I have called it a pretty needless fuss and a derogation from the clear terms of the constitution. Yes, that is just what those calls on President John Mahama to do “broad consultations” in the appointment of a new Chairman of the Electoral Commission are. It is an avoidable sin against the Constitution he swore to protect - pure and simple. Those political parties and CSOs advocating and almost demanding any consultations outside of the clear injunction to the President to appoint “on the advice of the Council of State” in Article 70 (2), I say without any equivocation, are ill advised and must halt the unhealthy unconstitutional crusade.

The clear unambiguous terms of constitutions are not and ought not be negotiated in the absence of crisis or potential crisis if complied with. Finding a replacement for Dr. Kwadwo Afari-Gyan who retires in June this year should not, even remotely, lend itself to a situation that smells of potential crisis in Ghana. Consequently, Article 70 (2) should not be compromised for whatever purposes. The President must however be challenged if he sins against the letter and spirit of same in making the new appointment.

He would be acting unconstitutionally and the outcome subject to a legal challenge if:

1. He ignores the Council of State in performing this privileged function.
2. He/and or the Council of State disregard Article 44(1) to appoint/and or approve of a candidate “not qualified to be elected as a member of Parliament.”

The criteria in (b) above is traceable to Article 94 which requires the candidate to among others be a citizen of at least 21 years and a registered voter who has fulfilled his/her tax obligations, has a clean criminal record and not a chief. It, in many respects, boils down to one with “high moral character and proven integrity” as required of Justices of the Court of Appeal whom the EC boss enjoys the same terms and conditions of service with.

The requirement in (a) above as mandated by Article 70 (2) may also provoke a legal challenge if the construction is upheld that it is the Council of State that must select and present the candidate, and that the President has no substantive power in the appointment process – to wit, he is bound by the advice of the Council, except that he may quietly indicate his preferences to the Council before it renders its advice. The position is that the command that a person shall "act on the advice of" another takes away any discretionary exercise, and that there is room for discretion only where the framers of the Constitution require the President to act "in consultation with" the Council.  

A critical point though is whether this is the practice and whether the largely advisory Council has a formula for effectuating this and is minded or willing to so act. This is a subject worth inquiring and for another debate.

The desire is for a constitutional amendment to subject such a candidate to parliamentary approval. This was stressed at the Constitution Review Commission sessions in pursuit of the purpose to give opposition parties a say in the appointment in a bid to remove the feared mischief. The proposal was accepted and recommended by the CRC with government accepting same in its controversial White Paper. So that if the amendment process does not suffer at the Supreme Court, prior parliamentary approval would eventually be an additional mandatory requirement. The push for this change is clear admission of the status quo which does not include what is being demanded. Until the proposed amendments including for “a ten year non-renewable” tenure, compliance with Article 70 (2) is all that is required, no more. 

There certainly are no laws restraining persons or groups from misdirecting their efforts, but the unhindered option to those seeking to introduce a requirement for “broad consultations” is to privately lobby the ‘kingmakers’ and not adopt a posture of right to be consulted. Yielding to this demand may also get a litigious citizen heading to court to repudiate the appointment of a new EC boss. Mr. President, just don’t be tempted to eat of the forbidden fruit.  

 

Samson Lardy ANYENINI – Attorney @ Law