Article 43(2) of the 1992 Constitution provides that the members of the Electoral Commission shall be appointed by the President under article 70 of the said Constitution.
Article 45 of the said Constitution provides as follows the functions of the Electoral Commission: to compile the register of voters and revise it at such periods as may be determined by law; to demarcate the electoral boundaries for both national and local government elections; to conduct and supervise all public elections and referenda; to educate the people on the electoral process and its purpose; to undertake programmes for the expansion of the registration of voters; and to perform such other functions as may be prescribed by law.
Article 46 of the Constitution, again, provides for the Independence of the Commission. Thus, except as provided in this Constitution or in any other law not inconsistent with this Constitution, in the performance of its functions, the Electoral Commission, is not subject to the direction or control of any person or authority.
The following substantive statements of law were made by GBADEGBE JSC (speaking for the court) in the case of ABU RAMADAN VRS THE ELECTORAL COMMISSION (No.2)
“In carrying out its function under the law, the Electoral Commission cannot employ non-statutory remedies, as the law does not give it that mandate. It is observed that it is unreasonable to demand from a public officer whose authority is derived from the law, performance that is not authorized by law…”
“We think that the independence of the Commission is crucial for the success of any election. If the Commission is perceived otherwise, there is little prospect of the electoral administration on Election Day being perceived as transparent and fair. If we are to consolidate our democracy, it is incumbent on us all to defend and protect its independence as provided for in the constitution. We think that in the circumstances when a specific complaint is made regarding the performance of any of the functions of the Commission, it is our duty to inquire into it and ask if there is by any provision of the constitution or any other law which detracts from the presumption of independence that article 46 bestows on it. If there is no such constitutional or statutory provision then what it means is that the matter is entirely within its discretion and not subject to the control of any other authority including the court…”
“As the plaintiffs have not disclosed any vitiating circumstances such as illegality, irregularity, unfairness or failure to satisfy an essential pre-requisite to the making of a decision that may justify our intervention to set any such discretion aside, the decision as to what to do is properly in the domain of the first defendant.”
“However, before we end the consideration of the independent status of the Electoral Commission, we wish to say that the independent status of the first defendant does not make it immune from action for the purpose of declaring that it has exceeded its authority or acted in a manner that having regard to its unreasonableness, irrationality or unfairness cannot be accorded the sanction of legality in view of articles 23 and 296 of the constitution.”
“We do not agree with the contention pressed on us by the first defendant that the 1992 Constitution “forbids any control or direction of the 1st defendant as to how to accomplish its work.” Plainly, the said statement is erroneous as article 46 itself recognizes that its independence may be derogated from either in the constitution or by any other law including but not limited to the instances referred to in regard to articles 48(1), and 49(1)…”
”We do not think that our intervention was unwarranted by the constitution. On the contrary, it was justified by the provisions of article 2(1) and 130 (1) of the 1992 Constitution which are intended to give effect to the supremacy of the constitution contained in article 1(2). The first defendant’s independence is also subject to the High Court’s exercise of its supervisory jurisdiction under article 141 of the constitution and actions in which questions may be raised whether in carrying out its functions, it has exceeded the authority conferred on it in specified statutes; in such cases the High Court has the jurisdiction to determine whether it has acted intra vires….”
“The presumption being that the law is intended to be reasonable; any act that is derived from unconstitutionality must be deemed unreasonable…”
“…whether the first defendant is bound by suggestions from citizens and stakeholders in carrying out its constitutional mandate. While conceding that there is no law that obliges the first defendant, it seems to us that in order to render its work acceptable to Ghanaians, it may engage in consultation and collaboration with citizens and stakeholders that are intended to deepen the participation of the citizenry in the electoral process. Listening to others takes nothing from the Electoral Commission but on the contrary, it has the effect of engendering public confidence in the electoral process and trust in the outcome.”
Article 296 of the Constitution provides guidelines for the exercise of discretionary power as follows: Where in this Constitution or in any other law discretionary power is vested in any person or authority, (a) that discretionary power shall be deemed to imply a duty to be fair and candid; (b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law; and (c) where the person or authority is not a Justice or other judicial officer, there shall be published by constitutional instrument or statutory instrument, Regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power.
As held per DR. S. K. DATE-BAH in the case of RANSFORD FRANCE VRS. THE ELECTORAL COMMISSION
“The Electoral Commission could hardly perform its functions if prior to each time it exercises a discretion it has to promulgate regulations containing the principles governing the exercise of that discretion. The framers of article 296(c) of the 1992 Constitution could not have intended such an absurdity.”
