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13.07.2005 General News

Registration Of Overseas Ghanaians: Right Or Privilege?

Kwamena Ahwoi/IEA.

AN ANALYSIS OF THE REPRESENTATION OF THE PEOPLE (AMENDMENT) BILL (ROPAB) Kwamena Ahwoi*

PART ONE:

HOHFELD'S “RIGHTS” THEORY AND THE REPRESENTATION OF THE PEOPLE (AMENDMENT) BILL (ROPAB)

Introduction

Students of Jurisprudence in the various Faculties of Law of our Universities who have an appreciation of Hohfeld's Rights Theory must be having a field day with the debate that has arisen over the 'Representation of the People (Amendment) Bill' (ROPAB), and the question of the “right” of “citizens of Ghana resident outside the Republic” (overseas Ghanaians) to register and vote in elections in Ghana.

For a Bill as short as the ROPAB is, it is amazing the depth of feeling and passion that it has aroused.

It is the thesis of this paper that any decision to register overseas Ghanaians at their places of residence as proposed under the ROPAB is not really a question about “rights” at all, but about “privilege”.

It will be argued as another thesis that underneath the feelings and the passions that have been aroused by the ROPAB is the deeper political question of sovereignty; who make decisions of governance for the people of Ghana – Ghanaians resident in Ghana or Ghanaians resident outside Ghana?

In other words, the question of “who can vote in Ghanaian elections” is not really easily answered by those who cryptically state that, “the Constitution says every Ghanaian over 18 years of age and of sound mind is entitled to vote”.

It is the third thesis of this paper that there are serious practical and administrative hurdles to be cleared before the provisions of the ROPAB can be implemented if overseas Ghanaians are to be enabled to register and vote in their places of residence abroad.

Hohfeld's “Rights” Theory But first things first. What is Hohfeld's “rights” theory and what is the relevance of the theory to the discussion of the ROPAB?

The looseness that is often associated in the use of the word “right” is starkly illustrated in the way proponents of the Bill talk as if the “right” of Ghanaians abroad to citizenship is being infringed if the ROPAB is not passed into law. No doubt students of jurisprudence in our universities might come to our rescue by bringing to mind the lessons from the young jurist, Hohfeld that we learnt once upon a time.

Hohfeld was struck by the fact that many problems of legal reasoning and analysis arise mainly from misuse of legal terminology. The word “right” in particular tended to be applied to many different kinds of legal relations, and it was necessary to obtain a clearer appreciation of what particular legal situation was at stake when a “right” is invoked.

Hohfeld, therefore, sought to determine what was the correlative of a right. He showed how a “right” always involved a claim against another person, which he therefore called a “claim-right”, and which therefore imposed a correlative “duty” on that other person.

A “claim-right”, he pointed out, is one's affirmative action against another. A “right”, in the right sense, is also always exercisable against an individual and never against a thing. He therefore categorises “rights in rem” as legal fiction and would reduce all rights to “rights in personam”.

Whenever a person claims that he has a “right”, he means that another person owes him a “duty” that he shall not interfere with the exercise of that right. In that sense, a “duty” is the correlative of a “right”, so that the statement “A has a right”, which is properly rendered as “A has a right against B”, or better still, “A has a claim-right against B”, is the same statement as “B owes a duty to A”.

There is however another situation which looks like a “claim-right” situation but which is not really a “right” situation at all. This is when a person has a choice to do or not to do a thing. This apparent “right” situation, Hohfeld calls a “privilege”.

For example, the statement “A has the right to free speech” actually encompasses two different senses of the word “right”. The decision whether to speak or not to speak is A's choice to make. He cannot be compelled to speak, but neither can he be prevented from speaking. He has the privilege of speaking or not speaking. The legal relation between B and A that A shall not be prevented from speaking is captured under Hohfeld's terminology of a “no-right” in B that A shall not speak.

Understood in this sense then, the correlative of a claim-right is a duty, and the correlative of a privilege is a no-right; the opposite of a claim-right is a privilege and the opposite of a duty is a no-right.

Schematically presented, Hohfeld's schema looks like this:

Claim-Right Correlative Duty

Opposite Opposite

Privilege Correlative No-Right

To appreciate the significance of Hohfeld's “Rights Schema” to the ROPAB, we reproduce in full the provisions of the rather short ROPAB. The two-clause Bill states as follows:

“PNDCL 284 amended

The Representation of the People Law, 1992, (PNDCL 284) as amended is further amended as follows:

(a) by the substitution for section 8 of the following:

“Registration of Ghanaian citizens abroad

8 (1) A person who is a citizen of Ghana resident outside the Republic is entitled to be registered as a voter if the person satisfies the requirements for registration prescribed by law other than those relating to residence in a polling division.

