MPs’ “NO” to Nov 7: Can they change their minds? [Article]

This year's Presidential and Parliamentary elections in Ghana are no later than five months away. And, on Thursday, Ghanaian lawmakers voted to reject a crucial bill which sought to amend a clause in the 1992 constitution ahead of the polls.

Speaker Edward Doe Adjaho called the much-anticipated vote after a heated debate on the Constitution (Amendment) Bill, 2016. The report of the Legal and Constitutional Affairs Committee on the bill was laid in Parliament on Monday, 18th July, 2016.

By Wednesday, the report had, in line with the 48 hour notice rule in Parliament, matured for debate. It is important to point out here that the House could have debated the report of the Committee on the same day it was laid, but that can only happen after prior suspension of the 48-hour notice rule. Indeed, this has been done many times in the House.

However, lack of consensus around the bill meant that the debate had to be put on ice, while both sides attempted what turned out to be failed backroom negotiations to reach a compromise on the nagging issues that had divided the House even before Thursday's vote. The Minority wanted the bill passed with effective date of implementation deferred until the 2020 elections.

The Majority disagreed, insisting that the law, if passed, must guide the 2016 polls.

From the opposition side of the aisle, the Minority Leader, Osei Kyei-Mensa-Bonsu, stood erect like a minaret and screamed a heavy dose of firm instructions to his followers that the bill must never survive a Parliamentary vote. In his view, holding this year’s elections in November, when the EC seemed very ill prepared to do a good job, is a bugaboo that Ghana must flee from.

His counterpart on the Majority side, Alban Sumana Kingsford Bagbin, took his turn moments later. Although well aware that the battle was lost long before the fighting started, Bagbin, like a mortally wounded general, desperately commanded and inspired, at the same time, his army of loyalist Majority MPs to save the bill with all the firepower they had. In the end, it was the will of the Minority that prevailed after a vote, killing any hope of the bill ever become law.

The Minority Leader later told Citi 97.3 FM in Accra that the outcome of the vote was victory for “common sense”. On the other hand, the deputy Attorney General, Dominic Ayine, said the Minority’s actions stemmed from political convenience. “As I said, it is for political strategic convenience that the bill has been rejected.

It is not because we have not done our work,” he told journalists after MPs voted to kill the bill.

The Constitution and Election Dates

The 1992 Constitution of Ghana does not provide a specific date for holding presidential and parliamentary elections. Instead, it states the periods within which the two elections should be held. December 7 became the default date for general elections in Ghana out of constitutional and legal convention.

The Constitution (Amendment) Bill, 2016, was therefore seeking to move the date for general elections in Ghana from December 7 to the first Monday of November in Election years.

In Article 63(2), the Constitution states:
“(2) The election of the President shall be on the terms of universal adult suffrage and shall, subject to the provisions of this Constitution, be conducted in accordance with such regulations as may be prescribed by constitutional instrument by the Electoral Commission and shall be held so as to begin –

“(a) where a President is in office, not earlier than four months nor later than one month before his term of office expires; and

“(b) in any other case, within three months after the office of President becomes vacant;

and shall be held at such place and shall begin on such date as the Electoral Commission shall, by constitutional instrument, specify.”

On Parliamentary elections, the Constitution, in Article 112 (4) provides,

“Subject to clause (2) of article 113 of this Constitution, a general election of Members of Parliament shall be held within thirty days before the expiration of the period specified in clause (1) of that article; and a session of Parliament shall be appointed to commence within fourteen days after the expiration of that period.”

In my humble view, the two constitutional provisions, when read together, mean general elections (held concurrently on the same day/date) to choose a new President and a new Parliament must be held not later than 30 days to the dissolution of Parliament [where a President is in office]. But what's the history behind Ghana's election dates since 1992?

Election Dates under the 4th Republic
Ghana's first Presidential elections after a long period of Military rule under the Provisional National Defense Council (PNDC), which was chaired by Ft. Lt. Jerry John Rawlings, were held on 3rd November 1992. The result was a Jerry Rawlings victory.

He won nearly 59 percent of the popular vote. His main challenger, Professor Albert Kwadwo Adu Boahen of the opposition New Patriotic Party, bagged a little above 30 percent of the valid votes cast. Three other parties – People's National Convention (PNC), National Independence Party (NIP) and People's Heritage Party (PHP) – shared the rest of the valid votes.

A Commonwealth Observer Team had adjudged the 1992 presidential elections “free and fair”. However, critics said the polls were extremely stained by electoral irregularities and fraud. Indeed, the New Patriotic Party later issued a damning report, detailing massive allegations of irregularities in 100 of Ghana's 200 constituencies at the time. The report was titled, The Stolen Verdict: Ghana November 1992 Presidential Election.

In summary, the document claimed that the polls were rigged in favor of JJ Rawlings, a charge the incumbent Head of State and his allies has forcefully denied. In protest, the NPP boycotted the Parliamentary elections, which were held on a separate date – 29th December 1992. Following the NPP's boycott, the NDC cruised to a sweeping majority in Parliament with 189 out of the 200 seats up for grabs.

