OccupyGhana®️ has closely observed the events and circumstances preceding, in the course of and arising from the general elections held in Ghana on 7 December 2020. We are convinced that elections are meant to convey who the people (in whom ultimate sovereignty lies) have mandated to lead them for the next four years. Any other result is unacceptable.
We must first convey our satisfaction with the work of the Electoral Commission in the registration of voters and the voting itself. With the threat of COVID-19 and all the bumps and criticism, we concede that the EC did a creditable job for which it deserves our congratulations.
The EC however began to run into problems when it set itself a rather optimistic 24-hour deadline to declare the presidential results. Much as we appreciate that the EC had put measures and structures in place to ensure that it met that deadline, failing to moderate that with factors outside its control such as the weather, meant that it could not meet that deadline. We appreciate the fact that the EC was nevertheless able to declare the results within 48 hours.
However, we have taken note of errors in the figures in the published results. We recall that the issue of errors came up during the hearing of the Presidential Election Petition in 2013, where we encountered terms such as ‘computational errors’ and ‘transpositional errors.’ From that decision we learned that it is possible for such errors to occur. When they do, they will invalidate an election in the relevant polling station, constituency or region, or even nationally, if their effect is sufficiently significant to hand a victory to a person other than the real victor. Thus, much as some of these errors are basic, are regrettable and ought not to have happened, it is imperative for all political parties and contestants to critically review the underlying documentation (which they all were expected to receive at the polling stations) and mount challenges where these errors affect the will of the people disclosed in the voting in the relevant polling station, constituency or region, or nationally.
We have therefore noted that each of the two leading parties has expressed different levels of dissatisfaction with aspects of both the presidential and parliamentary elections and results. That is to be expected; and that is why although article 46 of the Constitution gives the EC independence in its work, which has been explained by the Supreme Court to mean that ‘…in the conduct of their business, the Electoral Commission is completely independent in that regard and is not subject to the control, direction, management, manipulation and or interference from anybody or institution whatever,’ the same Court has held that the ‘independent status of the [EC] does not make it immune from action for the purpose of declaring that it has… acted in a manner that, having regard to its unreasonableness, irrationality or unfairness, cannot be accorded the sanction of legality.’ An EC that refuses to hear or consider any reasonable challenge based on credible evidence is an EC that is acting unreasonably, irrationally and unfairly.
With particular reference to article 295(8) of the Constitution, the Supreme Court has said that even ‘where a person or authority [such as the EC] is not, by the provisions of this Constitution, 1992 or any other law, subject to the direction or control of any person or authority in the performance of his duties or functions, the court is not precluded from examining the correctness or otherwise of the exercise of such duties or functions.’ And for emphasis, the Supreme Court has repeated that ‘if even the power or function is entrusted exclusively to an authority [such as the EC] …and in the exercise of that function the authority is subject to no direction or control of anybody, article 295(8) of the 1992 Constitution still empowers the Ghanaian Courts to enquire into whether that authority is exercising that function in accordance with the Constitution.’
Thus, if the EC has misconducted itself or has deliberately or negligently made a wrong declaration, the EC is not immune from legal challenges. It is our view that this challenge may be mounted administratively, by the political party or contestant showing to the EC, through its Statement of Polls or other credible evidence, that what has been declared is false and/or does not reflect the will of the people. We believe that when such evidence is presented to the EC, the EC is bound by law to consider it and possibly reverse a false declaration. However, if the EC is not ready to listen, or wrongly dismisses the administrative challenge, or cannot effect a change because the results have already been gazetted, then the Constitution provides the ultimate routes to challenge those results through either the High Court (for a parliamentary election) or the Supreme Court (for the presidential election.)
We also fully appreciate the right of all citizens to freely demonstrate and manifest their views. This is certainly an option available to every party or contestant who is unhappy with the results and believes that something untoward has happened. If that, coupled with presenting credible evidence to the EC, does not lead to the EC changing what it has declared, then the Constitution does not leave the aggrieved party or contestant empty-handed. That is why it provides the means of legal redress mentioned above, and for which express rules of court have been enacted over the years to facilitate a quick hearing and expedited determination of electoral disputes.
We urge these on the political parties and contestants.
We conclude by fully endorsing the call of the Peace Council in its statement of 19 December 2020 for (i) media sensitivity in these times, (ii) the police to enforce the laws, (iii) the parties to uphold the peace documents they signed and restrain followers from acts of vandalism etc, (iv) religious and faith-based organisations to urge followers to avoid violence, and (v) for traditional rulers to condemn all violence in their traditional areas.
May Ghana win.
In the service of God and Country,