Reflections on our Democracy: The Constitution, Elections, and the Judiciary

 

 Dr K. Afari-Gyan

 Introduction

I am grateful to the organizers for inviting me to express my thoughts on various facets of our democracy, which I view as a wonderful honor.

Admittedly, when I first heard about the invitation, I wondered why I was being invited and why anyone would find my thoughts insightful or helpful. However, after giving it more thought, I understood it as a request to participate in a democratic discussion.

Ghana has been using democracy as the standard for managing its national affairs for a considerable amount of time. Even though there have been extended periods of military control, our journey toward democracy has spanned more than sixty years, if we consider the time when we gained our independence as the starting point.

It is abundantly evident from both our own and other nations' histories that achieving democracy is not a straight line. Therefore, it is helpful to think about democracy as a work in progress that requires ongoing evaluation to determine whether we are headed in the right direction.

Against that backdrop, my reflections on our democracy are limited in two ways – to the three specified aspects, namely, the constitution, elections and the judiciary, and to our endeavours in the fourth republic only. I will give the reflections in the specified order.

The Constitution

Our current constitution is the fourth one since independence. It has lasted for three decades, nearly half of the life of our country as an independent nation, and, in fact, longer than the three previous constitutions put together, lasted. On that basis alone, some people say that we have done reasonably well by the fourth republican constitution.

They point in particular to the fact that we have held elections regularly at the stipulated times and have succeeded to elect a government peacefully through the ballot box each time. But that notwithstanding, I think there are clear signs of deconsolidation of our democracy.

Over the years, we have become poorer as a nation and as a people, due mainly to pervasive corruption, particularly in public life. Some of our key institutions are becoming institutions of dubious integrity. Increasingly, candidates who lose elections are alleging one form or other of manipulation and refusing to accept the results.

By and large, we have not been able to diffuse the principles of democratic behaviour widely into our society. And there is a general lack of predictability in social life, which is a disincentive to proper behaviour. Some people will say that these are perceived and not real ailments of our democracy.

But that doesn’t change the picture at all, because, for purposes of trust and confidence in public institutions and public office holders, perception is as important as reality. In any case, in all probability, some of these factors have contributed to the many calls to amend our constitution. I think that three things relating to amending the constitution are worthy of note.

First, the amendment process is likely to be a long one, because it will require, as a first step, a referendum done on its own or attached to a general election.

Secondly, because practically everything that goes awry in our country is somehow often blamed on the constitution, it will be difficult to amend it to the satisfaction of the general public. Yet, it will be important to avoid tinkering with the constitution.

Thirdly, the extent to which amending the constitution will cure the ailments of our democracy is a moot issue, although the example of Singapore shows that it is possible to use law to change peoples’ attitudes and behaviour. In spite of the foregoing caveats, in principle, the calls to amend the constitution are in order, because a constitution is not like a Bible whose precepts are held to be unchangeable. If it were so, a constitution would not contain procedures for making changes to it.

In fact, by law, on a regular basis some countries do an appraisal of their constitutional performance over the preceding period, with a view to making recommendations for effective performance, where necessary. This practice may be worth our consideration when amending our constitution. I am aware that individuals have made several recommendations for changes to our constitution and I also know that a body of officially sponsored recommendations for that purpose exists.

I must say that my reflections are without prejudice to any such recommendations. Against that backdrop, my reflections on the constitution will consist of short statements relating to three issues, namely, the separation of powers between the executive and the legislature, the Council of State, and local government.

The separation of powers between the Executive and the Legislature

The separation of powers is intended to make it possible for one branch of government to check any excesses of another branch. In my view, with about half of ministers plus some of the deputy ministers drawn from Parliament, the legislature cannot effectively check the executive.

Cabinet decisions are binding on ministers and deputy ministers and must be defended by them in Parliament. I think that a system where ministers and their deputies are drawn from outside Parliament will be better suited to holding the Executive in check. Indeed, the requirement to appoint so many ministers from Parliament may be an incentive for a president to increase the number of ministers in order to minimize potential trouble with Parliament.

