Abstract
Following Ghana's December 2012 elections, there was a protracted election petition process at the nation's Supreme Court challenging the declaration of the winner as the duly elected presidential candidate. Even though the Supreme Court ruled in favour of the declared winner, it made several recommendations that paved the way for numerous interventions aimed at putting together proposals for electoral reform to fine-tune Ghana's electoral processes. Several such reform proposals were submitted to the Electoral Commission by the end of 2013. Nevertheless, these were not implemented to guide the 2016 general elections. The successful conduct of the 2016 elections has therefore been described as a “miracle.” Why were the reform proposals not implemented? What is the current state of reform proposals submitted to the Electoral Commission? What is the way forward? This article addresses these questions.
Ghana's electoral processes have undergone several reforms since 1992, as a result of elite consensus and a series of submitted and implemented reform proposals. These reforms have been carried out with a view to fine-tuning the electoral processes and ensuring that issues of previous elections are addressed for better election management in the future. In 2013, several reform proposals were submitted to the Electoral Commission (EC) after an eight-month election petition process at the Supreme Court. Unfortunately, the EC was unable to implement a preponderant number of these proposed reforms.
Based on interviews with key political party officials, particularly those from the two main political parties in Ghana – the National Democratic Congress (NDC) and the New Patriotic Party (NPP) – officials from the Electoral Commission, and civil society representatives, as well as an extensive review of the state of current thinking about elections in Ghana, this article reviews the state of electoral reform in Ghana following the 2016 general elections.
Structurally, the article operationalises the concept of electoral reform and undertakes a historical overview of efforts aimed at fine-tuning Ghana's electoral processes since 1992. It reviews the state of reform proposals submitted to the Electoral Commission for implementation after the 2013 election petition process at the Supreme Court. It singles out the proposals that have been implemented and those that are yet to be implemented and makes recommendations to avoid the perennial practice in Ghana of rushing through reform implementation in a manner that creates tension and suspicion and undermines thoroughness and effectiveness.
Explaining Electoral Reform
There are two main schools of thought, with contrasting views, on what constitutes electoral reform. The first school of thought comprises those who believe that electoral reform must encapsulate a wholesale replacement of electoral processes (Lijphart 1994; Katz 2007). This suggests a detailed review of an electoral process, including the formula for allocating seats and other voting arrangements. The second school of thought is made up of those who believe that electoral reform comprises all minor and major changes that serve to improve the electoral processes. This position is captured by the studies of Jacobs and Leyenaar (2011), and International IDEA (2006, Chapter 12). They have argued that electoral reform may not necessarily entail a total overhaul of national electoral processes. Any change in electoral rules that leads to alterations in the operation of the electoral system, improves it, and makes it responsive to the expectations of the electorate connotes electoral reform (International IDEA 2006, Chapter 12). It is reform when the change is intended to foster and enhance the impartiality, inclusiveness, transparency, integrity, or accuracy of the electoral process (Jacobs and Leyenaar 2011).
Since 1993, electoral reforms in Ghana have not taken the form of wholesale replacement of the processes along the lines of the first school of thought. On the contrary, reform proposals have been implemented with a view to improving the system and ensuring that the electoral processes deliver results acceptable to the citizenry.
History of Electoral Reforms in Ghana
There were several reforms of Ghana's electoral processes between 1992 and 2012. In 1992, the parties that lost the November 1992 presidential election and boycotted the subsequent parliamentary polls in December of the same year threatened to refrain from participating in all future elections unless there was satisfactory electoral reform. The politically charged environment at that time threatened Ghana's drive towards democratisation, as periodic elections are crucial in any journey towards democratic maturity. The opposition parties claimed that the electoral system and the processes used for the 1992 election gave untrammelled advantage to the NDC. Led by the NPP, the opposition parties launched the “Stolen Verdict” campaign, presenting a compendium of electoral fraud purported to have been committed against opposition parties by agents of the NDC and the Interim National Electoral Commission (INEC) during the election (NPP 1993; Boahen 1995; Gyimah-Boadi 2004; Oquaye 2013).
