INTRODUCTION The NPP Government has introduced a Bill in Parliament, the “Representation of the People (Amendment) Bill' (ROPAB) whose purpose, according to the memorandum accompanying the Bill, is to “enable Ghanaians resident abroad” (Overseas Ghanaians) to register to vote in public elections in the country.
The Bill presupposes that overseas Ghanaians are disfranchised which is not true. What is true is that they can exercise their franchise only at great cost and inconvenience to them. The effort to obviate this cost can only be the purpose of any new legislation.
That the NDC has always championed the cause of overseas Ghanaians has never been in doubt but the NDC is equally concerned that nothing is done to undermine the integrity and credibility of the electoral process as well as the peace and stability of Ghana. It was during the tenure in office of the NDC that the present Citizenship Act, 2000, (Act 591), allowing for dual citizenship, was passed.
At the time the NDC was leaving office in January 2001, the regulations to bring into operation the provisions of the Citizenship Act were virtually completed, enabling the NPP Government to pass them as the “Citizenship Regulations, 2001, L.I.1690”, which was signed by the Minister of Interior on 19th July 2001, and which now enables Ghanaians who wish to obtain dual nationality to do so.
The NDC Minority in Parliament asked the NPP Government to withdraw the Representation of the People (Amendment) Bill in its present form, conduct a national debate and hold consultations with the broad segment of Ghanaian society, collate from these debates and consultations the broad policies and principles that should from the framework of such a Bill, and formulate a consensual, multi-partisan Bill for Parliament that will command the support of all sections of the House.
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.
Unfortunately the NPP appears not to have learnt any lessons from its omissions in the past when it disregarded similar suggestions on legislative actions and resolutions arising out of motions from the NDC and ran into serious trouble.
The National Reconciliation Commission (NRC) Act was passed without the participation of the NDC Minority. The outcome is an NRC Report that appears to have polarized the nation instead of reconciling it.
The National Health Insurance Scheme (NHIS) Act was passed without the participation of the NDC Minority. The outcome is a NHIS that is still not operative countrywide one year after its passage.
The Resolution to approve the International Finance Company (IFC) US$1 billion loan was passed against the objection of the NDC Minority and without its participation. Within four months, the Minister of Finance and Economic Planning was in Parliament to announce that it was not considered in the national interest to pursue the loan.
The US$300 million CNTCI loan, initially approved by both sides of the House, was subsequently objected to by the NDC Minority who moved a motion for the rescission of its approval. The NPP Majority defeated the motion. Almost ten months since the rescission motion was defeated, nothing has been heard of the loan again.
In similar vain, the NPP appears determined to forge ahead and pass the ROPAB with or without the participation of the NDC. Currently, its members of the Constitutional, Legal and Parliamentary Affairs Committee plus one PNC Member and one CPP Member but without the NDC members of the Committee, are going round the country and the world to solicit views on the Bill. Its Chairman, Honourable Kwesi Osei Prempeh, is on record as stating that the party will go ahead with the Bill with or without the participation of the NDC. The same position has been taken by Honourable Owusu Agyepong, Majority Leader and Minister of Parliamentary Affairs.
From far away Jamaica, President John Agyekum Kufuor is reported to have assured the small group of Ghanaians in that country that the Bill will be passed and that overseas Ghanaians will vote in the 2008 elections.
The NDC's position is that in its present form, the Bill should not be passed as it will not achieve its purpose and as all its implications and ramifications have not been thought through. Before we turn to the ROPAB itself, we wish to address some preliminary matters, as they are critical to a proper appreciation of the issues at stake.
THE EXISTING LAW ON REPRESENTATION OF THE PEOPLE The existing “Representation of the People Law”, 1992, PNDCL 284, has been on the statute books since 1992 with only minor amendments. When it was passed in 1992, it repealed and consolidated all six pre-existing laws on the representation of the people, from the “Representation of the People Decree '. 1968 (NLCD 255) to the 'Representation of the People (Amendment) Decree', 1979 (SMCD 230).
