Ghana: COVID-19, Election 2020 and Constitutional Matters Arising

1.Introduction

Due to the COVID-19 pandemic, the President has imposed restrictions on the movement of persons and public gatherings pursuant to the Imposition of Restrictions Act, 2020 (Act 1012). Many planned events, both public and private, have been cancelled or indefinitely suspended. The National Identification Authority has had to suspend its mass registration exercise. This is in spite of the fact that the National ID Card (Ghana Card) has been earmarked by the Electoral Commission as one of two identification documents that it would accept for its proposed voter registration for the 2020 Election. The mass registration exercise to compile a new biometric voters register is itself in limbo too. The registration which was scheduled to commence in April has been suspended by the Electoral Commission.

These developments are causing anxiety in some Ghanaians about the political future of the country. They wonder whether the general elections scheduled for 7 December 2020 to elect a President and Members of Parliament may have to be postponed if the spread of Covid-19 in Ghana does not abate to allow withdrawal of the restrictions imposed by the President.  That first question naturally leads to a second question, namely, what will happen if the general elections are not held on 7 December 2020 as planned? And what, if anything, does the 1992 Constitution say about such a situation?

Many analysts have offered various legal positions on the matter. I will give my view on those propositions. But first, I would like to state that we shouldn’t even have to wait until we are confronted with the worst-case scenario of having to postpone the 2020 elections. Between now and December is sufficient time for all stakeholders—the EC, the political parties, relevant civil society organisations, etc—to deliberate and come up with an ingenious plan on how the general elections can be held if the COVID-19 situation does not improve. Without suggesting any particular approach or solution, we can, for instance, start thinking about spreading the election over a number of days in one or two regions at a time, to allow maximum use of security and other resources so that strict social distancing protocols can be maintained during the vote. And while it may sound farfetched or too ambitious, we could also consider some electronic voting options that may be used alone or in combination with the paper ballot. The point I’m driving home is: We have to start thinking out of the box and fast! If there is anything this pandemic has taught us, it is the fact that we cannot be stuck in our old ways and continue with business as usual. We must adapt or be doomed!

2.The Varied Legal Viewpoints on a Worst-Case Scenario

Now, to the question of what happens in the very unlikely event that the elections will have to be postponed to a later date. On this, I have read a number of legal viewpoints on some blogs and social media platforms. The principal ones are these:

(a)That the President can declare a state of emergency to extend his term and possibly that of Parliament;

(b)That Parliament may, pursuant to its residual powers under Article 298 of the Constitution, pass an Act to the extent its term and that of the President; and 

(c)That the Chief Justice may step in and act as President until elections can be held.

I will comment on these in turn and then close with what I think is the best legal way forward. 

First, the state of emergency of argument. Those who espouse this view claim that a declaration of a state of emergency gives the President broad powers to do acts which in ordinary times may be regarded as unlawful or unconstitutional. Indeed, some go as far as to say that by declaring a state of emergency, the President can suspend the operation of some laws including the electoral laws. They then use this premise to argue, that due to the broad powers that the President may exercise during states of emergency, the President can extend his term, and probably that of Parliament, by declaring a state of emergency if the COVID-19 situation prevents the 2020 election from taking place as scheduled. 

This argument is obviously an extravagant proposition. Article 31 of the Constitution which regulates the declaration of a state of emergency is a “derogation clause.” It only allows the President to temporarily limit or suspend the operation of some fundamental human rights in Chapter 5 during a state of emergency. This much is evident in Article 31(10) of the 1992 Constitution upon a careful reading of it. Indeed, even in such cases of emergency, the measures taken must be “reasonably justified for the purposes of dealing with the [emergency] situation”. In short, Article 31 does not give a carte blanche to the President to suspend the operation of any and every provision of the Constitution as he deems fit. Therefore, beyond the restriction of certain fundamental human rights in Chapter 5 of the Constitution during a state of emergency, the President cannot use a declaration of a state of emergency to perpetuate himself in office contrary to the constitutionally stipulated term of office of the President. Any argument that he can do so is flawed and does not take account of the legislative history behind the carefully circumscribed emergency power provisions (“derogation clauses”) that have been included in all post-1966 constitutions of Ghana.

The second view being promoted relates to the residual powers of Parliament under Article 298. That Article provides: 

Subject to the provisions of Chapter 25 of this Constitution, where on any matter, whether arising out of this constitution or otherwise, there is no provision, express or by necessary implication of this constitution which deals with the matter, that has arisen, Parliament shall, by an Act of Parliament, not being inconsistent with any provision of this Constitution, provide for that matter to be dealt with.

Proponents of the “residual powers of Parliament” theory argue that if the elections cannot be held due to COVID-19, Parliament can simply pass an Act to extend its term and that of the President. They make this argument ostensibly on the basis that the Constitution is silent on what should be done when a disease pandemic or other public emergency has prevented the holding of a general election to vote a new parliament and president into office. That argument appears sound on its face but runs into difficulty when closely examined. 

