Kwamena Ahwoi Speaks On ROPAB
IN our lead story of last Tuesday headlined "Eureka!" Mr. Kwamena Ahwoi, Senior Lecturer at GIMPA, former NDC Director of Research, Ghana's longest-serving Minister of Local Government who also served as Minister responsible for Foreign Affairs and established the Ministry of Regional Integration, expressed the viewpoint that the introduction of the "hail from" concept in addition to the "resident" requirement for purposes of registration and voting had resolved the controversy surrounding the Registration of the People ( Amendment) Bill (ROPAB)
'Ghana Palaver' sought the views of Mr. Ahwoi on the totality of the Report of the Parliamentary Committee on Constitutional, Legal and Parliamentary Affairs. Mr. Ahwoi would however speak on the recommendations of the Committee for amendments to the ROPAB only as in his view, most of the other matters in the Report have been the subject matter of comment in the Joint Media Statement on the ROPAB issued by the Minority parties.
Mr. Ahwoi further stated that he himself had made detailed comments on the ROPAB in his presentation at the IEA in July 2005, which had triggered off the national debate on the Bill.
On the Committee's proposals for amendments to the ROPAB, Mr. Ahwoi commented as follows.
Recommendation (a): Section 7(1) (c), at end delete "and" and add "or hails from the constituency".
Kwamena Ahwoi: The section now reads as follows: "A person qualifies to be registered as! a vote if – he is resident in the polling division or hails from the constituency".
Ideally, this should be all the amendment that is required in the ROPAB. With this amendment, you can register and vote if:
(i) You are a Ghanaian citizen;
(ii) You are 18 years of age or above;
(iii) You are of sound mind;
(iv) You are resident in a polling division or you hail from the constituency.
"Hail from" was interpreted in the Wulensi by-election case to mean where your father or your mother comes from. Since every Ghanaian "hails from" a constituency, it means every Ghanaian can now register and vote.
The amendment is also in order in that it does not discriminate between Ghanaians in Ghana and Ghanaians abroad.
Any Ghanaian anywhere can now register anywhere simply by indicating the constituency that he "hails from" since there is no requirement that you can only register in the constituency where you "hail from". You simply register anywhere and indicate the constituency where you "hail from" as your constituency of choice.
The amendment however creates serious problems for the Electoral Commission (EC) for the following reasons:
· Unlike "resident", which is easily verifiable, it is not easy to prove that a person "hails from" where he says he hails from. Challenges to registration on the basis of the "hail from" requirement will therefore lead to interminable litigation.
· Where more people who "hail from" a constituency register than those who are "resident" in the constituency, you will have the will of "outsiders" supplanting the will of the residents.
· If m! any people use the "hail from" requirement to register, especially Ghanaians abroad, it will affect the "population quota" requirement that is used to demarcate constituencies under Article 47 of the Constitution as these persons are not captured in the total population of Ghana and yet the "population quota" is defined in Article 47(7) as "the number obtained by dividing the number of inhabitants of Ghana by the number of constituencies into which Ghana is divided".
Recommendation (b): Until otherwise determined by law, registration by Ghanaians abroad shall relate to only Presidential elections.
(i) The NPP Government's argument has all along been that the Article 42 "right to register to vote" is of universal application to every Ghanaian living everywhere, that it is inalienable, and that it is exercisable in respect of all public elections and referenda. By restricti! ng Ghanaians abroad to only Presidential elections, the law is limiting the rights of those Ghanaians in a manner that is unconstitutional. By the Committee's argument, their right no longer is sacred and unqualified.
(ii) Voting for MPs by Ghanaians abroad posed a problem when only "residents" in polling divisions could register and vote. By introducing the "hail from" provision in paragraph 9.0 (a), every Ghanaian is now identified with a constituency and a district and should therefore be entitled to vote in both Parliamentary and District Assembly elections.
(iii) The nature of our Constitution is such that it will be very difficult for a President without a majority in Parliament to govern successfully, yet this is what is most likely to happen if Ghanaians abroad vote in Presidential elections only.
Recommendation (c): Add a new section as follows: "Evidence of citizenship for the purpos! e of registration and voting by Ghanaians abroad shall be determined by the Electoral Commission.
(i) The EC members are Ghanaians just as the MPs and all of us are. It is better for the representatives of the people to determine what should constitute evidence of citizenship than leave it to the 7 members of the EC to do.
(ii) The best evidence of citizenship is a National Identification Card, which we do not have. There are problems with other possible evidence of citizenship such as passports, driving licences and birth certificates. It is better our MPs discuss and decide on what will be acceptable so that political parties will prepare for that eventuality rather than be faced with a 'fait accompli' by the EC that they are not prepared for.
(iii) The electoral regulations allow for party representatives to be present at both registration and voting ! to challenge the nationality of persons they suspect not to be Ghanaians. How is this safeguard going to be replicated if Ghanaians abroad are to be registered abroad?
