Doing the don?t ? Parliament speaks for Ghanaians Abroad

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After 15 years into constitutional government in Ghana, Ghanaians abroad will finally have a say in who governs their country. This issue has been a topic of intense debate among many Ghanaians and the subject of many questions posed to government official when they visit abroad. If it was not an election manifesto by the NPP, then it came close to being one as they made countless promise to make everything possible to enfranchise Ghanaians in the diaspora.

The Representation of the People (Amendment) Act 2005 seeks to enable ?Ghanaians resident abroad to register to vote in public elections in the country?. The question that one needs to pose is -what has brought this right 15years so late for Ghanaians resident abroad? The Constitution of Ghana clearly empowers every Ghanaian, under Article 42, the right to vote if they are of eighteen years of age or above and of sound mind, provided they have registered to do so. One would have expected that the Constitution, having given the right to all citizens of Ghana, and having created the Office of the Electoral Commission, the latter would have put all the administrative mechanisms in place for all eligible citizens to register to exercise their right to vote. Article 45 of the Constitution mandates the Electoral Commission to compile this register which it has judiciously done for Ghanaians resident in Ghana. Neither Article 42 nor 45 qualified or restricted the definition of a citizen by virtue of geographical residence. In furtherance the Political Parties Act, 2002 [Act 574; Article 2 (1)] refers to ?every citizen of voting age? as having the right to participate in political activities, which do not come any more that exercising ones right to vote. A ?citizen of Ghana? is also defined under the Citizenship Act, 2000 (Act 591) without any residential or geographical limitations.

The confusion that has plagued the office of the Electoral Commission over its 15 year existence stems from both administrative and legal constraints. To the office the most plausible excuse for not registering Ghanaians resident abroad was the easy one, the administrative constraint- ?we do not have the resources to do so?. That seemed plausible enough until infant democracies like Afghanistan and Iraq started registering its citizens abroad for participating in national elections. The noise from Ghanaians in the diaspora stated to get louder again and challenged the ?lack of resources? argument, which was neither legal nor plausible in the first place. Having realised that the administrative defence did not go far enough, the Electoral Commission have finally realised its powerlessness die to the legal constraint imposed on its free hand to work by the PNDC administration. To the latter administration law and legality counted for nought and therefore it was of very little surprise when shortly after the Constitution was promulgated in 1992, they passed the Representation of the People Law, (PNDCL 284). The law was passed with the aim of further explaining Article 42 of the Constitution. Section 8 of PNDCL 284 stated ?a person shall not be deemed to be resident in a polling station if she has been absent from her place of abode for a continuous period of six months ending on the qualifying date?. Simply interpreted section 8 meant that Maame Araba Aidoo, a well known queen at Kotokoraba market, who had to visit her daughter in Accra for medical care for seven month, could not register to vote at Takoradi when she returned because ?she has been absent from her place of abode for a continuous period of six months ending on the qualifying date she has been absent from her place of abode for a continuous period of six months ending on the qualifying date?. Never mind the ridiculous nature of this interpretation, the question is ? was PNDCL 284 legal to the extent of its inconsistency with Article 42 of the Constitution? What was the motive of the framers of this law?

This law was mentioned as obiter dictum in Tehn Addy v Electoral Commission (1996), where the defendants refused to re-open the voters? register for the plaintiff simply because he was late in his registration bid. In Tehn Addy the facts were slightly different as regards the ?residence? and the ?qualifying period?. He went for a writ of mandamus to compel the EC to perform its duty as a facilitator of voting rights in Ghana. Clearly the framers of PNDCL 284 were thinking of disenfranchising Ghanaians abroad for the same fear as the present NDC parliamentary caucus and their ex darling Ama Benyiwa Doe

The framers of section 8 did though make an exception to this mass disenfranchisation exercise. It provided voting rights to its own employees abroad. The law stated that citizens employed in the service of the Republic or in the service of the United Nations or any other international organisation could register to vote if they satisfy the requirements for registration.

If the Constitution is the supreme law of the land, the grand norm, then all laws are illegal to the extent of its inconsistency with it. This is a simple rule of interpretation and so was it necessary for the parliament to have gone through the pain and time of passing an amendment to PNDCL284? The double whammy of this residence attached provision under PNDCL 284 was that it did not only disenfranchise Ghanaians resident abroad but also those resident in Ghana but wanted to register in their own constituencies even though they were not resident there. In law the latter should not have seen the day of light from 1992. The 2005 amendment was just an Act of expediency by a parliament which was not prepared to challenge but ?do? what the framers of 284 said ?don?t? for the benefit of Ghanaians resident abroad.

The Representation of the People (Amendment) Act 2005 is very clear in its intention. It amends Section 8 of PNDCL 284 with a clear language to the effect 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 other than those relating to residence in the polling division.? What this roundabout Act does is to reinstate Article 42.

It goes further under Section 8(2) to enhance Article 45 on the role of the Electoral Commission when it state that ?The Commission may appoint the head of a Ghana Mission or Embassy abroad or any other person or institution designated in writing by the Commission as a registration officer to register a person to be a voter for an election?. What the Act does not do sadly is to make it go far enough to set time limit. Will the administrative systems be in place for 2008, for example? Many action plan targets have not been followed through or met simply because time limits have not been set and success criteria have not been clearly defined. The present situation still gives the EC the same old opportunity to use the excuse of lack of resources. It has taken Ghana 15 years and four elections to realise that its citizens abroad whose remittances constitute the second highest foreign exchange generation into the economy to the tune of $2.5billion a year, should be given the right to decide who governs them. The Representation of the People (Amendment) Act 2005 could not have come sooner.