The NPP described a litany of instances of election violence perpetrated against its candidates and officials. All the opposition forces then laid out stringent conditions that had to be met before they would return to the electoral front. They insisted that the electoral process should be overhauled via (i) the creation of a transitional body to supervise the electoral process, (ii) the compilation of a completely new voters’ roll and identity cards for voters, and (iii) the replacement of the INEC with a new body made up of representatives from all the parties (Ayee 1998). On the other hand, the NDC saw the prevailing electoral process as efficient and therefore made no electoral change demands. According to the NDC, the electoral processes had not posed any threat to the credibility of the 1992 elections because the international community led by the Commonwealth Secretariat's team of election observers endorsed the election outcome as free and fair (Ayee 1998).
As part of the reform process, the following steps have been taken:
In 1993 the parliament passed Act 451, which established the Electoral Commission (EC), and through the EC the various reforms were initiated. 1
I am grateful to the anonymous reviewer for this contribution.
In March 1994, the Inter-Party Advisory Committee (IPAC) was inaugurated as a platform for stakeholders to discuss and resolve thorny areas of the electoral processes (Badu and Larvie 1996).
The voters’ register used in the 1992 elections was reformed because it contained inaccurate data (Ayee 1998).
Presidential and parliamentary elections are now held simultaneously to prevent an unfair advantage for the winning presidential candidate's party.
A proposal to use both thumbprints and photo identification cards, rather than only thumbprints, as proof of voter identity in the new register and for future elections has been implemented.
Registration officials are now trained in order to protect and promote the integrity of the voters’ register.
Registration Review Committees have been created in all constituencies in order to resolve all conflicts with respect to voter registration.
The translucent/opaque ballot boxes used for the 1992 elections have been replaced with transparent boxes.
Cardboard screens are now set up in the open for voters to make their decisions before depositing their thumb-printed ballot papers in the ballot box, which is located in a conspicuous place to promote transparency (Debrah 2011).
The counting of votes and declaration of results takes place immediately after voting in the presence of party agents and voters (Electoral Commission 1996).
Biometric registration and verification of voters has been introduced to halt fraud and other abuses in the electoral process and thereby enhance the credibility of the elections and their outcome. The slogan “no verification, no vote” has been used heavily in the media and the political parties’ campaign platforms to signal the end of election fraud.
Assets and expenditures of political parties must now be declared within 90 days after receipt of the final Certificate of Registration and 21 days before general elections in order to discourage political corruption (Debrah 2011).
The Presidential Transition Act, 2012 was prepared and implemented to regulate the transfer of power from one democratically elected regime to another in a manner devoid of rancour, acrimony, and tension. The draft bill was prepared and finalised by the Institute of Economic Affairs Ghana Political Parties Programme (IEA-GPPP). 2
The IEA-GPPP brings together the leaders of political parties with representation in parliament to discuss issues of national importance in an apolitical manner with a view to proposing recommendations for reform. The programme is sponsored by the IEA and members meet once a month at the IEA Secretariat.
Generally, electoral reform proposals have been thoroughly discussed and accepted by the IPAC and political elites. The implementation of such proposals has improved the electoral processes in Ghana and contributed to the resilience of the nation's electoral politics and democratic march forward.
The Post-2012 Electoral Reform in Ghana
Notwithstanding the strides made in reforming Ghana's electoral process, the results of the nation's 2012 presidential elections were challenged at the Supreme Court by the then-opposition NPP. Following an eight-month election petition process, the Supreme Court dismissed the petition by the NPP and upheld John Mahama of the NDC as the validly elected president. The ruling also exposed some flaws in the electoral process that could not be glossed over in the quest for free and fair elections. In his ruling, Justice William Atuguba, the president of the panel of judges, noted,
This petition, however, has exposed the need for certain electoral reforms. I mention some of them. The voters’ register must be compiled and made available to the parties as early as possible; a supplementary register may cater for late exigencies; the calibre of presiding officers must be greatly raised up; the pink sheet is too elaborate, a much simpler one [is necessary] to meet the pressures of the public, weariness and lateness of the day at the close of a poll etc.; the carbon copying system has to be improved upon; the Biometric Device System must be streamlined to avoid breakdowns and the stress on the electorate involved in an adjournment of the poll; and invalidating wholesale votes for insignificant excess numbers is not the best application of the administrative principle of the proportionality test. 3
Details of the judgement given by Justice Atugubah can be found in “Read Justice Atuguba's judgement on the Election Petition,” 4 September 2013, in: 233times.com , http://233times.com/2013/09/read-justice-atugubas-judgement-on-the-election-petition/;.