In the Fourth Republic, this existing law has been used in conducting 4 successful General Elections and several bye-elections. Two different political parties, NDC and NPP, have been elected under this law for two different 4-year terms. As our 2004 Presidential candidate Professor J. E. Atta-Mills, put it at his Press Conference held on 11th August, 2005, “What is so wrong with such a representation law as to warrant the infusion of a measure whose efficacy is uncertain, whose cost is unknown, and whose impact is unpredictable?” NATIONAL IDENTIFICATION SYSTEM The NPP Government has embarked on an ambitious, multi-million dollar National Identification System, which necessitated even the passage of a new law, the 'Electoral Commission (Amendment) Act, 2003, (Act 655), which divested the Electoral Commission of the responsibility for the preparation of identity cards and restricted it to the preparation of voters identity cards only.
Hopefully at the end of that exercise, every Ghanaian living everywhere would have been identified as a Ghanaian citizen and issued with an Identification Card. Logic would therefore dictate that as a first step, we concentrate on implementing the National Identification Card Scheme and use the data to prepare the grounds for the foreign registration of Ghanaian citizens for purposes of their voting at elections and referenda.
Who qualifies to be registered abroad is a complex issue as we will discuss later concerning pre-2000 “foreign Ghanaians”, illegal Ghanaian immigrants and what constitutes residence in a foreign country. THE REPRESENTATION OF THE PEOPLE (AMENDMENT) BILL (ROPAB) The ROPAB itself is fraught with serious difficulties. To begin with is the nature of the amendment sought to be effected.
The section of the 'Representation of the People Law'. 1992, PNDCL 284 that prevents Ghanaian citizens resident outside Ghana from registering and voting at elections and referenda is section 7(1)(c), which requires that a citizen must be resident in the polling division where he intends to register and vote. However, the ROPAB does not seek to amend section 7(1)(C) of PNDCL 284 but rather section 8, which exempts Ghanaian citizens employed “outside Ghana in the service of the Republic” or in the service of the UN or other international organizations from the residence requirements of PNDCL 284.
Thus if the ROPAB passes, every Ghanaian citizen living everywhere in the world, except Ghana, would be exempted from the residence requirement of section 7(1)(c) and would be able to register and vote everywhere in the world in all elections and referenda in Ghana. By amending section 8 instead of section 7 of PNDCL 284, it becomes clear that the actual motive of the NPP Government is something other than the removal of what they themselves say is the cause of the denial of the Article 42 right to citizens abroad. After all, if section 7(1)(c) is the impediment, why not amend section 7(1)(c)? Why amend section 8 and allow section 7(1)(c) to stand?
What is known is that several thousands of Ghanaian citizens abroad do come to Ghana to register and vote in all elections, section 7(1)(c) notwithstanding. Some have even contested elections in Ghana. Indeed, we are yet to be informed of any cases where Ghanaian citizens resident abroad have been refused registration or vote because they were challenged on the ground of not being residents of their intended polling divisions.
The reason the NPP Government is seeking to amend section 8 and not section 7 of PNDCL 284 is that amending section 8 would not achieve the purpose of the party. What the amendment of Section 8 of the ROPAB seeks to do, actually, is to create a special dispensation and modalities for citizens abroad who choose not to travel to Ghana to register and vote, to do so in the countries of their residence. This, of course, would be funded, whatever the cost, by citizens in Ghana who must comply with section 7(1)(c) of PNDCL 284.
In effect, by seeking to amend section 8 instead of section 7 of PNDCL 284, it means that if the ROPAB is passed, the resident requirement of section 7 of PNDCL 284 will still stand. Since citizens abroad would be exempted from this requirement by the amendment of section 8, the residence requirement would apply to citizens in Ghana only. The question is, can or should the law be amended to achieve such a discriminatory result?
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 traveling from say his London base to register in Ghana 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.
Large numbers of Ghanaians, who left the country before, 2000 nationalized as citizens of their new countries of residence. Under the operative law at the time, those people lost their Ghanaian citizenship. They cannot now legally take advantage of the validation of dual citizenship under the Citizenship Act of 2000, since the Act does not operate retroactively. They must therefore somehow be identified and not allowed to register and vote if the ROPAB should be passed.
Another sizeable proportion of Ghanaians consists of “illegal” aliens, according to the definition of “resident” in their foreign countries of residence.
So when the ROPAB talks of Ghanaians “resident” abroad, does it include Ghanaians illegally “resident” abroad? Are we to entertain Ghanaians in breach of foreign laws? There is the practical risk of foreign governments using the occasion of the congregation of Ghanaians to register or to vote to deal with and deport illegal immigrant Ghanaians.
