INTRODUCTION
The cornerstone of a vibrant democracy is the confidence of its citizens in the electoral process. Therefore, elections must be conducted with integrity, transparency, and accountability. It is through the diligent work of the Electoral Commission or the body charged with the functions of conducting elections,and the judicial oversight provided by the courts that the sanctity of the electoral process is maintained.
In the realm of parliamentary elections in Ghana, the role of the Electoral Commission (EC) is undeniatly pivotal and indispensable.It is the body responsible for conducting elections and declaring results. However, questions often arise about the extent of its powers, particularly regarding the re-collation of results after a declaration has been made by a returning officer. This concise piece explores the legal scheme surrounding this issue and addresses the issue whether the EC can annul election results and undertake a re-collation based on allegations of duress or other irregularities.
THE JURISDICTION OF THE HIGH COURT
To understand the EC's powers, it is important to examine the jurisdiction of the High Court as specified in the 1992 Constitution of Ghana. Article 99(1)(a) grants the High Court the power to hear and determine any questions regarding the validity of a person's election as a Member of Parliament. This provision establishes that the High Court is the primary forum for hearing and determining election disputes, including those arising from parliamentary elections.
The High Court's jurisdiction is further reinforced by the Representation of the People Law, 1992 (PNDCL 284). According to Section 16(1)thereof,the validity of an election can only be questioned through a petition presented to the High Court. This means that any disputes concerning the election results must pass through the High Court, and the EC cannot unilaterally alter or annul results without a court order.
AT WHAT POINT CAN THE JURISDICTION OF THE HIGH COURT BE INVOKED BY AN AGGRIEVED PARTY
Section 16 of PNDCL 284 states that the validity of a parliamentary election can only be questioned through a petition filed under sections 17 to 26. Furthermore , an election petition must be made or filed in the High Court for hearing within 21 days after the results has been gazetted . According to Article 99(1)(a) of the Constitution and section 16(1) and (2) of PNDCL 284, before someone can file a petition against a candidate's election as a Member of Parliament, the petitioner must demonstrate that the Electoral Commission conducted a parliamentary election and declared the results.For clarification purposes, Section 16 is reproduced verbatim:
“16. Methods of questioning election
1. The validity of an election to Parliament may be questioned only by a petition brought under sections 17 to 26.
2. An election petition shall be presented before the High Court for hearing."
Thus, the precondition is for the commission according to the provisions Sections 17-26, to have declared the results .
In the case of Republic v. High Court, Koforidua; Ex parte Asare (Baba Jamal & Others Interested Parties) [2009] SCGLR 460, the Supreme Court unanimously ruled that if the Electoral Commission has not declared the results of an election, that election is considered incomplete or premature. The court stated further that in this instance, as no person had been declared by the Electoral Commission as the Member of Parliament for the Akwatia Constituency, the electoral process in that constituency was deemed incomplete and did not constitute a valid election. Therefore, the trial High Court lacked jurisdiction to hear the action initiated by the writ of summons from the interested parties.
This ruling further reinforces the importance of the Electoral Commission's role in declaring election results as a legal requirement and condition precedent. Without this declaration, any claims regarding the validity of an election cannot proceed in court. It also settles the key issue to the effect that once the results is declared by the electoral commission, any dispute in relation to the said election can only be resolved by the court and not the commission.
THE ROLE OF THE ELECTORAL COMMISSION
The Electoral Commission's responsibilities include conducting elections, compiling results, and declaring the outcomes. Following the declaration of results by a returning officer, the EC's role is generally considered to be complete. However, if allegations of duress or fraud arise, the question becomes whether the EC has the authority to reassess or re-collate results on its own.
In the landmark case of Yeboah v. JH Mensah [1998-99] SCGLR 492, the Supreme Court emphasised the importance of adhering to the legal processes established for election disputes. The court ruled that the High Court is the appropriate venue for challenging the validity of an election, not the Supreme Court. This ruling,it is argued,underpins the principle that election disputes must be resolved through the judicial system, rather than being unilaterally addressed by the EC.
