By Theophilus Dowetin
1. Background
Electoral reforms in Ghana are undertaken on a continuous basis, especially before or after major activities like voter registration, voting and post-election evaluation where the effectiveness of certain administrative and legal provisions are assessed and reforms are initiated. Different electoral laws have been enacted under different governments over the years, in the form of articles, decrees, constitutional and legislative instruments. The Electoral Commission (EC) is a body, which has the sole mandate of and is legally responsible for managing all of the elements that are essential for the conduct of elections in Ghana. Electoral reforms leading to the 2012 general elections and the post-election judicial review as well as preparations towards the 2014 local government elections present a unique character of the management of electoral legal reforms in the country.
Reforms can be divided into two types: administrative and structural reforms. The former do not require changes in the law, while the latter is undertaken mainly through Constitutional Instruments (CI) by the EC which has adopted a professional approach to this mandate in the midst of political challenges. Electoral reforms in Ghana have generally emerged as a result of requests emanating from political parties, the government, constitutional provisions and exigencies of the times.
Certain administrative reforms observed over the years include a change from the use of translucent ballot boxes to transparent ones and replacement of thumbprint voter identity cards with photo ID cards. Structural electoral reforms include an increase in the number of seats in Parliament as a result of a review in the boundaries of divisions of the country and the introduction of voting from abroad for Ghanaian citizens. There is a growing tendency to institute legal reforms of an administrative nature to manage certain electoral processes. The introduction of biometric technology in voter registration and verification processes serves as a good example of this trend.
2. EMB Role
Since the establishment of the Electoral Commission of Ghana in 1992, its functions, powers and structure in relation to developing a legal framework for conducting elections have remained unchanged as per Act 51 of the 1992 Constitution which states:
“The Electoral Commission shall, by constitutional instrument (CI), make regulations for the effective performance of its functions under the Constitution or any other law”.
It is pertinent that the mandate of the EC to engage in electoral legal reform processes is subject to Article 11(7) of the 1992 Constitution, which states that:
“Any Order, Rule or Regulation made by a person or authority under a power conferred by this Constitution or any other law shall
a) be laid before Parliament;
b) be published in the Gazette on the day it is laid before Parliament; and
c) come into force at the expiration of twenty-one days after being so laid unless Parliament, before the expiration of the twenty-one days, annuls the Order, Rule or Regulation by the votes of not less than two thirds of all the members of Parliament”.
A major electoral reform took place prior to the 2012 elections whereby the EC revoked the Public Elections Regulations of 1996. Facing strong pressure from the political parties and in an effort to reduce multiple registration and voter fraud, the EC decided to introduce biometric technology in voter registration and verification processes. This resulted in the amendment and revision of CI 12 to CI 72 to guide voter registration and the replacement of CI 15 with CI 75 for the conduct of general elections. CI 72 in part, states:
“A registration assistant shall capture the biometric data, made up of the ten fingerprints and the photograph of the head, showing the bare face and two ears without any obstruction, of the applicant. The Electoral Commission shall make alternative arrangements in relation to biometric data for a person who has no fingers”.
Section 30 (1) of the CI 75 requires that:
“A presiding officer may, before delivering a ballot paper to a person who is to vote at the election, require the person to produce
a) a voter identification card or
b) any other evidence determined by the Commission"
Section 30 (2) goes on to indicate that,
“The voter shall go through a biometric verification process”.
Taking into account the above-mentioned provisions, a number of voters were not able to cast their vote due to the break-down of a number of verification kits in polling stations during the 2012 elections. Following a protracted legal battle in the Supreme Court in the aftermath of the 2012 elections, the EC resolved to undertake a reform of the “no verification no vote” issue based on public opinion. During the second quarter of 2014, the EC extended an invitation to the political parties to bring forth proposals in connection with this recommendation. Civil society organisations, individuals and groups have presented various suggestions for electoral reforms, which the EC has compiled and would make available to Members of Parliament for consideration.
