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A Review of the Electoral Process under Ghana's Fourth Republic

Document Cited authorities 2 Cited in Related
Vincent
DOI10.3366/ajicl.2020.0318
Published date01 August 2020
Date01 August 2020
Pages355-377
INTRODUCTION

Ghana's democracy was disrupted by incessant coups d'état, and elected governments could not complete their terms until the inception of the Fourth Republic in 1992.1 The Fourth Republican Constitution of Ghana 1992 provides for multi-party democracy as a form of government and mandates that there should be elections every four years to choose a president and members of parliament. Chapter Seven of the Constitution established the Electoral Commission (EC) to conduct elections periodically through a laid-down process. There have been seven general elections under the Fourth Republic to elect presidents and members of parliament.2 These have resulted in the alternation of power between the National Democratic Congress (NDC) and New Patriotic Party (NPP), the two main political divides in Ghana.3 Consequently, Ghana has won the accolade of being a beacon of democracy in Africa.4

However, elections under the Fourth Republic have not been without incident. The initial election in 1992 was beset with problems: multiple registration by the electorate, voting in enclosed areas, the absence of party agents at polling centres, the use of thumb-printed rather than photo ID cards and opaque ballot boxes for voting.5 Further, elections under Ghana's Fourth Republic have been tainted with irregularities in the voters' registers, allegations of over-voting and rigging, etc., thus creating tension and pockets of violence.6 The EC in an attempt to improve the conduct of elections put in place measures including facilitating the formation of an Inter-Party Advisory Committee (IPAC) to provide a platform for inter-party dialogue on elections.7 This has influenced positive electoral reforms as will be seen in this article. As elections constitute the process for choosing political leaders there is the need to nurture the process and firmly institutionalise it on the sure foundations of law and democratic ethos. As noted by Shively, the democratic fibre of any society is fragile because ‘All that is needed to make a democracy collapse is for one or more important group to reject the result of the democratic bargain – elections – and to have access to enough power to overthrow the system.’8

Against this background, the article examines Ghana's electoral process for its challenges. First the laws which are periodically promulgated to guide elections are examined to the extent of their compliance with requirements of the rule of law and fair play. Second, the activities involved in the process – which include, the demarcation of electoral boundaries and constituencies and polling stations, voter registration, compilation of the voters' registers and its exhibition, filing of nominations by candidates, voting, counting and the declaration of the election results – are analysed. Each of these activities within the electoral cycle is critical to the integrity of an election. It is therefore imperative that the electoral process in Ghana is studied with the view to crafting the way forward for free and fair elections and for sustainable development. The article will contribute to the understanding of the problems by examining, for policy and practice considerations, the issues raised. The outcome may also inform elections in some African countries where ‘the ballot has turned to the equivalent of the barrel of the gun – the previously illegitimate instrument of ascending to power’.9

This is an interdisciplinary legal study anchored in the mixed methods of qualitative and legal research paradigms. This interdisciplinary research method is well suited for the study because it will make more room for the extensive information required for analysis of the electoral process than doctrinal legal analysis alone would. The data used consists of legal and non-legal sources. The legal sources include electoral statutes, case law, policies on elections in Ghana, and relevant international and regional instruments. The non-legal sources include research reports, reports of international and civil society organisations, archival documents, statements and press releases by the EC, political parties and newspapers.

 THE LEGAL ARCHITECTURE AND ELECTORAL SYSTEM UNDER THE FOURTH REPUBLIC The Legal Framework

The laws, regulations, rules and policies, norms and principles that form the framework of elections in Ghana inhere in national and international instruments. The African Union (AU) member states adopted a number of instruments for the promotion of democratic ideals and norms of free and fair elections in Africa.10 The Declaration on the Principles Governing Democratic Elections in Africa, gives the benchmark for democratic elections, namely that it should be conducted fairly, under democratic constitutions and in compliance with supportive legal instruments, under a system of separation of powers that ensures, in particular, the independence of the judiciary, at regular intervals in accordance with national constitutions, by impartial, all-inclusive competent accountable electoral institutions staffed by well trained personnel and equipped with adequate logistics.11 The African Charter on Democracy, Elections and Governance 2007 which came into force on February 2012 is the key binding instrument on elections in Africa. Article 2(3) of the Charter promotes the holding of regular free and fair elections to institutionalise the legitimate authority of representative government as well as the democratic change of governments. Thus the Charter on Democracy promotes best practices in the management of elections for purposes of political stability and good governance. Article 17 requires state parties to establish ‘independent and impartial’ national electoral management institutions that provide the expeditious settlement of ‘election-related disputes’. There should be equitable access by contesting parties and candidates to state-owned media and a legally binding code of conduct for stakeholders during and after the election process. Citizens on the other hand have the right to participate freely in the government of their countries, either directly or through elected representatives. Article 18 enjoins state parties to request for assistance or advisory services from the Commission of the African Union to strengthen their ‘electoral institutions and processes’ through the Election Assistance Fund of the Democracy and Election Assistance Unit. Member states may request the Commission to send an electoral observer mission to observe their electoral process.

The Electoral Commission (EC) of Ghana is established under Article 43 of the 1992 Fourth Republican Constitution. It consists of a chairman, two deputies and four other members appointed by the president acting on the advice of the Council of State.12 The functions of the EC include the compilation of the voters' register and undertaking programmes for its expansion, the demarcation of electoral boundaries and constituencies, the conduct and supervision of all public elections and referenda, educating the public on the electoral process and its purpose and any other functions as required by law.13 In carrying out its functions, the EC has come under scrutiny resulting in a spate of litigation, some of which is discussed in this article.

 The Electoral System/Structure

Electoral system refers to ‘that part of the electoral laws and regulations which determines how parties and candidates are elected to a body as representatives’,14 that is the rules of the game. In this sense it translates votes that political parties and candidates have won into seats. There are about twelve different types of electoral system which are mainly grouped into three categories: plurality/majority systems, proportional representation systems and mixed systems.15 Electoral systems of whatever kind have three basic elements: the electoral formula in terms of how votes are calculated into seats; the ballot structure, that is how choices are presented on the ballot paper – candidate-centred, party-centred or both; and the district magnitude which refers to the number of candidates elected to represent a given district or constituency in the case of Ghana.16

Ghana's electoral system is of the plurality/majority kind, which allows the candidate with more votes to be declared a winner but with certain conditions attached to presidential elections. The presidential electoral system is the Two-Round System (TRS) shade of the plurality/majority system. With this a Ghanaian who is 40 years and above can put himself/herself up to contest for the presidency either as an independent candidate or through a political party platform. The person who obtains ‘more than … fifty per cent of the total number of valid votes cast at the elections’ is elected as the president of Ghana17 for a term of four years, renewable once.18 There is a run-off if the initial election does not produce a candidate with absolute an majority of 50 per cent plus one and a further run-off where no candidate reaches the 50 per cent plus one mark. The challenge with this system is that it creates a lot of financial and administrative burden where the initial election does not produce a winner and there has to be a run-off, as occurred during the 2000 elections and a second run-off during the 2008 elections. The EC, the administrative machinery, was overstretched and the protracted delay between the time of the elections and declaration of the results created much anxiety and tension in the country. For the position of a Member of Parliament, the prospective candidate must be a Ghanaian of 21 years of age or above. Parliamentary election is that of first past the post (FPTP), a shade of the plurality/majority where the candidate with the largest number of votes cast is declared the winner.19 The country is delineated into electoral districts as constituencies for parliamentary election with one representative elected to a seat in...

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