FULL TEXT: Attorney-General's remarks at Commonwealth Election Professionals Initiative

THE CHAIRPERSON OF THE ELECTORAL COMMISSION OF GHANA,

DEPUTY CHAIRMEN AND MEMBERS OF THE ELECTORAL COMMISSION OF GHANA,

THE AUSTRALIAN HIGH COMMISSIONER TO GHANA,

POLITICAL HEAD OF THE AFRICA SECTION OF THE COMMONWEALTH SECRETARIAT,

REPRESENTATIVES OF THE COMMONWEALTH COMMISSION,

DISTINGUISHED INVITED GUESTS FROM VARIOUS COMMONWEALTH COUNTRIES,

INVITED GUESTS,

FRIENDS OF THE MEDIA,

LADIES

Read full articleAND GENTLEMEN.

I am privileged to be invited as Guest of Honour at this forum. It is an honour to be called upon to express a few thoughts on this all important topic.

May I first, welcome you to the beautiful city of Accra, Ghana, appropriately christened the “Black Star of Africa”. Just a little bit history to, perhaps, place in the proper context the significance of the holding of this forum on the land of Ghana - previously known as the Gold Coast, this nation, on 6th March, 1957, became the first tropical colonial territory both in Africa and the Caribbean in modern times to regain independence from colonial rule and domination.

Under the leadership of her first President, Kwame Nkrumah, of whom a leading historian once described as “the star of Africa’s destiny”, Ghana lit up a torch of inspiration for the rest of the world still fighting for their own independence. Ever since, history tells us that Ghana has been the beacon of the quest for self-government, democracy, good governance and generally, the rule of law in Africa.

I hope that you will, over the course of your stay, enjoy the fascinating and riveting socio-cultural life of our vibrant city as well. I bet you will be spellbound and left in awe.

Mr. Chairman, “CREDIBLE ELECTIONS AND INCLUSIVE ELECTIONS IN THE ERA OF COVID-19; BUILDING PUBLIC TRUST AND CONFIDENCE THROUGHOUT THE ELECTORAL CYCLE. There could not have been a more significant topic for deliberation by a group of election chiefs gathered from over 20 Commonwealth countries than this.

Every invited guest here, in my estimation, is from a country practising the form of government universally touted to be the best means of assuring a determination by the citizenry of the kind of leadership deemed fit for the country at a particular time, that is, democracy.

Crucial to a sound democracy are institutions established in the State to ensure the promotion and maintenance of the rule of law. Fundamental to the existence of any democratic order and preservation of the rule of law is the work of that body legally clothed with the sacred duty of organising elections for the country, in most jurisdictions, called the Electoral Commission.

The centrality of elections to democracy, and by necessary implication, the rule of law, implies that irrespective of the circumstance, the Electoral Commission howsoever described in every nation, must live up to its constitutional mandate of organising elections for the citizenry to express themselves, except unavoidably rendered impossible.

Indeed, in the words of the acclaimed British statesman, Sir Winston Churchill, in his address to the UK Parliament in November 1947: “No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of Government, except for all those other forms that have been tried from time to time.”

Thus, in the view of Churchill, all other forms of government tried in the course of human history is worse than democracy even if it is stated to be the worst form of government. If democracy is unmatchable or irreplaceable as a form of government, then it goes without saying that the means of exercising same, i.e. the conduct of elections, is equally indispensable.

National elections, represent a pre-eminent and I will say, undeniable opportunity, for the electorate of every country (the people) to exercise real power over how they are governed and by whom. It is the means by which the State will be preserved.

Therefore a failure to hold elections at the times demanded by the laws of your respective countries, no matter the cause, presents a real risk to the continued preservation of not only democracy, but the peace, harmony and cohesion of the State.

As stated by a distinguished son of Ghana, the former UN Secretary-General Kofi Annan (may his soul rest in peace), in a speech at the CDD Kronti ne Akwamu Lecture in June 2016:

“Ghana has thrived under democracy since it was reintroduced [under the Fourth Republic], and our society, as well as our economy, has thrived as a result. We must never stop reminding ourselves of that fact. Yes, our country has its problems, but all countries have problems.”

Mr. Chairman, I say this to underscore the point that, yes, I agree that COVID-19 has changed the world. However, it did not fundamentally alter the aspiration of the people to live under a democracy. Neither did it materially change the basic duty of the Electoral Commission in any country to hold elections. Elections must be held even under trying conditions forced upon the world by COVID-19.

I am happy to state that the Electoral Commission of Ghana clearly has a sound appreciation of this sacred constitutional responsibility it bears to the people of Ghana. As the record reflects, it remained unshaken in its quest to give to the people of Ghana an opportunity to select their own leadership for the nation when it had the chance to do so in the year 2020.

It rose to the occasion and delivered an internationally affirmed free, fair, and perhaps, the most transparent elections since the inception of the Constitution in 1992.

Such was the credibility of the election that the complaints of unfairness made by a losing candidate in the Supreme Court bordering on allegations of “wrong aggregation of votes” and “vote padding,” even though proven to be untrue, collectively involved a meagre 6,622 votes – an amount patently insignificant to materially affect the outcome of an election in which the winner won by well over 500,000 votes.

I understand now, rather, strangely, they have lodged a petition with the Ghana Police Service, many months after losing the Election Petition in the Supreme Court, now claiming that 1 million votes are involved in their allegation of wrong aggregation of votes, unaccounted for votes or however they describe it.


Mr. Chairman, it is important to note that the total number of registered voters was 17,027,941. The total number of valid votes cast (definitely less than the turnout), was over 13 million. I allude to these figures to demonstrate that COVID-19, first, does not put paid to the people’s desire to elect their government through the ballot box.

