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30.06.2005 Feature Article

Response to K. B. Asante on The Law About Voting Should Not Change

Response to K. B. Asante on The Law About Voting Should Not Change
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Mr. K. B. Asante's commentary on the voting rights of Ghanaians in the Diaspora (The Law About Voting Should Not Change Daily Graphic 6/27/2005) betrays his total and complete misunderstanding of the relevant issues. Mr. Asante draws a parallel between language in article 18 (every person has a right to own property) and in article 42 (every Ghanaian has a right to vote and is entitled to be registered) and concludes that the arguments being made to compel the Electoral Commissioner (EC) to comply with article 42 can also be used as a basis “to pass a special legislation to ensure that we all own property.” Apparently, Mr. Asante fails to see that the State does not stand in the way of anyone seeking to own property but the State, via PNDC law 284, stands in the way of many Ghanaians seeking to register as voters.

Mr. Asante accuses those arguing that the constitution does not restrict the right to vote to citizens resident in the country of engaging in “sixth form logic.” Yet, he fails to explain why the “sixth form logicians” are wrong, choosing to counter the “sixth form logic” with, what he calls an 'O' level question: “are we going to make special arrangements for sick persons in Ghana to vote because the constitution does not empower only healthy citizens to vote?” Stating it rather mildly, this is not an “O” level question, it is a dumb question! We have made and should continue to make special arrangements for sick persons, embassy staff, military personnel, EC staff, etc. to exercise their fundamental right to vote. Since Mr. Asante so emphatically misunderstood the issues and may possibly have misled some readers, it is important to clarify the issues at stake. The debate on whether Ghanaians living outside Ghana should be registered to vote is, at bottom, a debate over whether we want to be ruled by the Constitution or by PNDC laws. Article 42 of the constitution makes it abundantly clear that “every citizen of Ghana of eighteen years of age or above and of sound mind has the right to vote and is entitled to be registered as a voter for the purposes of public elections and referenda.” Plainly and unambiguously, this article grants the right to be registered to vote to any and all sane Ghanaians who are eighteen years or older without any residential qualifications.

Further, not only does article 42 extend the right to be registered to vote to every eighteen year old sane Ghanaian, but also the constitution imposes significant sanctions on any qualified Ghanaian who fails to register. For instance, one who is not registered to vote is disqualified from being a member of Parliament (MP) (see article 94(1)(a). One who cannot be an MP is disqualified from holding many public positions including a minister of state (see article 78(1)); a member of the EC (see article 44(1)); president or Vice President (see article 62(c)); a member of the Public Services Commission (see article 194(3)(a)); and a member of the National Commission for Civic Education (see article 232(3)).

Thus, the right to be registered as a voter is one that is to be taken very seriously by all Ghanaians, especially the Electoral Commissioner (EC) who must do everything within his powers to ensure that no qualified Ghanaian, who is willing to register, is denied access. In light of the importance of the right to register, the Supreme Court ordered the EC to register Tehn Addy for the 1996 elections, even though Mr. Addy showed up to register after the EC had closed down his registration window.

It is important to understand that because the right to be registered to vote is conferred by the constitution itself, it is, in my opinion, entirely meaningless, as Parliament tried to do under a certificate of urgency in 2004 and as the current bill tries to do, to re-grant it to Ghanaians living abroad. You cannot be given what you already have. Nor, more important, can that right be taken away by any law (or for that matter social commentators, political leaders, or student leaders). As Chief Justice Acquah indicated in Tehn Addy v. Electoral Commissioner, a right that is granted by the constitution can only be taken away by the constitution itself.

Ergo, the only one way to modify or otherwise alter article 42 is by a constitutional amendment. Further, because article 42 is an entrenched provision, it can be altered only by a referendum held throughout Ghana, where at least forty percent of the persons entitled to vote (including registered Ghanaians everywhere) actually cast a ballot and where at least seventy-five percent of the persons who voted cast their votes in favor of the amendment. Put another way, the grant of universal adult suffrage in article 42 is a perdurable feature of our constitutional edifice. And for good reason, for all our other rights are illusory unless they are backed by the right to vote. It follows that any law that takes away the right to vote, as provided in article 42 is unconstitutional, void and of no effect.

If article 42 is so clear, what then seems to generate this debate on who should and should not be registered to vote? The answer, annoyingly and unknown to most people such as Mr. Asante, lies in section 7 of PNDCL 284 (Representation of the People Law), which imposes a residency requirement for being registered as a voter. Like many of the PNDC laws that we fought so hard against, section 7 of PNDCL 284 ignores the plain mandate of article 42 and illegally imposes its own registration scheme. That unconstitutional section 7 provides that an eighteen year old citizen of Ghana who is of sound mind must be resident in a polling division, defined as having a place of abode in the division, before she can be registered. Further, the section provides that “a person shall not be deemed to be resident in a polling division if she has been absent from her place of abode for a continuous period of six months ending on the qualifying date.”

What is the effect of section 7? First, plainly section 7 automatically disenfranchises Ghanaians who are resident overseas. Second, that section disqualifies otherwise qualified citizens who reside in Ghana but who travel and stay outside the country for the 6 months period preceding the registration exercise. Thus, if Ama Serwaa, a trader at Kantamanto, travels overseas to visit his son for 6 months (perhaps to see the grandkids) and Ama Serwaa flies back into Ghana just before the elections, our EC would not register her because of section 7 of PNDCL 284. This encumbrance on Ghanaians who live in Ghana is one that is not well known. It should be emphasized that citizens who reside overseas (permanently or temporarily like Ama Serwaa) but nevertheless register to vote and/or vote are breaking the electoral laws of the country.