The Council of State

The Council of State has an imposing name, but the way it has so far gone about its work has made it look like an honorific institution without power. Yet, apart from the President, the Council has power to advise every public institution in Ghana. Based on my experience at the Electoral Commission, I can say that the Council receives briefings from public institutions and gives them advice in turn.

I think it will help the public to gauge the Council’s impact if periodically it issues a report indicating what advice it has given to which institution. In the Council’s relation with the President, there is one thing in particular that I think requires clarification. The President appoints some people in consultation with the Council and some on the advice of the Council. What is the difference? Some lawyers say there is no difference at all, and the President can do as he pleases in both instances. But others say that, unlike consultation, in the case of advice the President cannot appoint unless he is so advised.

If that is indeed the case, it must be made explicit in any amendment to the constitution, so that the president cannot ignore the advice of the Council. Otherwise, the usefulness of the institution is impaired.

Local Government

I strongly believe that we cannot achieve an appreciable level of development in this county without fundamental reforms in our local government system. Perhaps the failure of our local governance system is forcefully dramatized by the not infrequent calls on the President and the central government to provide toilets for towns and villages.

Clearly, what we have now is the shadow and not the substance of decentralization. I think a number of things could be done to make decentralization real.

1. We must abandon the earlier idea of gradual devolution of powers, go back to the drawing board, and give the assemblies (district, municipal, and metropolitan} real and adequate powers and resources to decide and do things on their own.
2. I share the view that the district, municipal and metropolitan chief executives must be elected to promote their accountability to the local people.
3. I also share the view that we should stop playing the ostrich and open the election of the members of the district, municipal, and metropolitan assemblies to political party participation.

However, I think that the election formula should not be the first-past-the post, but the form of proportional representation called mixed member proportional. Hopefully, that will make it possible for more political parties to take part in local government.

4. It should be made an offence to delay the release of any statutory allocation of funds to the assemblies. Finally, my understanding is that the elected members of the assemblies do not receive pay for their work, nor are they given money to develop their respective electoral areas. If that is correct, what is the justification for Members of Parliament receiving money from the District Assemblies Common Fund? I think it is a discriminatory practice and must discontinue, as it appears not to have any legal basis at all.

Elections

The kind of democracy that Ghana opted for is one where the citizens choose their political leaders through free and fair elections. It is true that there is much more to democracy than free and fair elections, but there can be no doubt at all that free and fair elections are not only the proper gateway to legitimate leadership, but they are also essential for good governance and democratic consolidation.

Obviously, that makes the Electoral Commission (EC) a key institution in our democracy. However, that is not to say that the Electoral Commission is the most important factor in a democratic election. I think that this comes out clearly in a simplified definition of a democratic election as a contest among political parties or candidates, mediated by an electoral commission and decided by the votes of the electorate.

Based on this definition, voters come first, followed by parties and candidates, and then the electoral commission in a ranking order of importance of the three main actors in a democratic election. The justification for the ranking is rather straightforward: there can be no election at all if there are no candidates; and an election cannot be said to be democratic if there are no voters to decide the winner.

For this reason, the primacy of the voter and the attendant sanctity of the duly cast vote are regarded as central pillars of the principles of electoral justice. The ranking also underscores the need for political parties to be closely involved in the electoral process.

In this regard, I think that the EC must view the Inter-Party Advisory Committee (IPAC) as a convenient forum for discussing changes to our electoral practices, irrespective of whether the intended change originates from the Commission or the parties. The reason is that it is not good practice to foist changes in electoral practices on important stakeholders like pollical parties.

It is prudent to discuss any intended changes thoroughly at IPAC meetings, with a view to achieving consensus. If consensus is achieved, the IPAC then becomes a ready vehicle for disseminating the changes to the electorate. During discussions at the IPAC, the EC is not bound to accept a position even if it is supported by all the political parties, because political parties can adopt a stance that constitutes an obstacle to the realization of the electoral rights of the people.

When this occurs, it is the duty of the EC to uphold and protect the rights and interests of the people. As an example, the political parties once wanted the EC to make it mandatory for people to produce their Voter ID Cards on Election Day before they are allowed to vote. The EC said no to the ‘no card no vote’ campaign, explaining that it is the constitution and not the card that creates the right to vote.

