On the Matter of the Appointment of an Electoral Commissioner

By Dr. Samuel Adjei Sarfo
Attorney and Counselor at Law
Some degree of political hullabaloo appears to cloud the pending appointment of a new Electoral Commissioner for Ghana in view of the coming retirement of Dr. Afari Gyan this coming June. Dr. Afari Gyan was appointed Electoral Commissioner under the Rawlings regime way back in 1992, and has virtually presided over some five national elections wherein the National Democratic Congress (NDC) has won three of them, and the New Patriotic Party (NPP) has won two.
Of all the elections presided over by Dr. Afari Gyan, the one that most tried his rectitude and fairness was the 2012 one which resulted in a protracted lawsuit brought by the NPP. That law suit ended in the confirmation of the elections result as declared by the Electoral Commission in favor of the NDC. And because of the acrimonies that accompanied the election results in 2012, there appears to be a deep-seated mistrust concerning the office of the Electoral Commissioner, setting the stage for a possible show-down between the President and the opposition stakeholders regarding the appointment of any person to that high office. But this needs not be the case.
The Electoral Commission was set up by the Electoral Commission Act (Act 451) of 1993. And by general application of Article 70(2) of the country’s Constitution which provides that “The President shall, acting on the advice of the Council of State, appoint the Chairman, Deputy Chairmen, and other members of the Electoral Commission,” it remains the prerogative of the President to appoint its chairman and membership. And indeed, at the beginning of the year 2004, President Kufuor, in consultation with the Council of State, appointed four members to the Board to bring its membership to the full complement of seven. And in my view, not much ought to be debated about the person chosen for the position of Electoral Commissioner if only such a person meets the minimum threshold of competency. This is because the fact that a person has any latent predilection for any political party is not in and of itself a prima facie evidence that he will rig or help to rig any elections. The history of this country is replete with instances where the Electoral Commissioner appointed by the siting government has presided over an election in which the government that appointed him lost. A typical example is the mid 1970’s Unigov referendum in which Justice Kingsley Abban declared the results against Acheampong’s government which appointed him Electoral Commissioner. And there is also the recent case in Nigeria in which Professor Attahiru Jega, although appointed by President Goodluck Jonathan as Electoral Commissioner, presided over an election in which the President’s party lost. Remember also that in two instances, Afari Gyan declared for the NPP although initially appointed by the NDC. Bear in mind also that of the seven members of the present Electoral Commission, four members were appointed by President Kufuor’s NPP government in 2004. Thus in all fairness, the integrity of the Electoral Commissioner, or any member of the Commission for that matter, ought not be judged on the basis of the President that appointed him or her. The Commission will do the right thing if only that institution is strengthened and pressured to function according to the prevailing laws.
In this sense, if the minimum constitutional requirements of the appointment are met, there should not be any litigation or resistance against the candidate selected, and all parties should accept the person appointed and move on to focus and sanitize the more serious processes of the election itself. This will of course involve the work of incorporating the suggestions made by Ghana’s Supreme Court into the electoral process and reforming it to meet a very high standard of acceptability by all parties. This then should be the preoccupation of all those who want to see a free and fair elections in the country.
But the President will nevertheless strengthen his own hand by soliciting a broader input from all interested stake holders. As regards the authority to appoint an electoral Commissioner, nobody begrudges the President the comprehensive powers granted him in Article 70(2) of the country’s Constitution. But as wisely noted by Justice Frankfurter in his concurring opinion in the US Supreme Court case of Youngstown v. Sawyer 343 US 579 (1952), when the President acts pursuant to an express or implied authorization of Congress (read here “the people”), his authority is at its maximum. But when the president takes measures incompatible with the expressed or implied will of congress, his power is at its lowest ebb. The foregoing fact will explain why Obama has deemed it fit to seek congressional approval for the Iran Nuclear deal. Here, the President is granted considerable, albeit ephemeral powers to pursue foreign policy and to negotiate international treaties as per the opinion in United States v. Curtiss-Wright Corp. 299 US 309, (1936). And that power has been re- confirmed by the US Supreme Court in many other subsequent cases. And yet in asserting such powers and any other presidential powers, the Supreme Court has counseled in prior cases that the President’s position is only strengthened if supported by congress or the people. This is not to mention that such a popular support also gives permanency to any executive action taken by the President.
In much the same way, the President of Ghana will find that in exercising his power to appoint an Electoral Commissioner, the more the consultations he holds among all interested parties, the stronger and more acceptable will be his choice of a candidate for the position. And if he selects a good candidate acceptable to all, he would have performed his primary function of ensuring the security and welfare of the country as per his oath of office. However, if he conceives of the power within the constitution as both exclusive and supervening, he not only risks weakening his authority, but also the very institution of the Electoral Commission itself.
The above notwithstanding, the functions of an Electoral Commissioner are all set out in concrete terms in the constitution of Ghana. He is the administrative head of all the electoral procedures and processes. But by himself, he can never rig or cause to be rigged any elections in the country. He essentially tallies the numbers that travel up the ladder of the electoral process from the balloting centers up to the offices of the district, regional and national headquarters of the Electoral Commission. In this sense, the greater work for the vestedly interested parties is to scrutinize the process at the beginning, middle and the end to ensure that the elections are free and fair, and that the numbers that travel up the ladder represent actual valid votes cast at the polling stations. Thus whoever is truly committed to free and fair elections in Ghana need not engage in the simplistic task of disputing who is appointed the Electoral Commissioner, but rather the more arduous work of ensuring that at every stage in the elections, the process is clean and valid. And that work will impose on every one of the political parties the task of training the personnel to safeguard the process, and also on the Electoral Commission to facilitate that process of training.
In the face of the recent challenge to the presidential elections outcome in the country, it has become even more important that the whole electoral process is scrutinized by highly trained personnel who are highly committed to the integrity of the process itself. And the work to achieve this end should begin now, not at some future time. Long before the forthcoming elections in 2016, the NPP, together with the other parties, should be organizing and training in every constituency and polling station, an efficient cadre of people who will be keeping their eyes on the ballot in order to retain its accuracy and integrity. And throughout the process of the elections, there ought to be the participation of these individuals in the certification of the results, the transportation of the ballots and the computation of the figures as and when they become available. The media must also be co-opted to play a crucial role in the conduct of the elections and the communication of the results as and when they come in from the polling stations to the various collating centers.
If these broad measures are taken, the Electoral Commissioner’s role will become that of a mere ministerial Returning Officer as correctly contemplated by the relevant constitutional provisions, and whatever comes out of his or her final declaration will be truly that which the whole country has decided in a free ballot. If the NPP, instead of working harder to strengthen the electoral process, chooses to engage in a battle as to who will be the Electoral Commissioner, they would have engaged in a Sisyphean task and deviated from the more important duty of ensuring the integrity of the ballot. Thereafter, no amount of law suits will overturn any final declaration made by the Electoral Commission, no matter how false it is.

Samuel Adjei Sarfo is a practicing attorney in Austin, Texas, USA. This article first appeared in his New Statesman column “Thoughts of a Native Son.” You can email him at [email protected]