Another instance of electoral legal reforms occurred in 2012 due to an indirect administrative action of the government of the day that triggered the need for the EC to initiate a reform. The issue related to constituency boundaries and the number of parliamentary seats for the general elections. The creation of 45 additional administrative districts by the government required the creation and increase of constituencies by the EC from 230 in 2004, to 275 in 2012 to meet election protocols, such as section 3 of the Representation of the People Law of 1992(PNDC Law 284), which states that:
“The boundaries of a constituency shall not fall within more than one region”.
PNDC Law 284, Sections 3 and 4, lay down a comprehensive description of the role of the EC in the demarcation of polling divisions in the country. Section 3(1) states that “The Commission (referring to the EC) shall review the divisions of Ghana into constituencies, at intervals of not less than seven years or within twelve months of the publication of the enumeration figures after holding a census”. Section 4(1) provides that “The Commission shall divide every constituency into polling divisions, and a polling division may be divided into as many polling stations, as the Commission may prescribe”. More importantly, Section 4(3) further indicates that “Whenever the Commission divides a constituency into polling divisions, or alters the number or area of polling divisions within a constituency, it shall, by legislative instrument, specify the polling divisions into which the constituency has been divided or the alteration which has been made”.
The electoral boundary alteration has led to the alignment and increase in the number of polling stations from 21,004 in 2004 to 26,002 in 2012. This number is expected to increase to about 35,000 before the conduct of local government elections in the year 2014, in an effort to enhance efficiency of the administration and management of elections.
In a related development, the Minister for Local Government, through Legislative Instrument (LI) 1983 of 2010, created new local government areas in Ghana. The new law triggered citizen discontent. As a result, a citizen-led process challenging the constitutionality of the LI 1983 was initiated under Article 41(b) of the Constitution according to which Ghanaians have a duty to uphold and defend the Constitution and the Law, as the LI 1983 was considered to infringe on the constitutional function of the EC. The Supreme Court in December 2011 unanimously declared the new Local Government LI 1983 null and void. The court in its ruling stated that it was illegal for the Local Government Minister and the Parliament to have created electoral areas. It was said to be in contravention of Article 45 (b) of the Constitution, to the extent that those Legislative Instruments purported to create electoral areas for various districts, municipalities or metropolis in Ghana. Article 45 (b) of the Constitution explicitly mandates the EC to demarcate the electoral boundaries for both national and local government elections. The Supreme Court added that it is only the EC that has a constitutional mandate to create electoral areas and that some of the areas created by the Minister which already existed in a CI 46 by the EC could hold.
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The relevance of tenure of office
The 1992 Constitution as well as the Electoral Commission Act 451 of 1993 spells out the composition and structure of the EC. The Act 451 states that the EC shall consist of a chairman, two deputy chairmen, which are executive positions, as well as four other part-time members. Until members of the EC attain mandatory retiring age they enjoy security of tenure equivalent to that of Ghana’s judiciary. The security of tenure has afforded the EC of Ghana the opportunity to retain institutional memory and develop deep professional and technical knowledge that is necessary for undertaking legal electoral reforms.
The current chairman of the EC has served for a period of over twenty years, thereby gaining experience and building the needed personal relations with several election management bodies around the world, while he has assisted in undertaking major structural reforms. The security of tenure may also be a contributing factor to the high level of independence of the EC in the performance of its functions, which include undertaking legal reforms without fear or favour. A congenial relation and dialogue platform have also been built over the years between the EC and key stakeholders, in particular with political parties and the Parliament, who are key when new electoral laws are drafted by the EC.
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Another interpretation of the role of the EC as per Article 51 of the Constitution is that the Parliament may make legislative instruments, but that the law from Parliament will not be binding on the EC until the EC has instituted a CI. In 2006, the PNDC Law 28 was amended by Act 699 Representation of the People (Amendment) Law (ROPAL) which confirmed that “A person who is a citizen of Ghana resident outside the Republic is entitled to be registered as a voter, if the person satisfies the requirements for registration prescribed by law”. Regarding the modalities for the implementation of the Act, the law states that “The Electoral Commission shall, by Constitutional Instrument, make regulations to prescribe the modalities for the implementation of this Act.”
