The Electoral Commission (EC) has been sued once again, this time over the conduct of the special voting reserved for certain public officials, security agencies and other people who have election-related assignments on December 7.
The new court action against the EC is asking the electoral body to declare the results of the special voting ahead of the main elections to allay any fear of tampering with the ballots.
The plaintiffs, Dr. Kwame Amoako Tuffuor, Benjamin Arthur and Adreba Abrefa Damoa, argue that Section 23 of C.I. 94 – the law which regulates the conduct of the 2016 general election – is inconsistent with Article 49 of the 1992 Constitution.
There is a flurry of suits against the EC over the conduct of this year’s polls as many of the political parties which flag bearers were disqualified from the crucial electoral contest have already gone to court to compel the commission to reinstate their candidates.
Dr. Papa Kwesi Nduom’s Progressive People’s Party (PPP) and Nana Konadu Agyemang Rawlings’ National Democratic Party (NDP) are in court as well as Dr. Edward Mahama’s People’s National Convention (PNC), while the likes of Hassan Ayariga of APC and Dr. Henry Lartey of GCPP are threatening legal action against the commission.
Again, the Supreme Court is expected to rule on Thursday, October 27, in a case in which a former Director of Research at Parliament, Kwesi Nyame-Tease Eshun, is seeking to compel the EC to allow candidates or their agents to append their signatures on the constituency collation sheets and also be given copies.
Special Vote Count
In the instant suit, three individuals – Dr. Kwame Amoako Tuffuor, Benjamin Arthur and Adreba Abrefa Damoa – want the court to compel the EC to count ballots cast on the day of special voting as provided for by Regulation 23 of the Public Elections Regulations, 2016; CI.94 which is a part of public elections.
The plaintiffs, who cited the Attorney General as one of the defendants, want a declaration that “upon a true and proper interpretation of Article 49 of the Constitution of the Republic of Ghana, 1992, the ballots to be cast pursuant to Regulation 23(1), (2), (3), (4), (5), (6), (7), (8), (9) and (10) of the Public Elections Regulations, 2016; CI.94 by special voters in the December, 2016 presidential and parliamentary elections, ought to be counted and announced there and then on the date(s) of the special voting by the presiding officers and the results at each polling station before communicating same to the returning officer.”
They want a further declaration that “Regulation 23(11) of Public Elections Regulations, 2016; CI.94 is inconsistent with Article 49 of the Constitution of the Republic of Ghana.”
Public Elections Regulations
The plaintiffs are requesting for a further order to strike down “Regulation 23(11) of Public Elections Regulations, 2016; CI.94 as being in contravention of Article 49(2),(3)(a) and (b) of the Constitution of the Republic of Ghana, and therefore unconstitutional,” as well as another “order directed at 1st defendant to comply with the provisions of Article 49(2), (3)(a) and (b) of the Constitution of the Republic of Ghana in respect of special voting for the 2016 presidential and parliamentary elections and any subsequent public election in the Republic of Ghana.”
Special Voting Day
In their statement of claim, the plaintiffs aver that the EC has set aside a day for special voters for the December elections to vote prior to the day set aside as polling day as directed by Regulation 23(4) of C.I. 94. The commission has received applications from voters intending to vote as special voters and further set aside a date for them to vote before December 7.
“It is plaintiffs’ respectful contention that the ‘special voting’ procedure and provisions thereof are part of the ‘public election’ provided for at Article 49 of the Constitution, in the following words and is therefore subject to all constitutional injunctions relating to counting of votes, recording of votes cast, signing by polling agents and announcement of the results at the polling station before communication of same to the returning officer.”
The plaintiffs posit, “All that Regulation 23(11) of C.I. 94 does is that it places itself above Article 49 of the Constitution and tramples on its provisions thereof with utmost impunity.”
EC Communication
They claim that C.I. 94 is subject to the constitution and is provided for in Article 1(2) and added that in the instant action, the conduct of the EC in communicating its intention pursuant to CI 94 not to declare the results of the special voting for the 2016 elections until polling day is unconstitutional in the light of the provisions of Article 49 of the Constitution.
High Stakes
The plaintiffs assert that the stakes in the December general election “are too high to leave matters of the nature which form the basis of this suit the way they are.” They point out, “The issue of special votes and where they would be kept until polling day without any tampering with same before same are added to the ballots cast on polling day for counting is likely to trigger yet another election petition.”
“To brazenly let any provision of C.I. 94 regarding special voting override Article 94 of the Constitution, in the name of an unprovable fear of victimisation of special voters is to assert that in spite of the strides made in over 20 years of constitutionalism, we still creep at the repercussions of our legitimate democratic choices,” the plaintiffs argued, adding, “Security officers vote for and against governments or opposition parties during elections. No fetish should be made about this fact.”
By William Yaw Owusu