Democracy Watch 12

Democracy Watch Vol. 4, No. 1 March 2003 1

A Quarterly Newsletter of the Ghana Center for Democratic Development 12 Democracy Watch Volume 4, No. 1 March 2003 NRC: MATTERS ARISING ISSN: 0855-417X

record of Ghana dating from In this issue Commencement and independence to the beginning of the Teething Problems Fourth Republic. The first hearing proceeded as smoothly as one might National Reconciliation Commission expect an inaugural session to go. There Hearings: Matters Arising were some sound system problems and ...... Page 1 The National Reconciliation the air conditioning was not functioning Commission commenced public (both of which have been improved), hearings on Tuesday, January 14, but overall, the hearings got off to a good 2003 at Old Parliament House in start-- indeed, almost a miraculous one, How Independent are Our Accra. The opening ceremony was given that carpet was still being laid in Regulatory Commissions? honoured with greetings from the hearing chamber the day before...... Page 6 Archbishop Desmond Tutu and Alex Boraine, former chair and deputy While we applaud the Commission for chair, respectively, of the South its commencement of the public hearings, African Truth and Reconciliation our observations thus far suggest that Commission; Mary Robinson, former there could be some improvements UN High Commissioner for Human made in the way hearings are conducted. Do We have a FIT System to Rights; and Rev. Matthew Hassan In general, the format of the hearings is Resolve Electoral Disputes? Kukah, former member of the too legalistic. That is, the hearings ...... Page 8 Nigerian Human Rights Violation inappropriately resemble courtroom Investigation Commission, among proceedings, more than they do a others. Appropriately, there was no reconciliatory process - with the nine detectable partisan flavour to the Commissioners on a raised dais peering event; the only government member down at the witness who sits below them to speak was the Attorney General, with only the interpreter at his/her side. whose remarks were detailed and The witness is flanked by Commission balanced. staff on one side and any alleged perpetrators and their counsel on the Following the opening ceremony, the other. They are led in their testimony public hearings commenced. The first by Commission counsel, questioned by EDITORIAL TEAM witness’s complaint dated from the Commission members, and then Baffour Agyeman-Duah beginning of the NRC’s mandate, dismissed. A less formal and more Audrey Gadzekpo 1957. It was a symbolically important victim-supportive atmosphere would be E. Gyimah-Boadi decision to commence with such an more conducive to the conciliatory goals H. Kwasi Prempeh early complaint, as it underscored the of the Commission. This could include Edem Selormey fact that the Commission is intended giving witnesses a more formal welcome Kwesi Yankah not only to achieve reconciliation, but upon their swearing-in, allowing also to create an accurate historical witnesses to have family members or Continued on next column Continued on next page Democracy Watch Vol. 4, No. 1 March 2003 2 friends present with them at the witness table, and giving is a learned skill, it also appears to be at least in part because each and every witness the opportunity to say some final the investigation reports do not contain adequate detail. words. The Commission members must also be very careful not to raise expectations of witnesses and the public about the Whether or not the legalistic format is maintained, however, possibility of compensation for financial losses. This they it is crucial that principles of natural justice (such as the have done by asking witnesses what they would like the right to a fair hearing) be keenly observed. In particular, Commission to do to assist them, or by commenting that when an alleged perpetrator or his/her legal counsel is the Commission will try to do what it can for them. Given cross-examining a witness, the witness should be seated that the Commission is not yet fully funded for even the with legal counsel of his/her own so that the witness does duration of its mandate, there is certainly no pot of gold to not appear at such a severe disadvantage to the alleged be doled out to victims when all is said and done. Emphasis perpetrator, as has thus far been the case. must be placed on non-financial forms of reparation, rather than on financial compensation. Reparation would broadly In addition to improvements in the operation of the hearings encompass such things as the offering of an apology, themselves, more could be done to educate the public, memorialization (for example, naming a school or street and possibly the witnesses, about what to expect from the after a person who suffered a wrongful death), or other hearing process. Although the Commission chair symbolic but meaningful gestures to victims or their underscored the fact that no one is an “accused” or an survivors. “accuser” in the opening ceremonies, there was no elaboration of the actual procedure to be followed at the There is no doubt that Commission members are faced hearings. Instead, the first case was called, a witness was with a most difficult task, and one which no one in this sworn in, and someone (presumably counsel for the country has previously undertaken. They must navigate a Commission) stood up and started leading the witness new and important process for this country; a process through a direct examination. There was no explanation necessarily fraught with the ghosts of the past and the politics that a witness may be sworn in with the Bible or the Koran, of the present. They must be impartial and compassionate, or that he or she may choose instead to affirm. There was investigative and reconciliatory. It is a fine line to walk and no explanation that witnesses have the option of having a delicate balance to maintain. The Commission has already legal counsel present, or that an alleged perpetrator may made a very useful and encouraging start. It has been cross-examine the witness through counsel (which occurred extremely open to constructive criticisms and suggestions. on the second day of the hearings, much to the surprise of Democracy Watch will observe their continued progress the public gallery occupants). with interest.