It was therefore expected that the EC would initiate steps towards the implementation of external voting for the first time in 2008. However, the Commission is yet to proceed with instituting a CI until it ensures that it has the required administrative and financial resources to do so.
3. EMB approaches
The Electoral Commission of Ghana has undertaken reforms with great involvement from a broad variety of stakeholders using dialogue and consensus building, consultation and respecting judicial review of its administrative procedures. This section overviews the key relationships and activities undertaken by the EC in collaboration with its partners in electoral reform processes – looking at the work performed by EC internally but also how the EC collaborates with political parties, the Attorney General, the Parliament, civil society and the public at large.
First and foremost, the EC internally carries out a number of activities in the area of electoral reform. Activities that are involved in an electoral law process include the assessment of the effectiveness of the EC’s programmes by analysing their strengths and weaknesses and monitoring the implementation of its programmes both during and after the implementation period. After the EC has declared and gazetted final election results, it undertakes a post-election implementation assessment, which is usually carried out in the form of staff retreats. The duration of these retreats vary from a few days to a week. The Research and Monitoring Department of the EC is responsible for these activities based on a checklist it develops for the electoral event.
The Inter-Party Advisory Committee (IPAC), initiated by the Electoral Commission (EC), has served as a platform for intra-party dialogue, consultation and consensus building. Under the chairmanship of the EC, the IPAC has become a platform for the major political parties to build consensus on reforms that are necessary to boost confidence in the electoral process and enhance its integrity.
Leading to the 2012 general elections, CI 12 for voter registration and CI 15 for voting were amended by the EC in consultation with IPAC. Together with political parties, the EC set up two joint committees namely the Technical Committee and the Legal Committee. The committees were chaired by the EC Deputy Chairman of Operations and the EC Deputy Chairman of Finance, respectively. The seven-member Legal Committee tasked to draft CI 72 and CI 75 prior to the 2012 elections was composed of three representatives from the EC, one representative from the governing party, one representative from the major opposition party and two representatives from the remaining fourteen oppositions parties combined. The Legal Committee drafted the constitutional instrument and presented it to the EC. The EC was entitled to add, subtract or totally reject the draft, but in the case of the above the EC made just minor changes before the CI was sent to the Attorney General’s Office and finally tabled in the Parliament.
Meetings of IPAC in an election year are normally held once every month at the offices of the EC. Decisions of IPAC are not binding on the EC but experience show that the Commission has taken IPAC deliberations seriously. Whilst noting that the inter-party dialogue has sub-national structures at regional and national levels, the dialogue leading to electoral law reforms is more focused on the national level. [1]
The Attorney General (AG) is a key partner to the EC when engaging on reform issues. Despite having this constitutional responsibility and mandate to make regulations governing elections, which in Ghana are referred to as electoral laws, the EC does not have a Legal Department. When a CI is drafted by the EC, it is submitted to the Office of the AG for refinement. The essence of engaging the AG is to ensure that the draft from the EC complies with existing parent laws e.g. the Constitution and international legal instruments to which the country is a signatory. The AG assists to phrase the draft in legal terms and can advise the EC, but it has no mandate to alter the content of the draft proposed by the EC. It is important to note that there is no law requiring the EC to draft a CI in collaboration or in consultation with the AG. This relationship has been developed over the years as a matter of convenience. This means that, technically the EC can submit a draft law to parliament without going through the AG’s office but the EC considers the support of the AG’s office as essential.
In Parliament, the Leader of the House lays the draft law on behalf of the EC in his/her role as the leader of government business. Alternatively, the EC can write to the Clerk of Parliament attaching the draft law and addressing it to the Speaker of Parliament. The Parliament has neither the right nor the power to amend any CI from the EC who drafts both the content and the applicable sanctions of the electoral laws supported by such enabling law like PNDC Law 284 (Representation of the People’s Law). The responsibility of Parliament on such instances is either to accept or to reject the CI, for the latter, if there is a disagreement with any part of the CI. This means that the EC would have to make alterations that it deems fit and at its discretion may return the refined CI to parliament. Before the law is discussed on the floor of Parliament, the Subsidiary Legislative Committee usually discusses the draft with EC and, when both entities are in agreement, the majority leader lays the draft law on behalf of the EC. Finally, unlike laws from the Parliament, which require executive assent from the president of the republic, electoral laws i.e. a CI by the EC is gazetted under the signature of the Chairman of the EC.