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 role 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? 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. 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 liaising with foreign immigration authorities. The difficulties are numerous.
There are further legal difficulties. Under the Representation of the People Law, 1992, 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” 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”
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 “resident” is not easily defined yet it seems to be a term of art. Unfortunately, the ROPAB does not define what “resident” means.
In order to allow for ease of interpretation, it is important that the concept of ”resident” for purposes of registration of overseas Ghanaians abroad be defined, but that will mean that the same word used in the same law (since the ROPAB must be read as one with the parent Act, the Representation of the People Act, 1992, PNDCL 284) will have two different meanings, one for Ghanaians resident in Ghana and one for Ghanaians resident outside Ghana. IMPORTANCE OF “RESIDENCE” REQUIREMENT These legal difficulties must 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 bent on maintaining itself in power at all costs. The brazen way in which it is being sought to undermine the democratic process in Ghana by forcing through the ROPAB must be a source of concern even to those 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.
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! RIGHT TO VOTE 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 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 ROPAB is to interfere with this mandate of the Electoral Commission by proclaiming a so-called 'right” of all overseas Ghanaians 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?
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 are disfranchised?
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?”
This practical difficulty cannot be overlooked because Article 47 of the Constitution requires the Electoral Commission to divide Ghana into constituencies for purposes of parliamentary elections, which constituencies are based on population quotas. The number of persons resident in that constituency is made up of an aggregation of the number of persons resident in each polling division.
The relevant clauses of Article 47 read as follows:
“47(1) Ghana shall be divided into as many constituencies for the purpose of election of members of Parliament as the Electoral Commission may prescribe, and each constituency shall be represented by one Member of Parliament.
47(3) the boundaries of each constituency shall be such that the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota.
47(4) For the purposes of clause (3) of this article, the number of inhabitants of a constituency may be greater or less than the population quota in order to take account of means of communication, geographical features, density of population and area and boundaries of the regions and other administrative or traditional areas.
47(7) for the purposes of this article, “population quota” means the number obtained by dividing the number of inhabitants of Ghana by the number of constituencies into which Ghana is divided under this article”.
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. HOW MANY OVERSEAS GHANAIANS? 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. 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. 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 organization, and their spouses where they are Ghanaian citizens. 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 number of 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.
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 it is 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 under whichever Government makes it totally inadvisable for them to play any role in the registration and voting process. 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. 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 the NDC's contention 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.
There are other ancillary but very serious matters associated with the ROPAB, which have not been considered. 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?
• What steps are being taken to actualize other “rights” in the Constitution in the same way as the ROPAB is seeking to actualize the constitutional “right” to register and vote?
These matters are discussed in the subsequent paragraphs 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 parliamentary 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 this is too important a matter 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 scrutinize the list.
It must be remembered though that whichever countries and jurisdictions are left out of the list will raise the same issue that is being raised today of Ghanaians in those countries being disfranchised. 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 sensitize 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. The remainder of the cost not undertaken by donors will have to be borne by the Ghanaians resident in Ghana. Why should the Ghanaian resident in Ghana bear the cost of facilitating the overseas Ghanaian to vote? It must be remembered that the exercise of rights is linked by the constitution to the discharge of responsibilities, including the duty to pay tax (see Article 41). If overseas Ghanaians do not pay tax they cannot vote outside Ghana.
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 some 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 for 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 Ghana 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. OTHER CONSTITUTIONAL RIGHTS It has also been argued that there are other very important rights – political, economic and social – provided for in the Constitution in respect of which there have been no attempts to actualize them. They include the following: Property rights of spouses (Article 22); The right to work including equal work for equal pay (Article 24(1); The right to rest and leisure (Article 24(2); The right to educational opportunities (Article 25(1); Women's rights (Article 27); Rights of the Disabled (Article 29); Rights of the Sick (Article 39); It is the view of those who argue this way that urgent steps be taken to actualize these rights as well. For example, it is interesting that whilst the NPP Government is insisting that the right to register and to vote should follow every Ghanaian living everywhere on earth, the same Government is refusing to accept that the right of every Ghanaian child to free, compulsory, universal basic education should follow every Ghanaian child even in Ghana, let alone everywhere, by refusing to extend that right to children in private schools in Ghana.