The card makes it easy to identify you as a registered voter: so, on Election Day if your name is on the register but you don’t have the card with you, then the onus lies on you to identify yourself to the satisfaction of the election officials. The parties eventually agreed with the Commission’s position.

In contrast, the EC’s current drive to make the Ghana Card the only document for voter registration, at a time when it is not easily accessible to all Ghanaians, and its refusal to consider the request by the political parties to do the 2023 limited voter registration at the electoral area level, closer to the people than at the district level, would seem to indicate that the political parties are now the ones defending the interests of the voters.

The EC has a sound legal framework which guarantees its independence. The Commission has power to make law by constitutional instrument (CI), whereby it proposes laws and Parliament approves them. So, the Commission and Parliament share responsibility for changes to our electoral laws and practices.

In principle, this feature is better suited to protecting the electoral rights of citizens than instances where the electoral commission makes law through a Minister. Our election structure is durable with effective participation of the political parties in the electoral processes.

The Commission has well-trained, professionally competent technical staff. These attributes make the Commission well-endowed to manage elections. The fact that free and fair elections are essential to our democracy means that the Electoral Commission always has to deliver free and fair elections, whose outcomes are credible enough to be acceptable as a basis for forming a legitimate government.

Of several factors that an electoral commission requires to be able to achieve free and fair elections, two are paramount. First, it must make solid preparations from voter registration through voting operations to the collation of votes and the declaration of results. In doing so, it must pay particular attention to points where the election process is vulnerable to adulteration.

I am sure that the EC is aware that most of the election controversies in recent times have centred on the counting and collation of votes. For this reason, I consider the setting up of regional collation centres in our presidential election to be a retrogressive step, because it increases the number of points at which results can be manipulated.

I understand that we borrowed the practice from Nigeria, surprisingly at a time when Nigeria was seeking ways to send results straight from the polling stations to one location. It is to be noted that our Parliament approved the new practice.

The second requirement for achieving free and fair elections is a favourable external environment. In this regard, I have said many times that an electoral commission can make the best preparations possible for an election, but if the external environment is not right, the prospect of a free and fair election can be likened to washing a piece of white cloth in murky water and hoping that it will not be stained.

Unfortunately, several aspects of our elections are unacceptable, because of murky factors in the external environment. I wish to call attention to four such factors.

1. Violence: Some people say that violence in our elections didn’t start yesterday. No, but instead of decreasing over the years, it appears to be increasing in both numbers and intensity. If our two major political parties are to be believed, they no longer have militias. But what is even more worrying is the allegation of the involvement of national security personnel in election violence. This is very serious and foreboding for our democracy.

 

2. Disrespect for other candidates: Instead of mutual respect for other candidates seeking the same office, the tendency has been to show open disrespect for the other candidate and try by any means, fair or foul, to portray him/her as unworthy of the office. Oftentimes the same attitude is portrayed by the supporters of the respective candidate.

 

In such an atmosphere, political campaigning loses its essence as an opportunity for candidates to tell the voters what policies they will put in place to solve their problems and improve their conditions of life. It can even degenerate into insults, lies, and throwing dirt at the other candidate.

3. Too many promises: In place of enunciating policies, our politicians spend a lot of time making and repeating promises to the electorate. One cannot be sure that even the politicians themselves believe that they can fulfil the numerous promises they make. Anyway, they seem to forget that unfulfilled promises can be a millstone around a politician’s neck.

 

The negative effects can be devastating, because even party members who were not part of the promise-making enterprise may find it difficult to extricate themselves from the effects.

 

4. Vote buying: In days gone by, whatever vote buying or vote selling there was took place in secrecy. Not so these days! What we have now looks like an open market where candidates can freely buy votes and citizens can freely sell their votes in broad daylight, while we all look on seemingly unconcerned. But it is a shameful spectacle, because vote buying and vote selling are unlawful and they undermine two important principles that underpin our democracy.

 

Vote buying undermines the idea that we choose our leaders out of our free will and vote selling undermines the idea that we hold our elected leaders accountable through elections. I believe that our democracy is kaput when election results seize to be a true representation of our verdict on the performance of our leaders and we cannot therefore hold them accountable through elections.