Following this, the EC invited proposals for electoral reforms from 38 key stakeholders including political parties, faith-based organisations, professional bodies, and civil society organisations. 4 The IEA, for example, under the aegis of the GPPP, held a series of workshops to review the electoral processes. This culminated in the submission of 25 proposals for electoral reform to the EC on 20 November 2013. 5 Subsequently, in January 2015, the EC inaugurated the 10-member Electoral Reforms Committee (ERC) to examine the proposals for electoral reform and advise the commission on the implementation of the proposals. 6 The committee – which comprised representatives of political parties, of the EC, and of civil society organisations – submitted its report containing 41 proposals for electoral reform to the commission in April 2015. 7
The Author was one of the representatives of the civil society groups that submitted proposals for electoral reform to the Electoral Commission.
The author is the coordinator of the GPPP and encouraged the leaders of the various political parties to submit their proposals for electoral reform.
The author is a member of the Electoral Reform Committee.
See report of the Electoral Reform Committee submitted to the Electoral Commission in April 2015.
In its report in response to the electoral reform proposals submitted by the ERC, the EC accepted most of the proposals, albeit some with modifications, while others were slated for further discussion with political parties before their acceptance and possible implementation, as discussed below.
Proposals outside the Ambit of the Commission
Eight proposals fell outside the ambit of the EC. It therefore forwarded these to the appropriate institutions, which included parliament, the judicial service, the attorney-general's department, and other institutions, for the necessary action to be taken. These proposals concerned the term of office of the chairperson and members of the commission; the appointment of commission members following broad consultations and with prior approval of parliament; the sending of the commission's financial estimates directly to parliament; the removal of the requirement for the attorney-general's consent before prosecuting electoral offences; the empowerment of the commission to prosecute election offences; the establishment of election tribunals to rule on electoral cases and petitions; the spelling out of the grounds for invalidating the election of a president; and the need to reduce the waiting times for decisions regarding a presidential election petition (EC 2015).
Proposals Accepted with Modifications
The commission accepted a total of 17 proposals with some modifications. These were as follows:
The need for well-trained election officials to staff the polls
Ongoing voter registration during the inter-election period
The establishment of a National Collation Centre to replace the strongroom
The institutionalisation of the Inter-Party Advisory Committee meetings
The use of biometric verification devices for voter registration and exhibition exercises
The raising of the minimum educational qualification requirements for various levels of election officials
The definition of the term “ordinarily resident” in the Constitutional Instrument 72 and “hails from” in relation to the requirements for being registered as a voter in an electoral area
The taking of an oath by election officials before a judicial officer
The holding of elections in November instead of December
The deferment of the adoption of electronic voting
The EC's implementation of steps to reduce rejected ballots
The sanctioning of election officials who breach electoral laws
Serial numbering of all the Statement of Poll and the Declaration of Result sheets
Clarification of provisions regarding processes and procedures to be followed upon an adjournment of the poll
An improved compensation package for election officials
The granting of priority to vulnerable persons at all polling stations
Improved training of election officials and commission staff
A further 15 proposals were accepted in principle but required further discussion with the IPAC (EC 2015). The only proposal that was rejected by the Electoral Commission was the “no verification, no vote principle” (EC 2015). In the opinion of the EC, it would be unfair for machines to determine who is eligible to vote. The commission indeed recognised that the right of a citizen to vote is fundamental and guaranteed by the 1992 constitution. In its view, it has an inherent mandate to ensure that every eligible voter gets the opportunity to vote. The commission argued that in the absence of the biometric verification device, or when it malfunctions, there should be other physical or manual means of verifying voters in order not to disenfranchise Ghanaians. 8
See the minutes of the IPAC meeting from 20 July 2015.