(2) The Commission may appoint the Head of a Ghana Mission or Embassy abroad or any other person or institution designated in writing by the Commission as a registration officer to register a person to be a voter for an election.

(3) The Commission may give such directions as it considers appropriate to a person appointed as a registration officer”.

(b) by the insertion of the following after “by election” in section 50, “citizen” means a citizen of Ghana under the Citizenship Act, 2000 (Act 591)”. Commencement of this Act

2. This Act shall come into force on a date to be determined by the Commission in an Executive Instrument issued under the hand of the chairman of the Commission.”

Application of Hohfeld's Theory and the ROPAB

Applying the above Hohfeldian analysis of legal relations to the ROPAB, the following interesting consequences arise.

The right to Ghanaian citizenship is conferred by the Constitution and the Citizenship Act.2 Those enactments put every other person under a duty that a person's Ghanaian citizenship shall not be taken away.

But does every Ghanaian citizen have a right to register under the Representation of the People Law?3

In strict Hohfeldian terms, the answer is no. The laws give an opportunity to every Ghanaian citizen who wants to register, including overseas Ghanaians, to do so, and thus create a no-right in all other persons that such a Ghanaian be not prevented from registering.

In other words, the overseas Ghanaian who is otherwise qualified to register has a choice, to register or not to register. This is a typical Hohfeldian privilege, which creates a no-right in all other persons that such an overseas Ghanaian shall not exercise such a choice. The privilege of the overseas Ghanaian registering is the no-right in all other persons that such a Ghanaian shall register or shall not register.

Now, is there anything currently that legally prevents the overseas Ghanaian from registering as a voter?

The answer is yes. Section 7(1)(c) of the Representation of the People Law, 1992, requires that to be registered as a voter, a Ghanaian citizen must be resident in the polling division where he intends to register. Since overseas Ghanaians cannot meet this requirement, it means that they are denied their claim-right to register to vote. The Electoral Commission which is the registering authority and which uses that provision to deny overseas Ghanaians registration, breaches its duty to the overseas Ghanaians that their claim-right to register be not interfered with.

What about the facility being offered the overseas Ghanaians to register in their overseas places of residence under the ROPAB? Of what legal significance is it?

The answer is, none whatsoever. It will be realised from the analysis so far that this is absolutely unnecessary from the legal point of view. Apart from the residence requirement, nothing prevents any overseas Ghanaian from registering and voting in Ghana.

The only impediments may be cost and convenience, but these are not legal impediments for which a law is required. Besides, the people of Ghana as taxpayers also put themselves to cost and inconvenience in providing facilities for the registration of overseas Ghanaians at their overseas places of residence.

Since cost and convenience are not legal impediments to registration, no overseas Ghanaian can go to court and successfully argue that his claim-right to register has been infringed because a registration centre was not opened at his overseas place of residence. Such a Ghanaian can however argue successfully that as a result of the polling division residence requirement, his claim-right as a Ghanaian citizen to register has been infringed.

Indeed such a Ghanaian can argue further that the whole of the polling division residence requirement infringes the constitutional provision that allows for any Ghanaian citizen satisfying specified conditions (age, mental state, etc) to register and vote.

That argument, and the earlier one based on strict Hohfeldian analysis however, are valid not only for overseas Ghanaians but for Ghanaians resident in Ghana as well.

Take a person who ordinarily resides in Accra but during a registration period finds himself in Tamale. The polling division residence requirement will compel him to travel to Accra to register. The only difference between him and the overseas Ghanaian travelling from say his London base to register is that the cost and inconvenience our friend who finds himself in Tamale suffers is less than that suffered by the London-based Ghanaian.

To that extent therefore, the waiver of the residential requirement for overseas Ghanaians alone is discriminatory. If that requirement is to be waived, then it must be waived for all Ghanaian citizens and not for overseas Ghanaians alone.

These theoretical Hohfeldian difficulties must also be weighed against the very practical problems that arise with any attempt to remove the “residence” qualification.

The conduct of elections is an important part of democratic practice and the credibility of election processes is vital to the sustenance of democracy. Indeed, the very stability of the nation is threatened when the electoral machinery becomes a tool for a Government maintaining itself in power at all costs.

The brazen way in which it is being sought to undermine the democratic process in Ghana through an insistence on forcing through the ROPAB must be a source of concern even to the Ghanaians abroad that the Bill, on the surface, appears to be favouring.