To be sure, progress has been made in subsequent proceedings. For instance, the interpreter now commences the proceedings by advising witnesses that they are required NDC Complaints Against to swear or affirm that they will tell the truth in their testimony. The interpreter occasionally bids the witnesses “welcome”. the NRC: How Valid? These small measures assist in humanizing the process and explaining it somewhat to the public. But there is room for improvement. On February 24, 2003, the National Democratic Congress addressed a complaint to the Commissioners of As the hearings continue, the Commissioners must adopt the NRC titled “Memorandum to the National an even-handed approach toward all witnesses, whether Reconciliation Commission on AFRC and PNDC alleged perpetrators or victims. They must be prepared to Appointees and State Officials Appearing Before the ask incisive questions based on the investigation report and Commission”. In its memorandum, the NDC states that it any anomalies in the testimony, while encouraging may have been justified in the fears it expressed in its January reconciliation for the witnesses. Thus far, the Commissioners 7, 2002, petition to President Kufuor requesting that he have not always appeared equally respectful to all witnesses withhold his assent to the NRC Bill. (for instance, a Rastafarian witness was questioned by Bishop Charles Palmer-Buckle about his belief system, a The NDC, in its February 24, 2003, complaint seeks to completely inappropriate and irrelevant line of questioning). make the NRC aware of certain events so that the NRC Further, the Commissioners have rarely displayed an ability “is not used, wittingly or unwittingly, to try to achieve the to test evidence through relevant questioning. Although this political objective of the NPP Government”. The NDC Continued on next column Continued on page 3 Democracy Watch Vol. 4, No. 1 March 2003 3 repeats its concern from the 2002 petition that the perpetrators are often seen at the Commission government is attempting to use the NRC process to tarnish accompanied by counsel, complainants appear at a the NDC and thus gain an electoral advantage in 2004. disadvantage when faced by alleged perpetrators Some aspects of the NDC’s complaint merit consideration, represented by counsel. Commission counsel tends to sit but others are also severely flawed in some respects. quietly throughout alleged perpetrators’ testimonies. They do not represent the witnesses or ask follow-up questions The summary of NDC’s complaints and Democracy to clarify evidence once the witnesses have been cross- Watch’s reactions are follows: examined by the alleged perpetrators or their counsel. In our view, the Commission is fulfilling its obligation to adhere 1. “That the Commission abide by the rules of natural to procedural fairness to the best of its abilities. Where the justice in all cases, inviting accused former or Commission could improve its attention to procedural current state officials and others to its sittings in fairness is to have counsel represent alleged victims when which their alleged victims appear in order to hear they are being cross-examined by alleged perpetrators. their side of the story.” 2. “That adequate and thorough preliminary The NDC enumerates a number of concerns about the investigations be conducted before the public Commission’s progress thus far, largely relating to an hearings”. alleged lack of procedural fairness or “natural justice”. Specifically, the NDC complains that high-ranking officials The NDC complains that witnesses appear before the in the AFRC and PNDC eras who are alleged perpetrators Commission and tell tales of various abuses that are not of human rights abuses before the Commission, have not credible, citing for example Jacqueline Acquaye’s testimony been accorded a fair opportunity to respond publicly to that soldiers forced “a mixture of gunpowder and pepper allegations. They cite the cases of Naval Captain Baffuor into her private parts”. The NDC notes “the fact that the Assassie-Gyimah (Rtd) and Mr. Peter Nanfuri former Ghana Armed Forces stopped using gunpowder decades Director of the BNI. However, the NRC invited both men ago and therefore her story was very suspect. Why the to appear to respond to the allegations made as soon as it Commission did not investigate or examine in detail all belatedly had noticed that they were to be named. In Capt. available hospital records on her, but appears to have taken Assassie-Gyimah’s case, the NRC provided his lawyer her word for it, is one further event that creates worries with notice and offered the Captain opportunity to respond about the Commission’s work.” But there is no evidence to allegations made against him. In Mr. Nanfuri’s case, he to suggest that the Commission did not or will not investigate declined to appear but rather requested that the NRC this case and others before it further. In fact, time and again, carry out further investigations before holding the hearing Commission members have noted that they will be making on the matter affecting him. In some cases, witnesses have determinations and findings not immediately but when they mentioned people on the stand that they had neglected to have heard and reviewed all of the available evidence. mention in their written statements. The NRC cannot Further, the NDC’s assertion that the story is very suspect anticipate such occurrences and can only do its best to because the use of gunpowder has been discontinued is a notify people when it is aware that they will be named. feeble attempt to discredit the testimony, and in fact obscures their more valid point that available hospital While the NDC appears offended by the way in which records must be reviewed. Whether or not it was certain AFRC/PNDC appointees are being accused gunpowder that was used is surely not the main point to before the Commission, it may be recalled that the NRC be considered. No substance whatsoever should have Act, 2002 (Act 611) specifically states that no one been forced into any orifice of a human being by soldiers. appearing before the Commission or named before the Rather than expecting the witness to know the exact Commission will be subject to subsequent prosecution. substances used, scrutiny would be more appropriately Further, the alleged perpetrators are in fact being granted directed at the medical reports that state why an emergency the right to be heard and thereby to clear their names. hysterectomy had to be performed. That they cannot always be accommodated on the same day as their accusers is unfortunate, but the converse is Accordingly, we thoroughly agree with the suggestion that also true – on the days that the alleged perpetrators have adequate and thorough preliminary investigations be their day before the Commission, their accusers are conducted before the public hearing of complaints, as frequently unable to be present to refute the allegations investigations are one aspect of the Commission’s work that the alleged perpetrators often make in return, and are that appears weak at public hearings. The Commission not able to cross-examine them at all. Indeed, while alleged members should have a thorough investigative report at Continued on next column Continued on page 4 Democracy Watch Vol. 4, No. 1 March 2003 4