The Reform Proposals and the 2016 General Elections
The successful implementation of electoral reform proposals signals that the EC is preparing for future elections. It improves the credibility of the election management body and deals with legitimacy deficits arising out of the challenges and deficiencies of the electoral processes. The question, however, is whether the commission prepared for the 2016 elections. There were several issues that created doubts in the minds of many Ghanaians regarding the commission's preparedness for the task ahead. 9 For instance, in the wake of several calls for electoral reform, the commission was caught in a quagmire of justifying the need to design a new logo. Many Ghanaians questioned the wisdom of the commission's move to replace the national coat of arms as its symbol of authority with a new logo. This, to many, was a misplaced priority as no logo better signifies the independence and sovereignty of the commission than this symbol (Ayee 2017).
There were unresolved issues with the voters’ register that led to the fear that many people who used the national health insurance identity card to register were not being given ample time to re-register in accordance with the Supreme Court ruling. Again, there was no clarity regarding how the register was going to be pruned to rid it of the names that were not supposed to be on it. Furthermore, there was a new commission chairperson, who was perceived as inexperienced. Also, the application of the electoral rules by the commission was perceived to have favoured the ruling party. Even though the main opposition party was cleared to contest the election, there were perceptions of executive and partisan manipulation on the part of the commission. Other parties that felt unfairly treated by the EC went to court. Indeed, there were several court cases whose outcomes favoured the smaller parties and provided an indication that the EC was perhaps not ready for the upcoming elections. See, for instance, “Full ruling on EC disqualification of presidential nominees,” in: Graphic Online, 8 November 2016, www.graphic.com.gh/news/general-news/full-ruling-on-ec-disqualification-of-presidential-nominees.html;.
Instead of focusing on the upcoming elections, the commission launched a broader Strategic Plan (2016–2020) to become the benchmark in Africa for conducting “independent, trusted, world-class democratic elections for citizens and candidates alike.” One of the key proposals under the plan was to strengthen the EC's relations with key stakeholders and improve the flow of communications between them. In this regard, the EC was able to bring together several players and actors with differing interests and perspectives (EC; IPAC; candidates; media; voters; judiciary; security agencies; security task forces at the national, regional, and district levels; election observers; civil society organisations; development partners) to discuss issues relating to elections in Ghana and the role of the stakeholders. However, the launch of the plan could plausibly be described as a waste of time as it dealt with overarching issues rather than focusing on the pressing demand for vigorous electoral reform and the implementation of the specific proposals from the Electoral Reform Committee (Gyampo, Graham, and Yobo 2017).
Apart from the implementation of the proposals to continue voter registration, use biometric verification devices for voter registration and exhibition, extend the period of notice for voter registration, and reduce the number of voters per polling station – as well as the move to shift elections from December to November, which was rejected by parliament – little or no information was provided regarding the implementation of the other electoral reform proposals for the 2016 election. The successful conduct of the 2016 general elections can therefore not be attributed to the implementation of serious electoral reform proposals (Ayee 2017). Indeed, it is imperative to stress the point that only a few reform proposals were implemented prior to the 2016 general elections. Therefore, the 2016 elections can only be described as “miraculously successful,” as no concrete and detailed proposals for electoral reform were implemented (Gyampo, Graham, and Yobo 2017: 16). Even though Ghana's 2016 general elections were seen as free, fair, transparent, and credible, the electoral processes were virtually on “auto-piloting” (ibid: 18). It must, however, be conceded that the stakes were also very high in the 2016 elections. This culminated in heightened vigilance on the part of political parties, particularly the opposition, and contributed to the successful carrying out of the elections even without the implementation of many reforms (Cheeseman, Lynch, and Willis 2017).
In an interview, Christian Owusu Parry, former director of public relations at the Electoral Commission and secretary to the Electoral Reforms Commission, noted that the commission deferred implementation of most of the proposals for electoral reform to 2017 because they required constitutional amendments. 10 Those that required administrative changes were also not fully implemented because of the long-standing legal battles between the commission and some political parties in the lead-up to the 2016 elections. 11 The EC thus faced a number of constraints which affected its ability to implement the reforms.
Interview by the author with Christian Owusu Parry, 28 August 2017, Accra.
