Why the recent appointment of EC Chairperson by the President was unconstitutional (1) by Prof. Kwadwo Mensah

Appointment to the Electoral Commission under Article 70(2) of the 1992 Constitution – Why the Recent Appointment of the Chairman of the Commission by the President was Unconstitutional (1)
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I MEAN to inquire if, in the civil order, there can be any sure and legitimate rule of administration, men being taken as they are and laws as they might be. In this inquiry I shall endeavour always to unite what right sanctions with what is prescribed by interest, in order that justice and utility may in no case be divided. – Jean-Jacque Rousseau, The Social Contract, Book 1

Introduction
Article 70(2) of Ghana’s 1992 Constitution states 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
Ghanaians interested in politics knew that after his long tenure as the Chairman of the Electoral Commission, Dr. Kwadwo Afari-Djan was due to retire at the end of June 2015. Consequently, they were aware that the Chairpersonship of the Electoral Commission was going to be vacant. How was Dr. Afair-Djan’s replacement to be found? Let us call this the vacancy question.

Primary and Secondary Appointing Institutions

Article 70(2) states that two institutions – the President and the Council of State - are explicitly and formally responsible for appointing Electoral Commissioners in Ghana. For analytical purposes, let us distinguish the primary appointing institution from the secondary appointing institution in this appointment process. The primary appointing institution is the institution principally responsible for such appointments. Among its duties, it must develop the detailed criteria of suitability for Commissioners; it must shortlist candidates, vet them and eventually determine who amongst the various contestants, should be recommended to be a Commissioner.

The secondary appointing institution - depending on one’s interpretation of Article 70(2) – merely helps the primary appointing institution to appoint Commissioners. Some claim that it must “advice” the primary appointing institution, but its “advice” cannot bind the primary appointing institution. Others suggest that the secondary appointing institution is essentially a “Simpa Panyin”; it has no choice but to endorse the nominee recommended by the primary appointing institution.

Debates Related to the Vacancy Question

Prior to the official retirement of Dr. Afari-Gyan, a lively debate developed around the vacancy question. They involved two main questions; which was the primary appointing institution? – was it the President or the Council of State? Let us call this the primary appointing institution question.  The second question was: should the Ghanaian public be allowed to formally and actively participate in the appointment process? Let us call this the public participation question. Although, it was the primary appointing institution question that caught the fancy of most commentators, as I shall show below the public participation question is equally important and probably one of the most important questions for our fledgling democracy.

The Supreme Court Writ

The whole discussion reached a crescendo, when a Mr. Sky, filed a writ at the Supreme Court, seeking an interpretation of Article 70(2) and a declaration as to who the primary appointing institution was. Interestingly, like most of commentators, Mr. Sky disregarded the public participation question.

Presidential Appointment of a New Chairman of the Electoral Commission

Before the Supreme Court, could hear the substantive arguments relating to the suit and while the public was still debating the vacancy question, the President in some haste, appointed and swore in Mrs. Charlotte Osei as the new Chairperson of the Electoral Commissioner.

The Central Arguments of this Essay

Did the appointment of Mrs. Osei follow the law as stated in Article 70(2) of the 1992 Constitution?

I shall argue in this essay that Mrs. Osei’s appointment did not follow the law as stated in Article 70(2), because, firstly, Article 70(2) expressly makes the Council of State the exclusive recommender of Commissioners. As exclusive recommender of Commissioners, it is the primary appointing institution. This explains the requirement in Article 70(2) that the President must “act on” the advice of the Council of State. This is my answer to the primary appointing institution question.

Secondly, Article 70(2) implicitly requires that the general Ghanaian public should actively participate in the nomination of Electoral Commissioners. This is because Ghana is a democracy and the public ought to participate in all important issues affecting the polity such as appointments to the Electoral Commission. This is my answer to the public participation question.

Recommendations by the Council of State, after active participation by the general Ghanaian public, are however, only necessary conditions for appointment to the Electoral Commission. They are not sufficient conditions.

This is because, thirdly, Article 70(2) expressly, makes the President the exclusive appointer to the Commission. The President is therefore the secondary appointing institution. As exclusive appointer, the President, has the power not just to endorse the recommendations of the Council. He also has the power to reject the Council’s recommendations. This explains the requirement in Article 70(2) that the recommendations of the Council are “advice” to the President.

The Due Process Argument and the Rousseauan Challenge: Realizing Fairness and Controlling Arbitrariness as Basic Principles of Decent Ghanaian Society

In Book 1 of the Social Contract – part of which I quote at the beginning of this essay - Rousseau claimed that he wanted to make a case for legitimate government founded on the natural inclinations of humankind. In his utopia, government is legitimate when it unites right with natural human inclinations. When this occurs, then justice and personal interests would be inseparable.

This is also the challenge of this essay. I aim to show that the fundamental objective of the 1992 Constitution is to create a decent society founded on liberal democratic values and to defend it as the only legitimate form of government. Like Rousseau, I shall try to that the law of the 1992 Constitution, attempts to unite what is right with natural human inclinations.

A basic values of a decent society based on liberal democracy values is substantive fairness, - that all persons should not only be treated fairly, but it should be seen by all that they are treated fairly. An elucidation of this principle is that a person is not allowed to select the judges in a dispute in which he has a personal interest. Another corollary of the principle of fairness is that a person acting as a judge or supervisor in a competitive enterprise must be absolutely fair and absolutely neutral, as between all the competitors, and the public ought to see that this is the case.