their disposal that includes hospital records, or medical While this concern is no doubt part of the investigative testimony, or any other available corroboration or lack division’s task, and possibly the counseling division’s task, thereof of alleged victim’s stories. Although the cases going the Commission should not disqualify a person from to public hearing are sent to hearing precisely because testifying because of a disability. Such information, if there may be a lack of evidence in the investigative report relevant, should simply be a factor in the weight given to it often appears that investigations are inadequately the person’s testimony. performed. If investigations have been fully executed, then it may be helpful for Commission counsel when calling a 5. “That the Commission endeavours to establish the witness to outline the difficulties encountered by the credibility of alleged victims before expressing investigators in obtaining necessary information, thus public sympathies for them” thereby giving the making a hearing necessary. impression that the alleged victim is believed and the alleged perpetrator is guilty. 3. That the Commission ceases to allow “the situation in which alleged victims are permitted to make one- The Commissioners who expressed sympathy to Mrs. sided, self-serving accusations against respected Acquaye during her testimony did so regardless of whether members of society” without giving the accused they thought she had been assaulted as she described. state officials an opportunity to respond. There was no doubt that she had in fact had a serious pelvic operation that had rendered her unable to have The NDC complains that the Commission gave too much children. In this case, the Commission members could be latitude to Capt. Ben Edmund Duah (Rtd) when he testified understood to be simply reacting as human beings, just as before the Commission. The NDC also notes that public anyone would do when faced with a pitiable situation. The reaction following his appearance (during which he bitterly NDC should credit the viewing public and the Commission ranted about the Rawlings regime) was “very negative” members with the ability to assess all of the evidence and and states its concern that “the Commission may end up determine its weight and veracity. The NDC is not the becoming a vehicle for division instead of one for only repository of critical analysis and factual determination reconciliation.” This claim is rather unfair given that there in the country. have also been several episodes of forgiveness and reconciliation at the Commission that should be weighed The NDC should note that the Commission has taken in the Commission’s favor. serious by this particular complaint. While Commission members quite frequently express sympathy with the The Commission is attempting to give Ghanaians an witnesses before them, they make it clear that they are not opportunity to reconcile themselves with the past. Not pronouncing judgment on their cases. Rather, they state all witnesses who appear before them can be expected they will weigh all of the evidence before determining to have forgiven those they accuse of human rights whether a situation occurred as alleged. This approach is abuses. Once again, the Commission and the public will not contradictory. As the Commission’s mandate includes make their own assessments of the evidence given, just reconciliation, and as it is not a court of law, it is only as the NDC has done. Indeed, the NDC itself noted reasonable that the Commission members should react that the public gallery that day was divided in its reaction humanely to people before them, with the understanding to Capt. Duah’s testimony – stating that some that they are not thereby affirming or denying the factuality applauded while some felt that “such invectives will not of their testimony. promote the reconciliation that the nation seeks.” The Commission would be under fire from other quarters 6. “That the Commission must not do anything that were it to stop witnesses from speaking for fear that creates the impression that it is being used by the the person might offend someone. The principles of ruling NPP government, wittingly or unwittingly, to natural justice -- particularly the right to be heard that achieve its political objective of targeting the AFRC/ the NDC trumpets -- must apply to all. PNDC eras with a view to tarnishing the image of the NDC”. 4. “That the background and conditions of all alleged victims be investigated to determine The Commission has taken and publicly heard numerous whether or not they are fit and proper persons complaints outside the AFRC/PNDC eras. That the to appear before the Commission before they majority of the complaints received are regarding the most are granted audience at the public hearings.” recent of unconstitutional periods does not reflect bias on the part of the Commission but rather it. The AFRC/PNDC Continued on next column Continued on page 5 Democracy Watch Vol. 4, No. 1 March 2003 5

era was the longest period of unconstitutional rule, thereby 2004. affecting more people than previous eras, and as the By continuously protesting the Commission’s work, the most recent, has more people still alive to remember NDC risks being perceived as an apologist, protesting it. The Commission is an independent body, acting too much on the AFRC/PNDC’s behalf. It is Democracy pursuant to Act 611 and passed by the Ghanaian Watch’s view that the party would score far more political Parliament. Although the NRC has made some errors points by taking the high road, supporting the in its performance thus far, it has endeavored to Commission’s mandate and responsibly assisting in improve continuously, and more than anything it suffers moving the country forward. The NDC can better from a lack of public education and media accessibility. distinguish itself by honestly accepting that there were As an independent body it also has no control over some abuses and showing that it prefers the path of political actors and can only do its job with the hope transparency and openness rather than the path of that the politicians do not seek to destroy its credibility obfuscation and accusation. for their own purposes.