Article 55 Section 17 of the Constitution empowers the Parliament with oversight responsibility of activities related to political parties. This section partly states that “Parliament shall by law regulate the establishment and functioning of political parties”. This is a responsibility which is not categorically mentioned in Article 45 that spells out the functions of the EC. However, by coming into force of the Political Parties Law (Act 574) of 2000, the EC has almost complete responsibility for regulating the registration and operations of political parties in the country. A review of Act 574 has been initiated by the EC which is likely to be a reconsideration of Article 45 with a view to granting the EC the power to monitor and enforce compliance with electoral laws by political parties. The role of the Parliament is not very clear at the drafting stage of this review process but its role would certainly become prominent if the EC sends the revised law for legislative approval.
Following this process, it could be established that promulgation of electoral law is a joint responsibility of the EC and the Parliament. The Parliament approves the laws but is not involved in the drafting. The EC drafts the law but requires parliamentary approval. Any addition by Parliament to a law drafted by the EC is null and void. Any Act of Parliament or Executive instrument to govern an election would be valid only when the EC comes up with a CI validating and spelling out the modalities for its implementation.
On certain occasions, the Parliament and the EC set up a joint committee or engage in closed door meetings to work on an electoral law. After the Supreme Court petition following the 2012 presidential elections, a number of recommendations were put forward for electoral reforms specifically related to the use of biometric technology in the electoral processes. In 2014, therefore, the EC met with the Parliament, in a closed door meeting to discuss the recommendations of the Supreme Court. This should enable the Commission to agree on the modalities of the review.
Civil society in Ghana has also been a catalyst for electoral reforms. The introduction of the tactile ballot in 2002 was initiated by the International Foundation for Electoral Systems (IFES), the Ghana Association of the Blind (GAB) and Action on Disability and Development Ghana (ADD) working in collaboration with the EC. Civil society has also been invited by the EC to serve on a committee to make recommendations for a draft Political Parties Law. Civil society is believed to conduct more research and have deeper knowledge of issues for reforms. They could also take of the politically neutral interest of voters.
An electorate knowledgeable about how their rights and responsibilities as voters are affected by an electoral reform provides for greater citizens engagement in reform efforts. Public education has to be carried out before and after a legal reform process. In Ghana, the practice often is that a conscientious voter information campaign is conducted by the EC only after the promulgation of an electoral law which renders the general public technically ignorant during the drafting of the law.
4. Challenges and Risks
Despite the emerging culture of political stability, the EC still faces a number of challenges, which include incumbency bias against certain electoral reforms, lack of technical knowledge on the part of certain stakeholders, mainly political parties, and the availability of funds to undertake effective planning of reforms.
It is generally accepted by all political parties and the EC that for political parties to function as viable state-building institutions, there is need for some level of state funding. The two main parties being the National Democratic Congress (NDC) and the National Patriotic Party (NPP), who form the two-party system in Ghana, have each acceded to power and watered down the consensus on state funding of political parties. Each of these parties strongly fought for state support to parties when they were in opposition. However, when each of them gained political power, the issue ceased to be a reform priority.
Secondly, political parties vehemently agitated for the introduction of biometric verification as a requirement for voting without much technical knowledge of the system. Prior to the 2012 elections, the electoral atmosphere was heating fast and potentially threatened the stability of the country. The EC accepted the request by adopting a “buy your peace approach” with the introduction of legal provisions which probably could have been managed better at the administrative level. The failure of many of the verification kits resulted in the rejection of the election results by the major opposition party, thus threatening democratic stability.
Deepening citizens’ understanding of the electoral system and management and educating them on their civic responsibilities is yet another challenge. Although Ghanaians appear to be generally conversant with their civic responsibilities and are highly committed to democracy, evidence from election observation reports indicates high levels of ignorance on the laws, procedures and processes of elections. This means that electoral reform has not necessarily always led to citizens’ full enjoyment of their electoral and political rights.
