Democracy Watch 15

Democracy Watch Vol. 5, No. 1 March 2004 1 A Quarterly Newsletter of the Ghana Center for Democratic Development 15 Democracy Watch Volume 5, No. 1 March 2004 IN THE ANNALS OF GOVERNANCE ISSN: 0855-417X democracy continues to rest on the Playing politics with provisions of a decree promulgated in an In this issue the enfranchisement undemocratic era is indeed embarrassing and makes a mockery of democracy itself. of the wrongfully PNDC Law 284 was necessary when it Playing politics with the disenfranchised was promulgated in 1992 because, at the E enfranchisement of the wrongfully time, there was no Constitution and disenfranchised ....... Page 1 An attempt by the Government to Ghanaians had no legal right to vote. In secure quick passage of an order to create the legal framework for amendment to the Representation of Ghanaians to vote in the referendum and the People Law, 1992 (PNDCL 284) then general elections of that year, it was ERevisiting zero tolerance for met intense objection from a coalition necessary for the PNDC to grant eligible corruption... ........ Page 4 of opposition parties. The amendment Ghanaians the statutory right to vote. was for the purpose of extending the Once the Constitution came into effect, right to vote to Ghanaians resident however, PNDC Law 284 should have Continuing insensitivity to con- abroad. The NPP government had been repealed or else given way to the E constitutional provision dealing with the flicts of interest ...... Page 8 introduced the bill under a Certificate of Urgency, thus placing it on franchise, because upon the coming into Parliaments fast-track calendar and effect of the Constitution the right to vote DCEs and power: the James process. However, loud protest from was no longer just a statutory right, but a E right derived directly from the Constitution. Dogbe Shopping Center? both the parliamentary and extra- ...... Page 8 parliamentary opposition forced the government to abandon its reliance on The very idea that more than E Coddling dictators: celebrating a certificate of urgency and caused the one decade after the Eyadema ....... Page 9 bill to be placed instead on Constitution has been in effect, Parliaments regular calendar. While the right to vote in our Opposition objection to the bill democracy continues to rest Incumbency and the challenge of focused immediately on the on the provisions of a decree E promulgated in an internal party democracy governments intention to rush it undemocratic era is indeed ....... Page 10 through Parliament, public statements by the opposition parties indicate that embarrassing and makes a they are even more forcefully opposed mockery of democracy itself. to the substance of the bill. Unfortunately, the Electoral Commission EDITORIAL TEAM Unfortunately, because of the has since 1993 been conducting the n Baffour Agyeman-Duah governments choice of a legislative strategy (namely, the certificate of business of registration and voting as if the n Audrey Gadzekpo urgency) that called its motives into right of Ghanaians to vote and to be n E. Gyimah-Boadi question, the ensuing public debate did registered to vote is statute-based, rather n H. Kwasi Prempeh not focus sufficiently on the substantive than constitutionally rooted. Thus we n Edem Selormey disagreement. continue to live with the anomaly that the n Kwesi Yankah most basic and foundational right in our The very idea that more than one constitutional democracy is defined and Democracy Watch is published with funding from decade after the Constitution has been implemented by reference to a military the German Technical Cooperation, GTZ. in effect, the right to vote in our decree. But symbolism is not the only Continued on next column E Continued on page 2 E Democracy Watch Vol. 5, No. 1 March 2004 2 problem with PNDCL 284. As a matter of substance, of a certificate of urgency, when whatever urgency it PNDCL 284 is, in many respects, also at variance with the perceived was caused by its own inertia and inexplicable self-enforcing provision of Article 42 of the 1992 three-year delay. Constitution, the provision of the constitution to which Ghanaians owe their right to vote and to be registered to The NPP governments handling of this matter follows a vote in the Fourth Republic. pattern of omissions and delays in dealing with certain election-related matters. The list includes the Governments Article 42 grants the right to vote and to be registered to failure to fill in a timely fashion certain vacancies on the EC vote in the most unconditional and unequivocal terms. It as well as its failure to quickly rectify the anomaly of states: EVERY CITIZEN of Ghana of eighteen years of commission members who had passed the retirement age age or above and of sound mind has the right to vote and is but continued to serve on the EC. To wait until an election entitled to be registered as a voter for the purposes of public year to begin to deal with these outstanding matters is to elections and referenda. This provision of Article 42 invite the accusation, trumpeted by the opposition, that the specifies only three qualifications for a person to secure Government is trying to use its incumbency to undermine the right to vote and to be registered to vote. These are the integrity of the upcoming general elections. (1) citizenship (every citizen); (2) age (18 years and above); and (3) mental capacity (must be of sound mind; The NPPs attempt to pass the amendment to PNDCL not medically insane). 