For the first time under the Fourth Republic, the Electoral Commission (EC) has pronounced a candidate in a Parliamentary election, even before the date set for the polls and without a single vote being cast.
The candidate has been declared unopposed because, after going through all the legal processes, including an extension for 10 days, only one candidate presented himself for the election.
Thus, Prof. Seidu Alidu, who secured more than half of the votes of delegates in the National Democratic Congress’ (NDC) by-election in Tamale Central, has become the first unopposed elected Member of Parliament (MP).
This is because the Parliamentary election is won on the philosophy of First Past the Post, which means the candidate who receives the highest number of votes stands elected, with or without the mandate of the majority of the voters.
The decision is based on Article 50(1)".
Mahatma Gandhi has noted that if a servant is ready and enthusiastic in sharing and basking in the glory of the master, then that servant should not seek to run away or distance himself from the master when he courts disgrace or shame.
Similarly, Dr Martin Luther King insists that in a constitutionally democratic setting, every provision must be honoured and respected, no matter how irrational it may seem, until it is reviewed and amended.
The fact is that if this were a Presidential poll, Prof. Alidu would still have been subjected to the franchise to ensure that he secures more than 50 per cent of the votes that would be cast to be declared elected.
The Constitutional requirements for the election of a President are under Article 63 (3) (4) (5) (6) (7) and (8) of the 1992 Constitution.
The essence is that in a Presidential election, there could be as many rounds of voting as possible, until one candidate secures more than 50 per cent of the vote cast. Article 63 (8) sums it up. Article 63 (3) is unequivocal.
Approaches
These then provide two approaches towards the election of a President as opposed to an MP. It is instructive to note that the Good Book admonishes us to respect and honour all the provisions in the Ten Commandments given to the people of Israel through Moses.
It is said there that the same God who said Do not kill, also said Do not steal.
Therefore, if you kill but do not steal or if you steal but do not kill, you are guilty before the law and subject to condemnation.
If we are happy and satisfied with these different approaches to electing our presidents and MPs, because one is higher than the other, then we must equally understand that the processes for removing Justices of the Superior Courts and equivalent positions in public office cannot be the same as the removal of the Chief Justice.
That is how the recent accusation made against the Ghana Bar Association (GBA) by the Attorney General and Minister of Justice at the Bar conference in Wa, that the GBA is playing the ostrich by criticising the processes leading to the removal of the Chief Justice, while it kept quiet when Charlotte Osei and her deputies were removed from the EC, must be looked at and evaluated.
This is based on the fact that Article 44 (2) and (3) equate the conditions of service of the EC chair at par with those of a Court of Appeal Justice, while those of the deputies are equivalent to those of a High Court.
The conditions for the removal of a Justice of the Superior Courts are provided for under Article 146 (3) (4) (5) and (10) (b), whereas the provisions for the removal of the Chief Justice are provided for under Article 146 (6) (7) and (10) (a).
In the case of Justices of the Superior Courts, when the President receives a petition for removal, he is enjoined to send it to the Chief Justice, who is mandated to determine whether there is a prima facie case and if so, to set up a committee made up of three Justices of the Superior Courts or Chairmen of Regional Tribunals or a mixture appointed by the Judicial Council and two others appointed by the Chief Justice on the advice of the Council of State.
On the other hand, in dealing with the Chief Justice, on receipt of such a petition, the President is enjoined to consult the Council of State and appoint a committee consisting of two Justices of the Supreme Court, one of whom shall be appointed chairman and three other persons.
The authority of the President is broad and unhindered, since consultation is not a term of art, while the Chief Justice is restrained in abiding by the choices of the Judicial Council and advice of the Council of State.
Petition
During the Presidential Election petition in 2012, when it emerged that some presiding officers of the EC did not sign the Pink Sheets to validate the data carried on them, Prof. Kofi Kumado posed a wry question as to whether a couple could claim to be validly and legitimately married if the presiding officer or the person officiating did not sign the marriage certificate.
My basic question is, if the President had not exercised his discretion to suspend the Chief Justice as provided under Article 146(10) (a) that "Where a petition has been referred to a committee under this article, the President may in the case of the Chief Justice, acting in accordance with the advice of the Council of State, by warrant signed by him, suspend the Chief Justice”.
Once he did, his action triggered the spirit and letter of Article 296, upon which the GBA entered the fray.
Article 296 provides that "Where in this Constitution or in any other law, discretionary power is vested in any person or authority (a) that discretionary power shall be deemed to imply a duty to be fair and candid; (b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law and, (c) where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instrument or statutory instrument regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power."
The concomitant question is, is the President a judicial officer and is there any regulation outlining the procedure for the removal of the Chief Justice of public knowledge, such that ordinary citizens can vouch with certainty and objectivity as to the transparent nature of the process as many are copiously citing Article 146(6), whether they have legal knowledge or otherwise, as they can read and understand the primary meaning of the words of the clause?
More relevantly, are the provisions for the removal of the Chief Justice and the other Justices of the Superior Courts the same as is being argued?
It must be understood that every provision in the Constitution is as authoritative as any other.
The provisions of Article 146(6) are not Superior or subordinate to Article 296.
More importantly, the requirement for the removal of the Chief Justice must be more stringent than that of the removal of any Superior Court Justice or equivalent public office holder.
At the heart of any democracy is the rule of law and due process.