See, for instance, “Lawsuits won't affect election calendar – CJ,” in: citifmonline.com , 24 October 2016, http://citifmonline.com/2016/10/24/numerous-lawsuits-wont-affect-election-calendar-cj/;.
The Reform Proposals and the Aftermath of the 2016 Elections
The state of electoral reform in Ghana appears to be in limbo, as the key officials of the commission continue to battle other serious diversionary issues with respect to their integrity and continued stay in office as election management officials. Indeed, following the 2016 elections, there have been petitions and counter-petitions to remove all three executive officers of the commission from office over allegations of corruption, malfeasance, in-fighting among the key officials, and abuse of office. 12 In an interview, the commission's director of communication, Eric Dzakpasu, noted that the allegations of corruption levelled by the top commission officials against one another have resulted in deep-seated hatred and internal wrangling. The charges include the embezzlement of funds belonging to the commission, the looting of the workers’ provident fund, and the awarding of contracts without an appropriate tendering process. Unfortunately, the four other non-executive members of the commission have also taken sides in the rumpus in a manner that has made it difficult to schedule commission meetings to discuss the state of electoral reform and the way forward. 13 Consequently, matters of electoral reform cannot be said to be on the front burner of the EC's agenda as all are awaiting the outcome of the various investigations into alleged corruption, malfeasance, and abuse of office by the three. 14
See more details in “EC staff petition Prez to remove Charlotte Osei,” in: Graphic Online, 19 July 2017, www.graphic.com.gh/news/general-news/ec-staff-petition-prez-to-remove-charlotte-osei.html;; “Akufo-Addo refers petitions against 2 EC Chairpersons to CJ,” in: Joy Online, 28 July 2017, www.myjoyonline.com/politics/2017/July-28th/akufo-addo-refers-petitions-against-2-ec-chairpersons-to-cj.php;; “Nana Addo refers petition against EC Deputy Chairs to CJ,” in: citifmonline, 28 July 2017, http://citifmonline.com/2017/07/28/nana-addo-refers-petition-against-ec-deputy-chairs-to-cj/;.
Interview by the author with Eric Dzakpasu, 31 August 2017, Accra.
Ibid.
The Unprecedented Dilemma
In the lead-up to the 2016 elections, some top functionaries of the now-governing NPP criticised the appointment of the EC chairperson. They described her as unqualified and threatened to get rid of her when the party was elected to power. 15 Others called her names and accused her of being corrupt with the tacit support of the NDC, the then-ruling party. 16 It can therefore be plausibly argued that the infighting within the EC is the result of the current government's desire to have its preferred person made the chair of the EC.
“Charlotte Osei traded sex for her EC position – Ken Agyapong,” in: pulse.com.gh , 27 June 2016, www.pulse.com.gh/politics/election-2016-charlotte-osei-traded-sex-for-her-ec-position-ken-agyapong-id5198244.html;.
“Don't condemn Ken Agyapong yet over ‘sex for job claims’ – Otiko Djaba,” in: citifmonline, 19 July 2016, http://citifmonline.com/2016/07/19/dont-condemn-ken-agyapong-yet-over-sex-for-job-claims-otiko-djaba/;; “EC boss insult: We'll not condemn Kennedy Agyapong – NPP,” in: YEN.com.gh , n.d., https://yen.com.gh/59642-we-will-not-condemn-kennedy-agyapong-npp.html;.
Ghana's 1992 constitution allows for the removal of EC officials if any of the charges regarding financial impropriety levelled against them are found to be true. Upon receipt of a petition for removal, the president is required to forward the petition to the chief justice, who upon establishing a prima facie case may initiate an investigation into the allegations and make recommendations to the president. 17 However, a poor precedent would be set if the chairperson of the EC were removed, as it would suggest a grand scheme by the now-ruling party to carry out its threat when it was in opposition. This would of course be met with stiff opposition from the NDC and other parties, in a manner that would likely create tension and disturbances in advance of the 2020 elections. Already, the opposition NDC has made it clear that it would resist any attempt at removing the EC chair. 18 On the other hand, there will be no justification for keeping the heads of the EC in office if they are found culpable of even one of the allegations levelled against them. Virtually all the allegations, 19 if proven to be true, would constitute adequate grounds for removal. 20 Given the extent of damage to the relationship among the EC officials, it may be difficult for them to work together to discuss matters relating to electoral reform even if they are not removed from office. The quest for prompt implementation of electoral reform proposals will still suffer severe setbacks if the entire commission is overhauled and the three officials are made to step aside, since the institutional memory regarding already-initiated work on electoral reform may then be compromised.