The Commission encourages everyone who appears The Complaint About the before it to adopt an attitude of forgiveness and reconciliation for the good of the nation. The NRC is not NRC’s Chairperson a court of law and does not have the power to condemn or prosecute those accused of human rights abuses. Rather it endeavors to complete the historical record from The NDC’s petition to have Mr. Justice K.E. Amua-Sekyi which to teach that past human rights abuses must not be removed as Chair of the NRC was printed in its entirety in repeated. the Ghana Palaver (March 25-27, 2003). The NDC’s complaint is full of various accusations about the Chair’s 7. “Through a careful orchestration and manipulation past, alleging all sorts of reasons why he might be biased of facts, events and media coverage.” against the AFRC/PNDC. Rather than dredging up allegations about the Chair’s past conduct, the NDC should A very troubling accusation made by the NDC in the have limited itself to the actual incident that gave rise to their conclusion of its complaint is that former state officials complaint: the Chair’s improvident remarks upon the are being presented in unfavourable lights. The NDC conclusion of Mr. David Walenkaki’s testimony. provides no basis whatsoever for this grave accusation, impugning the very integrity of the Commission. The Those remarks were impolitic. And it was certainly idea that someone at the Commission is manipulating problematic for the Chair to have issued a statement facts and events is completely spurious and essentially arguing that those remarks were justified. A far unfortunately serves only to suggest that the NDC may less problematic statement would have emphasized that the be attempting to discredit the Commission for its own remarks were intended to be a private reaction to testimony political purposes. A more valid criticism should fault he had just heard, and that as a former judge and current the Commission for adopting a media strategy that is Chair of the Commission he would fulfill his duty to largely reactive and urge improvement in its outreach dispassionately weigh the evidence in its entirety before and education of the public about its proceedings. making the final report on the case. In conclusion, the NDC’s long and not always Nonetheless, the NDC’s complaint in was ill-considered. meritorious complaint sheet may have served the There are nine Commission members and a massive amount positive social function of helping to remind the NPP of evidence to be sifted and weighed. For the good of the administration of its duty to act responsibly in respect country, let the Commission get on with the job, and let its of the national reconciliation process. It may also have Members be cognizant of the very public duty which they helped to underscore the need for the government to must perform. It is proper that the Commission process resist any temptation to use the NRC process as a was not derailed by this incident. political tool and thereby avoid defeating the entire

