WE have observed with some wistfulness and dismay the never-ending debate on the People's Representation (Amendment) Bill. The view expressed by the Deputy Commissioner of the Electoral Commission, Kwadwo Sarfo Katanka, as expressed in yesterday's Chronicle, in our view adds to the confusion over the Bill.
According to the paper, Mr Sarfo-Kantanka said it was important both sides of Parliament agreed on the implementation of the Bill. This, like many of the issues raised about the Bill, misses the point by introducing an issue, which is at best premature. What we have gathered from all sides of the debate is that no party is opposed in principle to the realisation of Article 42 – which gives an unqualified right to vote to every Ghanaian of 18 years of age or above and of sound mind.
The opposition argument, as we understand it, can be summed up thus: the country has no obligation to take the vote to those who have chosen to live abroad. This view we believe is sound, though not properly directed. It ought to be directed to the Electoral Commission once they have been freed to exercise their constitutional right on how Ghanaians domiciled but abroad can be helped to be enfranchised – and the Bill has a simple task of putting back into the hands of the EC its original constitutional jurisdiction to register and facilitate the voting of eligible Ghanaians as the Constitution dictates. The issue, as we see it, has two limbs. The first is to remove an unconstitutionality; the second is the scope that would be allowed in opening up the way for all qualified Ghanaians to exercise their right of franchise. Our understanding of the Bill, which in substance has only two paragraphs, is that it recognises that before the Constitution of the Fourth Republic came into being, the no-parliament military regime in 1992 passed a law, PNDC Law 284, to facilitate elections, which were to be held in December 1992 – a whole month before the coming into being of the Constitution.
According to the Constitution any law that is inconsistent with it must be repealed. The only two ways of doing that are through case law (Court of Justice) and legislation (Parliament). What the Executive in 1992 did was to actively pass a provision that positively stood in the way of some Ghanaians exercising their franchise. Ghanaians ought to be absolutely clear on this: having a provision that actively stops Ghanaians domiciled abroad from exercising their constitutional right is not the same as taking the vote to them, which is where unfortunately the debate has been forced to.
The relevant section (or clause) of the Bill that seeks to address this reads: “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.”
Now, the argument can be further advanced that the removal of the legislative fetter which requires that a person ought to have resided in a poling area for six months before registration should not be discriminatory and should extend to Ghanaians domiciled in Ghana.
Indeed, a more substantive argument can be made that the whole of PNDC Law 284 is offensive to the Constitution. For, while it was relevant for the 1992 elections, as soon as the Constitution kicks in on January 7, 1993, it should have been repealed and the EC allowed to perform its duty in formulating regulations, through a constitutional instrument, to conduct elections. Which brings us back to the first limb of the issue – the proposed amendment. What Parliament is seeking to do with this Bill, as we understand it, is to remove an unconstitutionality expressly inserted by the Executive in PNDC Law 284. To do anything else beyond that may be unconstitutional.
The second limb of the argument is about how far the EC would be willing or able to go to extend the franchise. Yet, the assumption has been made that the EC would necessarily take the exercise to our missions abroad.
In our view, that appears far from the reality, at least, going by the skepticism raised by senior EC officials. What is likely to happen, we postulate, is that the EC after the Bill has been passed will say that Ghanaians abroad may now come down to vote in their chosen constituencies without necessarily having to live in a polling area for six months. And, we can safely assume that any legal action against the EC on this decision would fail because in truth Ghana has no obligation to chase Ghanaians who live abroad with the vote.
In our considered opinion, we do not think the two limbs must be necessarily joined and confused, with the second limb used as a reason to prevent the implementation of the first. In the interest of our democracy, we should never use the argument of political controversy or plain impracticality to get in the way of an entrenched provision of the Constitution.
And as we believe the point has been made above, the implementation of the second limb need not be as problematic as envisaged. It is entirely up to the EC to decide whether or not it has the capacity to take the vote abroad. If, it wants to make it a public debate fine. Except, we are yet to cross that bridge.