Supporters of Ghana's New Patriotic Party attend its electoral campaign launch. Accra, October 9, 2016. (Stefan Heunis/AFP/Getty Images

October 20, 2016

By Clement Sefa-Nyarko

Republished from Global Observatory.

Just four of 17 presidential candidates who filed nominations to contest Ghana’s December 7 presidential elections have been cleared by the country’s electoral commission to run. The rest have been disqualified on grounds that have elicited widespread condemnation and even legal action. On the one hand, the commission’s efforts can be considered a bold attempt to stamp its authority after a series of events in the last four years questioned its ability to conduct free, transparent, and credible polls. On the other, they are an indication of the deterioration of the country’s high record of participation and rights of political association.

The 2016 Ibrahim Index of African Governance ranked Ghana fourth among the continent’s countries on consolidated measures of political participation and human rights between 2006 and 2015, with a score of 73.1%. The fallout from the electoral commission’s decisions may throw the country’s entire democratic system into disarray if not properly handled.

Candidates from Ghana’s two major political parties, the National Democratic Congress and New Patriotic Party, are among the four cleared to contest the elections. Legal suit and threats of further action are aimed at declaring the disqualifications of others as null and void. The Progressive People’s Party, for instance, is requesting that a high court in Accra stop the commission from proceeding with balloting and allow their candidate to amend an anomaly in his nomination papers. A letter from National Democratic Party solicitors, meanwhile, states that the commission chairperson has “discretion entrusted to you by law [that] requires that you direct yourself properly in law, calling your own attention to matters that you are bound to consider, and excluding from your consideration matters that are irrelevant to what you have to consider.” There is general public sentiment that the disqualifications have been unreasonably harsh.

Unless the legal tussle ends soon, a constitutional crisis seems unavoidable. Article 112 of Ghana’s 1992 Constitution stipulates that the general elections cannot be conducted later than December 7 in an election year. Delays in the polls are also partly due to earlier legal tussles and public challenges to the credibility of the electoral register, following allegations it was stacked with the names of deceased and non-Ghanaian people. The Supreme Court declared in July that the electoral commission should delete over 56,000 of these irregularly registered voters.

The latest events will further dent the electoral commission’s image, particularly if Ghana’s judiciary again orders it to reverse its decisions and if there is any alteration in the electoral deadline. Results of previous presidential elections in 2012 were vigorously contested over an eight-month period. Although the Supreme Court eventually upheld the results in 2013, the flaws detected in the system seemed boundless. They included the ease with which some commission returning officers and other political representatives could alter polling station results. Current electoral commission activity appears to be baring the teeth of a subsequent review committee established in 2015. Yet the merit of the case at hand remains debatable along with the anger of the disqualified presidential candidates and their supporters.

In addition to the Constitution, three legal documents govern the eligibility of Ghanaian presidential candidates: the Public Elections Regulations 2016, the Representation of the People’s Law 1992, and the Presidential Elections Law 1992. Both the spirit and letter of all the applicable laws are meant to ensure freedom of participation and association. Essentially, they provide for anyone qualified to contest any seat as a member of parliament to also stand as a presidential candidate, as long as they pay a nomination fee set by the electoral commission, are able to get at least two registered voters in each of the 275 administrative districts of Ghana to correctly endorse their nomination forms, and submit their forms within the set nomination period.

Some concerns about the electoral commission’s behavior are justified. First, it failed to distinguish between easily correctable administrative and other minor errors on nomination forms and fraudulent acts and misrepresentations that could be properly termed as criminal. For instance, the grounds for disqualifying the Ghana Freedom Party’s presidential candidate including a wrongly recorded date of birth for her vice-presidential aspirant. Other disqualifications were for not meeting the required total valid endorsement of 432 across all districts, and signatures and other vital information not being provided. Some included cases of subscribers either endorsing the forms for other presidential candidates or the same form twice.

Such decisions were, at best, capricious and inconsistent with appropriate regulations and applicable laws. Article 63 of the Constitution recommends auditing and drawing aspirants’ attention to such minor errors within the nomination period, and giving them a chance to resubmit forms.

The challenge here, though, is that the presidential aspirants had just two days to submit their forms, September 29 and 30, 2016, which were the only days Electoral Commissioner Charlotte Osei was made available to receive them. There was therefore no time to notify presidential aspirants about errors and have them corrected.

Electoral commission officials have elsewhere used discretion, in providing feedback to presidential aspirants within 10 days of nominations closing, instead of the stipulated seven, and in suspending judgement on the United Progressive Party’s candidate Akwasi Addai Odike, due to pending legal action involving party members. The commission could also have followed the precedent of a 2013 Supreme Court ruling that found that the inability of political party agents and returning officers to sign declaration forms did not nullify the electoral results concerned.

An alternative view holds that the electoral commission should be commended for holding candidates to standards that include avoiding errors that could have been averted through simple proofreading and checking of subscriber identities. The National Democratic Party’s Nana Konadu Agyemang Rawlings, for instance, was disqualified because “one subscriber on page 89 of her nomination forms is not a validly registered voter and illegally registered twice.”

The commission’s attention to detail in this case may reassure the electorate that the December polls will be free of the blatant negligence exhibited by electoral officers in 2012. Yet the commission did its legitimacy no favors by committing a major error in the midst of the controversy, issuing a receipt for the equivalent of only $425 when it had received $425,000 from the Progressive People’s Party (PPP) for registration of its parliamentary candidates. The PPP subsequently reported the commission to Ghana’s Economic and Organised Crime Office and Auditor-General.

There are also allegations that the National Democratic Congress and New Patriotic Party may have made errors in their nomination forms similar to other parties, but, due to their large followings, the electoral commission did not have the ability to disqualify them. Commissioner Osei has already faced accusations of having a sympathetic attitude toward the ruling NDC government.

If the commission’s fair application of regulations is further called into question, it would deepen public concern about post-election stability. Examples of violence following polls abound in sub-Saharan Africa, and the glaring case of Kenya in 2007 cannot be overlooked. There, voters went into the polls with a high sense of confidence for a peaceful outcome but soon engaged in ethnic-based killings and other violence due to perceived biases and a lack of diligence from the national electoral commission.

If Ghana’s commission ever applied an arbitrary exercise of power to either of the two major political parties, each of which command a minimum of 43% of the electorate, the result could be chaos. In any event, the commission should immediately revisit its disqualifications of minor party candidates and attempt to resolve the matter outside of the courtroom, in an attempt to preserve its legitimacy and safeguard Ghana’s past impressive record of political participation.

About the author:

Clement Sefa-Nyarko is Research Manager of Participatory Development Associates in Accra, Ghana and alumni of the African Leadership Centre @sefanyarko

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