Article 94 Of The 1992 Ghana Republican Constitution: Electoral Commission (EC) Must Not Decide Qualification; It Is The Constitution That Decides

It is regrettable to read from the Supreme Court that “the time for attaining the eligibility and qualification status of a parliamentary candidate therefore ’comes alive’ and ‘come into force’ from the time the EC sets the date to file nominations or parliamentary elections’.

This particular Article is the exact replica of Article 71 of the 1969 constitution that barred Mr. Komla Gbedemah from entering Parliament. It did not prevent him from filing for nomination, being a candidate, being elected and, eventually, being a parliamentary candidate-elect.

Article 94—Qualifications and Eligibility.

(1) Subject to the provisions of this article, a person shall not be qualified to be a member of

Parliament unless—
(a) he is a citizen of Ghana, has attained the age of twenty-one years and is a registered voter;

Per the Supreme Court’s stance, if the EC decides to open nomination for the 2024 elections in December of 2023, then any one who does not attain the age of twenty-one by then will not be qualified to file nomination to become a member of Parliament. This is wrong. The EC may set any date to file nominations but should not affect the constitutionally mandated qualification criteria, which is being twenty-one years on the first day of Parliament for parliamentarians and forty years for the Presidency on swearing in. Ghanaians do not have to be at the mercy of the EC as to when this qualification takes effect.

The Supreme Court has been very evasive of Professor Kwaku Asare’s, aka Kwaku Azar, question: “The law does not say anything about when this disqualification applies. Is it at the time of filing for the party primary, national election, voting day, or on the first day of Parliament?”.

It is on the first day of Parliament when the Speaker can make a simple roll call to find out if there is any one in Parliament who is not twenty-one years; not any time before.

If the person is a citizen of Ghana, a registered voter, and will be twenty-one years on January 07 of the year of first sitting of Parliament, that person should be qualified to be a member of Parliament. If the EC decides to have nomination filed on June 07, for instance, then per the current Judiciary stance those born after June 07 of the year of election will not be qualified to be members of Parliament because at the time of filing, they were not twenty-one years. In 2016 the filing of nominations was in September. In 2020 the filing of nominations was in October. If the framers of the Constitution intended candidates to be twenty-one years in September one election year, and twenty-one years in October in another election year, then common sense was on a long vacation. It is not at the time of filing but when they are entering Parliament.

Written by
Nana Osei Mensah Bonsu
(Migration and Citizenship Consultant)