284 by means of a certificate of urgency also raises questions about abuse of this fast-track legislative process. Notably, Article 42 of the Constitution does not mention This is not the first time the NPPs attempt to pass legislation residency as one of the qualifications for the right to vote through a certificate of urgency has provoked intense or to be registered to vote. Because Article 42 grants the objection. It will be recalled that the bill to introduce a right to vote unconditionally to every citizen (18 and above national health insurance scheme was passed by means of and of sound mind), the practice in past elections, based a certificate of urgency. In that instance, too, there was no presumably on PNDCL 284, whereby the right to vote urgency other than the governments own desire to rush and to be registered to vote has been limited to Ghanaians passage of the bill. Such misuse of the certificate of urgency resident in Ghana (and to Ghanaian diplomatic personnel creates the unhealthy impression and sets a precedent that abroad), represents an unconstitutional restriction on the numerical superiority in Parliament entitles a government Article 42 rights of Ghanaians living abroad. That practice to fast-track any legislation and thereby truncate the effectively adds unto Article 42 a new qualification, to the deliberative process at its pleasure. Recourse to a effect that a citizen must be resident in Ghana or else be certificate of urgency should be reserved properly for on diplomatic or other official business abroad before he emergencies brought on by unanticipated events that call or she may be entitled to vote. This additional condition or for an immediate legislative response. In such instances, qualification is, of course, not found anywhere, expressly there would be a true national urgency justifying the use or by implication, in the Constitution. And because Article of a certificate of urgency, not just a party emergency. 42 trumps the contrary provision in PNDCL 284, the latter Parliament should use this opportunity to clarify or revise cannot stand. In fact, PNDCL goes even further to require the rules governing certificates of urgency to save that that a citizen be resident in Ghana for a minimum of six legislative device from abuse. months before he or she would be eligible to be registered to vote. This, too, is patently unconstitutional, and the While it is fair to object to the NPPs attempt to pass its Supreme Court said as much in its 1996 decision rendered proposed amendment to PNDL 284 by means of a certificate in Tehn-Addy v. Electoral Commission. of urgency in an election year, the substance of the amendment itself has much to commend in its favor. As already noted, The controversy over the proposed amendment to PNDCL PNDL 284 impermissibly deprives many Ghanaians, including 284, however, had as much to do with the means as with Ghanaians resident abroad, of their constitutional right to vote the ends. While in opposition, the NPP had promised, in and to be registered to vote. Opposition to the substance of the course of the 2000 campaign and especially during fund- the proposed amendment is therefore misplaced. raising tours abroad that, if elected, it would bring an end to the disenfranchisement of Ghanaians in the diaspora. One wonders why, after winning power, the NPP To wait until an election year to begin to government waited three full years to initiate legislation on deal with these outstanding matters is to this matter, knowing well that this being an election year invite the accusation, trumpeted by the any attempt to enfranchise a new class of voters (even if opposition, that the Government is trying to the measure merely restores a right unconstitutionally use its incumbency to denied) is bound to provoke partisan reaction and call into undermine the integrity of the upcoming question the governments motives. The NPP made matters worse when it decided to proceed this last minute by means general elections Continued on next column E Continued on page 3E Democracy Watch Vol. 5, No. 1 March 2004 3 In an era when it is a commonplace to find growing numbers prior to the date of registration before he or she would be of a countrys nationals residing and earning a living abroad, registered as a voter.

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