The events of the 1992 elections taught the Interim National Electoral Commission (INEC) – which later became the Electoral Commission (EC) after the national constitution came into force, and following the passage of the Electoral Commission Act by Parliament in 1993 – many lessons.

After intense agitations by the opposition NPP in particular, some major electoral reforms were adopted. Among these reforms were: the use of transparent ballot boxes, the introduction of party agents at polling centers on Election Day, compilation of a new voters' register etc.

It was also decided ahead of the 1996 elections, based on reasons of economic prudence, that Presidential and Parliamentary elections be held on the same date. The EC thus fixed December 7, for the conduct of both the Presidential and Parliamentary polls, ahead of the 1996 elections.

As some analysts later explained, the decision was taken partly in view of the fact that – and as the 1992 Parliamentary election results later proved – many Ghanaians would prefer to vote for Parliamentary Candidates whose flagbearer emerges winner of the presidential vote [if the Parliamentary votes were taken after the Presidential elections as was the case in 1992]. This is known commonly as the 'bandwagon effect'.

The 1996 elections, which analysts agreed was a marked improvement over the 1992 polls, re-elected Jerry Rawlings as President and an NDC Majority in Parliament. The NPP won 61 seats followed by the PCP with 5 seats and the PNC with 1 seat.

Ghana has, since 1996, held Presidential and Parliamentary elections concurrently on December 7. However, a chaotic transition from the Rawlings administration to the John Kufuor-led government in 2001 triggered calls for a change in the date for national elections.

Mr. Kufuor won the Presidential race after a run-off election on December 28, 2000, against the NDC's Professor John Mills; then incumbent Vice President. The date for the run-off left the incoming Kufuor and the outgoing Rawlings administrations with just ten days or so to prepare for the transition.

The pervasive acrimony that characterized the 2001 transition process repeated itself, though relatively less, in 2009 when Professor John Evans Mills was elected President. Again, as was the case in 2000, there was no outright winner in the first Presidential race held on December 7, forcing a run-off election on December 28.

This election could however, not be conducted in the Tain Constituency of the Bono Ahafo Region on the December 28 date, owing to recorded disturbances. This forced a third run-off election since the December 28 one could not produce an out-and-out winner between Nana Akuffo Addo of the NPP and Prof John Mills of the NDC, in line with constitutional requirements thus;

“A person shall not be elected as President of Ghana unless at the Presidential election the number of votes cast in his favour is more than fifty percent of the total number of valid votes cast at the election.”

Prof Mills subsequently won the delayed race in Tain on January 2, 2009, but had very little time for the transition process. He took office on 7th January 2009 at a bungled swearing-in ceremony blamed largely on the chaotic transition process.

Indeed, the transition challenges in 2001 and in 2009 caused the Institute of Economic Affairs (IEA) to lead nationwide discussions on what eventually became the Presidential Transition Bill and later the Presidential Transition Act after MPs passed the bill into law in March 2012. The bill's passage also fulfilled recommendations of the Constitution Review Commission (CRC) which was set up by President John Mills in January 2010.

“The Commission recommends that Parliament should enact a legislation to provide for the orderly transfer of executive power from one regime to another at the expiration of the term of office of a President and the inauguration of a new President,” says the final report of the Constitution Review Commission (CRC).

Dated 20th December 2011, the report also says, “The Commission recommends that the period for conducting parliamentary elections should coincide with the period for presidential elections.”

It adds, “The Commission recommends that the presidential and parliamentary elections should be held within a period of 60 days before the inauguration of a new government”.

But, instead of acting promptly on the recommendations of the Commission, it was not until 23rd January, 2015 that an Electoral Reform Committee was established. The Committee had representation from the Electoral Commission, and a number of other major stakeholders, and considered proposals for electoral reforms.

“One of the recommendations made by the Committee was a change in the date for the conduct of general elections from the 7th of December to the first Monday of November in an election year”; Attorney General and Minister for Justice, Marietta Brew Appiah-Opong, said in a Memorandum to Parliament on the Constitution (Amendment) Bill, 2016.

The bill was dated 9th March 2016. The big question is, why did the government wait for four long years after the CRC's report before eventually taking the Constitution (Amendment) Bill to Parliament?

The Constitution (Amendment) Bill
The Constitution (Amendment) Bill 2016, reads in part that Article 112 of the Constitution “is amended” by the substitution for clause (4) of;

“(4) Subject to clause (2) of article 113 of this Constitution, a general election of members of Parliament shall be held on the first Monday of November before the expiration of the period specified in clause (1) of that article and a session of Parliament shall be appointed to commence within fourteen days after the expiration of that period.”

If Thursday's vote had succeeded, this year's elections would therefore have been fixed for November 7, 2016 instead of December 7, 2016.

125 MPs voted in support of the bill, whereas 95 voted against the proposed amendments to the constitution after a secrete vote. Thursday's vote was in line with the provisions of both Ghana's 1992 Constitution and the standing orders of Parliament.