This is why. The residual power of Parliament in Article 298 is subject to Chapter 25. What this implies is that any legislation providing for a matter on which the Constitution is silent is deemed an amendment of the Constitution by addition of new or extra provisions. It must therefore be done in accordance with the amendment procedure in Chapter 25. In effect, Parliament cannot exercise its residual power of legislation through an ordinary Act of Parliament as proponents of the Article 298 route seem to suggest. Such an enactment will be unconstitutional on procedural grounds alone. An enactment passed pursuant to Parliament’s powers under Article 298 must therefore be a constitutional amendment Act. 

Article 113 of the 1992 Constitution which regulates the life of Parliament is non-entrenched; it may, therefore, be amended by Parliament alone pursuant to Article 298 and Chapter 25 to cater for a worst-case scenario where the 2020 election is not held. However, since Article 113 itself provides for possible extensions of the life Parliament, an Act to effect changes to its provisions for a COVID-19 worst-case scenario would be superfluous. The real deal, therefore, is whether the Article 298 route can be used to extend the term of office of the President. That is where the difficulty comes. The whole of Chapter 8 of the Constitution including Article 66 that deals with the tenure of the President is entrenched. Being entrenched, a bill to amend any of the provisions of Chapter 8 (including the tenure of the President) must be approved in a referendum held throughout Ghana. It follows that the very reasons for which the 2020 general elections may not be held to elect a President would prevent the passage of an Act under Parliament’s residual powers to extend the tenure of the President. Thus, the Article 298 route being suggested is also a dead-end in my opinion.

The third major proposition that has been put forward is the suggestion of getting the Chief Justice to act as President until a general election is held. Those who advocate this position base themselves on the order of precedence stipulated in Article 57(2). That provision states that:

“[t]he President shall take precedence over all other persons in Ghana; and in descending order, the Vice-President, the Speaker of Parliament and the Chief Justice, shall take precedence over all other persons in Ghana.”  

The CJ proponents argue that Article 57(2) establishes an order of succession or a chain of command. Consequently, in the event that the 2020 election cannot be held due to COVID-19, the CJ may be sworn in on 7 January 2021 to act as President until the general elections can be held. They, or at least some of them, further argue that during this period as Acting President, the CJ may recall Parliament to sit pursuant to Article 113(3) to enable him to make ministerial or other appointments and get needed legislation passed. 

In my view, proponents of ‘the CJ as Acting President’ advocate a circuitous constitutional route that leads to absurdity. Article 57(2) which they invoke as their authority for the CJ to act as President places the Speaker of Parliament ahead of the CJ in the order of precedence. What this means is that after being sworn in as Acting President, if the CJ then recalls Parliament under Article 113(3) or via a so-called purposive interpretation of “war” in Article 113(2) as some have suggested, the old Parliament and its Speaker would have had their full mandate reinstated, albeit temporarily. In such a case, the priority that the Speaker enjoys over the CJ in the order of precedence under Article 57(2) is restored. What then will happen to the CJ/Acting President? Would he have to have to resign after he has recalled Parliament to give way to the Speaker who, in any case, is the person whom the Constitution expressly indicates as successor in the absence of both the President and Vice President? Also, given that the presidential oath must be taken before Parliament, but Parliament would have been dissolved as of midnight on 6 January 2021, one has to wonder how the CJ would have been lawfully sworn in as Acting President, to begin with. It is because of these absurdities that I equally reject ‘the CJ as acting President’ proposition. 

3.The Most Plausible Legal Way Forward

In my view, the most plausible way forward in a worst-case scenario is provided in Article 113(3). That provision states:

 Where, after a dissolution of Parliament but before the holding of a general election, the President is satisfied that owing to the existence of a state of war or of a state of public emergency in Ghana or any part of Ghana, it is necessary to recall Parliament, the President shall cause to be summoned the Parliament that has been dissolved to meet.

This clause can be read as providing the constitutional basis for a “transitional government” pending a general election in cases where Ghana is at war or in a state of public emergency.  In a worst-case scenario where the 2020 election has to be postponed to a date later than 6 January 2021, we will have a situation where Parliament would have been dissolved “but before the holding of a general election”.  Such a situation will bring us within the scope of Article 113(3). The question must then be about who may activate this clause to recall the dissolved Parliament. Note that under our current arrangement the President’s term ends concurrently with that of Parliament. I have already discounted as absurd the proposal of swearing in the CJ as acting President who then recalls Parliament. We must, therefore, look at a plausible alternative. And here is where I think that the steps required to activate Article 113(3) need not wait until the terms of both Parliament and the President have expired. That will create a needless constitutional absurdity or crisis. 