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123456789012345678901234567890121234567890123456789012345678901212345678901234 Continued on next column Democracy Watch Vol. 4, No. 1 March 2003 6 Hotel, the Executive Secretary of the Energy Commission, announced that the Chief of Staff, Kwadwo Mpianim, had IN THE ANNALS OF ordered the seminar cancelled. No reason was given except that the Minister of Energy could not attend, although he had been given advance notice and invitation. DEMOCRATIC No other representative from the Ministry of Energy was sent in his place, and the seminar participants were sent GOVERNANCE home. It is instructive to note that President John Kufuor signed the WAGP treaty with Nigeria, Benin, and Togo a week later at a summit of the Economic Commission of West African States (ECOWAS) in Dakar, Senegal. How Independent are Our It is true that room remains to negotiate various aspects of the project’s execution and content. But the timing of the Regulatory Commissions? government’s actions was unfortunate. The Energy Commission, created by legislative action in 1997, is intended to be an independent body, not the lapdog of Raising serious questions about the current government. According to the Commission’s founding Act, the Minister of Energy -- not the President or the administration’s commitment to open consultation and the President’s Chief of Staff -- may give the Commission true status of “independent” commissions, the President’s directions. But even then these directions must be of a office cancelled at the last possible moment a public meeting “general character” and “required in the public interest.” convened by the Energy Commission in January to discuss The order to cancel the Energy Commission’s seminar in the terms of Ghana’s participation in the West African Gas January came from the Chief of Staff not the Minister of Pipeline (WAGP). Energy it was neither of a “general character”, nor was it in the public interest. Initiated in 1995, the WAGP is a joint project between the governments of Ghana, Togo, Benin, and Nigeria, and the The government’s intervention reflects badly on its ability West African Pipeline Company (WAPCO), which consists to respect the public interest functions of a supposedly of Chevron, Shell, Nigeria National Petroleum Company, independent commission. And the government’s timing Volta Regional Authority (Ghana), Société Togolaise de added insult to injury: cancelling the seminar a week before Gaz (Togo), and Société Béninoise de Gaz (Benin). It is a formalizing Ghana’s commitment to the treaty suggests that 20-year, $500 million USD project intended to create more official hesitation was not over the project itself, but with than 600 kilometers of pipeline to carry natural gas from Energy Commission itself and civil society input into it. Nigeria to Benin, Togo, and Ghana. There is yet time, however, for the Energy Commission to be allowed to do its work, for the government to make In anticipation of the current government’s plans to sign sensitive and prudent use of the Commission’s findings and the treaty formally establishing the legal, financial, and recommendations, and for stakeholder input to be solicited. regulatory framework for the project, Ghana’s Energy The government must not squander the opportunity Commission convened a seminar on Thursday, January 23, again. 2003 to engage civil society in a discussion of the contractual arrangements arising from the project. The Energy Commission sees WAGP as beneficial in accelerating regional integration, economic growth and development in West Africa, lower costs, and an increase in direct foreign Parliamentary Walkouts investment, it has serious concerns about ownership, regulatory mechanisms, high tariffs and rigid access controls. Both sides of the House have been guilty of resorting Much to everyone’s surprise on the first morning of the too quickly to Parliamentary walkouts in the past few years. seminar, as the foreign donors and mission representatives, Walkouts are not uncommon in parliamentary democracies members of Parliament, international and local experts, and and are not inherently bad, but they should be used as a other participants sat in their seats at the Labadi Beach last resort, when all proper channels of addressing a matter Continued on next column Continued on page 7 Democracy Watch Vol. 4, No. 1 March 2003 7 have been exhausted, not resorted to at the slightest tiff. The answer is a resounding no. Fundamental fairness The general effects of walkouts have been to tarnish the requires that when the character of a person is attacked, respectability of Parliament, periodically deny the he be given the opportunity to defend himself. The achievement of a quorum (under Order 48, 1/3 of the exigencies of this particular situation demanded that the membership is required for a quorum; walkouts threaten Minority Leader be heard sooner rather than later. Parliament’s abilities to carry out its duties) thus bringing However, adherence to the rules requires that the the day’s activities to a standstill and, consequently, leading Minority follow the proper channels before walking to a waste of taxpayers’ money. Finally, it suggests an out. underlying flaw in the Standing Orders if members are unable get their points across in a more effective manner than by walking out of Parliament. The Failed Nationwide-Ghana The above effects were in evidence during the recent Airways Deal: Trading Away brouhaha in Parliament when a standoff between the Our Golden Eggs Speaker and the Minority Leader over the Wulensi by- election resulted in a walkout by the Minority. The matter began when the Speaker, Hon. Peter Ala Adjetey, made a But for some sharp investigative journalism on the part statement in the House complaining about accusations of independent media and in particular The Independent, made against him by the NDC at a press conference the Ghana Airways might now be partly owned by Nationwide previous day. The NDC had allegedly accused him of Airlines (PTY) Limited, a small South African outfit that conspiring with the Electoral Commission (EC) to proceed made an almost successful bid to buy the national carrier in with a by-election in the Wulensi Constituency although a a poorly researched and shoddily executed joint venture. vacancy had not yet been properly declared in Parliament. On the floor of the House, the Speaker directly accused The government considered three options as to what to do Minority Leader Hon. Alban Bagbin of leaking certain letters with Ghana Airways, which has become a major drain on that had been exchanged between them on the Wulensi the economy. Total liquidation and a capital-driven issue to the media. When Mr. Bagbin rose to respond to turnaround of the company were deemed unpalatable the accusations, the Speaker refused to recognize him. options when compared to a joint venture with a strong While Mr. Bagbin persisted by continuing to stand in his partner, an option that had been recommended by a place, the Speaker chose to ignore him and proceed with diagnostic study aimed at salvaging the national airline. the day’s business. The Speaker’s actions angered the Other major airlines did not find the prospects of a joint NDC backbench and sparked a walkout from the chamber. partnership with Ghana Airways appealing for a variety of reasons, not least Ghana Airways’ difficulties and the general Aside from the effectiveness of walkouts, this imbroglio poor performance of the global airline industry. However, raises a number of questions about the use of power by a few smaller companies expressed interest, among them the Speaker and the appropriate interpretation of the Nationwide Airlines. What is surprising is not that Standing Orders of Parliament. Specific questions that Nationwide attempted to buy into Ghana Airways but that arise are: whether the Speaker’s use of his bully pulpit to it managed to get as far as it did in negotiations with the attack the Minority Leader personally was legal or proper government in late January this year. under the Standing Orders; whether, even if proper or legal, he was required to allow the Minority Leader to defend The Nationwide deal exposed an embarrassing lack of due himself at that instant (immediately afterward); what the diligence on the part of the government. Nationwide Airlines proper steps under the current rules were to allow the hardly has a foothold in the domestic South African Market, Minority Leader to defend himself; whether the Speaker the only the only place it operates. Nationwide’s business was correct to allow the Minority Leader to make his speech plan failed to pass muster on the most important of the five at the time he eventually allowed him to; and whether once key components necessary for the next round of the Speaker had agreed to the speech the Majority was negotiations. Nationwide could not provide all the seed right in voicing their protest in the manner they did (i.e., capital required of a prospective partner in the initial start- through a point of order). up phase. This capital was an essential requirement precisely because mismanagement at Ghana Airways had Parsing of the rules aside, the key issue is whether, our left an improbable debt burden of $167 million outstanding elected leaders practiced good governance, exercised since July last year and the cash-strapped Ghanaian fundamental fairness, and upheld the dignity of Parliament. government could not afford to infuse a substantial level of Continued on next column Continued on page 8 Democracy Watch Vol. 4, No. 1 March 2003 8 investment into the beleaguered airline. The other Ghana Airways could be profitable in the long term requirements were that the partner should assist the especially with its operation of routes among the US, Government of Ghana to establish a debt-restructuring Europe and major African cities. In this view, a successful agreement with creditors and make available experienced repositioning of the airline could yield more favorable terms managerial and technical services. The partner was also to of sale for the country. This occurred to the government make available such aircraft and other equipment as required only after the media exposure of the Nationwide Airline to operate the agreed service schedule. Even if Nationwide deal. met the few preliminary requirements for a joint venture partner, an investigation of its own financial position would Our media must be commended for its untiring pursuit of have eliminated it from the list of prospective partners. the hot story that exposes this incredible shortcoming. But According to PriceWaterHouse Coopers, Nationwide does it take bitter criticism from the media to ensure that proposed to buy into the partnership with a paltry $1000 the government does its homework before entering into investment and a debt of $2 million. In effect, Nationwide, deals with questionable third parties? Must the minister be would have a stake in Ghana Airways, but substantially threatened with cries for his removal before he does his bear very little risk. homework on the strength of deals he enters into on behalf of the country? This kind of half-baked appraisal of the In the wake of the IFC loan debacle, where the sale of national assets is unacceptable. The fact that government nearly committed the country to a large loan transparency continues to remain an issue that dogs the without anywhere near the necessary amount of Ghanaian government raises some provocative questions investigation required or due diligence, one would have about the strength of our institutions to effect horizontal thought that the government had learned its lesson. and vertical accountability measures that ensure that the However, assuming the Ghana government proceeded long-term national interest of the country is served. with this deal on the basis of shoddy intelligence work, the citizens of Ghana would have been left to pay off the very substantial debt burden, for which Nationwide Do We have a FIT System to would not have been liable. It seems as if the Resolve Election Disputes? government, in its rush for quick cash, is not doing a good job of scrutinizing half-baked proposals that land on various ministerial desks. Yet the proposed deal with Nationwide did not ring of quick bucks for the lection disputes are inevitable by-products of elections government itself, hence, the increased media attention E and suspicion. A whisper campaign suggested that some and can produce varying, sometimes catastrophic, people in government and some closely connected to it outcomes. Therefore, it is important for all democracies to had interests associated with Nationwide. With this sort emplace an Electoral Dispute Resolution System (i.e., of back story, the odor of corruption became more EDRS) to minimize the likelihood that the disputes will apparent and worrying because there is no escaping that escalate into conflict and maximize the potential for the there is something improbable about Nationwide’s ability disputes to be resolved in a Fair, Impartial and Timely (i.e., to get as far as it did with negotiations without some FIT) fashion. path-clearing on its behalf. Predictably, the 4th Republic has witnessed various election Of course, the saga of Ghana Airways does not begin disputes. For instance, the NPP boycotted the 1992 with the Nationwide story and perhaps that was the Parliamentary elections; the dispute over who won Ayawaso reason for the rush to be rid of the national carrier, which West in 1996; whether Nyimakan hailed from Wulensi in has long been beset with problems. However, in this 2000. All the three general elections, including intervening era of “positive change” it would behoove the bye-elections, have been followed by allegations of abuse government to professionally and thoroughly manage its of incumbency, intimidation by macho-men and abuse of affairs with the requisite transparency of a true various campaign laws. democracy whether the already sprawling can of worms at Ghana Airways was of the current regime’s making We are convinced that unless we reform the EDRS, the or not. Moreover, the government’s own efforts to country may plunged into an avoidable conflict in the near restructure and pay off loans for the national carrier have future. Several problems contribute to our ineffective reduced the debt by $20 million. These suggest the EDRS. possibility that with the right emphasis on management Continued on next column Continued on page 9 Democracy Watch Vol. 4, No. 1 March 2003 9