For Ghanaians at home, the Bill and the potential it creates for anarchy must be of particular concern since they, unlike Ghanaians abroad, will be at the receiving end of any anarchic situation that erupts. Anyone interested in good governance in Ghana ought to pay attention to the dangerous situation that is being created for the country should the Bill become law.

Lest we forget, the Government had tried to pass this Bill just a few months before the 2004 elections. After protests from the opposition parties, the Government held back on the Bill but now appears determined to force the Bill through Parliament at all costs.

Section 7(1)(c) of the parent enactment provides that to be registered as a voter, a Ghanaian citizen must be resident in the polling division where he intends to register. This provision, which is essential for the effective administration of elections in Ghana, is by no means unique to Ghana. It would seem to have particular significance for us in Ghana because Ghanaians in Ghana are invariably the best police of our democracy. They can best observe who is trying to vote when they are not registered in that polling division; they can best ensure the consistency between what is in the register of voters and what is happening on election day. That what happens at polling stations throughout the country on election day is widely seen as the measure of our democracy is also the reason why election observers descend on the various polling stations throughout the country to gauge the credibility of our electoral process.

The Electoral Commission of Ghana has established the polling divisions where Ghanaians are to register and those divisions are located in Ghana. The practical and legal reality is that the power of the Electoral Commission in respect of this crucial administrative role is over the territory of Ghana. It is not a worldwide power. Even the operation of this administrative role within Ghana has had its challenges, how much more if, as the Bill seeks to do, the Electoral Commission has to take the whole world as its orbit and to create polling divisions worldwide!

The crucial question is, does the provision governing the conduct of elections in Ghana take away the right of citizenship of a Ghanaian who, by virtue of residence abroad, is unable to meet the requirement of being resident in a polling division? The obvious answer, even in Hohfeldian terms, is, “Of course not!”

Yet it is this argument about the so-called rights of overseas Ghanaians, which is being used in order to justify a possible manipulation of the electoral process and an undermining of the credibility of the election results.

In the Memorandum to the ROPAB, the Attorney General states: “Article 42 of the Constitution empowers every citizen of sound mind to register as a voter”. He then goes on to refer to the mandate of the Electoral Commission under Article 45 “to, amongst other things, compile the register of voters”.

Essentially, therefore, what the Government is seeking to do with the Bill is to interfere with this mandate of the Electoral Commission by proclaiming a so-called “right” of all Ghanaians abroad not to be required by the Commission to show residence in a polling division as a precondition of registration to vote. Where did this “right” come from?

The Attorney General recently responded to certain arguments about the Government being in breach of constitutional provisions about the appointment of District Chief Executives by asking those who expressed that view to go to court to have the matter determined. If he and the Government believed that the Electoral Commission was acting in breach of the “rights” of overseas Ghanaians, or even that the parent enactment was in breach of the Constitution, why did he not take the matter to court to obtain an authoritative statement on the matter?

It is important to stress that there is no legal bar to an overseas Ghanaian fulfilling the legal requirements for registering as a voter in Ghana, except where by virtue of residence abroad, that Ghanaian is simply incapable of meeting the requirement of residence in a polling division. Yet this requirement is crucial to the administration of elections in Ghana and has been the basis of all elections conducted under the 1992 Constitution. Can overseas Ghanaians question the validity of all the elections held under the 1992 Constitution on the grounds that they were disenfranchised?

There is also this practical difficulty. If voters are not identified with the polling divisions established by the Electoral Commission, how are the constituency registers to be compiled for the purpose of the Parliamentary elections, for instance? Are overseas Ghanaians going to have the liberty of deciding which constituency in Ghana their vote should be related to or are there in effect going to be new “overseas constituencies”?

Faced with this difficulty, the Chairman of the Electoral Commission, at a briefing he gave to Parliament on 6th June 2002, made the following observation: “For purposes of incorporating all Ghanaian citizens living abroad into our electoral system, the most practical and cost-effective arrangement ought to be to allow them to vote only in the Presidential election”.

But if indeed rights of overseas Ghanaians are at stake, then those rights cannot be restricted to the Presidential elections. This only serves to underscore the point that the Government is forcing views on the Electoral Commission and the Chairman of the Commission is put in a position of having to consider how far those views can be accommodated.

To summarise: Overseas Ghanaians have the privilege to register or not to register to vote in elections; Once an overseas Ghanaian decides to register, he has a claim-right that he be not prevented from doing so, and puts the Electoral Commission under a duty not to prevent him from registering; The requirement of residence in a polling division before qualifying to register cannot be met by overseas Ghanaians and therefore constitutes a legal impediment to their ability to register and vote; To the extent that overseas Ghanaians can travel to register in Ghana, no claim-right of theirs is infringed. In other words, no claim-right of overseas Ghanaians is breached by the present arrangement that restricts registration to Ghana's territory; The cost and inconvenience to overseas Ghanaians who may wish to travel to Ghana to register do not constitute a legal barrier which can be enforced in court. PART TWO: CLAUSE-BY-CLAUSE ANALYSIS How many Overseas Ghanaians?

