What If COVID-19 Prevents Ghana’s Election 2020 From Being Held Before 6th and 7th January, 2021?- Episode 2

Introduction

In Episode-1, we began the discussion with reference to the Supreme Court’s decision in J.H. Mensah v Attorney-General (1996-97) SCGLR. The Court’s decision was that the ministerial tenure of office under the 1992 Constitution is conterminous with the presidential tenure under the same Constitution. In other words, the term of office of the President of Ghana (4 years) is the same term of office of those who constitute the executive arm of government, that is the Vice-President, Ministers and Deputy Ministers. In effect, after expiration of his tenure, the President goes home with his Vice President and ministerial appointees. In episode 1, we equally provided a justified ground for this discussion. In this episode (Episode 2), we will further the discussion as follows until we reach the concluding parts. Enjoy the reading.

Is There Any Overt Constitutional Provision Relating To The Covid-19 Situation?

As it stands, there is no straightforward constitutional provision relating to the Covid-19 situation with regard to the subject matter of this piece (i.e. if election 2020 is not held due to social distancing practice, what happens?). The following provisions may however be examined subject to a Supreme Court Interpretation in future. In finding a cure for the scenario painted (if Covid-19 prevents the holding of the 2020 general elections before 6^th January 2021), one can only turn to the Constitution, 1992. This is because the Constitution is the Supreme law of Ghana [article 1 (2)]. It is also the overall or apex source of law in Ghana [article 11(1) (a)].

1. If 2020 elections are not held before 6^th January 2021, the 7^th (the current) Parliament will still be dissolved at the midnight of 6^th January 2021. As such, the current MPs will cease to hold themselves as MPs [article 97 (1) (a)]. Article 113 (1) touches on the dissolution of Parliament itself. It states, “Subject to clause (2) of this article, Parliament shall continue for four years from the date of its first sitting and shall then stand dissolved.” Clause 2 of article 113 of the Constitution relates to what Parliament should do in a war situation. It states, “At any time when Ghana is actually engaged in war, Parliament may, from time to time by resolution supported by the votes of not less than two-thirds of all the members of Parliament, extend the period of four years specified in clause (1) of this article for not more than twelve months at a time, except that the life of Parliament shall not be extended under this clause for more than four years.”

Covid-19 is not a war situation so article 113 (2) is not the appropriate constitutional provision for Parliament to fall on in a situation where election 2020 is not held because of the pandemic. Simply put, article 113 (2) will not be applicable under the circumstance foreseen.

2. Article 113 (3) may be tested if election 2020 is not held before 6^th and 7^th January 2021. The article states, “Where, after a dissolution of Parliament but before the holding of a general election, the President is satisfied that owing to the existence of a state of war or of a state of public emergency in Ghana or any part of Ghana, it is necessary to recall Parliament, the President shall cause to be summoned the Parliament that has been dissolved to meet.”

Is article 113 (3) an erroneous clause? Or in practice should we have chosen an electoral calendar in tune with article 113 (3)? I ask this question because the rendition of 113 (3) dictates that Parliament should be dissolved before a general election. “Where, after a dissolution of Parliament but before the holding of a general election…”

In my considered view, the application of article 113 (3) will be almost impossible in a situation whereby election 2020 is not held due to Covid-19 social distancing. This is because the tenures of the President, the Vice President and the Parliament of Ghana have been conterminous since 7^th January 1993. The President and the Vice President usually leave office almost the same time that Parliament is dissolved. In that case, the President ceases to be President so he lacks the constitutional power to recall Parliament.

However, should the President recall the dissolved Parliament, then the Speaker of Parliament will now act as the President of Ghana [article 60 (11)]. But which President will the Speaker be acting for? Does the absence of the President as stated in the Constitution the same as when a President is not elected at all?

The conventional practice from 1992 to 2016 is that Parliament has always been dissolved after and not before the general elections as article 113 (3) stipulates. Also, the dissolution of Parliament and the swearing in of a new Parliament also precede the presidential inauguration so how can a President possibly recall Parliament owing to the existence of a state of war or of a state of public emergency in Ghana as article 113 (3) mandates?

