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Opinion | Jan 16, 2018

Deputy EC Chair Suspension: Has EOCO and EC Chair Usurp Presidential Powers?

By Kofi Ata, Cambridge, UK January 15, 2018
Since the suspension of one of the two Deputy Chairpersons of the Electoral Commission (EC) in July 2017, I have held the view that the suspension was unconstitutional because it did not comply with Article 146 of the 1992 Constitution. This view was confirmed last week after reading a detailed thesis on Article 146 Probe by Samson Lardy Anyenini, a Barrister at Law and the host of Newsfile (see, EC set on fire: All about the Article 146 probe”, Ghanaweb, Friday January 12, 2018). Why do I say so?

The framers of the 1992 Constitution were very careful in protecting the security of tenure office for the Chairs and their Deputies and non-interference by the Executive arm of government in the affairs of three constitutional bodies, namely: The Electoral Commission, Commission for Human Rights and Administrative Justice (CHRAJ) and National Council for Civic Education (NCCE). Consequently, they set out a clear road map for the removal, including suspension of the three heads of the aforementioned bodies in Article 146, (same for the removal of judges of the superior courts, except the Chief Justice). For easy read, I will not bore readers with the various sections of Article 146.

The removal, including suspension of any of the three named officers of the EC, CHRAJ and NCCE (the Chairperson and the two Deputies) must start with a petition to the president, who passes the petition onto the Chief Justice to determine whether there is prima facie case. If the Chief Justice determines that there is a prima facie case, the president is informed accordingly, and a committee is established by the Chief Justice to sit on the petition. The president ‘may’ and not ‘shall’ suspend on the advice of the committee. This according to Samson Lardy Anyenini, means that even after the Chief Justice has established the prima facie case suspension is not automatic but must be on the recommendation of Chief Justice’s committee. I refer to Article146(10) “Where a petition has been referred to a committee under this article, the President may-: (b) in the case of any other Justice of a Superior court or of a Chairman of a Regional Tribunal, acting in accordance with the advice of the Judicial Council, suspend that Justice or that Chairman of a Regional Tribunal.

From the above, it appears Article 146 is being complied with in the case of EC Chairperson, Mrs Charlotte Osei and Deputy Chair, Mr Amadu Sulley. However, in the case of the other Deputy Chair, Mrs Georgina Opoku Amankwah, Article 146 has not been complied with.

It was reported that the Acting Executive Director of EOCO, ACP K. K Amoah (Rtd), wrote to the EC Chair on July 4, 2017, asking her to direct three officers including Mrs Opoku Amankwah to proceed on leave in connection with investigations into the loss of GHC480,000 from the Staff Endowment Fund. Sadly, Mrs Charlotte Osie, who is a lawyer and ought to have known that neither ACP KK Amoah (Rtd) from EOCO nor she as Chairperson had authority to suspend a Deputy EC Chair, went ahead and suspended Mrs Opoku Amankwah (see “EOCO storms EC to 'uproot' Deputy EC boss”, Ghanaweb, January 15, 2018).

The question is, did Act 804 which created EOCO also amend Article 146 of the 1992 Constitution? The answer is absolutely NOT. EOCO therefore has no powers to even recommend, let alone direct the EC Chair, Charlotte Osei to suspend a Deputy Chair of the EC. It is unconstitutional interference in the affairs of the EC by the Executive arm of government. That was a clear breach of Article 146 and therefore unconstitutional. In fact, and on a more serious note, it amounts to usurpation of presidential powers by EOCO and Charlotte Osie because under Article 146(10) and (b) of the 1992 Constitution, only the president can suspend the Chair and Deputy Chairs of EC on the advice of a committee established by the Chief Justice as part of the impeachment process.

I am not in anyway saying that if Mrs Opoku Amankwah has mismanaged Staff Endowment Funds she should not be held accountable. All I am pointing out is that Ghana is under the rule of law, so the laws of the land particularly, the supreme law of the land (the 1992 Constitution) must be respected by the Executive, otherwise, Ghana’s democracy is in danger. EOCO has powers to investigate any officers of the EC including the Commissioners and can recommend suspension of other senior staff but not the Chairperson and the two Deputies because there is a special process called Impeachment under Article 146 for doing that.

The suspension of Mrs Opoku Amankwah by EOCO and Charlotte Osei is unconstitutional and the continued presence of EOCO in her office also amounts unconstitutional interference in the performance of her duties. EOCO should not behave as if they are above the law and turn Ghana into a ‘plantain’ republic

I cannot understand why President Nana Akufo-Addo, an astute Barrister will allow such constitutional infractions and even usurpation of his presidential prerogative by OECO and Charlotte Osei. What is more worrying is the fact that there is already an ongoing impeachment process against the EC Chair and her two Deputies so where does EOCO fit into that under Article 146? OECO’s action on Monday January 15, 2017 is harassment of Mrs Opoku Amankwah and they should put a stop it immediately. The Attorney General should advise President Akufo-Addo to order EOCO to stop their unconstitutional acts.

I cannot understand why Mrs Opoku Amankwah’s Attorney has not gone to Supreme Court to challenge the unconstitutional acts of EOCO. He must do so immediately and ask for cost from EOCO.

Kofi Ata, Cambridge, UK

Kofi Ata
Kofi Ata, © 2018

This author has authored 183 publications on Modern Ghana.
Author column: KofiAta

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