Even before the clause-by-clause analysis, an important matter worth considering in all discussions about voting and voting patterns is the issue of statistics. It is possible to know the total population of the country. In fact, it is known. It is possible to determine the total number of registered voters. It is possible to determine the total turnout at the polls, the percentage voting for or against particular political parties or candidates etc and therefore pronounce on the political legitimacy of parties and candidates.

However, no such information is available about the total number of “Ghanaians resident outside the Republic” (overseas Ghanaians), either globally or on a country-by-country basis. This makes it very difficult to pronounce on the likely impact of the votes of overseas Ghanaians on Ghanaian elections.

But this information is important, because if it turns out that there are more Ghanaians outside Ghana than there are inside Ghana, it means that the overseas Ghanaians will be deciding on the nature and shape of the Government of Ghana. In that situation, would the Government of Ghana's primary responsibility be to Ghanaians resident in Ghana or overseas Ghanaians? And what will that mean for the political legitimacy of such a government as far as Ghanaians resident in Ghana are concerned?

Or even if overseas Ghanaians are not more than resident Ghanaians but are in significant enough numbers to swing the votes in favour of one party or another, the same issue of the Government's primary responsibility will arise.

Again for purposes of planning for any elections, it is important to have an idea of the numbers of overseas Ghanaians that one is talking about.

The first step towards a system of effective and controlled registration of overseas Ghanaians is for a complete census to be taken of all such Ghanaians. Since this will ultimately become part of the population data- base of the country, such an exercise must be undertaken by the Statistical Service or under its auspices. However, if it is envisaged to be used for electoral purposes only, then it may be undertaken under the auspices of the Electoral Commission.

Who is a Qualified Overseas Ghanaian? A related issue is who qualifies to be registered. The simple answer is, “a Ghanaian citizen”.

The more difficult question is, “who is a Ghanaian citizen” for the purposes of the overseas Ghanaian voter registration exercise?

That question is not so easily answered, even though the flippant answer will be to refer to the Citizenship Act.

Inside Ghana, various measures are instituted to confirm the identity of persons claiming to be Ghanaians. Agents of political parties are present during the registration exercise to challenge the citizenship of persons who are suspected not to be Ghanaians. A District Committee exists to investigate the citizenship of persons whose citizenship is challenged, and there is recourse to the High Court from the decision of the District Committee.

All these safeguards will be lost in the case of overseas Ghanaians registered abroad, and it is important that analogous measures be instituted before any registration of overseas Ghanaians is considered.

It could be argued that passports are a certain means of identification of Ghanaians for purposes of such registration. But it is a notorious fact that Ghanaian passports have been and are counterfeited worldwide and cannot be relied on for such an exercise.

Besides, if passports are to suffice for overseas Ghanaians, then they should suffice for resident Ghanaians as well, and not only passports, but any other form of acceptable identification such as Driver's Licence, Birth Certificate, etc.

The issue of identification is only one of the many practical political consequences of any decision to register overseas Ghanaians abroad. For example, should there be a challenge to an overseas voter, there cannot be a recourse to the Ghanaian courts in a timely fashion, unless it is envisaged that foreign courts should have jurisdiction over matters arising in the course of our elections!

In any case, legislation in Ghana cannot confer jurisdiction on foreign courts and there would have to be treaties negotiated with foreign authorities if they are to play any roles in our elections.

In these circumstances, it is very possible to have a situation in which the practical problems of the elections conducted abroad make it difficult to declare election results in Ghana, as if we do not have enough problems with the conduct of elections just in Ghana!

When is an overseas Ghanaian “resident” outside Ghana? There is a third concept used in clause 1(1) that also creates serious difficulties: the concept of “resident outside the Republic”. They include the following: What is meant by “resident” in this context? How long must such a person have been “resident” outside Ghana? Is a person who finds himself outside Ghana during a period of registration “resident outside the Republic” for purposes of this clause? These are not idle questions because the law, especially in the area of Conflict of Laws, has long grappled with the concept of “residence” and sought to draw a distinction between “residence” simpliciter, “ordinary residence” and “habitual residence”.

It is accepted that “residence” is basically a question of fact, and that it may mean little more than physical presence. But it is also considered that it does mean something more, for a person passing through a country as a traveller is clearly not resident there.