The appointment and conditions of service of the EC officials are analogous to those of superior court judges in Ghana. Article 146 of the 1992 constitution spells out the details.
See „NDC fights for EC Boss; dumps Sulley, Georgina,” in: citifmonline.com , 14 December 2017, http://citifmonline.com/2017/12/14/ndc-fights-ec-boss-dumps-sulley-georgina/;; “We'll fiercely resist removal of EC boss – NDC MP,” in: Peacefmonline.com , 23 July 2017, www.peacefmonline.com/pages/politics/politics/201707/321522.php;.
For details of all the allegations levelled against them, see “EC boss responds to 27 allegations against her,” in: Classfmonline.com , n.d., http://m.classfmonline.com/1.11158603;; “Charlotte Osei ‘wages war’ on three deputies in fresh allegations,” in: Joy Online, 22 July 2017, www.myjoyonline.com/politics/2017/July-22nd/charlotte-osei-wages-war-on-three-deputies-in-fresh-allegations.php;.
Article 44 (2)(3) of the 1992 constitution states that the chairperson of the EC shall have the same terms and conditions of service as a justice of the Court of Appeal. Accordingly, the chairperson of the EC cannot be removed from office except in the event of “stated misbehaviour or incompetence or on grounds of inability to perform the functions of his/her office arising from infirmity of body or mind.” Article 151 (1) also states, “A person holding a judicial office may be removed from office by the Chief Justice on the grounds only of stated misbehaviour, incompetence or inability to perform his/her functions arising from infirmity of body or mind and upon a resolution supported by the votes of not less than two-thirds of all members of the Judicial Council.”
The Way Forward
Moves towards electoral reform have certainly hit a snag in view of the current challenges within the EC itself. While the investigative processes are ongoing, the work of the EC must not stop. Institutions must not grind to a halt in the absence of leadership. In this regard, the directors of the commission and other key staff must pick up and sustain the process of implementing the reform proposals. Those reforms that require amendments of laws must be tabled before the appropriate quarters now, while the outcome of the investigations is being awaited. Reforms that require changes in administrative practices or require concrete actions must be tabled, discussed among the directors, and implemented. Reform that falls outside the jurisdiction of the commission must not only be forwarded to the appropriate institutions, but must be followed up by the commission to ensure that the proposals are not gathering dust. The commission must not rest on its oars after forwarding the recommendations. The success of electoral reform, even though it may be a shared responsibility, must be the concern of the commission more than any other stakeholder. In this regard, the EC must work with the other institutions to ensure that all proposals are implemented.
Additionally, the commission, with or without its chairs, must communicate what is being done to fine-tune the electoral processes and must ensure that all relevant proposals being implemented are brought to the attention not only of the political parties, but also of other key stakeholders, including the general public. This would help boost public confidence in the commission, promote the integrity of the electoral process, and generate broader acceptance of future election results. Again, the EC must sensitise the citizenry about the electoral processes, the related challenges, and how these challenges are being addressed in a more practical and expeditious manner to overcome the perception that time is being wasted.
Last but not least, the commission must ensure transparency in its dealings with stakeholders, engaging frequently with them in candid dialogue without necessarily pandering to their whimsical demands. It is time for more dialogue between the EC and its stakeholders in order to court support, advice, and assistance from all in rebuilding the commission's legitimacy, image, and goodwill. Establishing a new image for the EC will certainly be helpful in ensuring stakeholder cooperation in the successful implementation of electoral reform proposals.
Ghana has been praised by many observers for its third successful change of government by election in 2016, but on this occasion such success cannot be credited to the country's most prominent electoral institutions. If democracy is to be consolidated, institutions have to be functional and functioning. There is currently room for improvement in both respects.