Updated: Jul 6, 2020
April 18, 2020
What will happen if we refuse to hold the general elections – the presidential and the parliamentary elections – before January 7, 2021? This article will be as direct and succinct as possible. This is because enough ink and voices have been expended on the background and content of this issue. Mine is merely to point to some factors which I’m yet to see in the discussion. Indeed, I give credit to all the learned minds and our “seasoned” journalists who have, before me, had their bites on the issue.
The proposition in this cramped article is that a failure to hold the general elections before January 7, 2021, for whatever reason, may result not only in an overthrow of the 1992 Constitution, but also an express abdication of office on the part of those who, in one way or the other, have the duty to let the general elections happen. Nothing is more germane to the Constitution’s life than the right to vote. Before I explain this proposition, however, I’ll point out some weakness in some of the powerful propositions that have been made by earlier commentators.
The CJ-President Theory
The first argument that I wish to impugn is that which I call the “CJ-President” theory. This theory suggests that the CJ is entitled to act as President should the election not come on. This theory is based on the line of “precedence” (not succession) which is contained in Article 57(2) of the Constitution. Earlier commentators have given great reasons why the CJ-President theory fails. But there is one more reason. To appreciate this additional reason, however, one needs to, first, appreciate the difference between two situations: (1) a situation where the office of the President is vacant; and (2) a situation where the office of the President is occupied but where the persons who occupies the office is unable to perform the functions of the President.
The Constitution treats the two situations differently. So for instance, the line of precedence in Article 57(2) envisages a situation where there is a President in office but who, for some reasons, is unable to perform the functions of the President. This follows the Prof Asare line of cases. However, what we are dealing with now is a situation of vacancy, namely, where there will be no President and no Vice President. When it comes to a vacancy situation, we know that the CJ is expressly excluded from the line of succession (See Article 60(13)). Therefore, the CJ-President scenario is not even up for discussion here to start with.
The Political Engineering Theory
This theory relies on a concoction of Articles 113(3) and other articles in the Constitution to arrive at the proposition that the President may set in motion a succession plan (the formation of a transitional government) before leaving office, but which plan will only kick in after she has left office. This theory is proffered and cogently advanced by Chris Nyinevi as the “most reasonable and least disruptive” solution to the problem. But this theory, too, has a fundamental challenge. The challenge derives from a rather simple question – can the President rule from out of office? The answer may be an emphatic no. Reasons: The President’s term of office ends on January 6. Therefore, she cannot make a law or put in place an extra-constitutional arrangement which directly determines or is capable of determining who should succeed her. The political engineering theory, when accepted, will, in essence, allow a mischievous President to engineer and institute her own succession plans contrary to the tenor of the Constitution and the tenets of democracy.
But there is even a more severe weakness in the political engineering theory. This weakness derives from the very reason why the President cannot use a state of emergency to extend his own term. To appreciate this weakness, we first need to understand what we are actually dealing with. You see, for the general elections not to come on, someone must first declare it cancelled. Cancelling the general election entails the suspension of the right to vote. The real question, therefore, is – who has the power to suspend the right to vote? An auxiliary question may be – how may that person do it?
The political engineering theory relies on a state of public emergency for breath. However, when the Constitution says a ‘state of emergency’, it meant the derogation or suspension of some of the fundamental human rights in Chapter 5 alone. What we are dealing with here, however, is the right to vote. The right to vote is not in Chapter 5 of the Constitution. It is in Chapter 7. By placing it under Chapter 7 (rather than under Chapter 5) the framers of the Constitution did not intend the right to vote to ever be suspended under a state of emergency (even though it may, in accordance with Article 113(2), be suspended under a state of armed conflict). Therefore, a declaration of a state of emergency does not invoke any power that may tinker with or result in the suspension of the general elections. The result of this analysis is that, as it stands, the President has no power to suspend the right to vote (or the general elections). Parliament, too, doesn’t, as it stands. In fact (and at law), no one does apart from the people acting at a referendum.