A person's state of mind may be relevant to the question whether he is present in a country as a traveller or as an inhabitant, but, subject to this point, residence may be established without a mental element; there is no requirement of “animus residendi'4.

For example it has been determined that in order to be “resident” in a country, a person need not own or rent a house there. It is sufficient if he lives in a hotel5 or in the house of a friend6 or even in a military camp.7

Part of the point about “resident outside the Republic” is that it may require having recourse not only to legal difficulties of “resident” in Ghanaian law but also definitions in the laws of the country where the Ghanaian claims to be resident. That is what brings up the conflict of laws issues. There will be questions about for example whether a person is resident in the UK if according to UK law he is not resident there. There will be issues about illegal residents abroad, which will give the Electoral Commission the additional burden of liasing with foreign immigration authorities. The difficulties are numerous.

There are further legal difficulties. Under the Representation of the People Law, a person “shall be deemed to be resident in a polling division on the qualifying date if he has a place of abode in the division on that date”8 and “a person shall not be deemed to be resident in a polling division if he has been absent from his place of abode for a continuous period of six months ending on the qualifying date”9.

Since these sections have not been amended in the ROPAB, it could be argued that they can be prayed in aid in the interpretation of “resident” as used in the phrase “a citizen of Ghana resident outside the Republic” in the ROPAB, but once this is done, the question of proof will loom very large indeed.

The inescapable conclusion from this analysis is this. The word 'residence” is not easily defined and within the context of both case law and legislation does not have an agreed meaning. Yet it seems to be a term of art. Unfortunately, the ROPAB does not define what “residence” means.

In order to allow for ease of interpretation, it is important that the concept of “residence” for purposes of registration of overseas Ghanaians abroad be defined.

Alternatively, if the intention is to enable all qualified Ghanaians outside the country to register and be able to vote, then the drafting could be changed to read as follows: “A person who is a citizen of Ghana and who is outside the Republic during a period of registration is entitled to be registered as a voter if-----”

Registration Officers for “Overseas Ghanaians” Under PNDCL 284, Heads of Ghana Missions and Embassies could be appointed by the Electoral Commission as registration officers for purposes of the registration of overseas Ghanaians.10 This was practical, effective and convenient because the category of overseas Ghanaians who qualified to be registered was very few and they were invariably already registered with or known to the Ghanaian Missions and Embassies. They comprised:

· Ghanaian citizens employed in posts outside in the service of the Republic; or

· Ghanaian citizens employed in posts outside Ghana in the service of the UN or of any other international organisation, and their spouses where they are Ghanaian citizens.11

In implementation, these provisions were interpreted to cover Ghanaian military, police and civilian officers and officials on Peacekeeping Missions overseas and to Ghanaian students on Government scholarships in overseas institutions.

Information available from the Electoral Commission shows that the total numbers in all these categories have never exceeded 10,000 persons.

It is a completely different matter when the facility is to be extended to all qualified overseas Ghanaians. Since these could run into millions, they could very materially and substantially affect the outcome of elections. The neutrality of the registration officials must therefore be guaranteed. This cannot be the situation with Heads of Missions and Embassies, especially where many of them are political appointees.12

It is true that clause 1(a) of the ROPAB makes it possible for the Electoral Commission to appoint non-Heads of Missions and Embassies as registration officers by the addition of the words, “-----or any other person or institution designated in writing by the Commission”, but the new dispensation sought to be introduced by the ROPAB makes it imperative that Heads of Mission and Embassies be kept out of the process entirely and the Electoral Commission left to appoint persons of their choice as registration officers.

The largely partisan colouration of the Heads of Ghana Missions and Embassies abroad makes it totally inadvisable for them to play any role in the registration and voting process.13

Effective Date of the ROPAB

Clause 2 of the Bill vests the power to determine the commencement date of the law, once passed, in the Electoral Commission. Presumably, this is to ensure that the Electoral Commission will be ready to implement the law when it says it is ready.

But the Electoral Commission cannot legally begin to do any of the things that it has to do to get itself ready until the law has come into force, so that we are faced with a chicken and egg situation. Does the Electoral Commission begin to get ready before the law comes into force or the law comes into force before the Electoral Commission begins to get ready?

Even more importantly, it appears that Clause 2 amounts to a cession of legislative power by Parliament, which itself may be unconstitutional. Article 93(2) of the Constitution vests the legislative power of Ghana in Parliament to be exercised in accordance with the Constitution. Under Article 106, that legislative power is exercised by Bills passed by Parliament and assented to by the President. Article 106(11) states as follows:

“Without prejudice to the power of Parliament to postpone the operation of a law, a bill shall not become law until it has been duly passed and assented to in accordance with the provisions of this Constitution and shall not come into force unless it has been published in the Gazette”.