Further subsection 8 of the same law exempts some Ghanaians living abroad from the reach of the law. The exempted persons include those who work in the diplomatic missions and their spouses, persons working with international organizations of which Ghana is a member (e.g., World Bank, IMF, UN), students on government scholarship, and members of the armed forces and the police on peacekeeping duties. These persons are registered through the assistance of the Ministry of Foreign Affairs or the appropriate military or police authority. Once registered, they can either vote in person in Ghana or vote by proxy.

The preceding background information raises two questions: (1) can PNDCL 284 undo the registration scheme in article 42? (2) Assuming that PNDCL 284 is stricken down as unconstitutional, which it should be, can the EC nevertheless treat Ghanaians living abroad differently (that is, can the EC selectively register Ghanaians Overseas)?

The answer to the first question has to be a resounding negative. The very first article of the constitution provides that “the Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.” That resolves the matter and PNDCL 284 is not enforceable and should not be enforced. Second, any doubts about what article 42 means has already been resolved by the SC, which has held that the right to vote is derived from the constitution itself and cannot be denied in the absence of a constitutional provision to that effect. Third, in light of this interpretation by the Court, all bodies who uphold PNDCL 284 are in contempt of the SC and should be so held. Therefore, in my opinion, the EC is in contempt of Court. Further, the bill before parliament is unconstitutional. Parliament has no power to decide who can vote. The constitution has resolved that in article 42. The Supreme Court must strike down PNDCL 284 as unconstitutional and the EC must comply with article 42 and the decision in Tehn Addy. Article 17(1) of the constitution is relevant to answering the second question. That article provides that “all persons shall be equal before the law.” That is a terse way of asserting that similarly situated Ghanaians should be treated in like manner. Neither the EC nor any governmental agency is allowed to discriminate unless there is a valid reason for doing so. What is a valid reason is, of course, dependent on the right in question. Here, we are dealing with the right to register to vote, which is the most precious right in a democracy. Consequently, only a compelling reason by the EC will justify the selective registration. Put another way, the selective registration of Ghanaians living abroad CANNOT pass constitutional muster!

Again, the case law should counsel the EC to put an end to this discriminatory practice. In Tehn Addy, the EC opened the supplementary register for Ghanaians who had turned 18 but not for Mr. Addy. The Court rejected the selective registration and held that Mr. Addy should be registered. PNDCL 284 allows some Ghanaians (those working in Ghana's foreign missions, students on government scholarships abroad and Ghanaians working with international organizations of which Ghana is a member), but not others, to register in their country of residence. That is the type of selective registration that was rejected by the Court. Having found a way to register some Ghanaians resident overseas, the EC is bound by the constitution to extend that facility to all eligible Ghanaians. To register some eligible voters resident overseas, but not others, would create a system of constitutional caste that is manifestly contrary to article 17(1) and article 42, that ignores the holding in Tehn Addy, and that does irreparable harm to the excluded class.

Therefore, once sections 7 and 8 of PNDCL 284 are stricken down, as they should be by the Supreme Court, the EC's excuse for failing to register Ghanaians who live overseas or those who stay overseas for 6 months would eviscerate and the debate on whether overseas residents should be registered would be resolved.

Let me now turn my attention to the so called logistical problems that some have used in pursuit of their agenda of disenfranchising their fellow Ghanaians. As I have noted, the EC has a facility in place already to register some Ghanaians who live abroad. Therefore, what we are talking about here is not the emplacement of a new facility but an extension of an existing facility to all Ghanaians wishing to exercise their constitutionally protected right.

The existing laws allow the EC to appoint the head of a Ghana Mission or Embassy abroad as a registration officer, and give appropriate instructions to him or her for purposes of registering voters. The various registration officers so appointed by the EC will simply invite interested citizens to apply to register with supporting materials indicating that they are qualified (sane, Ghanaians and over 18 years). This is hardly a daunting task. As a matter of fact, many of the embassies already maintain a database of Ghanaians and such an exercise would be one of maintenance.

As with citizen at home, citizens in the Diaspora will register for the districts and constituencies that they “hail from” or “reside in.” Voting can then be done by proxy, mail or as with most developing countries by voting at the embassies. With this latter approach, the EC, based on the registration exercise at the embassies, will send the required number of ballots to the embassies for distribution to the registered voters. The voters simply cast their ballots and mail it to the embassies. Significantly, voting by overseas residents is so commonplace that it is now standard practice for an embassy to obtain the necessary assistance from the election authority in the respective country to conduct the election. In effect, the EC of Ghana can simply enter into agreements with the EC of various countries to assist in this process.

Given our financial condition, I will be remiss if I did not touch on the cost of this project. The solution is to make it a self-financing project. In other words, let the overseas residents bear the cost of this exercise. If the administrative cost of extending the facility to them is, as an example, $25 per head, then each registrant should be made to pay that cost.

Let me emphasize that the EC, when PNDCL 284 is stricken down, cannot merely declare a two weeks period and invite all Ghanaians living abroad to come home and register any more than he can ask all citizens in Ghana to come to Accra to register. For the right to register to be meaningful it must be accessible and for those who live outside Ghana that means registering at the embassies, which after all exists for exactly these matters.

Let me conclude by expressing my utter disappointment with those Ghanaians who, somehow, think they have the right to determine which Ghanaians are eligible to be registered as voters. The right to be registered to vote is not a right that is going to be decided by opposition press conferences and NUGS statements or by some Ghanaians. The right to be registered to vote is not a right that is going to be decided by PNDC laws or by Mr. Asante's reckless “cyto” logic. It is a right that is guaranteed to all Ghanaians by the constitution! The right to be registered to vote is the most important right and all true patriots must make it their civic commitment to ensure that that right is NEVER denied to any qualified Ghanaian. S. Kwaku Asare (Kwaku Azar) Views expressed by the author(s) do not necessarily reflect those of GhanaHomePage.

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