Professor Stephen Kwaku Asare, a United States-based Ghanaian law professor, has called on the Council of State to, as a matter of urgency, institute a mechanism for broad stakeholder consultations involving civil society organisations and political parties in a quest to find a new chairperson for the Electoral Commission (EC).
Contrary to the widely held belief that the president has the final say in who replaces the soon-to-retire EC boss, Dr Kwadwo Afari-Gyan, Prof Asare believes that the Council of State holds the key to the appointment of a new chairman of the Commission.
The professor notes that the president’s power to appoint the chairman of the EC is a ministerial one and that the ultimate power is vested in the Council of State.
Constitutional Provision
He premised his view on the 1992 Constitution, which he explains is unequivocal about the roles of the president and the Council of State in the choice of a new EC boss.
Article 70(2) 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.”
Already four names have thrown up as potential candidates for the top job, which is to be vacated by Dr Afari-Gyan in June this year.
According to Prof Asare, Article 70(2) obligates the president to act on the advice of the Council of State in appointing the chairman and members of the EC.
He clarifies that “advice” is a term of art, which refers to a binding instruction given by one constitutional officer to another.
“Thus, when Article 70(2) provides that the president shall act on the advice of the Council of State, it contemplates that the Council of State will put in place a mechanism to search for, vet and nominate a candidate for the president to appoint,” he added.
The Search
This search, he maintains, can be done in a variety of ways.
For instance, a committee of the Council of State can do it. This committee, he explained, would become a Search Committee tasked to identify a short list of qualified persons for the Council to choose from.
“Second, the Council is permitted to commission experts and other consultants to advise it. Third, the Council could advertise the position or call on citizens, political parties, NGOs, etc. to nominate candidates either to the Council at large or to the Search Committee. Finally, the Council chooses someone from within the EC, probably from the other members or a respected senior staff,” he proposed.
Appointment Insulated From Politics
Article 70(2), Prof Asare argued, is significantly different from Article 91 (3) which states that:
“The Council of State may upon request or its own initiative, consider and make recommendations on any matter being considered or dealt with by the president, a minister of state, parliament or any other authority established by this constitution, except that the president, minister of state, parliament or other authority shall not be required to act in accordance with any recommendation made by the Council of State under this clause.”
Professor Asare explained that the framers of the Constitution, knowing too well that the president is a political player in the whole election process, decided to insulate the appointment of the EC from possible political manipulation.
“The appointment of the EC chair is substantively the job of the Council of State and not the president,” he said, adding, “If that advice to the president is binding on him, then everybody has the right to know what the advice is.”
Historical Antecedents
Prof Asare indicated that the use of “advice” as a binding instruction has a long history in the country’s constitutional history.
For instance, Section 16 of the 1957 Constitution provides that “The Governor-General, acting on the advice of the prime minister, appoints parliamentary secretaries to assist ministers.”
Similarly, Section 7 of that Constitution provides that, “Any minister may be removed from office by the Governor-General acting on the advice of the prime minister.”
The prime minister at that time was Osagyefo Dr Kwame Nkrumah and the Governor-General was Sir Charles Arden-Clerk [from March to June 1957] and the Earl of Listowel [June 1957 to June 1960]. It was, of course, well established, known and beyond dispute that the prime minister’s advice was binding on the Governor-General.
Thus, the latter’s appointment power was merely perfunctory and the substantive power of appointment was vested in the prime minister. Moreover, it was also understood that the Governor-General played no role in the identification, vetting and selection or removal of the nominees; that power being vested in the prime minister.
He gave another example from the 1969 Constitution [Article 30(2)] wherein, “The electoral commissioner shall be appointed by the president, acting in accordance with the advice of the Council of State.” He added that the president in 1969 was more of a ceremonial Head of State and it was beyond dispute that the substantive power to appoint was vested in the Council of State.
Conclusion
Prof Asare concluded with a discussion of Article 146(4) of the 1992 Constitution. That Article provides that, “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.”
He said Article 146(4) requires the setting up of a five-person committee, two of whom are appointed by the Council of State (and three by the Judicial Council). Even though the Article indicates the Chief Justice shall appoint two other persons on the advice of the Council of State, advice here, he noted, is a term of art. “It will be absurd to interpret this Article as giving the Chief Justice the substantive power of appointment, having first decided that there is a prima facie case,” he noted.
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