April 1992, by referendum, we adopted our written Constitution as the supreme law of our land. The 1992 Constitution establishes the three (3) distinct arms of government, that is, the executive, the legislature, and the judiciary and reaffirms certain principles, such as the principle that all powers of government spring from the sovereign will of the people and the principle of universal adult suffrage, among others. It also establishes our democratic institutions, such as the Electoral Commission.
The topic selected is a relevant one involving three power blocs of our democracy: the Constitution, elections, and the judiciary, particularly in an election year.
Ghana’s reputation as an example of a thriving democracy, despite its challenges, cannot be questioned. Since the advent of the 1992 Constitution, we have witnessed eight elections, each aggressively and tightly contested by the two main political parties, the National Democratic Congress (which I belong to) and the New Patriotic Party. Three of these elections resulted in the peaceful transfer of power from the incumbent government to the opposition.
This commendable record can be attributed to several reasons, including the credibility of the Electoral Commission, particularly during its early years, primarily due to the personality of its Chairman, Dr. Afari Djan.
However, the Afrobarometer Round 9 Survey in Ghana, 2022, conducted by the Center for Democratic Development shows that the credibility of the Electoral Commission and the trust reposed in them by the people of Ghana has diminished. The following question was put to the population surveyed: “How much do you trust each of the following or you haven’t heard enough to say: The Electoral Commission?”. Only 9.8% of the population said they trusted the EC a lot (compared to 20.8 in 2019). 22.7% said they somewhat trusted the EC (compared to 32.1% in 2019), 27.3% said they trust the EC just a little (compared to 22.2 in 2019), 0.5% said they don’t know whether they trust the EC (compared to 7.7% in the 2019 report) and 39.7% said they do not trust the EC at all (compared to 18.9% in 2019). As an ordinary citizen relying on this data, I can safely conclude that there is an increase in public mistrust of the Electoral Commission.
Such a decline of public trust is indeed worrying in an election cycle where the incumbent NPP claims, “they will break the 8”, and we, in the NDC, have unequivocally and clearly stated that “do or die” we will win the December 2024 elections. With all due respect to the Electoral Commission and its Chairperson, the decline in public trust is not surprising. In a country where elections are fiercely contested and often determined by a tiny margin, the admission of any error is bound to affect the credibility of the Electoral Commission. It did not require a soothsayer to predict this decline in trust in the aftermath of the 2020 elections when, for the first time, the Chairperson of the Electoral Commission publicly announced that she inadvertently announced wrong numbers that led to the declaration of Presidential Results and corrected them without involving the political parties or providing them with a clear explanation as to how this egregious mistake occurred.
It is a fact that the 1992 Constitution created an independent Electoral Commission that is not subject to the direction or control of any person or authority except as provided in the Constitution (Article 46). This independence is critical to the functioning of the Electoral Commission and was enshrined in our Constitution to:
- Insulate the Commission from undue influence, interference and manipulation from external or internal forces, particularly political actors.
- Ensure that the Commission carries out its functions transparently and fairly without fear or favour.
It is, however, crucial to understand that this independence has fetters. The Constitution makes the Electoral Commission subject to the principles of accountability and other checks and balances enshrined in our 1992 constitution. As much as the independence of the Electoral Commission is essential, these checks and balances are equally important. The principles of accountability and checks and balances help create a thriving democracy by ensuring that no branch of government, agency, institution, or individual accumulates unbridled power. These principles help protect our democracy from abuse of power, tyranny, corruption, and the ultimate erosion of our democratic values.
One of the primary tools created by the 1992 Constitution for ensuring that the Electoral Commission remains transparent, fair and accountable is the oversight of the judiciary. The judiciary’s role is critical for preserving the credibility of our electoral process. Citizens and political parties must be confident that they will receive justice in court in respect of alleged infractions of electoral laws by political actors or challenges to decisions by the Electoral Commission and that the constitutional right to vote will be protected. Proper oversight by the judiciary ensures that all actors in the electoral process comply with the legal framework governing elections.