This issue raises the question as to whether the constitution is intended to take effect outside the borders of Ghana. In our submission, like all others laws, the constitution operates only within Ghana. In effect there is no right to a franchise outside Ghana.
A study of the proposed bill poses the following questions: (1) Does the application of the 1992 Constitution of Ghana stretch beyond the territorial borders of Ghana? (2) Can special modalities be established, at whatever cost, for a certain class of citizens who, out of their own free will, have made the enjoyment of a particular constitutional right somewhat “burdensome” on themselves? (3) Can certain constitutional rights be extended to a certain class of citizens outside Ghana without making similar provisions for citizens in Ghana? The Constitution of every country operates within the territorial boundary of that country only.
The preamble to PNDC Law 282 the law which promulgated the 1992 constitution clearly defines the area of application of the 1992 Constitution. The preamble states as follows:
“Whereas by the Consultative Assembly Law 1991, PNDC Law 253 the Provisional National Defence Council set up a Consultative Assembly to prepare a draft Constitution for the administration of Ghana…” “Whereas the Consultative Assembly submitted the Draft Constitution for the Republic of Ghana…..to the PNDC on 31st March, 1992”. The Emphasis is “for the administration of Ghana”. It is important to emphasis that the 1992 Constitution is for the administration of the Republic of Ghana and for that matter for the territories of Ghana”.
In other words, the Constitution is intended to have territorial application and not any extra territorial application because it is for the administration of Ghana. JURISDICTION OF THE 1992 CONSTITUTION The 1992 Constitution also sets out clearly in its preamble that the Constitution applies to the people of Ghana when it says:
“We the people of Ghana, in exercise of our natural and inalienable rights to establish a framework of government which shall secure for ourselves for posterity the blessings of liberty, the quality of opportunity…….” In other words, that portion of the preamble is unequivocal about the application of the 1992 Constitution to the people of Ghana and not citizens of Ghana. And indeed, it was the people of Ghana who voted in a referendum for the 1992 Constitution and not citizens of Ghana, for Ghanaians living outside Ghana did not participate in that referendum except those who traveled home to Ghana.
Article 1(1) of the 1992 Constitution of Ghana also states that “This Constitution shall be the supreme law of Ghana”. The 1992 Constitution was adopted, enacted and given to “we the people of Ghana,” not “we the citizens of Ghana” The import of this is that the 1992 Constitution operates for all people (citizens and non-citizens) lawfully within the territorial boundary of Ghana. To buttress this point, Article1(1) of the Constitution states that “The sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution.
Article 4, Chapter 2 of the 1992 Constitution defines the sovereign state of Ghana as follows:
“The sovereign state of Ghana is a unitary republic consisting of those territories comprised in the regions which, immediately before the coming into force of this Constitution, existed in Ghana, including the territorial sea and the air space”.
Clearly, article 4 defines the territories of Ghana and makes it clear that the 1992 Constitution has its application to only the territories of Ghana and no more. SUPPREMACY OF THE CONSTITUTION Article 1(2) of the 1992 Constitution says, “This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision shall to the extent of the inconsistency be void”.
The combined effect of all these provisions is that since the 1992 Constitution has limited its application to the territories of Ghana, any law made which has extra-territorial application is obviously inconsistent with the Constitution and therefore such a law would be void.
The amendment is obviously inconsistent with Articles 1, 2 and 4 of the Constitution and will therefore be unconstitutional if passed by Parliament, some people have argued that Ghana's Missions abroad constitute part of the “state of Ghana” and therefore can properly be regarded as parts of the territories of Ghana to which the 1992 Constitution may apply. But that argument is fallacious and not founded on the correct legal principles. The explanation is simple.
The reason why the missions of Countries and States are regarded as parts of those Countries or States is rooted in the principle of international law which is intended to safeguard such missions from interference by the governments of the countries in which those missions are located. So it is a principle of international law for purposes of non-inviolability of the missions and it is not for purposes of extra-territorial application of the laws of their countries of origin. In other words, the operations of Ghana's missions abroad are governed by international laws and not by the provisions of the 1992 Constitution. APPLICATION OF GHANA'S ELECTORAL LAWS The very letter and spirit of Chapter seven (“Representation of the People”) of the Constitution shows that our electoral laws were intended to apply in Ghana and not in other countries. Article 52 of the Constitution, for example, provides that for the purpose of the functions of the Electoral Commission, there shall be a representative of the Commission “in every region and district” in Ghana, not everywhere in the world.
