Analysis of available constitutional provision should election 2020 be postponed

The world is currently in total dismay due to the impact of the coronavirus (COVID-19) pandemic.

This virus has caused numerous fatalities in the world. As at 12th May 2020, according worldometer, the world recorded 4,272,828 confirmed cases, 287,616 deaths and 1,536,315 recovered cases with the following countries recording the highest number of cases: USA (1,385,850 cases, 81,795 deaths), Spain, Russia, UK, Italy, France, Germany, Brazil, Turkey, Iran and China. By the same date, Africa had recorded 67,888 confirmed cases, 2,355 deaths, and 24,109 recovered cases with Ghana recording 5,127 cases, 22 deaths, 494 recovered cases.

The world seems to have no clue in the quest to get an antidote to this virus. The World Health Organization (WHO) has therefore recommended social distancing, frequent hand washing and wearing of Personal Protective Equipment as a means to reduce the spread of the virus.

In the midst of this, however, Ghana is heading for the polls on the 7th December this year and considering that It is almost impossible to adhere to WHO protocols in curtailing the spread of the virus for about 15million voters. Some analysts have suggested that the election should be postponed.

It is in the light of these suggestions that I propose how, in my opinion, the state could proceed in the event of a postponement of the 2020 election while respecting the Constitutional mandate invested in the Supreme Court in interpreting the Constitution in article 130 clause 1a (''Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in - (a) all matters relating to the enforcement or interpretation of this Constitution; and '' ).

The three arms of government are the Executive, the Legislature and the Judiciary. The Executive, according to article 58 clause 1 of the 1992 Constitution is headed by the President (''The executive authority of Ghana shall vest in the President and shall be exercised in accordance with the provisions of this Constitution''). Also according to article 57 clause 1, the President is the Head of State, Head of Government and Commander in Chief of the Ghana Armed Forces ('There shall be a President of the Republic of Ghana who shall be the Head of State and Head of Government and Commander-in-Chief of the Armed Forces of Ghana'').

The current President and the entire executive arm of government have a four (4) year mandate (7th January 2017 to 7th January 2021) to govern this country.

The current Speaker, his two (2) Deputies and the two hundred and seventy-five (275) members of Parliament constitute the seventh (7th) Parliament of the Fourth Republic of Ghana.

They form the Legislature and have a four (4) year mandate (dawn of 7th January 2017 to dawn 7th January 2021). In order not to contravene article 57 clause 3 of the 1992 constitution, the Speaker, his two (2) Deputies and the two hundred and seventy-five (275) members of Parliament were sworn in at dawn of 7th January 2017 so they could witness the President and the Vice President of the Republic of Ghana took the oath of allegiance and Presidential oath in the morning of 7th January 2017 (''Before assuming office the President shall take and subscribe before Parliament the oath of allegiance and Presidential oath set out in the Second Schedule to this Constitution'' ).

The Judiciary, according to article 125 clause 4 of the 1992 constitution is headed by the Chief Justice and has no term of expiry (''The Chief Justice shall, subject to this Constitution, be the head of the Judiciary and shall be responsible for the administration and supervision of the Judiciary'''). However, according to article 145 clause 1, the Justice of the Superior court or chairman of a Regional Tribunal may retire at any time after attaining the age of sixty (60) years (''A Justice of a Superior Court or Chairman of a Regional Tribunal may retire at any time after attaining the age of sixty year'').

But according to article 145 clause 2 (a) and (b), A Supreme Court Judge and a Chairman of a Regional Tribunal shall vacate his office at the age of seventy (70) years and sixty-five (65) years respectively (''A Justice of a superior court or a Chairman of a Regional Tribunal shall vacate his office - (a) in the case of a Justice of the Supreme Court or the Court of Appeal, on attaining the age of seventy years; or (b) in the case of a Justice of the High Court or a Chairman of a Regional Tribunal, on attaining the age of sixty-five years; or'' )

The hierarchy of the three arms of government in the descending order of the President, Vice-President, Speaker of Parliament and the Chief Justice is clearly enshrined in article 57 clause 2 (''The President shall take precedence over all other persons in Ghana; and in descending order, the Vice-President, the Speaker of Parliament and the Chief Justice, shall take precedence over all other persons in Ghana '').