Interpretation of article 113 (3) is therefore a necessity for the Supreme Court. Perhaps we need to examine our electoral calendar and its related processes after this Covid-19 situation. If article 113 (3) will not be the solution under the imagined circumstance, then its corresponding article 113 (4) will also not be appropriate because Covid-19 is a pandemic and not a war situation.

Should Covid-19 and its social distancing mar the 2020 general elections, another possible constitutional article to examine will be article 298. Article 298 states that where the Constitution makes no provision (expressed or by necessary implication) for a situation (e.g. Covid-19), Parliament shall pass an Act of Parliament to deal with the situation. However, the Act so passed must be subject to Chapter 25 of the Constitution and it should not be inconsistent with any provision of the Constitution. It must be noted that the caption of Chapter 25 of the Constitution (1992) reads, Amendment of the Constitution.

Now, the logical questions to ask based on article 298 referenced ut supra are that:

1. If article 113 (3) applies to the possible Covid-19 and social distancing blows to election 2020, then must Parliament fall on article 298?
2. If Parliament is to pass an Act inconsistent with the provisions of the Constitution as article 298 stipulates, which provisions did the framers of the Constitution had in mind which must not be breached by passing that Act?
3. It is settled in case law [J.H.Mensah v Attorney-General (1996-97) SCGLR] that a better approach to interpretation of a provision of the 1992 Constitution is to interpret that provision in relation to the other provisions of the Constitution so as to render that interpretation consistent with the other provisions and the overall tenor or spirit of the Constitution.
4. Will Parliament act on article 298 and pass a resolution or an Act that the President and his Ministers should continue in office indefinitely or with a stipulated ultimatum?
5. Based on the dictates of case law that it is important to construe an enactment as a whole, it will be legally wise to equally consider article 31 (1) of the Constitution in case social distancing prevents the holding of the 2020 elections slated for 7^th December, 2020. Article 31 (1) clothes the President with power to declare a state of emergency in Ghana in accordance with laid down constitutional procedures.
6. The relevant question is that does Covid-19 with social distancing constitute the ground for the presidential declaration of a state of emergency? If it does then why has the President rather declared a lockdown of some cities affected by the pandemic rather than declaring a state of emergency at those places? Will the President declare a state of emergency to continue in office if the election is not held before 6^th and 7^th January 2021?

3. Considering the possible options in case election 2020 is not held before 6^th and 7^th January 2021, the apparent most difficult option is article 31 because 31 (5) even mandates a state of emergency to last for only a period of 3 months or less and it is one of the executive duties subject to parliamentary approval. After the expiration of the 3 months period, the state of emergency resolution is to be extended for not more than 1 month at a time – article 31 (6). Per article 31 (7) however, Parliament can revoke a declaration of a state of emergency approved by a majority of members of Parliament.

Constitutional Grounds For Declaration Of State Of Emergency In Ghana

The grounds on which a state of emergency will be declared in Ghana are well stipulated in article 31 (9) to be a natural disaster and any situation in which any action is taken or is immediately threatened to be taken by any person or body of persons which:

1. is calculated or likely to deprive the community of the essentials of life; or
2. renders necessary the taking of measures which are required for securing the public safety, the defence of Ghana and the maintenance of public order and of supplies and services essential to the life of the community.

Conclusion

The discussions so far point to the fact that there is no overt or clearly expressed constitutional provision touching on the situation whereby Covid-19 prevents the holding of the 2020 elections. Even though the scenario is imaginative in the interim, it is possible, mindful of the current pandemic happenings around the globe.

A discussion like this should therefore prick the thoughts of constitutional luminaries in Ghana to start thinking ahead of time. I thus invite all readers to the discussion table. I would love to read your comments as always in the comments section of the online portal that publishes my articles ( www.modernghana.com ). Until then, I say:

~Asante Sana ~

Author: Philip Afeti Korto

Email: [email protected]