The appetite of the people to freely choose their leaders in the generally acclaimed best way remains the same even in the teeth of COVID-19. Second, an electoral commission, with the right attitude, support and leadership, as shown in Ghana, can organise a safe, free and credible election. It can be done!

It bears emphasising that an election is a process. Among other things, it includes the demarcation of boundaries, registration of eligible voters, the creation of voters’ register, printing of ballot papers, distribution of ballot papers to voting centres, supervision of voting, the casting of votes, counting and processing of the votes, the declaration of results, the declaration of the winner or winners, etc. We in Ghana undertook parts of this process in the wake of the severe challenges presented by COVID-19.

There was a voter registration exercise conducted in year 2020. Same was preceded by a process of registration for the Ghana Card, which exercise had been suspended with the onset of COVID-19 in 2019.

The exercise resumed amidst a court challenge in which, I am happy to say, in my former capacity as Deputy Attorney-General, I played a crucial role in getting the action dismissed.

The Ghana Card became a very credible source for utilisation by the Electoral Commission during its voter registration exercise, which was also plagued by a constitutional challenge in the Supreme Court.

Again, I am humbled in stating that I played a role in ensuring a dismissal of the action instituted against both the Attorney-General and the Electoral Commission. Mr. Chairman, I have amply made the case that COVID-19 must not, and should not, deter the conduct of elections. Not to organise an election can provide room for chaos.

It will be remiss on my part to note that a failure of the Electoral Commission of Ghana to have organized elections last year on account of COVID-19 would have plunged the country into constitutional crises.

A careful scrutiny of our Constitution shows that the Constitution did not anticipate any reduction or extension of the term of the President except in the circumstances set out by the Constitution itself expressly or by necessary implication.

A proper interpretation of the Constitution will lead to the conclusion that, a failure to hold elections when the term of the President has expired, was not contemplated by the framers of the Constitution, and this is a view held by the President of Ghana (himself a constitutional lawyer of immense repute, Nana Addo Dankwa Akufo-Addo).

So, when some touted constitutional experts were claiming the possibility of the elections being deferred and the term of the President extended somehow, the President would not entertain any of those views.

In his opinion, an extension of the term of the President necessarily alters the term of the President fixed by the Constitution. One cannot resort to a process of statutory enactment to amend the Constitution. May I not bore you further with constitutional theory.

I will take time to briefly touch on other elements required to build confidence and public trust in the organization of elections.

I must point out that the attributes of a sound democratic state are ultimately the same as the objects of the Rule of Law.

These are;

i. The right of individual citizens of the land of sound mind and reasonable age to vote at regular elections- with each individual entitled to one vote under the principle of “one man one vote”;

ii. The entitlement of each individual of a statutorily prescribed age to offer himself for a political office;


iii. The existence of a majority rule, i.e. where a party secures the vote of more than half or the majority of the votes of the eligible electorate or such amount of votes prescribed by the laws of the country;


iv. A freely elected government accountable to the people;


v. Where the government loses the confidence of the people, that government must be changed through a constitutionally established procedure and not through any coup d’etat or other violent means.

I consider the right to vote to be the source of the very existence of the citizen of your respective countries since same gives to the citizen, the opportunity of influencing the course of social, economic and political development in the country and thereby, become involved in the decision-making processes at all levels of governance. You therefore owe a religious duty to safeguard it. The independence of the Electoral Commission is key in this regard.

Article 46 of Ghana’s Constitution guarantees the independence of our Electoral Commission. This provision is worded in very interesting terms. It is interesting because in it, we find a limitation on the powers of the Electoral Commission. It states as follows:

“46. Except as provided by this Constitution or in any other law not inconsistent 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.”

In this provision, we find once again, the Constitution prescribing itself as the measure of validity of all actions of the Electoral Commission.

The Constitution guarantees to the Electoral Commission independence of any person or authority but in an affirmation of the doctrine of Constitutional supremacy running through the fabric of our legal system, it does not render unquestionable acts of the Commission.

All actions of the Electoral Commission towards the satisfaction of its duty to ensure the attainment by the citizen of the right to vote, mandatorily are subject to consistency with the Constitution and any other law affecting its functions.

That is the only limit placed on the independence of the EC – compliance with law. Yours is to ensure the exercise of the universal adult suffrage without fear of favour, affection or ill will and except as is permitted and regulated by law.

I submit, respectfully, that universal adult suffrage is the pre-eminent right provided by the Constitution without which all other basic rights and freedoms would be eroded. The people’s solemn and ardent intention to adopt a democratic form of government based on universal adult suffrage, requires that nothing would be done to detract from a citizen’s right to vote.

It is for this reason that a great constitutional writer, Thomas Paine (Democracy as a Universal Value in Journal of Democracy, 1998 July 1999 issue), once defined the right to vote as:

“a primary right by which all rights are protected. To take away this right is to reduce man to slavery for slavery consists in being subject to the will of another and he that has not a vote in the election of representatives is in this case.”

I will conclude by submitting that the organization of truly free, fair and transparent elections necessarily requires not only, the participation of all citizens of the country as well as key organs of the State like the judiciary, legislature and the executive, but also a keen consciousness of the constitutional functions of the Electoral Commission and limitations placed on its powers. Democracy may have its flaws.

For a manifestation of the imperfections of democracy, we need look no further than recent events in the modern age’s self-declared preceptor and exporter of democracy around the world, the United States of America.

For all the robustness of the constitutional and democratic structures and frameworks conceived, tweaked and nurtured painstakingly in the years since the nation’s founding almost 245 years ago, it has itself only recently emerged from a close encounter with the spectre of political anarchy and the veritable insurrection.

However, it still holds on fast to democracy without question. Democracy may have its imperfections but it is indispensable.

God bless us all!!!