Removal of EC Chairperson: A lawyer’s analysis

Removal of EC Chairperson: A lawyer’s analysis
Source: Osman Alhassan ESQ | nammaah@gmail.com
Date: 07-07-2018 Time: 07:07:02:pm

The office of the Chairperson of the Electoral Commission, in my opinion, is not like any other public office. It is an office, just as those of Superior Court Judges, whose independence and tenure the constitution clearly seeks to protect. The removal of a Superior Court Judge or the Chairperson of the Electoral Commission from office ought not be done in a jest. The grounds for removal must not be flimsy. It must be grave as to amount to some serious moral turpitude, dishonesty, or incapacity of the office holder to perform his or her functions. This Article is therefore seeking to excite our minds to some of the issues we might not have considered and assist in getting the supreme Court the Opportunity to make pronounce on such issues.

On the 29th day of June 2018, I spotted a letter on social media supposedly authored by the President, removing the Chairperson of the Electoral Commission from office on the recommendations of a Committee set up by the Chief Justice under article 146 of the Constitution. This was after a petition for the removal was forwarded to the Chief Justice by the President under the same article 146 of the Constitution. It was also after the Committee had completed investigations into the allegations made by the Petitioners against the EC Chairperson. The Letter of removal and some excerpts of the Committee’s report which are in circulation triggered arguments on various tangents. 

All the allegations alleged to have been established in the excerpts of the Report against the Chairperson relate to breaches of the Public Procurement Act. The Committee concluded that the breaches amounted to “stated misbehavior and incompetence” as contemplated under article 146. It is also very apparent, though not captured in the Report in circulation, that the Committee recommended to the President that the EC chairperson be removed from office. The president therefore issued the letter removing her for "stated misbehavior and incompetence" and that triggered the arguments I referred to, and the most popular argument I hear are on the following issues:   1. whether or not the President had any discretion in forwarding the petition to the Chief Justice; 2. whether or not the president had any discretion in removing the EC Chairperson after receiving the recommendations of the CJ's Committee; 3. Whether or not all the findings of the Committee against the Chairperson were accurate; and 4. Whether or not the allegations established against the EC relates to her core mandate.

Honestly, I don't find any of the directions of the arguments very relevant. The most relevant arguments in my opinion, and which I think the Supreme Court must be given the opportunity to affirm or reject are: 1. Whether or not on the true and proper interpretation of article 146 of the Constitution, breaches of Law simplicit er by a Court of appeal Judge, and for that matter the EC Chairperson in the performance of their functions, amount to "misbehavior and incompetence" to ground their removal from office; 2. Whether or not the Chief Justice (CJ) and/or her Committee has the Jurisdiction to interpret the Constitution; 3. Whether or not the CJ’s Committee has the jurisdiction to recommend, after its investigation, that a superior Court Judge or the Chairperson of the Electoral Commission be removed;  4. Whether or not in the exercise of its investigative function, the CJ’s Committee has the Jurisdiction to determine breaches/violations of Law and pass judgment that can constitute grounds for the president’s removal of a superior Court Judge, and for that matter the EC chairperson, from office; 5. Whether or not the applicability of the Public Procurement Act on the functions of the EC chairperson is Constitutional; 6. Whether or not the procurement law has been breached, and whether the breaches of Procurement Law simplicita , if any, is weighty enough to ground the removal of the EC Chairperson.  7. Whether or not there was a prima facie case

 I therefore intend that, by the time I complete this Article the above issues must been addressed. I must however admit that I needed to have read the full Report of the Committee before writing this article, but looking at the issues I consider most important, I am of the view that absence of the full Report will not affect the validity of the arguments I am about to make. In this article therefore, I would deal with the issues I consider most relevant, and deal with some of the popular arguments captured herein. I would discuss the issues under the following headings: 1. THE NATURE AND GRAVITY OF “STATED MISBEHAVIOR OR INCOMPETENCE” CONTEMPLATED UNDER ARTICLE 146; 2. JURISDICTION OF THE CJ’S COMMITTEE; 3. THE PRESIDENT’S DISCRETION UNDER ARTICLE 146 OF THE CONSTITUTION; 4. PRIMA FACIE CASE.