Chronological Blindness: The current EDRS, which Deadline Blindness: Perhaps, the only deadline known to encourages citizens to challenge the qualifications of duly our ERDS is Section 18 (1) of PNDCL 284, which requires elected candidates, is dysfunctional. This system invites that all “election petitions” be initiated within 21 days after defeated parties to “appeal” the decision of voters and the date of publishing the elections results in the Gazette. empowers judges to set aside the wishes of the voters. In Once a petition is filed, however, there appears to be no a democracy, the wishes of the people, as expressed by deadlines on when the matter must be resolved. The Wulensi their votes, should be respected and set aside sparingly. dispute took 27 months to resolve, slightly better than the The preferred timing for challenging the qualification of Ayawaso-West dispute, which was not even resolved candidates must be before the elections, as happened in before the expiration of the right in question. the Ekwam vs. Pianim (no. 2) case (1996 SCGLR), where Ekwam challenged the qualifications of Pianim to contest Enforcement Blindness: This term refers to the flagrant for Presidency, even before the NPP Congress. However, disregard and violation of unambiguous elections laws. For in Yeboah v. J. H. Mensah (1999 SCGLR), the SC instance, though a suggested citizens must wait for the elections to be decided before they can contest the qualifications of candidates. Article 47 (3) requires that all votes be weighed equally There is no reason why this bizarre result follows from the (i.e., the boundaries of each constituency shall be such that constitution. Nor, is there merit in the SC’s stance. the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota), there is Statutory Blindness: Considerable confusion exists in the abundant and systematic evidence that votes are extant laws on elections and this reduces the likelihood differentially weighed in the parliamentary elections. Another that the EDRS can produce FIT outcomes. Even after two area of glaring abuse is the Political Party Financing Laws. years of litigation in the Wulensi affair, there are significant For instance, even though Article 55 (14) requires Political doubts as to whether we are anywhere close to fathoming Parties to publish annual audited statements, we are the provisions of article 94 (b) of the constitution. As opined yet to see any such statements. As a result, it is difficult to elsewhere, the phrase “hail from a constituency” does not know whether the Political Parties comply with article 55 admit to an easy interpretation and the Wulensi outcome (15), which requires that only a citizen of Ghana may will only open the floodgate to endless and mindless contribute or donate to a Political Party. Other examples litigation. include violations of the equal air time (Article 55 (11)), wanton disregard for the law on internal democracy (Article Similarly, while article 42 grants every citizen, who is 18 55 (5)), and the high entry cost that the political parties years or above, unfettered access to the ballot box, section impose on aspiring candidates (for instance, some of the 7 (4) of PNDCL 284 circumvents this right, by precluding parties require Presidential candidates to pay a fee of 100 the registration of Ghanaians who have been away from million cedis). their places of residence in Ghana for a continuous period of six months. These examples are not meant to be Enforcement blindness has, at least, four effects on the body comprehensive but just to illustrate that incoherent, inchoate politic. First, it reduces the confidence that citizens have in and confusing laws present significant headaches for those the EDRS. Second, it has a contagious effect in that it responsible for resolving election disputes. empowers violators to find new laws to violate and attracts prior non-violators to join them . Third, this state of lawlessness frustrates law abiding citizens. Fourth, and Jurisdictional Blindness: It seems that many stakeholders, more significantly, it increases the likelihood that citizens especially the SC, are unsure as to the proper forum for adjudicating election disputes. For instance, in 2001, the will use other avenues, probably more violent avenues, to SC found the jurisdiction to overrule a Bolgatanga High resolve future disputes. In this vein, enforcement blindness Court Justice’s order for a recount of the votes in the Bawku can be likened to hypertension or the “slow killer.” Central constituency (see Ex Parte Hawa Yakubu CM No. 2/2001). Then on January 16, 2003, the same SC ruled Chronological Remediation: The EDRS should classify that it lacked the jurisdiction to hear the Wulensi election election disputes to reflect the chronological phases of the petition. Either the SC is wrong in Ex Parte Hawa Yakubu elections. Pre-election disputes are those that arise before or it is wrong in the Wulensi case. Others who have been the voting day. Examples are disputes on whether a citizen blinded by jurisdiction include the plaintiff in Yeboah v. has the right to be registered, accuracy of the voters’ Mensah, where the court ruled that the High Court, not the register; qualification of candidates, etc. Election-day SC, was the proper forum for determining the plaintiff’s disputes arise on the date of the election. Examples are petition. names that are missing from the register, polls that do not