Never in any democracy is legislative power given to a public officer or a public institution other than Parliament to determine when a law made by Parliament and assented to by the President should come into force. Assuming the Electoral Commission does not exercise the discretion, can mandamus lie against the Commission to compel it to exercise the discretion?

Another technical problem that arises from the wording of the Clause is that the power given to the Electoral Commission is to be exercised by an Executive Instrument. But Executive Instruments are normally issued by members of the Executive, either the President or a Minister. Will the Electoral Commission be issuing the Executive Instrument on behalf of the President?

In any case, Article 51 of the Constitution is the only article which vests power in the Electoral Commission to make regulations, and those regulations are to be made by Constitutional Instrument. It is not clear whether Parliament can circumvent this and vest the power to make regulations by Executive Instrument in the Electoral Commission.

Finally on this subject, the people of Ghana vested legislative powers in our representatives in Parliament, not in public servants. The commencement date of a law is part of the legislation and it may be exercised by a Minister on behalf of Parliament (and even that is doubtful), but in a public servant who is not responsible to Parliament seems to be stretching the powers of Parliament a bit too far.

It is the contention of the author that the Electoral Commission can only use a Constitutional Instrument to give effect to provisions of the Constitution or any other law, but this does not include the power to bring into operation a law passed by Parliament when it chooses to do so.

ROPAB: Implications and Ramifications As this analysis has made clear, the implications and ramifications of the ROPAB are many and varied. It would be prudent to make haste slowly. It is wise that the Parliamentary Committee on Constitutional, Parliamentary and Legal Affairs has decided to undertake a countrywide tour to solicit views on the Bill.

That period should also be used to rethink the clauses of the Bill that are likely to pose constitutional difficulties and lead to difficulties in implementation, and sufficient time allowed for a thorough reconsideration of the Bill, if it should be passed at all.

To summarise:

· We need an idea of the likely numbers involved of overseas Ghanaians who may be registered if the ROPAB should become law;

· The issue of “a Ghanaian “citizen” outside the Republic” who qualifies to be registered under the Bill and how he is to be identified must be clarified;

· Similarly, the issue of a Ghanaian citizen “resident” outside the Republic who qualifies to be registered under the Bill must be defined; · It is not appropriate under the ROPAB to make Heads of Ghana Missions and Embassies registration officers for the purposes of the ROPAB; · It may not be constitutional to vest the discretion in the Electoral Commission to determine by Executive Instrument or at all when the law should come into force.

PART THREE MISCELLANEOUS

There are other ancillary but very serious matters associated with the ROPAB, which are not covered by the Bill. They include, but are not limited to, the following: · What is the comparative situation in other countries in relation to the registration and voting of their overseas citizens abroad? · Should the ROPAB become law, in which countries or jurisdictions should registration centres be opened? · Has the whole ROPAB exercise been costed, and has it been determined that the cost can conveniently be absorbed by the Exchequer? · Is there not a case for re-examining the basis for extending the franchise to all Ghanaians as opposed to restricting the franchise to Ghanaians resident in Ghana or better still Ghanaians in Ghana?

Comparative Study In a study of 97 countries carried out in 1998, the results of which were contained in the brief presented to Parliament by the Chairman of the Electoral Commission on 6th November 2002, it was found as follows: · 48 countries did not allow their overseas nationals to register and vote; · 30 countries allowed them to register and vote in both Presidential and Parliamentary elections. Apart from the most developed countries, the rest of the countries in this category had proportional representation systems and so the voters were required to vote for political parties and not for candidates of specific constituencies; · 12 countries allowed them to vote only in Presidential elections; · 7 countries (including Ghana) allowed only a category of them to vote.

The study results do not point in which particular direction Ghana should be moving, but it does reveal that allowing overseas nationals to register and vote abroad is not universally as fashionable as the proponents of the Bill make it out to be.

The study also does not cover registration and voting in local government elections, but since in Ghana, it is the same electoral roll that is used for both local and national elections, it is arguable that overseas Ghanaians qualify to vote in both District Assembly and Unit Committee elections. However, with the waiver of the “residence” requirement under the ROPAB, it becomes impossible to attach the votes of such overseas Ghanaians to a specific district or unit.

Specified “Registration” Countries The ROPAB also glosses over the political difficulty of determining in which overseas countries or jurisdictions registration is to take place. Presumably this is left to the discretion of the Electoral Commission, but it is considered too important to be left to the Commission.

It is clear that with over 200 countries in the world today, it will not be possible to open registration centres in every country or jurisdiction, but there should be agreement on which countries or jurisdictions will participate in the exercise.

