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Here are the constitutional foundations for the EC’s actions:

Article 63

(1) A person shall not be a candidate in a presidential election unless he is nominated for election as President by a document which -

(a) is signed by him; and

(b) is signed by not less than two persons who are registered voters resident in the area of authority of each district assembly;

(c) is delivered to the Electoral Commission on or before the day appointed as    nomination day in relation to the election;

(d) designates a person to serve as Vice-President.

Article 65.

The Electoral Commission shall, by constitutional instrument, make regulations for the purpose of giving effect to article 63 of this Constitution.

USURPATION OF POWER NOT EXPRESSLY GIVEN BY THE CONSTITUTION

The way the EC is applying the above rules of qualification is wrong. The clause in Article 63 that reads: “A person shall not be a candidate in a presidential election unless…” does not necessarily give the EC the power to disqualify at will.  If the clause is read this way, we give the EC unprecedented powers that the Constitution itself never gave her. Though the clause should have been a bit more exhaustive, it leaves open the possibility of corrections before “A person becomes a candidate in a presidential election.” Educating the public is one of the functions of the EC:

Article 45 The Electoral Commission shall have the following functions -

(c) to conduct and supervise all public elections and referenda

(d) to educate the people on the electoral process and its purpose

If we allow the EC such powers, it becomes the one who decides the list of candidates who can contest for elections through technicalities, instead of the voting public. The Constitution says the following:

21  (3) All citizens shall have the right and freedom to form or join political parties and to participate in political activities subject to such qualifications and laws as are necessary in a free and democratic society and are consistent with this Constitution.

3.  (2) Any activity of a person or group of persons which suppresses or seeks

to suppress the lawful political activity of any other person or any class of persons, or persons generally is unlawful.

55.

 (1) The right to form political parties is hereby guaranteed.

 (3) Subject to the provisions of this article, a political party is free to participate in shaping the political will of the people, to disseminate information on political ideas, social and economic programs of a national character, and sponsor candidates for election to any public office…

(10) Subject to the provisions of this constitution, every citizen of voting age has the right to     participate in political activity intended to influence the composition and policies of the Government.

Natural Justice

In a free and democratic society, due process and fairness are the hallmark of justice. Anytime the Electoral Commission makes a decision that affects an individual in the electoral process, it does not only affect that individual alone, but also those who support him. This potential makes the situation even more demanding that due process and natural justice be applied in such cases. Natural justice applies whenever decisions are made that affects the rights of citizens. When that decision significantly affects the flag-bearer of a party, procedural fairness cannot be ignored.

 

The candidates disqualified by the EC should have been given a chance to hear the case made against them, see the evidence that went against their interest, and then be given a fair opportunity to correct the supposed mistakes. This situation is even more critical in the cases of Nana Kunadu Agyemang Rawlings, Dr. Papa Kwasi Nduom, and Dr. Mahama because the information the EC used to disqualify them belongs only to the EC. How then were they supposed to know? Can one be punished for the misdeeds of others?

When the EC states that there is potential forgeries in some of the cases, and has therefore forwarded the evidence to the police, why then does the EC punish the “culprits” even before the police confirmation of forgery is received? This is not due process, neither is it natural justice; this is opportunistic and malicious.      

Article 23      Fairness and reasonableness

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.

Though I do not condone the actions of people like Akua Donkor in the corruption of our electoral process that is not enough reason to use technicalities to disqualify her. As it is said, “one man’s justice is every man’s justice.” The EC could have used the constitutionally mandated qualifications such as political parties operating in all 10 regions to disqualify many of the “jokers” in the race. 

For those who think the disqualifications are a good thing because it sanitizes the electoral process, think of this: What if the EC had disqualified President Mahama or Nana Akufo Addo? This has the potential of throwing the country into chaos. The fact that the disqualification of the major parties’ candidates is a possibility should tell you that there is something wrong with the EC’s actions. By this action, the EC has taken upon itself the power to disqualify any candidate through technicalities, a power the Constitution does not give her. Since it is partly the duty of the EC to educate the public as stated in Article 45 (d), its actions in this case is not educational but purely punitive. Government agencies exist first and foremost to ensure compliance with the law, not merely to punish for non-compliance. In the present situation, the EC’s actions go against good governance because due process was not followed and natural justice was ignored.

HERE ARE SOME LEGAL MAXIMS  

· No one is bound to give information about things he is ignorant of

· No one is to be punished for the crime or wrong of another

· It is to the intention that all law applies

. Every act is to be estimated by the intention of the doer

· An act does not make a man a criminal, unless his intention be criminal

In a free and democratic society, due process is supposed to produce justice. In our haste to rid our electoral rolls of fraudsters and jokers, we run the risk of giving too much power to the EC. Elections and the electoral process must be allowed to evolve in a free marketplace where the citizens decide who succeed as leaders and who do not. By this same process, new parties are nurtured into institutions. Contrary to Article 23 of the Constitution, the EC’s actions are neither fair nor reasonable. Government of the people, by the people, for the people cannot be hijacked by technocrats through technicalities. Constitutional interpretation cannot be made in such a simplistic and immature manner. This decision is a threat to Ghana’s democracy, and must not be allowed to stand.