1. THE NATURE AND GRAVITY OF “STATED MISBEHAVIOR OR INCOMPETENCE” AS CONTEMPLATED UNDER ARTICLE 146;

Hereunder, I would deal with the issue Whether or not on the true and proper interpretation of the Constitution, breaches of statute simplicit er , by a Court of appeal Judge, and for that matter the EC Chairperson in the exercise of their functions, amount to the "misbehavior and incompetence" that is contemplated under article 146(1) of the Constitution.

For the benefit of readers who are non-lawyers, the word simpliciter mean “without any qualification or condition”. By a breach of statute simpliciter therefore, I mean breach of statute without any qualifications at all. The relevant qualifications to the statutory breaches to be expected under Article 146, in my opinion, are breaches with evidence that the breach was ill motivated; and with evidence that it occasions a loss to the State, or has inured, or would inure to the benefit of the EC Chairperson; or with evidence of dishonesty or any other condition that negatively affects the High Standard of Morality and integrity that she was satisfied before occupying the office.

For the purpose of this heading, I would assume that the breaches of procurement Laws imputed on the Chairperson of the electoral Commission are true. The question therefore is whether such breaches are of sufficient weight or gravity as to amount to “stated misbehavior or incompetence” under article 146 of the Constitution.

I do not think breaches or incorrect application of statute simpliciter, if any, can constitute the kind of "misbehavior and incompetence" that is contemplated under article 146(1) of the Constitution to ground the removal of the Electoral Commissioner from office. I come to that conclusion on two major grounds:

1.1 the Constitutional parity of the EC Chairperson with a Court of Appeal or superior Court justice; and 1.2 the nature and standard of qualifications for the office.

 1.1 Constitutional parity of the EC Chairperson with a Court of Appeal or superior Court justice

As already stated, the office of the Chairperson of the Electoral Commission is one of the offices clearly regarded by our Constitution as sacred, sensitive, and essential to our democracy and civilization. It is not an office that can be risked in, or allowed to yield to, vile and turbulent partisan political vendetta in such a manner as to permit, and/or make easy for any government to find grounds for replacing the EC Chairperson upon assumption of power. No! Accordingly, it is abundantly clear that our Constitution intends for such an office, a robust and an uncompromising protection both for its independence and tenure.

With regards to her independence and tenure, the framers of the Constitution by the combined effect of articles 43 (3) 126(1) thereof, places the Chairperson of the Electoral Commission in the same category as a justice of the Court of Appeal. The Court of Appeal is, by article 126 of the Constitution part of the Judiciary and, in fact, the second in superiority within the hierarchy of Superior Courts. Article 127 provides for some of the terms and Conditions of service that I deem most relevant to this article. For the purpose of easier reference, I hereby reproduce the relevant provisions of the constitution. 

Article 43(3), 126(1) and 127 provide as follows:

Article 43(3):

The Chairman of the Electoral Commission shall have the same terms and conditions of service as a Justice of the Court of Appeal.

Article 126(1):

1) The Judiciary shall consist of -

(a) the Superior Courts of Judicature comprising -

(i) the Sup reme Court;

(ii) the Court of Appeal; and

(iii) the High Court and Regional Tribunals.

(b) such lower courts or tribunals as Parliament may by law establish.

 Article 127:

(1) In the exercise of the judicial power of Ghana, the Judiciary, in both its judici al and administrative functions, including financial administration, is subject only to this Constitution and shall not be subject to the control or direction of any person or authority.

(3) A Justice of a Superior Court, or any person exercising judicial power, shall not be liable to any action or suit for any act or omission by him in the exercise of the judicial power.

The above provisions are some of the conditions of service of the Judiciary of which the Court of Appeal is part. It must be noted that the only basis for subjecting the EC Chairperson to the procedure under article 146 of the Constitution is because she is regarded as a Court of Appeal Judge under article 43 (3). Otherwise, there are no specific provisions in the Constitution grounding the removal of the EC Chairperson. 

Accordingly, the above provisions can only mean that, in addition to the other terms and Conditions of service of the Superior Court judges and by extension the Judiciary, the Constitution intends to accord the Electoral Commission’s Chairperson the same independence and protection of tenure in the performance of her function. 

