By the middle of July, the nation expects its sovereign Parliament to debate and vote on the constitutional amendment intended to change the date for holding general elections in Ghana from December 7 to November 7. Since, 1992, when the presidential election was held in November, all subsequent ones were held on December 7. The bill needs both Parliamentary Majority and Minority to agree in order to become law.

Whiles it is generally accepted that there are very sound reasons informing the push to hold, especially, the presidential poll, two months before the January 7 swearing-in date, the Danquah Institute (DI) is concerned about:

(1) the practical preparedness of the Electoral Commission (EC) to make the November 7 date happen, and

(2) the intention of the Commission to give Ghanaians a free, fair and credible elections, which must be the overriding issue.

Our concerns are mainly due to the blatant and curious posture of the Electoral Commission against obeying a clear and express order of the Supreme Court to take immediate and necessary steps to clean the register of:

(1) both dead people and the millions of names which got onto the electoral roll using NHIS cards to establish eligibility, and

(2) for the EC to give the eligible Ghanaians among them the opportunity to re-register and in time for the 2016 polls.

It is important to recognize that, going by the proposed November 7 date, we have just five months to vote and the law imposes a mandatory freeze on any modification of the active register for this year’s elections, 60 days (or two months) before voting. This means, the entire process of deletion and re-registration of millions of names must be completed before September 7 if the November 7 date should hold.

The Supreme Court held on May 5, 2016 that:

(a) “That the Electoral Commission takes steps immediately to delete or as is popularly known ‘clean” the current register of voters to comply with the provisions of the 1992 Constitution, and applicable laws of Ghana;

(b) “That any person whose name is deleted from the register of voters by the Electoral Commission pursuant to order (a) above be given the opportunity to register under the law."

 

Today is Thursday, June 2, 2016. Nearly one month since the Supreme Court gave its ruling on Thursday, the May 5. Rather than taking “immediate” steps, as ordered, to delete the names of those who registered using NHIS card, it took the EC two whole weeks to study the judgment and come out publicly to announce on Thursday, May 19 that the Court did not order it to delete the names of NHIS registrants.

A week later, on Thursday, May 26, a member of the Supreme Court panel, Justice Jones Dotse, in the presence of the Supreme Court judge who read the unanimous decision, Justice Sule Gbadegbe, was compelled by the strange behavior of the Electoral Commission to set the records straight.

In line with the Code of Conduct for Judges and Magistrates, which allows a judge to “explain for public information… what may be learned from the public record of the case,” Justice Dotse took pains to explain the May 5 decision:

“The Supreme Court was quite forthright and clear that the use of the NHIS cards is unconstitutional. The criteria for the NHIS cards were not based on Ghanaian citizenship but only on residents in Ghana. So, any foreigner who is resident in Ghana for six months and more can register under the NHIS card. That was the basis upon which we base our decision in 2014.

“And in the recent one, we said the use of the NHIS is, therefore, unconstitutional. [The EC] should take the opportunity to clean the register of those undesirable persons. We also did not want to disenfranchise anybody so the Supreme Court went on to say that anybody who will be affected by that exercise must be given the opportunity to register, according to the law and constitution.”

It is recalled that the Supreme Court declared in the first Abu Ramadan case in 2014 that “upon a true and proper interpretation of Article 42 of the Constitution, the use of the National Health Insurance Card as proof of qualification to register as a voter pursuant to the Public Elections (Registration of Voters) Regulations 2012 (C.I. 72) is unconstitutional, void, and of no effect.”

158 Days to Nov 7 Date

As it is now, the EC says it intends to hold the 2016 general elections on November 7. This means that we have 158 days to the polls. Already 26 days have gone by without the EC manifestly taking any steps to comply with the decision of the Court.

The truth is that, as much as it is showing such great reluctance to obey, the EC cannot escape from the Supreme Court decision. It has no choice but to comply. This brings up two key questions:

(1) What are the necessary legitimate steps that the EC should and must take in order to delete those millions of names and re-register those who are eligible to vote?

(2) Will the EC be able to comply with the order in full and still hold the general elections in November rather than December?

Background

Before we proceed to discuss the two issues above, a little background on the November 7 date should help. In its April 2015 report, the 10-member Electoral Reforms Committee set up by the EC­­­­ –– which included the EC, political parties and civil society groups –– recommended the change of polling date to November 7.

This was a proposal from the Institute for Economic Affairs (IEA), which had argued that “bringing the Election Day forward to November 7 will allow ample time for run-offs (which are expected to be conducted three weeks after the general election) and settlement of possible disputes after the election.”

