The decision by the Electoral Commission (EC) to disqualify 12 presidential aspirants from contesting this year’s presidential election has generated controversy among governance experts and legal practitioners.
Among the issues that formed the basis for the disqualification were failure by some of the aspirants to fully complete the nomination forms, same persons endorsing their forms, failure to properly sign the forms and use of double registrants in the completion of the forms.
Shortly after their disqualification, some of the aggrieved aspirants threatened to seek legal redress.
In separate interviews in Accra yesterday, the lawyers were unanimous in stating that those who were found to have committed fraudulent acts on their nomination forms should be dealt with in accordance with the law, reports Mabel Aku Baneseh.
Sharing his views on the way forward, Professor S. Kwaku Asare, a law lecturer based in the United States of America (USA), said the EC should follow its own rules in Regulation (7) (3) (b) of C.I. 94 which provides that “the nomination form shall be delivered between the hours of 9 a.m. and 12 p.m. and the hours of 2 p.m. and 5 p.m. on or before the nomination day”.
He said C.I. 94 (9) also provided that whenever the nomination paper and the statutory declaration of a candidate were delivered and the deposit paid in accordance with those regulations, the candidate should be considered to stand nominated, unless proof was given to the satisfaction of the returning officer of the candidate’s death, withdrawal or disqualification.
He said it also stated that the law required the returning officer to give a candidate the opportunity to make amendments or any alteration necessary within the stipulated nomination period.
Prof. Asare further noted that the returning officer was required by law to give a candidate an opportunity to fix defects and it was “only candidates who fail to fix the defects that can be disqualified”.
“In the instant case: (a) the deadline for candidates to submit their nominations was September 30; (b) candidates submitted their deposits on October 10; (c) the EC declared on October 10 that several nominations were defective.
“It follows that: the nomination period could not end on October 10, much less September 30; the nomination period must end a few days after October 10; the EC is required by its own regulations to give candidates a reasonable time to fix any defects in their nominations, as determined on October 10, and any disqualification of candidates on October 10 violates the EC’s own regulations,” he added.
He, accordingly, urged the EC to give the disqualified aspirants the chance to fix their defects.
Another lawyer, Mr Charles Tettey, wondered how a political party would know whether or not its member had registered twice or more and was, therefore, not fit to fill out nomination forms.
He said it was impossible for political parties to know of such anomalies because they were not custodians of the voters register and also not experts to detect any form of fraud.
He, therefore, urged the EC to allow those who were disqualified purely on administrative errors to correct their mistakes and stand for the polls.
Mr Tettey, however, noted that the law should deal with those who were found to have committed various forms of fraud while filling out their forms.
In a brief interview, another lawyer, Mr Cosmos Anpengnuo, said the disqualified applicants should be given the opportunity to do the corrections.
“Those with clerical errors should be allowed to correct them, but the fraudulent ones should be exempted and dealt with according to the law,” he stated.
Mr Bright Akwetey
Another lawyer, Mr Bright Akwetey, was of the view that the EC should not reinstate the names of the 12 disqualified presidential aspirants.
Disagreeing with his colleague lawyers, he said Mrs Osei was a competent lawyer who was conversant with the laws regulating elections in the country.
He said the filing of nomination forms and the completion of other documents in accordance with the laws and regulations governing elections were the sole preserve of the EC.
“That institution has been charged to do an efficient job in compliance with laws of this country and for that matter anybody who falls foul of the law must be sanctioned and the sanctions include disqualification from participating in the general election,” he emphasised.
Supporting the EC’s position, Mr Akwetey said anybody who was not able to fulfill the conditions required by law for standing for elections in this country was not capable of leading the people of this country as a parliamentarian or President.
He said Ghana was lucky to have a competent lawyer, and a courageous one too, who could oversee compliance with the laws governing elections in this country.
No legal basis
A political economist and governance expert, Dr Eric Oduro Osae, was of the belief that the presidential aspirants who had been disqualified did not have legal basis to challenge the decision of the EC, reports Timothy Ngnenbe.
Gap in EC’s pronouncement
In an interview, Dr Osae, however, stated that the EC left a gap in its declaration when it failed to make available options known to the disqualified aspirants.
“In any system, the EC ought to be fair to all political parties. In that light, it should have concluded its presentation on the note that there are options for the disqualified political parties and make those options known.
“By failing to do so, one can only say that the EC used administrative procedure to prevent people from exercising their democratic right and this is an administrative law issue that must be dealt with as such,” he said.
He said even though the disqualified parties might not have a strong case in court, any legal process embarked on could affect the conduct of the December 7 elections.
He said the current state of affairs could have been avoided if the EC had given ample time to the political parties and the aspirants to file, saying that “the two months filing period was short; it could have been six months, so that the parties will have no excuse if they do not meet the requirement”.
Dr Osae urged the EC to be proactive and collaborate with the National Commission for Civic Education (NCCE) to educate and sensitise the public to the provisions of C.I. 94, adding that the regulatory document ought to be made available and accessible to the public.
Timothy Gobah reports from Cape Coast that Mr Harry Hayford of Akyere Chambers in Cape Coast is of the view that the “strict application of the law in this democratic dispensation” is not the best.
“I don’t think the EC was fair with those it disqualified, since democracy is a give-and-take affair,” he said.
Mr Hayford was of the contention that the EC could have given the aspirants enough time to enable them to right the wrongs and participate in the democratic exercise, instead of “logging them out” and throwing their efforts into jeopardy.
He urged the affected people to go to the court for redress if they were convinced that they had a solid matter that could stand in the face of the law.
“I think the political parties and aspirants may not have knowledge on the implication of completing the statutory declaration forms provided by the EC.
“By signing them, what it meant was that the aspirants committed and swore in law that the information they gave on the forms was right and that if any was wrong, they should be held responsible in law,” he added.
A private legal practitioner, Mr Egbert Faibille Jnr, for his part, urged the EC to reconsider its stand, saying that considering some of the errors by the aspirants, the EC was not fair in dealing with them, reports Severious Kale-Dery.
He said it should be possible for the EC to detail its officials and attach one to each political party to assist the parties in the filling of the forms.
Mr Faibille described the decision as an “interesting development”, explaining that even though the EC had the power to do what it did, “pursuance to Article 296, the EC, in deciding to disqualify people, is exercising a discretionary power and the Constitution imposes on anyone who exercises such discretionary power to be fair and candid in doing so”.
He said some of the reasons assigned by the EC to disqualify the aspirants, such as the non-completion of the forms, were justified, but punishing the aspirants because someone endorsed more than one aspirant was not fair.
Mr Faibille was of the opinion that such a decision did not encourage participatory democracy and was hopeful that those who would go to court would present a strong case, so that the EC would be compelled to reopen the filling for them.
He disagreed with the decision by the EC to take the filing fee upfront and turn to disqualify aspirants, comparing that to what happened at the embassies where visa applicants were compelled to pay upfront and when they were denied visas, they had no chance of reclaiming their money.
Court not best option
For Lawyer David Annan, another private legal practitioner, the EC had done nothing wrong and advised those disqualified not to resort to the law court, as they would not have a strong case to present.
He said the facts were overwhelming, considering what was explicitly stated in the entire C.I. 94, asking: “What remedies will they be seeking in court?”
“I will respectfully and humbly advise all of them to sign one petition to the EC to temper justice with mercy and I believe that if they appeal to Mrs Osei’s conscience, she may reconsider her position,” he suggested.
Mr Annan believed that the EC was not overly rigid but that it was only applying the law at its disposal.