(iv) Article 49 of the Constitution requires that the presiding office, the candidates or their representatives and their polling agents should be present at the counting of the ballot papers at the end of the voting and that they shall sign the declaration of results and the results announced in their presence at the polling station before the results are communicated to the returning officer. How is this constitutional requirement going to be met in the case of voting by Ghanaians abroad at their places of residence abroad? Recommendation (d): Delete section 42.
Kwamena Ahwoi: The amendment removes the requirement for the consent of the Attorney General to be secured before a person can be pros! ecuted for an offence under the law. It is acceptable.
Recommendation (e): Section 50, add a new paragraph as follows: "resident means resident for the time being of a permanent nature".
(i) This definition is contradictory. The phrase "for the time being" means "temporary", so to define "resident" as "for the time being of a permanent nature" is equal to saying "resident" means "temporarily of a permanent nature". It is an abuse of the English language.
(ii) PNDCL 284, to which the ROPAB is an amendment, defines "resident" to mean, "having a place of abode in a polling division on the qualifying date". It further provides that "A person shall not be deemed resident in a polling division if he has been absent for a continuous period of six months ending on the qualifying date". Since an amending legislation is read as one with the legislation that is! being amended, it means that in the same law, the same word, "resident", has two different meanings.
(iii) What the amendment also means is that Ghanaian residents in Ghana, who have not been resident in their polling divisions for six months or more, cannot register and vote. However, Ghanaians abroad, who may never have visited Ghana before in their lives or who may only have read about Ghana in the media can register and vote in our elections.
(iv) Since "permanent residence" referred to in the case of the Ghanaian abroad can only refer to "permanent residence abroad", the absurd result of this amendment is that to qualify to register and vote in Ghana, the Ghanaian citizen abroad must be permanently resident abroad!
(v) The introduction of the concept of "hail from" makes nonsense of the requirement of registration based on residence since every Ghanaian living everywhere can register as a voter by ! simply telling the registration official the constituency he "hails from". In other words, every Ghanaian qualifies to register and vote under the "hail from" provision, but not every Ghanaian qualifies to register and vote under the "resident" provision. Recommendation (f): Page 2 of the bill, delete "This Act shall come into force on a date determined by the Commission in an Executive Instrument issued under the hand of the Chairman of the Commission" and insert "The Electoral Commission shall by Constitutional Instrument make Regulations indicating the effective date of implementation of this Act".
Kwamena Ahwoi: (i) This recommendation concedes the criticism that constitutionally the EC issues Constitutional Instruments to make Regulations and not Executive Instruments and is correct.
(ii) The amendment however diverts the political pressure from both t! he Ghanaians abroad and the NPP from the NPP Government to the EC. It is an unfair political burden that the EC is being called upon to bear. The responsibility for the effective date should remain with Parliament, but acting on the recommendation of the EC.
Kwamena Ahwoi on Miscellaneous Matters affecting the Bill:
(i) Paragraph 9.0 (a) of the Report adding "or hails from the constituency" resolves all the controversy surrounding the ROPAB. It constitutes both the necessary and sufficient conditions for Ghanaians abroad to register and to vote because:
(a) It provides an alternative to "resident" as a condition for registering and voting and can be met by every Ghanaian living everywhere as every Ghanaian "hails from" a constituency but not every Ghanaian is "resident in a polling division".
(b) The "hail from" clause must however be accepted with extreme caut! ion and in the light of the problems associated with it raised above.
(ii) Critics of PNDCL 284 have falsely accused the PNDC of inserting the "resident" requirement in the Law in order to disenfranchise Ghanaians abroad. Nothing could be further from the truth. The requirement was introduced in the first law on registration and voting after the 1966 overthrow of the Government of the CPP. The 'Representation of the People Decree, 1968, NLCD 255 was the law that introduced the "resident" requirement under section 4 of that Decree. It read in section 4(5)(a) as follows: "Whenever the register of a constituency is revised or replaced, every person who, (a) is resident on the qualifying date in a polling division in the constituency—shall be entitled to have his name included in the divisional register of that polling station", in section 4(7) as follows: "—a person shall, for the purposes of this paragraph, be deemed to be resident in a polling division on the qualifying date if he has a place of abode or an immovable property in the division on that date", and in section 4(8) as follows: "A person shall not be deemed to be resident in a polling division on the qualifying date if he has been absent from his place of abode for a continuous period of six months ending on the qualifying date, or does not own an immovable property within that polling division".
(iii) All that PNDCL 284 did was to consolidate NLCD 255 and the 5 subsequent amendments made to it, make the necessary modifications to them, and repeal all of those laws under section 52 of PNDCL 284.
(iv) In other words, it is the same law that has been used for public elections and referenda in Ghana since 1968 and it is the same law that has delivered two different political parties – the NDC and the NPP – as the Governments of Ghana for two different 4-year terms under the Fourth Republic.
What could possibly be wrong with such a law?