Article 23 of the Constitution also provides that Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or other tribunal.
It has also been held per MRS. JOYCE BAMFORD-ADDO, J.S.C. in the case of TEHN-ADDY v ATTORNEY-GENERAL AND ELECTORAL COMMISSION [1996-97] SCGLR 589 as follows:
“Whatever be the philosophical thought on the right to vote, article 42 of the Constitution, 1992 of Ghana makes the right to vote, a constitutional right conferred on every Ghanaian citizen of eighteen years and above. As a constitutional right therefore, no qualified citizen can be denied of it, since the Constitution, 1992 is the supreme law of the land. Article 45 of the Constitution, 1992 entrusts the initiation, conduct and the whole electoral process on the Electoral Commission, and article 46 of the Constitution, 1992 guarantees the independence of the commission in the performance of its task. A heavy responsibility is therefore entrusted to the Electoral Commission in ensuring the exercise of this constitutional right to vote….We therefore realised that it would be unfair to deny the plaintiff and the unregistered citizens such a constitutional right.”
Article 51 of the Constitution also provides that the Electoral Commission shall, by constitutional instrument, make Regulations for the effective performance of its functions under this Constitution or any other law, and in particular, for the registration of voters, the conduct of public elections and referenda, including provision for voting by proxy.
Article 11 (7) of the Constitution provides that: Any order, Rule or Regulation made by a person or authority under a power conferred by this Constitution or any other law shall: (a) be laid before Parliament; (b) be published in the Gazette on the day it is laid before Parliament; and (c) come into force at the expiration of twenty-one sitting days after being so laid unless Parliament
before the expiration of the twenty-one days annuls the Order Rule or Regulation by the votes of not less than two-thirds of all the members of Parliament.”
In the case of APALOO V ELECTORAL COMMISSION [2001-2002] SCGLR 1, it was held as follows:
“To this end power is given to the Electoral Commission in Article 51 to make laws regulating the electoral process which if valid would govern the exercise of the franchise. For this reason if they impose unreasonable or unnecessary restraints on the peoples’ right to vote, or indirectly takes away that inalienable right, in contravention of Article 42 quoted above such laws or regulations or directives would be struck down by this court as null and void. Since according to Article 1 sovereignty of Ghana resides in the people, only the people may decide how and when the franchise may be interfered with and no other inconsistent law made by the Electoral Commission would be permitted to interfere with the said right.”
“The effect of this Article is also that the Electoral Commission cannot delegate or share its discretionary powers with any other person or authority eg. political agents of different parties, since as already stated above, this would amount to interference with the performance of the Electoral Commission’s functions
which Article 46 seeks to avoid and prevent. For the above reasons in the conduct and supervision of an election it is the Electoral Commission alone which has to exercise discretion to make all decisions not inconsistent with the constitution or any other law.”
The directive by the Electoral Commission to the General Public that a specific identification card shall be used in voting “is unjustified, null and void, since that directive as was not backed by C.I. For this reason the Constitutional requirement in Article 51 was breached and the Plaintiff was entitled to come to this Court for a proper interpretation and enforcement of Articles 42 and 51 of the constitution, as well as other laws and regulations already mentioned above.”
“We in this country have adopted a democratic form of Government, as well as other political rights including the right to vote. This right ought to be exercised in a free and fair manner as provided for under various Articles of the Constitution and other laws. Therefore any act which seeks to deprive, undermine, prevent or hinder the people, or any section thereof from voting and thereby participating in the political life of the community, is wrong and illegal, it is a major deprivation of their right to vote, which is contrary to our constitution and undermines the whole concept of a democratic government.”
“As can be seen the principle regarding the interpretation of election laws is that they should be construed liberally in favour of the right to vote rather than a denial of that right, since this is the intention of the constitution in various Articles especially particularly Article 42 which provides that all registered voters be allowed to vote freely without any unreasonable hindrance whatsoever. This is also clearly in conformity with the spirit of the constitution. Elections must necessarily be free and fair so as to obtain an honest expression of the
will of the people, therefore any interpretation of any of the electoral laws and regulations or the exercise of a discretion by the Defendant Commission should conform with this constitutional interpretation of regarding laws in conformity with the clearly evident intention of the Constitution.”