 

And that precisely is what the emerging open market in votes portends. I am sure that there are other factors about our elections that people may consider to be unsatisfactory, but the ones I have mentioned are enough to indicate that all is not well with our democracy. In fact, they are additional signs of the deconsolidation of our democracy.

 

The Judiciary

 

Street protests and media wars are not appropriate ways of resolving disagreements over electoral matters. Neither can achieve authoritative and binding conclusions. Besides, street actions can be costly in terms of human and property loss.

 

With regard to the media, it has become extremely difficult to distinguish between genuine media and counterfeit media, because of the preponderance of one-sided, even distorted, presentation of issues in the partisan media, the indiscretions of some serial callers, especially into radio discussions, and the irresponsible use of social media for political purposes.

 

Nor do we know the impact that Artificial Intelligence (AI) will make on elections in view of its ability to create voices and visual images that are virtually indistinguishable from the real ones. Add to all this the fact that election-related matters cannot be an exception to the rule of law and you can easily see why the judiciary is an integral part of our electoral system.

 

As a general rule, election cases are urgent matters that need to be decided as quickly as practicable, except where the court genuinely does not know what to do in the particular situation. An example of such a situation occurred in Washington D.C. in America. A candidate was officially sworn into office as a winner in the city council election when all the overseas votes had not been counted.

 

Later, after collating the overseas votes, a different candidate emerged as the actual winner. The new winner went to court, but the case was not decided during the entire lifespan of the particular council, apparently because a situation like that had never happened before and the court did not know what to do once someone had already been officially sworn into office.

When the council’s life ended, the case was dislodged on the ground that the substance of the action was vacuous. As far as I know, allegations of corrupt judges taking money to decide election cases have been rare in Ghana. However, in recent times concerns have been expressed about the judicial function in elections.

 

The concerns are encapsulated in two inter-related concepts: the judicialization of elections and the politicization of the judiciary. Judicialization of elections refers to the increasing trend of resorting to the judiciary to settle electoral controversies of all kinds.

 

Politicization of the judiciary refers to appointing judges in the hope that they will give judgements that are favourable to a particular political party or cause, if the need arises. As to which one comes first, it is like the chicken and egg question. It depends on which chicken or egg one is talking about – is it the chicken that laid the egg or the egg that hatched into a baby chicken?

 

So, the sequence may differ from one country to another. What we can say for sure is that judicialization begets politicization and politicization begets judicialization: and the end result is the same: judges are embedded in the judiciary in anticipation of decisions favourable to a particular political party or cause. I do not know the extent to which judges are so embedded in our judicial system.

 

But I find it noteworthy that even before the supreme court began hearing the 2012 presidential election petition, some Ghanaians were predicting a six to three verdict of the nine justices, based on the number of panel members appointed by presidents of the two disputing political parties.

 

The prediction did not come true, but it indicates that there was a perception that the decisions of our judges might be influenced by political considerations. Be that as it may, political influence aside, judges may give unsound decisions in election cases for two other reasons.

 

The first reason is insufficient knowledge of elections. Judges are not necessarily experts on elections and they may sometimes give judgements in election cases without realizing the full implications for the entire electoral process. This is often seen in injunctions and consequential orders. For example, a judge once placed an injunction on holding the district level elections when some candidates went to his court complaining that there had been no voter education at all in their areas.

 

The areas concerned comprised only six electoral areas out of thousands of such areas in the entire country, but the injunction unwittingly covered the whole country. Likewise, a judge once ordered a recount of the votes in a disputed election result case, but also ordered that the ballot boxes could only be opened in the presence of the agents of all the four parties that were present at the initial count.

 

As it turned out, the two parties not contesting the result were simply not interested in the recount and would not be present. In such situations, the EC has to get the decision varied by the same or another court before it can act.

 

The second reason for unsound judgements is what may be characterized as the lack of purposive interpretation of the law in full-blown election petitions. I like to spend a bit of time on this, because it is not as self- explanatory as the previous one.