Reflecting on this critical role of the judiciary, it cannot be denied that the judiciary has, over the years, delivered some pioneering decisions that have greatly improved accountability and transparency in the electoral process and fiercely protected the constitutional right to vote. I will mention a few of these decisions starting from 1996:
- In the Tehn Addy versus Attorney General and the Electoral Commission [1996-1997] SCGLR 589, the Supreme Court recognised that the conduct of the National Electoral Commissioner in refusing to register the plaintiff and other qualified citizens would deprive qualified citizens of their constitutional right to vote and ordered the National Electoral Commissioner to register the plaintiff and all those who qualified to be registered. The Supreme Court held that “the exercise of this right of voting” is “indispensable in the enhancement of the democratic process and cannot be denied in the absence of a constitutional provision to that effect”.
- In Apaloo v Electoral Commission of Ghana [2001-2002] SCGRL 323, the Electoral Commission published a directive that for the purposes of the upcoming December 7, 2000 elections, only photo ID cards would be accepted for voting in the general elections. The Supreme Court, on December 4, 2000, declared the directive as unconstitutional and stated clearly that the “courts should protect the right to vote at all costs ……., otherwise, democracy in this country would be undermined.”
- In the consolidated cases of Ahumah-Ocansey v. Electoral Commission; Center for Human Rights & Civil Liberties v. Attorney-General [2010] SCGLR 575, the Supreme Court had the opportunity to declare that prisoners not convicted of an electoral offence had the right to vote in public elections and ordered the Electoral Commission to make the constitutional instrument enabling prisoners to vote.
- There are a host of other cases Agyei-Twum v Attorney-General &
Akwetey [2005-2006] SCGLR 227 and Appiah-Ofori v AttorneyGeneral [2010] SCGLR 484, Kwesi Nyame-Tsease Eshun vs. Electoral Commission, 2016 where the decisions of the Supreme Court relating to the collation forms for the parliamentary and presidential elections enhanced the transparency, fairness and accountability of the electoral process.
After reading these cases, I could not help but agree with Her Ladyship the Chief
Justice Georgina Theodora Wood when she said in the Abu Ramadan Case that “Electoral justice is legitimately the most effective medium for the protection and preservation of the sovereign will of the people, a democratic principle explicitly captured in the preamble to the 1992 constitution and implicitly reinforced under its article (1). The critical role universal adult suffrage and equal voting play in the democratic process cannot therefore be overlooked.”
There are multiple factors for Ghana’s ability to overcome the threat of electoral crisis. I would include in that list the crucial role of the judiciary in dispensing electoral justice, the propensity of the judiciary to fiercely protect the constitutional right to vote and enforce transparency, accountability, and the rule of law in the electoral process. I guess this statement brings to the fore the tension between advocates of judicial activism and scholars of the legal process theory which will be a discussion for another day.
But is everything that rosy and hunky dory? Not at all. The Aforbarometer Survey I cited earlier suggests that all is not well. In addition, some recent actions of the Electoral Commission and decisions of the Courts should give all of us cause for concern. Let me just mention a few.
- The electoral crisis of Santrokofi, Akpafu, Likpe and Lolobi, popularly called SALL.
It will be recalled that the Electoral Commission, through a press release published on the eve of the December 7, 2020 elections, directed the people of SALL not to vote in the parliamentary elections. However, they were allowed to vote in the presidential elections in the Buem constituency. To date, the people of SALL remain unrepresented, which is a clear violation of the Constitution and the right of the people of SALL to vote and have representation in the 8th Parliament. This is not just a cardinal sin, as aptly described by Professor Kweku Asare. It is tragic that this should happen in our modern democracy. I do not see how the creation of the Guan Constituency to take effect in this 8th Parliament could in any way be a breach of Article 47 of the 1992 Constitution when this predicament has arisen because of a string of mistakes and omissions by state actors.
- Aspects of the 2020 Election Petition
The results of the presidential elections of both the 2012 and 2o2o elections were challenged in the Supreme Court. Both petitions did not change the final result. However, one major difference between the 2 election petitions is that with regard to the judgment in the 2012 election petition, extensive recommendations were made by the esteemed Justices of the Supreme Court which led the Electoral Commission to commence reforms.
In relation to the 2020 election petition some aspects of the judgment give me cause for concern.
For example, one of the complaints of the Petitioner in the 2020 election petition was the manner in which the Chairperson of the Electoral Commission on her own, corrected errors she made in the computation of the presidential election results after she had issued the Declaration of President-elect without consulting any of the Presidential Candidates in the 2020 elections. This is what the Supreme Court had to say of the complaint:
“It has been argued on behalf of the Petitioner that the Chairperson of the 1st Respondent could not have on her own corrected the error she made without consulting stakeholder’s in the 2020 Presidential election.