In my opinion, article 43(3) places greater importance on the independence of the Chairperson of the Electoral Commission than it accords the Electoral Commission itself as a body or institution. It, therefore, elevates the independence of the Chairperson beyond the general independence guaranteed for the Electoral Commission as an institution under article 46 to that of the Judiciary. This is because the general independence of the Electoral Commission under article 46 is subject to other Laws other than the Constitution. Article 46 of the Constitution states as follows:

Article 46. Except as provided in this Constitution or in any other law not inconsis tent with this Constitution, in the performance of its functions, the Electoral Commission, shall not be subject to the direction or control of any person or authority. 

Clearly, Article 46 is referring to the Electoral Commission as a whole. It guarantees the independence of the Commission as a body or an institution, acknowledging that membership of the Electoral Commission as a whole includes officials who rank far below the EC Chairperson herself. Hence the independence of the Electoral Commission as a body is subjected to other Laws other than the Constitution. 

It is, therefore, my opinion that the framers of the constitution intended a greater and more uncompromising protection of the EC Chairperson’s independence and tenure, so they elevated it by the combined effect of article 43(3) and 126(1)(a) to that of the Judiciary in order to subject her independence only to the Constitution and no any other Law.

Having said that, I submit with strong conviction that article 127, especially 127(1) and (3), having been part of the conditions of service of a Court of Appeal Justice, is applicable mutatis mutandis to the Chairperson of the Electoral Commission. For readers without Law or Latin background, mutatis mutandis is a Latin expression used in Law when comparing two things. It means to make necessary alteration without affecting the main point at issue.

I say mutatis mutandis for the sake of those who might be quick to say that article 127 applies to persons exercising judicial power whilst the EC Chairperson has none. They might be tempted to come to that conclusion because of the phrase “ in the exercise of judicial Power” as captured in article 127(1) and (3) of the constitution. However, the focus, in my opinion, should be parity and not exactitude. The phrase “In the exercise of judicial power” as captured in article 127(1) and (3) cannot be construed to exclude the independence of the EC Chairperson from the protection guaranteed under those provisions, while applying Article 146 to her removal from office. That would be absurd and highly discriminatory. The proper and Constitutionally accepted position, in my opinion, should be that the protection of independence and tenure for all Superior Court Justices, as those in article 127(1) and (3) of the Constitution, must also be applicable to the EC Chairperson by virtue of Article 43(3). 

In applying article 127(1) and (3) mutatis mutandis to the EC Chairperson therefore, the best construction of the phrase “in the exercise of judicial power” in article 127(1) and (3), in my view, would be to replace it with “ in the exercise of her function ”. Instead of focusing on “ judicial power ” the keywords should be “ in the exercise of functions” because exercising judicial power is all the Superior Court judges do, and that is their service to the Country. For the framers of the Constitution to say a public servant whose service has nothing to do with exercise of Judicial Power should have the same terms and conditions of service with Public Servants whose function has all to do with exercise of Judicial Power, reinforces the notion that the Constitution intends parity and not exactitude when dealing with articles 43(3), 126(1)(a) and 127(1) and (3).

If 127(1) and (3) of the Constitution is applied mutatis mutandis to the EC Chairperson as mandated by article 43(3), it would read as follows: 

Article 127(1). In the exercise of the electoral functions of Ghana, the Chairperson of the Electoral Commission, in both her electoral and administrative functions, including financial administration, is subject only to this Constitution and shall not be subject to the control or direction of any person or authority ;

Article 127(3). A chairperson of the Electoral Commission shall not be liable to any action or suit for any act or omission by her in the exercise of her functions.

From the above applications of article 127 (1) and (3) to the Chairperson of the Electoral Commission, the following are abundantly Clear: 

1. That the EC Chairperson’s decisions and actions in the performance of her functions is subject only to the Constitution and no any other Law (including the Public Procurement Act) and can therefore not be subjected to the control of the Public Procurement Authority under the Public Procurement Act. 

2. That the EC Chairperson cannot be liable for any action or suit for any act or omission by her in the exercise of her functions.

The Committee itself has established that procurement necessary adjunct to the Core Mandate of the Chairperson of the Electoral Commission. Having come to that Conclusion, they ought to have realized that the Public Procurement Act would not apply to her decisions and actions in that regard.

Consequently, the issue whether or not the Chairperson of the Electoral Commission breached the Public Procurement Act in the performance of her functions, should not have arisen before the CJ’s Committee let alone amounting to “stated misbehaviour or incompetence” under article 146(1) of the Constitution. The application of the public procurement Act on the EC Chairperson is therefore unconstitutional.

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