Article 63 clause 2a enjoins the Electoral Commission to conduct Presidential election not earlier than four (4) months nor later than one

(1) month before the term of the President in office expires. This means that the Electoral Commission has to choose any date from September 7 to December 7 to conduct a Presidential election. (''The election of the President shall be on terms of universal adult suffrage and shall, subject to the provisions of this constitution, be conducted in accordance with such regulations as may be prescribed by constitutional instrument by the Electoral Commission and shall be held so as to begin -

(a) where the president is in office, not earlier than four months nor later than one month before his term of office expires; and''). But article 112 clause 4 indicates that Parliamentary election must be held within thirty
(30) days before the expiration of the term of Parliament (''Subject to clause

(2) of article 113 of this constitution, a general election of members of Parliament shall be held within thirty days before the expiration of the period specified in clause (1) of that article; and a session of Parliament shall be appointed to commence within fourteen days after the expiration of that period'' ).

Article 113 clause 2 suggests that it is only when Ghana is actually engaged in war that the four year term of Parliament could be extended from time to time to not more than twelve (12) months at a time and not more than four

(4) years in total by resolution supported by votes not less than two-thirds of all members of Parliament (''At any time when Ghana is actually engaged in war, Parliament may, from time to time by resolution supported by the votes of not less than two-thirds of all the members of Parliament, extend the period of four years specified in clause (1) of this article for not more than twelve months at a time, except that the life of Parliament shall not be extended under this clause for more than four years.'').

However, the problem at hand is not war but rather a global public health emergency so the term of office of Parliament cannot be extended based on article 113 clause 2. Should this crisis compel the Electoral Commission to postpone the December 7, 2020 election, the mandate of the President, the Vice-President and the executive will automatically come to an end on 7th January 2021.

Per the order of hierarchy as stipulated in article 57 clause 2 indicated above, the mantle of leadership falls on the Speaker of Parliament of the Republic of Ghana. But the mandate of the Speaker, the two (2) deputies and all the two hundred and seventy-five members of the seventh (7th) Parliament of Ghana also expires on dawn of 7th January 2021. The mantle of leadership then falls on the Chief Justice of the Republic of Ghana.

The Chief Justice who will now be the acting President of the Republic of Ghana shall ensure the organization of Presidential and Parliamentary election in terms of universal adult suffrage within three (3) months after assumption of office as per article 60 clause 13 (''Where the Speaker of Parliament assumes the office of President as a result of the death, resignation or removal from office of the President and the Vice-President, there shall be a presidential election within three months after his assumption of office'') and article 63 clause 2b (''The election of the President shall be the terms of universal adult suffrage and shall, subject to the provisions of this constitution, be conducted in accordance with such regulations as may be prescribed by constitutional instrument by the Electoral Commission and shall be held so as to begin - (b) in any other case, within three months after the office of President becomes vacant; and shall be held at such date as the Electoral Commission shall, by constitutional instrument specify'').

Now in the preparation towards the election, the Electoral Commission is compelled by article 11 clause 7 to lay before Parliament a constitutional instrument (CI) for this particular election which shall take twenty-one (21) sitting days to mature (''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 sitting days after being so laid unless Parliament, before the expiration, annuls the Order, Rule or Regulation by the votes of not less than two thirds of all members of Parliament'').

The seventh (7th) Parliament as at this time will stand dissolved. The Chief Justice (Acting President) will then have to invoke article 113 clause 3 to recall Parliament (''Where, after a dissolution of Parliament but before the holding of a general election, the President is satisfied that owing to existence of a state of war or a state of public emergency in Ghana ore any part of Ghana, it is necessary to recall Parliament, the President shall cause to be summoned the Parliament that has been dissolved to meet'').

The CI will then be laid in Parliament for twenty-one (21) sitting days. A general Presidential and Parliamentary election will be organized within three (3) months after the office of President becomes vacant. The winner of the Presidential election becomes the sixth (6th) President of the Fourth (4th) Republic should he be different from the current President and the former President John Mahama. The eighth (8th) Parliament of the Fourth (4th) Republic will then be brought into being.