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Following the call on the President and Council of State to broaden consultations in the selection of a new Chairman of the Electoral Commission by the Caucus of Political Party Chairmen under the aegis of the Institute of Economic Affairs-Ghana Political Parties’ Programme (IEA-GPPP), there have been various responses in the media by several Ghanaians.  

It is imperative that other views should be expressed to throw more light on the need for broad consultations in the exercise of political power in this Republic, with particular reference to the appointment of the Chairman of the Electoral Commission (EC).

It cannot be gainsaid that Ghanaians have in recent years decried the over-concentration of political power in the hands of the Presidency, irrespective of which political power is in power at any given time.

On 1st July, 2013, His Excellency President John Dramani Mahama, addressing senior citizens of this nation, observed that the winner-takes-all politics was not helpful "as the government and opposition remained parallel even after elections." President Mahama further noted that "the current trend of democracy in the world needed the cooperation of both government and the opposition to fine-tune the constitutional demands of the people".

Again, the President observed that the country needs "concerted efforts and cooperation from all citizens to achieve development", and therefore called on "all stakeholders ... to take a look at how best the negative trend entailed in the winner-takes-all politics could be ameliorated to support the government to strengthen institutions." Dr. Kwabena Adjei, the immediate past chairman of the ruling National Democratic Congress (NDC), Prof. Kwesi Botchwey, leading member of the NDC, Mr. Kofi Annan, former UN Secretary –General and indeed, several others have bemoaned the winner-takes-all politics which is characterized by overwhelming partisanship and the politicization of issues of national importance that require consultations and consensus-building.

It is submitted that no area in our governance practically demands consultations, conviviality, understanding and general acceptance than the appointment of the Chairman of the EC.

The two main political parties have registered distrust for the EC at different times before elections. Threats have resounded that if the EC did not behave well, Ghana would land into “Kenya”, ie, there would be civil war. Civil Society has engaged in proactive interventions to ensure peace and the religious community have also engaged in prayers and fasting in desperate effort to avoid the disintegration of our nation during elections. Taking a cue from our immediate past, when an occasion has risen for the appointment of a new Chairman of the EC, should we be totally oblivious of the realities of the immediate past?

Without going into the argument regarding who actually nominates and who appoints – ie the President vis-à-vis the Council of State, it is submitted that broad consultation is imperative and that the eminent national chairmen of the four main political parties with representation in parliament, namely; Mr Kofi Portuphy (NDC), Mr. Paul Afoko (NPP), Ms Samia Nkrumah (CPP) and Alhaji Ahmed Ramadan (PNC) did not err in calling on the Council of State and the President to do so. Given how polarized we are as a nation, I can also say without any equivocation that it is constitutional, commonsensical, logical, reasonable, expedient, enlightened and wise to do so.

Whosoever has power to make any appointment or nomination whatsoever has a right and duty to consult relevant persons and stakeholders. Indeed, those who are wise always do so. It is in line with the Twi expression “ti koro nko agyina” (one person cannot confer with his own self) and the Biblical expression, “in the multitude of counsel, there is safety”.

In article 70 (2), the Constitution provides for the President to appoint the EC “on the advice of the Council of State.” It is expected that in the process, some consultations/ discussions/advice-seeking/viewpoints will be made. It cannot be said that such opinion-eliciting will be “an unhealthy and an unconstitutional crusade”.

In the Akan traditional system, the nomination of the Chief is the prerogative of the Queen mother. But wise counsel has developed consultative mechanisms which are applied including aspects of civil society –women, sub-divisions and the youth (nkwaakwaa). These mechanisms foster general acceptance, hegemony and stability within the state. Similar practices exist in other jurisdictions and as democracy develops in Ghana, we should adopt such practices and learn the dynamics of good governance and consensus-building.

We should also appreciate the spirit as well as the letter of the law in our development and refrain from the practice of giving only literal meanings to legislations. To every law, there is a “spirit” behind it! The landmark American Constitutional case – Marbury Versus Madison- gave the great Chief Justice Marshall of the US, the opportunity to establish the concept of Judicial Review of administrative and legislative actions. This principle had not been stated in black and white but was adopted to give meaning to the spirit of the US Constitution. The view point here is, the concept of “purposiveness” in interpretation to enhance democracy and good governance. The wider the consultations, the better – never did too much fish spoil one’s soup in Ghana!!

Throughout Africa, Ghana’s constitution is the least transparent in the appointment process of its chairman of the election management body. What pertains in Kenya, Sierra Leone, South Africa, Uganda, Rwanda, Niger, Mozambique, Malawi, Mali, Equatorial Guinea, Gabon, Cape Verde show that appointment of such high caliber officials  cannot take place without consultations and consensus –building. For example, in Burkina- Faso, the selection of their EC boss is done by civil society and political parties.

In Ivory Coast, the selection is done by political parties, civil society, the executive and the judiciary. In Togo, the selection is done by the President of the Court of Appeal together with both the government and opposition. In Kenya, the position is advertized and shortlisted candidates are interviewed before the President nominates for the legislature to vet and approve. In South Africa, the legislature selects for the president to appoint.

In Rwanda, the selection is done by political parties and civil society for the legislature to appoint. In Niger, political parties and civil society select for the president to appoint. I could go on and on to prove that all these countries have upheld the need for broader consultations in appointing the head of such a sensitive organization.

May be, a look at what pertains Ghana’s premiere university would help. The University of Ghana has developed a Convention in the selection of a Vice Chancellor which is instructive. The choice rests with the University Council. Nevertheless, the University Council appoints a “Search Party” which engages in broad consultation and presents a list of three persons in order of preference and with reasons. The University Council is not bound but considers this carefully and makes a “reasoned decision.” Democracy, Rule of Law and Constitutionalism demands the absence of arbitrariness in the determination of public affairs. Broad consultation maximizes this principle as one man’s choice can easily sink into idiosyncrasy. The multiplicity of views surely invokes deeper objectivity.

It is therefore submitted that the Peace Council, Christian Council, Muslim Groups, professional groups, TUC, women’s’ groups, political parties, policy centers etc can make useful suggestions to strengthen the choice of the EC Chairman without compelling anyone. Those who believe the President should not “sin” by consulting broadly in the appointment of the new EC boss saw the need to consider the high moral character and proven ability of the EC chair as demanded by the Constitution. Now, can any one person know it all? Will consensus-building not introduce a qualitative strand into the process?

Finally, it has been admitted that the Constitutional Review Commission reported the growing desire that in future, the proposed Chairman of the EC should be approved by Parliament. Hence the need for consensus. Of course, this cannot be applied now until the Constitution is amended. But it gives an appointing authority a good clue that Ghanaians prefer consultations and consensus building in the appointment of the new Chairman of the EC. After all, a look at the mode of appointing the Chair of Election Management Bodies in Africa shows that that consensus-building and consultations are critical. I submit that we should be guided by this clue in the “smart” and “enlightened interest” of Ghana.