THE REQUIREMENT FOR CHALLENGING ELECTION RESULTS
For a petition to be validly filed against an election, it must meet specific criteria as outlined in Section 17 of PNDCL 284. This section specifies that a petition can only be presented within twenty-one days from the publication of the election results in the Gazette. Moreover, the petitioner must demonstrate that the Electoral Commission conducted a parliamentary election and declared the results.
In the case of Republic v. High Court, Koforidua; Ex parte Asare [2009] SCGLR 460, earlier referred to,the Supreme Court ruled that if the EC has not declared results, the election is considered incomplete. This ruling further reinforces the point that the EC cannot simply revisit declared results unless there are compelling legal grounds to do so.
THE GROUNDS FOR ANNULLING ELECTION RESULTS.
According to Section 20 of PNDCL 284, the High Court may declare an election void under specific circumstances, including general bribery, intimidation, or misconduct that may have affected the election's outcome. Moreover, if there is evidence of non-compliance with the law that affected the election results, the High Court has the authority to annul the election.
However, allegations of duress against an electoral officer do not automatically grant the EC the power to re-collate results or annul them. Such claims must be substantiated and examined through the judicial process. The EC's role is primarily administrative, and it does not have the judicial authority to investigate and determine the validity of such allegations independently.The Police for instance may be required by the EC to investigate some electoral malpractices but that should not empower the EC or the Police to declare null and void on the basis of the said investigation. The power to do that is still within the purview of the court.
THE IMPORTANCE OF JUDICIAL OVERSIGHT
The role of the judiciary in electoral matters cannot be overstated. The High Court serves as a check on the EC's powers,to ensure that any claims of irregularities or misconduct are addressed through legal channels. This judicial oversight, it has been pointed out, is vital to maintaining the integrity of the electoral process and to make certain that all parties have a fair opportunity to contest election results.
In the case of In re Parliamentary Election for Wulensi Constituency; Zakaria v. Nyimakan [2003-2004] 1 SCGLR 1, the Supreme Court affirmed that there is no right of further appeal from the Court of Appeal to the Supreme Court regarding election petitions determined by the High Court. This decision reinforces the finality of the High Court's decisions, which in turn lends more weight to the necessity for the EC to respect judicial determinations regarding election disputes.
THE PROCESS OF FILING ELECTION PETITION
To initiate an election petition, aggrieved parties must comply with the procedures outlined in PNDCL 284. This includes filing the petition within the specified time frame and demonstrating the requisite capacity to challenge the election results. As noted in the case of Tehn-Addy v. Electoral Commission [1996-97] SCGLR 589, every Ghanaian citizen aged eighteen and above has the right to vote, and this right can be invoked in election petitions.
Once a petition is filed, the High Court will assess whether the petitioner has the capacity to initiate the proceedings. If the court finds that the petitioner lacks the necessary standing, the petition may be dismissed. Conversely, if the petitioner meets the legal requirements, the court will proceed to hear the substantive petition.
THE CONSEQUENCES OF MISUSING THE ELECTORAL PROCESSES
It is important for all parties involved in electoral disputes to comply strictly to the established legal processes outlined by the constitution and statute . A significant concern arises when parties attempt to bypass judicial procedures, as seen in the aftermath of the 2008 Parliamentary and Presidential Elections, where a substantial percentage of cases were improperly initiated by writ of summons rather than by petition. Such missteps can lead to the dismissal of cases and exacerbate post-election tensions.
Counsel must remember the importance of filing petitions correctly, as the law mandates that election disputes be settled through this specific process. The integrity of the electoral system relies on the proper handling of these disputes in order to ensure that all parties respect the established rules.
CONCLUDING REMARKS
In conclusion, the Electoral Commission of Ghana does not possess the authority to undertake a re-collation of parliamentary election results on its own after a declaration has been made by a returning officer. The legal structure established by the 1992 Constitution and PNDCL 284 clearly delineates the roles and responsibilities of both the EC and the judiciary in managing electoral disputes.
Allegations of duress or irregularities must be addressed through the appropriate legal channels, primarily the High Court. The judiciary serves as a vital check on the powers of the EC, which is a legal manifestation that all election disputes are resolved fairly and transparently.
Lawyer Musah Ahmed, LLB, BL, LLM (National Security Law and International Diplomacy)
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