In my view, the most reasonable and least disruptive way to activate Article 113(3) would be to do it during the period immediately before the life of Parliament ends. Going by that timeline, it will fall on the incumbent President whose term would expire with that of Parliament at midnight on 6 January 2021 to execute that constitutional task. The President can issue the instrument recalling or extending the life Parliament under Article 113(3) as the last act he performs before the expiry of his tenure. Such an instrument will then take effect upon the expiry of his term and that of Parliament. However, because I do not think that the Constitution prohibits the making of instruments that are ‘executory nature’ given that governance necessarily involves anticipating problems and planning ahead, I believe it would be constitutional and reasonable for the incumbent President to issue such a summons under Article 113(3) in advance. Now, since the Constitution provides for the Speaker to act in the absence of the President and Vice-President when the dissolved Parliament reconvenes on the date appointed in the instrument, the CJ will then have to swear in the Speaker as acting President pending the holding of the general election.^[1]

The Speaker as acting President may then appoint ministers to form a transitional government. Indeed, to ensure national cohesion during that period, it should be possible for the Speaker/Acting President to come to a political consensus with the majority and minority parties in Parliament to appoint a bipartisan transitional cabinet. While this is not a constitutional injunction, it would be a prudent political act that deepens democracy and ensures national cohesion during that exceptional period in the life of the nation. 

This route is workable and avoids the absurdity that comes with the swearing in the CJ as acting President. It also differs materially from the approach of those who advocate the extension of the President’s term through a declaration of a state of emergency. Admittedly, the fact that COVID-19 would have prevented the holding of a general election necessitating the invocation of Article 113(3) would be an indication that the country is in a state of public emergency. In fact, generally, a declaration of a state of emergency over the whole country or substantial part of it would be clear evidence that a state of public emergency warranting the invocation of Article 113(3) actually exists.[2] That said, I do not express an opinion on whether a declaration of a state of emergency is a condition precedent to the application of Article 113(3) or that the emergency situation referred to in that provision must merely exist de facto. Nevertheless, even in cases where Article 113(3) is invoked against the background of a declaration of a state of emergency, that would produce a result characteristically different from the scenario where the President declares a state of emergency to extend his term. In the scenario under article 113(3), the President leaves the scene for the Speaker to act as President pending the holding of a general election. He may only return if he is re-elected at the deferred polls. In the other scenario, the President uses a state of emergency to perpetuate himself in power, an act that would be contrary to the letter and spirit of the Constitution. 

Finally, I have heard at least one lawyer argue that since the combined reading of clauses (11) and (13) of Article 60 suggests that the death, removal, and resignation of the President and Vice-President are the instances in which the Speaker may assume office as Acting President, it may not be lawful for the Speaker to act as President in a COVID-19 worst-case scenario. The argument goes that the Speaker would be stepping in because the President’s term has expired; but since the expiry of tenure is not one of the grounds mentioned in Article 60(13), the Speaker’s assumption of office as Acting President may be unlawful. I consider that argument to be tricky for at least two reasons. First, in Asare v Attorney-General [2003-2004] SCGLR 823, the Supreme Court held that the death, resignation or removal of the President and Vice-President do not exhaust the list of circumstances in which the Speaker may be sworn in to act as President. In that case, the Court upheld the absence of both the President and Vice-President from Ghana as an additional ground. Therefore, it is not farfetched to suggest that the expiry of tenure disables the President and Vice-President from performing presidential functions making it necessary for the Speaker to act as President. And to be sure, expiry of tenure does not make the Presidency any more or less vacant than the death, resignation or removal of both the President and Vice-President. 

Secondly, we observe from Articles 63(2) and 112(4) that the Constitution stipulates a timeline for the election of the President that is slightly different from the timeline for the election and inauguration of Parliament.^[3] Article 113(3) as discussed above also allows the President to recall Parliament after the expiry of its term if the election of a new Parliament has been delayed for the reasons provided in that Article. In effect, the Constitution actually envisages the situation where the terms of the President and Parliament may commence and end at different times resulting in a situation where the Presidency is vacant but Parliament is still in session or the vice-versa. It can therefore not be convincingly argued that when the framers provided for the Speaker to act in the absence of both the President and Vice-President, they did not have expiry of the President’s term in mind under any circumstance.

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^[1] See Article 60(11) of the 1992 Constitution which provides that “[w]here the President and the Vice-President are both unable to perform the functions of the President, the Speaker of Parliament shall perform those functions until the President or the Vice-President is able to perform those functions or a new President assumes office, as the case may be.”

^[2] Presently, the President has chosen not to declare a state of emergency over Covid-19.  Whether the approach he has taken to deal with the pandemic is constitutional or not is a discussion for another day. 

[3] It is for optimal use of resources and convenience that the Electoral Commission has synced the presidential and parliamentary election calendars to allow voting for a president and members of parliament to take place on the same day ( i.e., 7 December) every four years.