Last month, leadership from both the Majority and Minority sides of Parliament raised concerns over the practicalities of holding this year’s elections on November 7.

According to a Daily Graphic report, “while the Minority says the posture of the EC, especially its Chairperson, Mrs Charlotte Osei, did not support consensus building, and for which reason, there could be problems in the processes towards changing the date, the Majority Leader, Mr Alban Bagbin, said time might not be on the side of the processes for an amendment,” the report read.

The 1992 Constitution and Constitutional Amendment

What then does the Constitution say? Article 291 (1) of the 1992 Constitution states that a bill to amend a provision of the Constitution which is not an entrenched provision shall not be introduced into Parliament unless:

“(a) It has been published twice in a Gazette, with the second publication being made at least three months after the first; and

“(b) at least ten days have passed after the second publication.”

Article 291 (2) reads:

“the Speaker shall, after the first reading of the bill in Parliament; refer it to the Council of State for consideration and advice and the Council of State shall render advice on the bill within 30 days after receiving it”.

Further on, Article 291 (3) and (4) say:

“Where Parliament approves the bill, it may only be presented to the President for his assent if it was approved at the second and third readings of it in Parliament by the votes of at least two thirds of all members of Parliament.

“Where the bill has been passed in accordance with this article, the President shall assent to it.”

On the issue of time for the amendment, it is quite clear that so long as the amendment can carry a two-thirds majority of the entire House, it can pass. This would require at least 30 Members from the Minority side joining forces with all MPs from the Minority side.

PARLIAMENT MUST STAND FIRM

This is where we will urge the Minority to stand firm on the side of a credible, free and fair elections when this matter comes up.

In as much as the country appears to be desirous of and impatient for change, the Minority should not allow the EC to impose a November 7, 2016 date on us if it cannot convince the country that it has taken the necessary, legitimate, logical, efficient and impartial steps to give Ghanaians a clean register as ordered by the apex court of the land.

So far, the Charlotte-Osei-led electoral management body of Ghana has shown nothing but odd contempt at all efforts to address the issue of Ghana’s bloated register.

(1) It ignored calls from political parties and civil society groups to have a new, credible register.

(2) It ignored proposals from its own Panel of Experts to undertake validation (or authentication or verification) of all existing voters to clean the register.

(3) It is currently trying to frustrate the strict, express order of the Supreme Court to clean the register.

Indeed, the only other main stakeholder in the electoral process that is vehemently opposed to removing the names of NHIS registrants from the register and allowing them to re-register is the ruling National Democratic Congress (NDC). This, unfortunately, creates the unhelpful impression that the EC is working with the ruling NDC to rig the 2016 general elections.

The EC has, with apparent ill motive, wasted a whole month that could have been employed to start the process of cleaning the register. Yet, it is asking the people of Ghana, through their parliamentary representatives, to vote to amend the Constitution to hold the elections a month earlier.

What this could effectively mean is that once the constitutional amendment is passed and the EC gets its way, the Commission is likely to hide behind it to frustrate an efficient process of deletion and re-registration as ordered by the Court. This should not be allowed to happen.

With this terrible scenario of deliberate non-compliance in mind, the Danquah Institute recommends the following:

(1) The EC must within the shortest possible time, tell Ghanaians both the process and timetable it intends to follow in order to comply fully with the orders of the Supreme Court. This must be done and the process towards it started way before the constitutional amendment bill is laid before Parliament for first reading on June 20 or June 21.

(2) The EC must lay before the House for the mandatory 21 days a Constitutional Instrument (CI) to give clear legal backing to both the process of deletion and re-registration of NHIS card registrants as ordered by the Supreme Court.

(3) This must be done and the CI matured before the constitutional amendment bill comes to the House for its second reading, which is likely to take place in the first or second week of July.

It is at the second reading stage that Members are allowed to state their position on the bill. Parliament should use this opportunity to step up to the challenge to save our democracy by making sure that the order to grant Ghana a clean, credible register has been adhered to before committing the country to a November 7 date.

Apart from the EC’s own obstinate resistance to giving Ghanaians a clean register, there appears to be clear obstacles that may seem insurmountable in complying with the Court order. But, we know if the Charlotte-Osei-led Commission is sincere, honest and committed to doing the right thing those obstacles can be so easily overcome and Ghanaians will go into the next election, whether on November 7 or December 7, with a clean and credible register.

The Danquah Institute will hold another news conference soon to share with the general public the options available to the EC, which the Commission itself is fully aware of but curiously reluctant to implement.

In the meantime we hope that the Commission will deem it necessary to respond and positively so to the issues we have raised and the recommendations we have proposed.

We thank you for your attention and partnership.

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