5. Recommendations
A number of measures could be undertaken during an electoral law reform so that the exercise yields a positive outcome:
- Electoral law reforms should be undertaken not too close to the election, when political parties and contestants are hypertensive. It does not also allow enough time for stakeholder deliberation and consensus building. EMBs therefore ought to draw up detailed plans for their engagement in electoral reform and implement such plans in a timely manner. The promulgation of CI 75 was in September 2012, three months before the general elections, when the usual political atmosphere of rivalry and suspicion was tense.
- Any innovation, especially relating to the use of technology, should be a matter of serious and in depth discussions, partly because of the huge financial cost and party due to its appropriateness and complexities, but also because electoral rights might be violated in case technology fails.
- EMBs play an important role when it comes to stakeholder education on election law reform issues and to elevate debates on the implications before and after laws are enacted, thus facilitating cross-fertilisation of knowledge on key concepts. Although civic education is usually conducted after the promulgation of a law, it should be conducted before the legal reform exercise, in order to allow the general public (including lawmakers) to understand the various dimensions of its application.
- EMBs need to be aware that electoral rights are human rights and therefore any electoral law which might infringe on such rights ought to be strongly discouraged, whether or not it is perceived that the law will enhance the technical administration and management of the voting process. Both the EC and the Parliament would have served the public interest better if they had convinced themselves that requirement of CI 75 was more of an administrative procedure and that a stringent law may not have been necessary.
Annex 1: List of References
- Benson, I., “Creation of electoral areas Local Gov Minister acted unconstitutionally”, Chronicle Newspaper, 25 October 2012. Available at: http://thechronicle.com.gh/creation-of-electoral-areas-local-gov-minister-acted-unconstitutionally/ (accessed 5 August 2014).
- Electoral Commission (a) “Newly Created 45 Constituencies” (2012). Available at: http://www.ec.gov.gh/page.php?page=499§ion=50&typ=1 (accessed 4 July 2014).
- Electoral Commission (b) “Laws and Regulations” (2012). Available at: http://www.ec.gov.gh/page.php?page=393§ion=50&typ=1 (accessed 13 July 2014).
- Fosu, T. J., “Afari-Gyan Storms Parliament”, The Daily Guide Newspaper, 19 June 2014. Available at: http://www.dailyguideghana.com/afari-gyan-storms-parliament/ (accessed 14 August 2014).
- Frempong, A.K.D., “Innovations in Electoral Politics in Ghana’s Fourth Republic: An Analysis” in Ciska, Raventos, ed. Democratic Innovation in the South: Participation and Representation in Asia, Africa and Latin America, Buenos Aires: Clasco (2008). Available at: http://bibliotecavirtual.clacso.org.ar/ar/libros/sursur/democratic/10fre.pdf (assessed 4 July 2014).
- Republic of Ghana, Constitution of the Republic of Ghana (Accra: Ghana Publishing Corporation, 1992).
Annex 2: About the Author
Theophilus Dowetin has two decades of election experience. He worked at the Electoral Commission of Ghana where he coordinated programs for the Association of African Election Authorities for 6years (2001 – 2006); and served as the Program Manager at International Institute for Democracy and Electoral Assistance - IDEA’s West Africa Office for 8 years (2006 – 2013). He has supported the professional management of elections mainly through capacity building training and interparty dialogue. He is a curriculum-writing specialist has conducted over forty national and international elections training. He has also supported the political participation of women and the youth. He has worked in partnership with or consulting for organization such as ECOWAS, SADC-ECF, EAC-ECF, African Union, Netherlands Institute for Multiparty Democracy, UNDP, GiZ, and IFES. He has an MA in Democracy, Governance & Law from the University of Cape Coast, Ghana.
[1] Inter-party dialogue is structured in such a way that there are also sub national platforms namely Regional Inter-Party Advisory Committee (RIPAC) and District Inter-Party Advisory Committee (DIPAC) which are made up of the registered political parties in the regions and the districts with all their meetings being chaired by the EC officers in the respective regions or districts.