In federal jurisdictions such as the USA and Nigeria where states are considered separate legal entities, and especially where the various states have different electoral laws, it could be argued that opening a registration centre in the federal capital does not amount to opening a centre in the jurisdiction of each state.

The agreed list of participating countries and jurisdictions should therefore either be a Schedule to the ROPAB itself, or should be determined by the Electoral Commission by way of a Constitutional Instrument so that Parliament can scrutinise the list.

It must be remembered though that whichever countries and jurisdictions are left out of the list will raise the same issues that are being raised today of Ghanaians in those countries being disenfranchised.

Methodology for Voting Assuming that the ROPAB is passed by Parliament, an ancillary question that arises is the methodology of voting to be used by the overseas Ghanaians. This matter was also addressed by the Chairman of the Electoral Commission in his brief to Parliament referred to earlier.

He mentioned three options. He discounted voting by proxy, as it will be extremely difficult and cumbersome to process a huge number of applications to vote by proxy. He also mentions that people who have been away from Ghana for a very long time may find it difficult to get persons whom they can trust to cast the ballots on their behalf.

He also discounted voting by mail as involving a complex and costly administrative process of having to send ballots to the residential addresses of voters abroad. According to him, it requires an elaborate system of tracking the ballots and is easily subject to abuse as one is never sure who really cast the ballot. Besides, the slowness of the mail system can create a major time problem in getting ballots to voters and back from voters to the Electoral Commission for the early release of results.

The Electoral Commission Chairman was in favour of voting at our Embassies as the most practical and cost-effective way of allowing overseas Ghanaians to vote.

Without going into the merits and demerits of the Electoral Commission Chairman's preference, it would be important for the methodology for voting to be also spelt out in the ROPAB or in another law. As it stands now, the Commission can simply register the overseas Ghanaians at their places of residence and refuse to open polling stations there for the voting.

Cost So far, the argument about the cost of the overseas registration exercise has been met with the response that “democracy is expensive”.

But we cannot run away from the issue of cost. If after all the preparation, it turns out that the cost cannot be borne, the exercise cannot come on, and resources would have been wasted.

It must also be borne in mind that about 40% of the cost of our elections and electoral processes is underwritten by donors. It may be necessary to sensitise them as to the additional cost to be incurred under the ROPAB and to find out the extent, if any, to which they will be prepared to invest some more in our electoral process and democratic agenda.

For these reasons, the Electoral Commission may be tasked to work out various possible scenarios and put costs to them, so that the discussions can be informed by the important matter of financial implications.

Citizenship Basis for the Exercise of the Franchise In the face of all the difficulties, there is a school of thought that believes that we should revisit the whole issue of using citizenship simpliciter as the basis for the exercise of the franchise in Ghana.

This school argues that even though overseas Ghanaians remit their relatives and therefore indirectly contribute to the economy of the country, they do not pay taxes to the Ghanaian Exchequer, which goes into the Consolidated Fund for the public good, since the basis of our taxation is “source of income”.

They give as an example the USA whose nationals outside are entitled to register and vote because they have “nationality” as the basis of their taxation, so that every eligible American, irrespective of where he lives or works, pays tax to the US Government.

Additionally, overseas Ghanaians are not in a position to feel the impact, let alone assess the performance of, the Ghanaian Government. That is best done by Ghanaians resident in Ghana, and the extension of the franchise to overseas Ghanaians risks supplanting the will of resident Ghanaians with the will of overseas Ghanaians.

The other school of thought, quite apart from the practical consideration of remittances that bind the overseas Ghanaians to the Ghanaian state, also argue that it is an essential ingredient of the concept of citizenship that the citizen engages in the politics of his country and by doing so authorises and influences government. This influence can vary in degree from the mere fact of being heard, to effective control in concert with others of the process of government or of the determination of government policy.14

Unfortunately, neither of the two bodies that participated in the processes leading to the 1992 Constitution appears to have debated the arguments for using citizenship simpliciter as the basis for the exercise of the franchise; they both seem to have accepted as a matter of course that citizenship necessarily connotes the right to register and to vote.15

If ever there was a time to debate that issue, that time is now.

To summarise: · Studies do not reveal a common pattern as to how countries treat the issue of their nationals outside their territories registering and voting in their elections; · It is not clear whether the ROPAB, if passed, will entitle overseas Ghanaians to vote in District Assembly and Unit Committee elections; · It would be desirable to agree on the list of countries where registration centres may be opened for the purpose of registering overseas Ghanaians rather than leave it to the discretion of the Electoral Commission; · The ROPAB is silent on the methodology to be used for voting by overseas Ghanaians; · The issue of the likely cost of the implementation of the ROPAB must be addressed; · There is the need for a national debate or discussion for using citizenship simpliciter as the basis for the exercise of the franchise in Ghana.