Also under Article, (47) (1) “Ghana shall be divided into as many constituencies for the purpose of election of members of Parliament; under Article 47(3) and the boundaries of each constituency shall be determined by “the number of the inhabitants in the constituency”. This does not even include all Ghanaians who may claim to hail from the constituency, but resident abroad. In other words, a citizen living abroad is not even counted. This clearly shows that the electoral provisions in the Constitution envisaged participation in elections within the regions and districts of Ghana by inhabitants, not citizens in the Diaspora.
When a citizen exercises his right under Article 21(1)
(g) of the Constitution and leaves Ghana to reside in another country, he cannot claim the duties and rights of the Constitution of Ghana in that other country of his residence. Again this is because the Constitution of Ghana does not apply outside Ghana. This does not mean that the right to register and vote is denied citizens outside Ghana. As stated earlier, many of them do come to Ghana to register and vote. What it means is that to enjoy the rights and perform the duties provided in the Constitution of Ghana, a citizen must be in Ghana.
Like citizens abroad, citizens in Ghana who choose to register and vote also travel to do so. They travel by walking, driving, bicycling, public transportation, etc. The distance of travel, the cost and the burden involved vary, depending upon where the citizen lives and where he chooses to register and vote.
Our electoral laws do not provide any special dispensation/modality to absorb the travel cost of citizens, within and without Ghana, who choose to travel to register and vote. CONDITIONS FOR ENJOYMENT AND EXERCISE OF RIGHTS UNDER CONSTITUTION In making arguments for the enjoyment of the right to vote under Article 42 of the 1992 Constitution, the proponents of the argument must not also forget that under the 1992 Constitution the exercise and enjoyment of rights and freedoms is conditional upon certain duties and obligations for citizens under Article 41 of the Constitution. Among many other duties and obligations, Article 41(1) of the Constitution provides that a citizen must declare his income honestly and pay the appropriate tax on such income to the appropriate state agencies such as the IRS. In other words, under Article 41 of the 1992 Constitution, a citizen of Ghana can only enjoy and for that matter exercise the rights and freedoms provided under the Constitution provided he also discharges his other obligations, which include the payment of taxes. By Article 41 the enjoyment of the right to vote under article 42 cannot be separated from the obligation to pay taxes.
In the respectful view of the NDC, the government has the responsibility to put into place the machinery for the payment and collection of taxes from Ghanaians living outside Ghana, as a condition for their enjoyment and exercise of the rights provided for under Article 42 of the Constitution.
Until the citizens living outside can show that they have been paying their taxes, they cannot insist on the exercise and the enjoyment of the right to vote as provided for under Article 42 of the 1992 Constitution.
Indeed, any law which provides for this right without the corresponding duty will be unconstitutional and a complete violation of article 41 of the 1992 Constitution. THE FUTURE OF THE ROPAB The implications and ramification of the ROPAB are many and varied, and it would be prudent to make haste slowly. Critics of our position of non-participation in the deliberations on the Bill may ask the question that given all the very valid points that are raised in our position paper, why do we not let our Members of Parliament participate in the proceedings so that the debate may be informed by these points.
Our answer is simple. The Bill is so fundamentally flawed as to make our participation in the debate meaningless. The problem, as admitted in the Memorandum to the Bill itself, is with section 7 of the Bill, but for reasons best known to it, the NPP insists on amending section 8. That is why we are calling for a complete withdrawal of the Bill. After further consultations and considerations, we are certain that what will emerge will be a completely new Bill, so fundamentally and radically different from the current Bill as to make it unrecognizable.
We wish to assure all our brothers and sisters in the Diaspora that we are committed to their welfare but we are equally determined to ensure the integrity of the electoral process as well as the acceptability of the election results.
For a Bill as fundamental as the ROPAB, anything short of a consensus is ill advised. We hope the NPP Government will take wise counsel and prevent increased political tension and divisiveness in the body politic of Ghana.