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Conduct by EC of presidential and parliamentary elections (1)
Electoral Commissioner, Mrs Charlotte Osei

Conduct by EC of presidential and parliamentary elections (1)

The Electoral Commission (EC) is empowered under article 45(c) of the Constitution “to conduct and supervise all public elections and referenda.” This function is reinforced by article 51 of the Constitution under which the EC, by constitutional instrument, is empowered to make Regulations for the effective performance of its functions under the Constitution or any other law and, in particular, for the conduct of public elections and referenda.

In the performance of its function, the EC on July 7, 2016, made the new Public Elections Regulations, 2016 (CI 94), which came into force on September 1, 2016 after being laid before Parliament for 21 sitting days as required by article 11(7)(c) of the 1992 Constitution. Regulation 50(1) of CI 94 has revoked the previous regulations; the Public Elections Regulations, 2012 (CI 75). The EC shall, therefore, conduct the 2016 Presidential and Parliamentary Elections under the new Public Elections Regulations, 2016 (CI 94). 

The salient and very crucial provisions in the  Public Elections Regulations, 2016 (CI 94), relating to the conduct by the EC of the 2016 Presidential and Parliamentary Elections, include: (a) regulation 6(1) and (2) on nomination of candidates for parliamentary election; (b) regulations 7(2)-(4), 8(1)(a)-(i) and (2) and 9(1)-(3) on nomination of candidates for presidential election; (c) regulation 38(1)-(3) on declaration of results of Presidential and Parliamentary Elections; (d) regulation 32 on identification and verification of voters; and (e) regulation 19(1) and (2) the appointment and duties of presiding officers and polling assistants. 

Time for nomination of candidates for parliamentary election 

Regulation 6(1) and (2) of CI 94 provides that: “Nomination of candidates for parliamentary election 6. (1) A candidate for election to Parliament shall be nominated on a separate nomination form in a manner determined by the Commission. (2) The nomination form shall be delivered in quadruplicate by the candidate personally or the person who proposes or seconds the candidate's nomination to the returning officer of the constituency for which the candidate seeks election on the day and at the place specified in the writ between the hours of (a) nine in the morning and twelve noon, and (b) two and five in the afternoon.”

The issue of the proper time for nomination of a person as a candidate for parliamentary election was raised and determined by the majority of the Supreme Court in the case of Republic v High Court, General Jurisdiction, Accra; Ex parte Zanetor Rawlings (Ashittey & National Democratic Congress Interested Parties) (No 1), 19 May 2016; to be reported in [2015-2016] SCGLR 53; and digested in Appendix 2 at pages 363-369 of the 3rd Edition of the Manual on Election Adjudication in Ghana. 

The majority of the court held that the High Court Judge had erred in law when he wrongly assumed jurisdiction to interpret article 94(1)(a) of the Constitution and proceeded to hold that once the applicant, Zanetor Rawlings, had put herself out as a candidate in the parliamentary primaries of the National Democratic Congress (NDC), she was caught by article 94(1)(a) of the Constitution, which required that she was a registered voter at the time of the participation in the primaries.

The Supreme Court in the subsequent case of Republic v High Court, General Jurisdiction, Accra; Ex parte Zanetor Rawlings (Ashittey & National Democratic Congress Interested Parties) (No 2), Supreme Court, July 18, 2016; to be reported in [2015-2016] SCGLR 92; digested in Appendix 2 at pages 370-374 of the Manual also by a four to one majority decision held, inter alia, that: ??“On construction, article 94(1)(a) should not be read in isolation but in conjunction with articles 45(c) and 51 of the Constitution. It becomes clear, on reading article 94(1)(a) together with articles 45(c) and 51 that, the power to conduct and supervise public elections, including any parliamentary election and also the date to do so, has been conferred exclusively on the EC, subject to any limitations imposed by the Constitution and any other law for the time being in force.?? 

Thus, when it becomes necessary to conduct parliamentary elections, the Electoral Commission will have to fix the date of the election and other related matters in accordance with guidelines set out in a constitutional instrument. Once the date has been set and the writ of election has been issued stating the period of nominations, the times thus stated should be read as one with the provisions of article 94 so as to bring the eligibility criteria into immediate effect in respect of that particular election. 

Therefore, a person who qualifies to enter Parliament must be a Ghanaian citizen, of twenty-one years or beyond and a registered voter as of the date he files his nomination papers within the time stipulated by the EC for that particular election.  That is the true intendment of article 94(1)(a) of the Constitution; the eligibility criteria come alive from time to time when the EC sets the date to file nominations for parliamentary elections.”

Nomination of a Presidential candidate

On the issue of nomination of candidates for election as President, the relevant provisions in CI 94 (as earlier stated) are regulations 7(2)-(4), 8(1)(a)-(i) and (2) and 9(1)-(6) which state as follows: “Nomination of candidates in presidential election 7.(2) The nomination form for each candidate in an election for President shall (a) be signed by the candidate; (b) be signed by not less than two persons who are registered voters in the area of authority of each district assembly; (c) designate a person to serve as Vice-President; and (d) be delivered to the Commission on or before the day appointed as nomination day in relation to the election. 

(3) The nomination form shall be in quadruplicate and shall be delivered personally by (a) the presidential candidate, or (b) any of the persons specified under subregulation (2)(b) between the hours of nine in the morning and twelve noon and the hours of two and five in the afternoon on or before the nomination day. 

(4) A person shall not nominate more than one candidate in a presidential election.” “Statutory declaration and deposit by presidential and parliamentary candidates 8. (1) A candidate for presidential or parliamentary election shall, at the time of the nomination of the candidate  (a) deliver or cause to be delivered to the returning officer (i) a statutory declaration stating that that candidate is qualified to be elected as President or a member of Parliament and is not disqualified from being elected as such;  (2) The statutory declaration shall be made before a Judge, a judicial officer, notary public, commissioner of oaths, or a person authorised by law to administer an oath who shall certify it under the person's signature.” “Nominated candidate 9. (1) Whenever the nomination paper and the statutory declaration of a candidate are delivered and the deposit is paid in accordance with these Regulations, the candidate shall be considered to stand nominated, unless proof is given to the satisfaction of the returning officer of the candidate's death, withdrawal or disqualification. (2) The returning officer shall inform a candidate that the candidate's nomination is invalid where (a) the particulars of the candidate or the persons subscribing to the nomination paper are not as required by law; or (b) the nomination paper is not subscribed to as required by law, and shall give the candidate an opportunity to make amendments or any alteration necessary, within the stipulated nomination period. 

(3) Where a candidate fails to comply with subregulation (2), the returning officer shall consider the nomination paper of the candidate as invalid and shall (a) endorse and sign on the nomination paper the reasons for that decision; and (b) inform the Commission. 

(4) The Commission shall take a decision on the matter within seven days. (5) This regulation shall not prevent the validity of a nomination to be questioned on an election petition. 

(6) Before the close of nominations on the nomination day, (a) the returning officer,  (b) the candidate, if present, or (c) persons who have nominated the candidate and are present shall sign a declaration to the effect that, at the close of nominations, the nomination of the candidate was presented and received by the returning officer.”

 

The writer, a retired Director of the Ghana School of Law & Editor of the Supreme Court of Ghana Law Reports, delivered this paper at the 9th annual Chief Justice’s forum at the Labadi Beach Hotel on October 24, 2016.

 

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