Continued on next column Continued on page 10 Democracy Watch Vol. 4, No. 1 March 2003 10 open for the specified duration (e.g., closing too early or For this to happen, the procedures for launching citizens’ opening too late), intimidation of voters, double voting, complaints should be transparent, understandable, etc. Post-voting disputes include counting disagreements accessible (especially low cost) and citizens must have (e.g., has a vote been validly cast), security of ballot boxes, confidence that their grievances will be resolved in a timely tallying absentee ballots, tallying votes, etc. Finally, virtual fashion. disputes are those that can arise anytime during the election cycle. They include abuse of incumbency, campaign finance The strength of a country’s democracy can be measured issues, access to state owned media, etc. by the extent to which its EDRS resolves disputes in a FIT manner. My purpose was to establish that our EDRS Decomposing the disputes this way highlights that election requires a “tune-up” and to demonstrate a possible form disputes come in many colors and flavors, some bordering for the tune-up. The cardinal elements of any tuned-up on mechanics (e.g., vote counting and tallying, etc.) and system must include establishing a specific authority to codify some bordering on constitutional interpretation. existing election laws, a regime of strict deadlines for both initiation and resolution of disputes, classifying disputes into Statutory Remediation: It is important that the EDRS is a chronological space, and establishing an enforcement governed by a coherent body of laws, which are readily wing to enforce extant laws. accessible to citizens, preferably in a pamphlet and the internet. The language used must be unambiguous to avoid CDD-GHANA DEMOCRACY conflicting interpretation. To this end, an appropriate CDD-GHANA DEMOCRACY authority must be set up to review, streamline and clarify PROGRAMS FOR THE FIRST regulations, statutes, case law and articles in each of the QUARTER OF 2003 chronological phases to ensure uniform interpretation and application of the relevant laws. Jan 5

Jurisdictional Remediation: For each dispute, identified CDD/Civil Society Coalition’s public education in the chronological phases, the law should be very clear campaign on the national reconciliation exercise took on the hierarchical appellate procedure to be followed for off with drama productions on radio and television. The its resolution. That is, original jurisdiction must be clearly productions were aired in four local languages, Akan, specified, followed by a stipulation of the appeal Ga, Dagbani and Ewe. The education campaign later procedures. The law should also clearly state which included interactive forums for other identified target authority has final and binding jurisdiction. Under the groups in Accra. reformed ERDS, disqualifying elected candidates should

be rare. However, in the event that it should come to that, ○○○○○○○○○○○○○○○○○○○○○○○○○ the full panel of the SC must have final jurisdiction. Jan 6-9

Deadline Remediation: The election laws must set As part of CDD’s efforts to promote the national deadlines for both the initiation and resolution of disputes. reconciliation process in Ghana, the Center sponsored A key suggested change is to set a deadline, before the Professor Henrietta Mensah Bonsu of the National elections, after which the validity of a candidate may no Reconciliation Commission to the bi-annual congress longer be challenged. of the National Union of Ghana Diocesan Priests Association of the Catholic Church, at Wa. Professor Enforcement Remediation: The only way to ensure Mensah Bonsu spoke on “National Reconciliation: the enforcement is to create a wing of the EC that is given the Role of the Diocesan Priest.” Two other members of power and resources to identify, investigate, sanction, and the CDD/Civil Society Coalition attended the congress.