 

To start with, let me give an example of what I consider to have been a purposive interpretation of the law when I was at the Electoral Commission. A Ghanaian citizen, then living abroad, once walked to the Commission’s Head Office and said he wanted to register as a voter, so that he could vote in an election due to be held in about two months’ time.

 

It was explained to him that voter registration officially closed more than a month back, so he would have to wait till the next registration time. Not satisfied, he took the Commission to court and the court ruled that, under our constitution, the right to register to vote is a fundamental right and it is not within the remit of the Electoral Commission to decide when citizens can enjoy their fundamental rights.

 

I describe that decision as purposive, because it was directed at achieving two goals, both of which were consistent with the principles of electoral justice. The first goal was to preserve a citizen’s right to register at a time of his/her choice, since registration or voting is not compulsory in Ghana.

 

It is important to note that, in principle, the decision imposed on the Electoral Commission a duty beyond the traditional conception of continuous registration to voter registration every working day. Of course, in deference to the court, we quietly registered the gentleman, but we kept our mouths shut, because we did not have the wherewithal to implement the court’s decision on a mass scale.

 

In essence, the second goal of the decision was to tell the Electoral Commission to properly establish a cut-off point of voter registration if continuous registration would cause problems for its work. A cut-off point means that you can place your name in the voter registration database after that time, but in order not to disrupt the preparations of the Electoral Commission, you cannot vote in the impending election: you can only vote in subsequent elections.

 

The EC thereafter established a voter registration cut-off point by law. I understand that the Commission now has the capacity to do every-working-day registration of voters at its district offices.

 

By way of further elucidation, I wish to follow up the example of a purposive interpretation of the law by indicating three things that I think should not happen in our democracy on a purposive interpretation of the law.

 

1. A sizeable group of people should not be denied representation in parliament for a long time, because that is plainly inconsistent with the idea of representative democracy.

 

2. An election case should not be dismissed forthwith on a technicality like: the case was not filed in time or the lawyer brought a writ instead of a petition. For all you know, the candidate and the voters may not know the filing deadline, let alone the difference between a writ and a petition, and yet they are really the ones that get punished.

I think that it would be more appropriate in such a situation to fine the lawyer and hear the substantive grievance.

 

3. A judge should not cancel some duly cast votes and declare the winner of an election, if there is a mathematical chance that the affected votes can make a difference in the election. The reason is that doing so amount to the judge usurping a function reserved exclusively for the people in a true democracy. It is more appropriate to order a rerun of the election for the voters to decide.

 

Recommendations

 

To conclude my reflections, I wish to make three recommendations concerning electoral accountability and democratic consolidation.

 

First, as in all human endeavours, mistakes occur in elections. But genuine election mistakes can readily be discovered and corrected: not so deliberate wrongdoing. So, to deter deliberate wrongdoing, all persons connected with the conduct of elections must be held strictly accountable for their actions by instituting a stringent regime of punishments for wilful wrongdoing.

 

All categories of election workers must be familiarized with the 11 applicable regime of sanctions during their training, and any infractions must be seen to be punished.

 

Secondly, it appears that some candidates rush to court with election petitions, alleging manipulation of results primarily to placate their financiers and supporters, so that they would be given another chance to be a candidate the next time.

 

The rush can cause undeserved injury to the reputation of the Electoral Commission and unnecessary inundation of the courts. As we speak, there are well over one thousand election petitions before the Nigerian courts, following the 2023 elections.

 

To prevent the rush to court with improbable election petitions from becoming a fashion, I suggest that election petitions that do not succeed should attract punitive sanctions.

 

Thirdly, in view of the importance of the judicial function in elections, I wish to recommend collaboration between the judiciary and the EC to institute a programme of continuing education for judges on elections.

Such a programme will improve the delivery of electoral justice, which in turn will contribute to electoral accountability and the consolidation of our democracy. Free and fair elections are indispensable for the health of our democracy.

We must all understand that it is an onerous responsibility to deliver free and fair elections and that it is in our collective interest as citizens, irrespective of our positions in society, to help the Electoral Commission in any way we can to deliver free and fair elections. The least we should expect from everybody is proper election behaviour.

 By Dr K. Afari-Gyan

source: akomapatrends