The result of this analysis is that, as it stands, the President has no power to suspend the right to vote (or the general elections). Parliament, too, doesn’t, as it stands. In fact (and at law), no one does apart from the people acting at a referendum.
Further, Article 60(11) envisages a situation where Parliament and the Speaker may exercise the powers of the President in the interim. Therefore, it is possible to include in such a situation circumstances in which the President’s office is vacant (which may, in itself, include where we are not able to hold a Presidential election). However, that situation is predicated on the constitutional requirement that the President’s office and Parliament shall not become vacant at the same time. In respect of this requirement, one may refer to Article 63(2)(a) and Article 112(4) of the Constitution, and compare the phrase “not later than one month” before the President’s term ends and the phrase “within thirty days” of Parliament dissolving. For whatever reason, however, we have squashed these provisions and have managed to align the term of Parliament perfectly with the term of the President so that the two expire at the same times – immediately before midnight of January 7. By that alignment, we have rendered Article 113(3) of the Constitution impotent.
General Elections as the Constitution’s Blood and Soul
What does the above mean? The above may mean that the Constitution considers the right to vote (and therefore, the general elections) as its blood and soul and, thereby, the very basis of its existence. This may be seen from the fact that, apart from a state of armed conflict against an external aggression, the Constitution makes almost no provision for a situation where the general elections may not be held. It also leaves us with almost no lawful guide to dealing with a situation where the general elections may not be held. Indeed (and, as you may see from the earlier commentaries on this issue) the Constitution carefully blocks us, almost entirely, from ever finding a lawful way out of not having a general election.
The Constitution makes almost no provision for a situation where the general elections may not be held. It also leaves us with almost no lawful guide to dealing with a situation where the general elections may not be held.
The logical implication of these claims brings us to the proposition which I consider, quite modestly, as the most compliant proposition on this matter. This proposition derives from the early parts of the Constitution – the fundamentals. Article 1 of the Constitution tells us about the Constitution’s supremacy. The Constitution is supreme to all, everyone and everything. It is supreme to the lives and healths of the individuals in Ghana. This makes sense at law and in fact, because, deductively, the life and health of the citizen depend on the life and health of the Constitution. Without the Constitution, there is no Republic of Ghana. As a result, no behaviour or act of anyone is allowed to chip away from the supremacy of the Constitution.
Then, Article 3 tells us about the defence of the Constitution. The Constitution forbids anyone from overthrowing or even attempting to overthrow it, whether with or without violence. It builds on the supremacy provisions to command us all to defend it, even at the peril of our lives. And, indeed, nothing no one does in the defence of the Constitution may be an offence under the Constitution. But, even most importantly, the Constitution spells out the consequences of overthrowing or attempting to overthrow it.
This makes sense at law and in fact, because, deductively, the life and health of the citizen depend on the life and health of the Constitution. Without the Constitution, there is no Republic of Ghana. As a result, no behaviour or act of anyone is allowed to chip away from the supremacy of the Constitution.
What I’ve been saying all this while is that: (1) the general election is the expression of the right to vote; (2) the suspension of the general election, therefore, is the suspension of the right to vote; (3) situations of armed conflict aside, no one, except the people at a referendum, has the power to suspend the right to vote (and, therefore, the general elections); (4) anyone who has the duty to ensure that the general elections come on as scheduled, but who fails in that duty, has, by that failure, suspended the right to vote (and, thereby, the Constitution); and, finally, (5) anyone who suspends the Constitution also has overthrown it.
By saying this, I may not be taken to mean that a Constitution may never be overthrown. As a student of constitutional history and evolution, I understand, theoretically, that there may exist a genuine situation, no matter how remote, where a Constitution of a country may have to be set aside. Rather, what I’m saying is that suspending the right to vote is an extremely serious matter. It must never be taken lightly. This means that whoever has a duty or power to ensure that the general elections come on as scheduled, must also know and understand the seriousness of that duty. In other words, whoever will decide to take the responsibility of postponing the general elections beyond January 6, 2021, should know the full effect of that decision.
This blog was originally published here: https://bit.ly/2LdXJQ1. The author is Oyibo.