According to Article 291 (3) of the 1992 Constitution, “Where Parliament approves the bill, it may only be presented to the President for his assent if it was approved at the second and third readings of it in Parliament by the votes of at least two thirds of all the members of Parliament”.

The above provision means that for the vote on the Constitution (Amendment) Bill, 2016 to have been successful, at least 184 MPs in the 275-member Legislature needed to have voted in support, following a second reading of same. This would have then qualified it to move to the consideration and third reading stages.

If the House had passed the bill, the EC would have been required by the provisions of Article 63 of the 1992 Constitution to issue a Constitutional Instrument (CI), announcing November 7, 2016 as the new date for this year's general elections.

Can Parliament reconsider Thursday's decision?

By Thursday's vote, MPs have rejected the Constitution (Amendment) Bill, 2016, and all its intended consequences. The question on the minds of many Ghanaians is, can the House change its 'MIND'? My answer is an EMPHATIC YES!!! My position is founded on the rules of the House.

Standing order 93 (3) of the rules of Parliament provides, “It shall be out of order to reconsider any specific Question upon which the House has come to a conclusion during the current Session, except upon a substantive motion for rescission.”

The natural question that emerges is; what is a Session of Parliament? The answer is in the 1992 Constitution. Article 112 (1) of the Constitution says,

“A session of Parliament shall be held at least once a year, so that the period between the last sitting of Parliament in one session and the first sitting of Parliament in the next session does not amount to twelve months”.

Given that the life of the current Parliament is set to terminate at the midnight of January 6, 2017, it is safe to conclude that the Constitutional (Amendment) Bill, 2016 cannot be reintroduced into this Parliament [which is still in the current session] until after a new Parliament is constituted [which will officially take off with a new session on January 7, 2016].

However, there is a safe way out if, and I mean IF, both sides of the House will show the requisite size of balls by putting aside their differences over this year's election-related issues and play ball. This route will require a substantive motion seeking to rescind the decision taken on Thursday, using the strength of the provisions of standing order 93(3) of the rules of the House. And, for emphasis, let me quote the relevant standing order again.

It says, “It shall be out of order to reconsider any specific Question upon which the House has come to a conclusion during the current Session, EXCEPT UPON A SUBSTANTIVE MOTION FOR RESCISSION.”

What is not clear in the rules is the size of votes required in support of such a substantive motion to rescind Thursday's decision. Some people believe a simple majority vote in support of the rescission motion is all that is needed to reverse last week's vote. My money, however, is on two thirds of the 275-member House, voting in support of a motion to rescind the decision.

A successful motion for rescission will wipe the slate clean, giving the House the opportunity to attempt another second reading of the Constitution (Amendment) Bill 2016.

I hold the view, and many authorities in parliamentary practice and procedure concur, that given that the bill was wrecked at its second reading stage, a successful recession motion will simply restore the status quo ante. This implies that the House will simply resume work on the bill at the second reading stage, without the Attorney General and Minister of Justice having to gazette it twice, lay it again, and for the Speaker to put it before the Council of State (for the appropriate advice) before it returns to the House for subsequent legislative action.

If two thirds of the 275-member House vote in support of a new motion for a second reading of the bill, the proposed law shall survive. The bill will then sail to its consideration stage (where changes are proposed, and either accepted or rejected). Where the bill is fine-tuned at the consideration stage, it is read for the third time, and taken to have been duly passed by the House after a vote. Here again, at least 184 MPs must, in keeping with the provisions of the 1992 Constitution, vote in support of the motion for the third reading of the bill. And then it will be ready for President John Mahama to sign it into law.

But can the above suggestions happen in a Parliament bitterly divided against itself over the EC's preparations for this year's elections? My answer is I don't think so. The reason is that there is very little desire on the part of both sides of the House to build consensus around the issues that scuttled the bill on Thursday.

Indeed, the partisan differences over the Electoral Commission's state of preparedness for this year's polls are so deep that the Majority and the Minority sides cannot simply agree on a new election date short of the additional one month period.

While the governing NDC believes the EC has made enough preparations to organise successful elections this year, the opposition disagrees and has cited sweeping shifts in the Commission's time table to support its position. The opposition NPP has also named the lack of a credible voters' register some five months to the election as another reason why Ghana must not be stampeded into this year's polls. The NPP, while quick to point out that it is in principle not against a November elections date, argues that maintaining the December 7 date for this year's elections will give the EC one additional month to prepare and organise free and fair polls.

Last Friday, a Constitutional Instrument announcing December 7 as the date for this year's Presidential and Parliamentary elections was laid in Parliament. It came from the EC, and would require 21 sitting days in the House to become law.

As things stand, unless MPs vote to overturn the decision they took on Thursday so that there will be a second shot at amending the 1992 Constitution; December 7, 2016 remains the day Ghanaians will vote to elect a new President and a new Parliament.

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By: Richard Dela Sky/citifmonline.com/Ghana
The author, Richard Sky, is the Editor, Features and Current affairs at Accra-based Citi 97.3 FM. Mr. Sky hosts Eyewitness News, an award winning news magazine programme on Citi FM. The author has over a decade of rich experience in Parliamentary and Political reporting.