“In similar manner the courts should and would protect the right to vote at all costs as it has previously protected the right to register, otherwise, democracy in this country would be undermined. Speaking for myself I am of the strong view that as guardians of the Constitution and the rights and freedoms provided therein for all people, including the right to vote, which is the first basic right and
pivot upon which all other rights rests – it is the bounden duty of this court to strike down any act which has the effect of taking away the full and free enjoyment of the franchise, an act which though unintended would contravene the relevant provisions of our Constitution, as sufficiently discussed above.”
Per AMPIAH, J.S.C.: “As stated before, the Electoral Commission is empowered to make regulations for the effective performance of its duty. That power gives a discretion to the commission; the exercise of which shall not be arbitrary, capricious or biased. It is to avoid such situations that a constitutional instrument is required. This is to give the legislature, an opportunity to have a look at the intended constitutional instrument.”
Per ATUGUBA, J.S.C.: “I must also stress that the power to determine how effectively to discharge its electoral functions vests in the Electoral Commission and it is trite law that a court would not interfere with the decision of an
administrative officer under statutory provisions but that the court is restricted to the question whether the officer concerned followed the correct legal process in arriving at his decision or otherwise exercised his said power in accordance with law.”
In REPUBLIC V. INSPECTOR-GENERAL OF POLICE, EX PARTE ANIAGYEI II (1976) 1 GLR 394 at 399, TAYLOR J said
“I think the law is now so well settled and there is no need for an authority to support it, that when by law power is given to a person or body, the person or body must exercise the power in accordance with the terms of the enabling law”.
On the processes for removal from office of members of the Electoral Commission, Article 297(a) of the Constitution provides as follows: In this Constitution and in any other law, the power to appoint a person to hold or to act in an office in the public service shall include the power to confirm appointments, to exercise disciplinary control over persons holding or acting in any such office and to remove those persons from office;
Article 70(2) of the Constitution provides that the President shall, acting on the advice of the Council of State, appoint the Chairman, Deputy Chairmen, and other members of the Electoral Commission.
Per Article 44(6) of the Constitution and Section 5(3) of the Electoral Commission Act, 1993 (Act 451) if a member is absent or dies, the Commission shall continue its work until the President, acting on the advice of the Council of State, appoints a qualified person to fill the vacancy.
Article 53 of the Constitution provides that the appointment of officers and other employees of the Electoral Commission shall be made by the Commission acting in consultation with the Public Services Commission.
Article 191(b) of the Constitution provides that a member of the public services shall not be dismissed or removed from office or reduced in rank or otherwise punished without just cause.
Article 44 of the Constitution provides that: (2) The Chairman of the Electoral Commission shall have the same terms and conditions of service as a Justice of the Court of Appeal. (3) The two Deputy Chairmen of the Commission shall have the same terms and conditions of service as are applicable to a Justice of the High Court.
Article 194 of the Constitution provides: (2) The Public Services Commission shall consist of (a) a Chairman, a Vice-Chairman and three other members who shall be full-time members of the Commission, and (b) such other members as Parliament may, subject to article 70 of this Constitution, by law prescribe. (6) The provisions of article 146 of this Constitution relating to the removal from office of a Justice of the Superior Court of Judicature, shall apply (b) to the members of the Commission referred to in paragraph (b) of clause (2) of this article, before the expiration of their period of service as provided by law.
Article 70(2) –Supra– on President’s appointment of members of Electoral Commission.
Article 146 of the Constitution provides as follows: (3) If the President receives a petition for the removal of a Justice of the Superior Court other than the Chief Justice or for the removal of the Chairman of a Regional Tribunal, he shall refer the petition to the Chief Justice, who shall determine whether there is a prima facie case. (4) Where the Chief Justice decides that there is a prima facie case, he shall set up a committee consisting of three Justices of the Superior Court or Chairmen of the Regional Tribunals or both, appointed by the Judicial Council and two other persons who are not members of the Council of State, nor members of Parliament, nor lawyers, and who shall be appointed by the Chief Justice on the advice of the Council of State. (5) The Committee appointed under clause (4) of this article shall investigate the complaint and shall make its recommendations to the Chief Justice who shall forward it to the President (9) The President shall, in each case, act in accordance with the recommendations of the Committee. (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 the 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.
Note: Same procedure applies to the removal from office of Auditor-General (Article 187(13)), Governor of the Bank of Ghana (Article 183(4)(d))