Conclusion It should be obvious from the above analysis that there are enormous legal, administrative, practical and financial problems to be overcome before the ROPAB is passed and can be successfully implemented.

Short as it is, the Bill papers over serious difficulties and presents the image of an innocuous piece of legislation that seeks to do nothing other than “enable Ghanaians resident abroad to be registered to vote.16

There is however more to the Bill than meets the eye, as this paper has sought to demonstrate. It is the view of the author that this Bill is not at all necessary. If, however, Parliament is minded to pass the Bill, then it should consider carefully the following points made in this paper:

(i) Since the polling division requirement is the only legal barrier to the registration of overseas Ghanaians, then if the Bill should be passed at all, the amendment should be restricted to the removal of that requirement only;

(ii) To avoid charges of discrimination and even unconstitutionality, such an amendment should apply to all Ghanaian citizens, and not just to overseas Ghanaians;

(iii) Such an amendment will however create a problem for the compilation of the constituency registers and may therefore not be appropriate;

(iv) An institution must be tasked to do an estimation of how many overseas Ghanaians are eligible to be registered should Parliament be minded to pass the Bill;

(v) There must be an agreed modus for identifying a Ghanaian citizen for purposes of the registration of overseas Ghanaians. A passport may only be a prima facie evidence of citizenship; it cannot be conclusive; (vi) The phrase, “a citizen of Ghana resident outside the Republic” should be replaced, possibly with the phrase, “a citizen of Ghana who is outside Ghana during a period of registration”; (vii) The Bill should not make reference to Heads of Missions and Embassies as registration officers at all. The Electoral Commission should be given the free hand to appoint persons of their choice as registration officers; (viii) The final version of the Bill should indicate the commencement date; (ix) It would be imprudent, inconvenient, impracticable and inexpedient for overseas Ghanaians to vote in District Assembly and Unit Committee elections;

(x) The ROPAB, or a Constitutional Instrument issued by the Electoral Commission, should contain a Schedule identifying the countries and the jurisdictions where registration of overseas Ghanaians may be undertaken as well as identifying registration centres in those countries;

(xi) The Electoral Commission should be tasked to come up with various scenarios as to how they intend to implement the provisions of the ROPAB together with attendant costs;

(xii) The NCCE should be tasked to initiate a debate on the citizenship simpliciter basis for the exercise of the franchise in Ghana.

In its present form, the proposed amendment is so fundamental, with the possibility that overseas (non-resident) Ghanaians may be supplanting the will of resident Ghanaians (because of the numbers that could be involved) that the possibility of a referendum to decide the issue must be seriously considered.

NOTES *Former Lecturer in Jurisprudence, Faculty of Law, University of Ghana, Legon; former Minister of Local Government and Rural Development; former Minister Responsible for Foreign Affairs; and former Minister for Planning Regional Economic Cooperation and Integration

1. Hohfeld: 'Fundamental Legal Conceptions as Applied in Legal Reasoning' 2. 2000, Act 591

3. 1992, PNDCL 284

4. See generally, J. H. C. Morris, 'The Conflict of Laws' (Stevens & Sons Limited, 1971), chapter 2

5. Levene v. I. R. C. [1928] AC 217; Matalon v. Matalon [1952] P. 233 6. Stone v. Stone [1958] 1 WLR 1287

7. William v. William [1954] S.C. 144

8. Representation of the People Law, 1992, PNDCL 284, Section 7(3)

9. Ibid. Section 7(4)

10. Ibid. Section 8(4)

11. Ibid. Section 8(1)(2)

12. The particular example cited in this regard is the case of H. E. Odoi-Sykes, Ghana's High Commissioner to Canada, who is the immediate past National Chairman of the ruling New Patriotic Party (NPP)

13. It has even been argued that the prohibition should extend to the career Foreign Service Officers, as their postings are at the pleasure of the executive (the ruling party) and a career officer in whose overseas polling division the ruling party performs poorly could be victimised.

14. See generally, Rodney Barker, 'Political Legitimacy and the State' (Clarendon Press, Oxford 1990), Chapter 1

15. See, National Commission for Democracy: 'Evolving a True Democracy: Report Presented to the PNDC', March 25, 1991, and 'Report of the Committee of Experts (Constitution) on Proposals for a Draft Constitution of Ghana Presented to the PNDC', July 31, 1991.

16. Memorandum to the ROPAB signed by the Attorney General and Minister of Justice, J. Nikoi Otoo, 19th April 2005.

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