EC must be salvaged

We shall steer safely through every storm so long as our heart is right, our intention fervent, our courage steadfast and our trust fixed on God
-- St Francis de Sales.

Confucius has noted that “to see what is right and not do it is a lack of courage.” That is why we must unite as a nation and do whatever we can to salvage the Electoral Commission (EC) from the path it is going following accusations and counter- accusations, with the top management enmeshed in mudslinging throwing dirt all over the place.

If we do not exercise caution and step in, by the time the top managers are done with one another, we would be left with an EC which is so badly dented that the credibility of our electoral processes can no longer be guaranteed.

Indeed, this is not the time for fundamentalist partisan loyalty as to who appointed who and thus machinations to pay back. When the problem started with the petition from unnamed staff, some read mischief into it and drew the New Patriotic Party (NPP) into the fray. There were subtle attempts to brand the counsel for the aggrieved anonymous staff as a stooge, but he stood his grounds and maintained that at the appropriate time, his clients could be seen and felt in flesh and blood.

With what is coming from the top management of the EC, anyone who dreamt partisanship into the matter must beat a fast retreat since we should not at any time be seen to be condoning evil in the name of partisanship. As it is, criminality has been cited from both angles. That is where no structure of the EC must be applied in support or defence of any of the parties. We must strive and get to the bottom of the matter because as Dr Martin Luther King has argued, “an injustice anywhere is a threat to justice everywhere.”

It is equally imperative for the media to exercise restraint in pushing for information on the matter. While the 1992 Constitution provides for freedom of information and since the matter is of great public interest, the public must be provided timely information on what is being done to address the problem. However, it must be noted that the same Constitution expects that such issues, especially if the object is to impeach certain public office holders, then the processes must be in camera.

There are no specific provisions for the removal from office of the chairman and deputy chairmen of the EC, except that the Constitution states that their conditions of service shall be the same as a Justice of the Court of Appeal and High Court respectively. Article 146 provides for the grounds and processes for the removal of justices of the superior courts and chairmen of regional tribunals. It is significant to note that Article 146(8) provides unequivocally that “All proceedings under this article shall be held in camera and the justice or chairman against whom the petition is made is entitled to be heard in his defence by himself or by a lawyer or other expert of his choice.”

In adopting the 1992 Constitution, we as a people agreed to follow the tenets of constitutionalism which involves respect for the rule of law and due process. Where the law requires that a certain process be conducted in-camera, any attempt to expose the proceedings could constitute contempt of court. Contempt of Court is neither prescribed in a written law nor with a defined penalty. Article 19(11) states that, “No person shall be convicted of a criminal offence, unless the offence is defined and the penalty for it is prescribed in a written law.”   However, Article 19(12) provides that “Clause (11) of this article shall not prevent a Superior Court from punishing a person for contempt of itself notwithstanding that the act or omission constituting the contempt is not defined in a written law and the penalty is not so prescribed.”

Exposing the proceedings of an in-camera hearing is contempt of court and one case Re: Martindale, a judge held that “the general rule is an excellent one that legal proceedings should be public and if it were departed from the great weight legal decisions carry with them in this country would be deservedly diminished. But, with this rule certain exceptions are proper and necessary. One ground exception is that a public hearing would have the effect of disclosing what the object of the action is to keep concealed.”

The object of any in-camera hearing is to keep the proceedings concealed from the public domain for as long as it is considered essential in the maintenance of law and order and giving meaning to the rule of law and due process.