where necessary prosecute, criminal violators of election ○○○○○○○○○○○○○○○○○○○○○ laws. Sanctions must be specified in advance and there ○○○○ should be a high probability that violations will exact Jan 16 consequences. An ERDS, like any system, is as good as the people who comprise it. Thus, all those involved in the A roundtable discussion on the topic “The New ERDS must be well-trained on election dispute rules and Partnership for Africa’s Development: What has procedures. Effective enforcement also requires the Democracy Got to Do with It?” was led by Prof. Samuel cooperation and participation of the citizens. All citizens E. Quainoo, director of Fredrick Douglass Institute, should be entitled to file complaints on electoral violations, University of Pennsylvania, USA. Under the especially regarding the accuracy of the voters’ register. chairmanship of Dr. Francis Appiah, the discussion Democracy Watch Vol. 4, No. 1 March 2003 11 questioned the relevance of NEPAD to Africa. Prof. workshop for the leadership of Parliament (chairs and Quainoo maintained that unless the problem of unfair vice chairs of all parliamentary committees). Mr. Justice trade relations between the developed and developing V.C.R.A.C. Crabbe, Commissioner on Statute Law world is resolved, industrialization and wealth creation Revision, chaired the workshop. Funding was provided

will not succeed in Africa. by the Friedrich Naumann Foundation.

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Jan 16-21 March 13 With funding from the International Center for Transitional Justice, CDD-Ghana sponsored two The Center participated in a stakeholder consultative workshops in Accra and Kumasi on support and meeting to study corporate governance problems in advocacy programs for victims appearing before the Ghana’s public sector. Sponsored jointly by the National National Reconciliation Commission. Experts who led Governance Program and the UNDP, the meeting discussions during the workshops were from the USA, critically reviewed a concept paper produced on the South Africa, Peru and from the National Reconciliation issue and designed a methodology for the study.

Commission of Ghana.

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March 18 Jan 24-31 The Ghana World Bank office and CDD-Ghana jointly Prof. Gyimah-Boadi, the principal researcher of organized the first series of seminars dubbed Afrobarometer in Ghana, presented the survey findings of the Afrobarometer Round 2 Survey on Attitudes to “Development Dialogue.” More than 150 participants Democracy and Markets in Ghana to government attended the seminar, which was on the theme officials, ministers and members of Parliament; the “Empowerment for Development.” Mr. Mats Karlson, diplomatic corps, the donor community, and the media country director of the World Bank, gave the keynote at three separate briefing sessions. address. Prof. Takyiwaa Manu, director of the Institute

of African Studies, Legon, and Mr. Ken Ofori Atta of

○○○○○○○○○○○○○○○○○○○○○ ○○○○ Databank were the discussants while Mrs. Esi Sutherland Addy, a research fellow at the Institute of

Feb 13 African Studies, chaired the program. The Friedrich Naumann Foundation sponsored three ○○○○○○○○○○○○○○○○○○○○○○○○○ seminars on the Electoral Commission’s preparations for the 2004 general elections. Dr. Kwadwo Afari-Gyan, March 28 Prof. Ernest Dumor, both of the Electoral Commission, and the Minister of Local Government and Rural Development led the discussion during the three A workshop on “Democratizing the Making of Subsidiary seminars. Among the issues discussed were the Legislation in Ghana” was organized for the voters’ register, constituency demarcation and the Parliamentary Committee on Subsidiary Legislation. creation of new districts before the elections. Mr. Participants deliberated on ways of making the Justice V.C.R.A.C. Crabbe, Commissioner on Statute process of creating subsidiary legislation more Law Revision, and Nana Asante Bediatuo, an consistent with the letter and spirit of the 1992 investment banker and lawyer chaired the seminars. Constitution. Ms. Kim Stanton, a research associate

at CDD-Ghana, was lead presenter.

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CDD-Ghana and the Africa Democracy Forum jointly organized a two-day preparatory meeting for the international conference of the World Movement for Democracy in Durban, South Africa. The meeting “A disciplined society is one in

reviewed the agenda for the Durban conference. which the rule of law is not a ○○○○○○○○○○○○○○○○○○○○○

○○○○ mere slogan”

Feb 21-23 E. Gyimah-Boadi

Continuing its capacity-building program for Parliament, CDD-Ghana organized a two-day Democracy Watch Vol. 4, No. 1 March 2003 12

The Ghana Center for Democratic Development (CDD-GHANA) 14 Airport West Residential Area P.O. Box 404, Legon Accra-GHANA

Phone: 233-21 776142/ 763029/ 784293 - 4 Fax: 233 21 763028 The Ghana Center for Democratic Development, CDD-Ghana is e-mail: [email protected] an independent, nonpartisan and nonprofit organization based in Website:www.cdd-ghana.org Accra, Ghana. It is dedicated to the promotion of democracy, good governance and the development of liberal economic environment in Ghana in particular and Africa in general. In so CDD-GHANA Publications doing, CDD-Ghana seeks to foster the ideals of society and government based on the rule of law and integrity in public administration.

Briefing Paper Vol. 1 Nos.1- 4 Briefing Paper Vol. 2 Nos 1- 4 Briefing Paper Vol. 3 Nos 1- 4 Briefing Paper Vol. 4 Nos 1- 4 Briefing Paper Vol. 5 Nos 1- 4 Critical Perspectives Nos.1- 13 Research Papers Nos.1- 10 Conference Proceedings