No statute or regulation was cited to us by Counsel, and our collective industry have revealed none. This submission does not find favour with the court in view of Article 297(c) of the 1992 Constitution, which provides thus:
“Where power is given to a person or authority to do or enforce the doing of an act or a thing, all such powers shall be deemed to be also given as necessary to enable that person or authority to do or enforce the doing of the act or thing;
The issue raised by the Petitioner was not whether the Chairperson had the power to make corrections. The issue raised by the Petitioner had to do with transparency, accountability, and fairness in the manner in which those corrections were made. Can the Chairperson make such corrections without first notifying the affected candidates of her error and consulting them to correct it? The Supreme Court says yes, the Chairperson can in the absence of any statute or regulations that says she cannot. How unfortunate! Article 296(a) of the Constitution provides that discretionary power shall be deemed to imply a duty to be fair and candid. Article 296(b) also states that discretionary power should not be exercised arbitrarily, capriciously and with bias. In fact, the entire fabric of the 1992 Constitution is built on the principles of accountability, transparency and fairness. How will this decision impact on the conduct of the upcoming 2024 elections?
3) The case of the Five Political Parties versus the Electoral Commission SUIT No J1/22/2023 filed on September 7, 2023 in relation to the limited voter registration exercise.
The limited registration exercise was to commence on September 12 and end on October 2. The Plaintiffs filed a writ in the Supreme Court on September 7 and promptly applied for an interlocutory injunction to restrain the Electoral Commission from commencing the exercise pending the final outcome of the suit. After much noise and a public statement by one of the flagbearers of one of the Plaintiffs, the court allocated a date in October 2023 for the hearing of the application when the limited registration exercise would have commenced and concluded. Not surprisingly, on the scheduled date of the hearing of the application, neither Plaintiffs nor their Counsel turned up in court, and the application for injunction was struck out. Her Ladyship, the Chief Justice, explained that the Supreme Court and the Court of Appeal do not have special dispensation to sit during the legal vacation and that was why the injunction application was fixed for October 2023 when the courts would have resumed sitting. This is true, but, rule 1 of the Supreme Court Rules which provides that sessions of the Supreme Court shall be held during term also provides that the court may sit at any other times directed by the Chief Justice. Is an application for injunction filed in September 2023 to restrain registration of voters commencing that same month not worthy of a special dispensation by her Ladyship, the Chief Justice?
Juxtapose this against a similar situation in 2012 in the case of Ransford France v the Electoral Commission & the Attorney-General relating to the decision by the Electoral Commission to constitute 45 new constituencies, resulting in the filing of the suit by Ransford France in the Supreme Court on September 17 2012. Together with the writ, the Plaintiff filed an application to restrain Parliament from considering CI73, which would establish new constituencies and restrain the EC from using the CI in its preparation towards the 2012 elections pending the final determination of the suit. The then Chief Justice immediately constituted a panel comprising a sole Justice of the Supreme Court to determine the application for injunction, which was duly heard and determined on September 19. By October 4, 2012, the Chief Justice assembled a full panel to hear the substantive writ and judgment was delivered on October 19, 2012, one month after the writ had been filed. The Chief Justice at the time considered the situation urgent enough to constitute the Supreme Court in 2012 during the legal vacation. What changed in 2023?
- The decision by the Electoral Commission to close the poll at 3.00pm instead of the usual 5.00pm and not to use indelible ink during the election is already creating a ruckus. Changes to the electoral process should prioritize inclusivity, protecting the right to vote, accessibility to the voting process, transparency and fairness. How do these 2 decisions of the Electoral Commission achieve these objectives?
Let me conclude by stating that any comments made today are not meant to denigrate the Electoral Commission or its Chairperson, nor are they aimed at diminishing the administration of justice or the judiciary in the eyes of the public. Constructive criticism should be seen as a tool for growth and improvement, especially in 2024 with the upcoming elections and a sharply politically polarised country. It is my prayer that 2024 will see an increase in public trust in the election process and the election management body and that any lawsuits involving the 2024 elections will be treated as urgent and dealt with expeditiously. Finally, we should all remember that we have just one Ghana.
Thank you and God bless us all.