Another principle of the decent society that Ghana aspires to, is the principle that public power ought not to be used arbitrarily. This principle is summed up in the constitutional doctrine that a person granted public power must not use the power for an improper purpose – e.g. use the power for a private advantage. To ensure that public power is not abused, through the doctrine of separation of powers, the 1992 Constitution, decentralizes power, between various institutions of State;

Decentralization of power occurs first through the accountability principle; when the Constitution makes a particular State institution the primary ‘utilizer'’ of a public power, it also provides that other State institutions ‘regulate’ the use of that power, so that the primary utilizer of the power is accountable to those regulatory institutions. Through this institutional mechanism, the primary utilizer of the power is forced to examine closely, the objects of its powers, to ensure that it uses those powers solely for purposes of achieving those public objectives and those public objectives alone. This is because, should it use its powers for other purposes – i.e. improper purposes - its decisions would be struck down by the regulatory institution.

The second device through which the 1992 Constitution decentralizes power is founded on the public participation principle; one of the fundamental ingredients of democracy is formal public participation in important decisions that affect the polity; public participation minimizes arbitrary use of power by de-concentrating power; when there are multiple centers of influence on important national issues, power is de-concentrated and it is less likely to be abused.

Article 70(2): Realizing Fairness and Controlling Arbitrary Power: The Accountability Principle  

Article 70(2) is about how persons are appointed to the Electoral Commission. The substantive object of Article 70(2) is to ensure that Electoral Commissioners are absolutely fair and absolutely neutral, as between the contestants, in national elections and Commissioners inspire confidence among the general citizenry that the elections they supervise, would not be rigged.

To achieve these objectives Commissioners must be technically competent in their abilities to conduct elections and they must be absolutely neutral and absolutely fair, as between the various contestants in national elections. Let us call persons that are technically competent, absolutely neutral and absolutely fair, ideal Commissioners. I shall argue that the primary objective of Article 70(2) is to ensure that the persons who get on to the Electoral Commission are ideal Commissioners.

It does this through the doctrine of the separation of powers. Article 70(2) makes the Council of State the exclusive recommender of Commissioners; a person appointed by the President to the Commission has to be recommended to the President by the Council of State. One cannot become a Commissioner unless one has been recommended by the Council of State.

But the 1992 Constitution recognizes that the Council of State is made up of human beings and the Council, left unchecked – if it were made both recommenders and appointers of Electoral Commissioners - could abuse its appointing powers. Consequently, the 1992 Constitution provides institutional mechanism that prevents the Council of State from abusing its powers. First, it implicitly requires that the Ghanaian public participate in the process of nominating Commissioners.

Secondly, the Council is made accountable to the President for the manner in which it utilizes its powers to recommend Commissioners. So, Article 70(2) expressly, makes the President the appointer of Commissioners.

Let us call the procedure outlined here the ideal procedure for appointing Electoral Commissioners. There is nothing secretive about the ideal procedure; it must be transparent so that a person who believes that the appointing authorities have not followed the ideal procedure can challenge an appointment by seeking judicial review at the High Court.

Why Mrs. Charlotte Osei’s Appointment is Unconstitutional

It is the failure of Mrs. Charlotte Osei’s appointment to comply with the above requirements that makes her appointment unconstitutional.

The very fact that Ghanaians do not know whether Mrs. Osei was nominated by the Council of State and appointed by the President or whether she was nominated and appointed by the President with or without the concurrence of the Council of State and very the fact that the Ghanaian public did not participate in the recommendation of Mrs. Osei to the President, that makes the appointment illegal.

The Due Process Argument

The arguments presented here concentrate mainly on the processes that have to be used to appoint Electoral Commissioners. They also explain the principles and values that undergird these processes. I shall call the processes I recommend in the appointment of Commissioners, the ideal procedure. Since my arguments are essentially about the processes that must be used to appoint Electoral Commissioners, I shall call the set of arguments presented here the Due Process Argument.

In Part 2 of this essay, I present the principles and the values upon which the ideal procedure is founded. In Part 3, I present the literal, the logical and the canons of constitutional interpretation argument that support the ideal procedure. This essay is part of a larger essay that deals with appointments to the Electoral Commission and the Supreme Court. I hope to make the more detailed argument available to the legal community in due course.

My education has been the results of the hard work of many people that I have been lucky to meet in the course of my life. I take this opportunity to thank three such people who taught me at Achimota Primary School. I also dedicate these essays to them. They are Mrs. Violet Heward-Mills, who taught me in Class 1, 1968-1969, Mrs. Cudjoe, who taught in Class 2, 1969-1970 and Mr. SH Annor, who taught me in Class 5&6, 1972-1974. I remember him with a lot of affection.

Read part two: Why the recent appointment of EC Chairperson by the President was unconstitutional (2)

Eugene Kwadwo Mensah, is a Professor of Law at the Chonnam National University, Gwangju, South Korea. He was formerly Head of Business Department – now School of Business –  at the University of Cape Coast.
Mr. Mensah is a Barrister at Law and Solicitor of the Supreme Court of Ghana and a Member of the New York Bar
Email: [email protected]