Broadcaster challenges President over appointment of EC boss

A broadcast journalist, Mr Richard Sky, has filed a suit at the Supreme Court seeking interpretation as to who has the constitutional mandate to appoint the Chairman of the Electoral Commission (EC).

The interpretation being sought by Mr Sky arises from a friction between two constitutional provisions, one which enjoins the President to make such appointment based on the advice of the Council of State.

On the other hand, however, another provision states that the President was not bound by the recommendations of the Council of State.

In his statement of claim, the plaintiff averred that what in his view was pivotal in the determination of the suit was whether the operative phrase “acting on the advice of the Council of State” had any mandatory binding effect.

Binding on president

“My humble view is that the use of the phrase is not accidental and therefore has a binding effect as used in the context of the 1992 Constitution,” the statement posited.

Section 2 of Article 70 of the 1992 Constitution provides that “the President shall, acting on the advice of the Council of State, appoint the Chairman, Deputy Chairman and other members of the Electoral Commission”.

However, Section 3 of Article 91 of the Constitution states that “the Council of State may, upon request or on its own initiative, consider or dealt with by the President, a Minister of State, Parliament or any other authority established by this Constitution except that the President, Minister of State, Parliament or any other authority shall not be required to act in accordance with any recommendation made by the Council of State under this clause”.

The statement contends that those provisions had brought to the fore, many divergent views on the appointment of the Chairman of the Electoral Commission vis-a-vis the role of the President and the Council of State.

It said if that issue was not settled once and for all, it could lead to unnecessary political apprehension when eventually an announcement was made on the appointment of a new Chairman of the Electoral Commission.

The statement averred that it was evident per Article 91 Section 4 of the Constitution that the functions of the Council of State in the appointment of the chairman and deputies, as well as other commissioners of the EC, was one conferred on the Council of State by the Constitution and not one of opinion sought by the President.

“Thus, any such advice in this direction by the Council of State, becomes constitutionally binding on the President. The President has no unfettered discretion to take or disregard such advice,” he maintained.

Constitution envisaged transparency

The Constitution, it said, envisaged a transparent process by both the President and the Council of State in the appointment of chairman and other commissioners of the EC due to the very sensitive constitutional role of the commissioner in the democratic process.

The statement said the fact that previous appointments made had no such known transparent procedures was, indeed, worrying and problematic.

“The present action seeks the intervention of this Honourable Court to determine the true and proper meaning of the relevant aforementioned provisions in the 1992 Constitution,” it stated.

Background

The term of the current Chairman of the EC, Dr Kwadwo Afari Gyan, expires on June, 18, 2015 and by Constitutional arrangement, a new person ought to be appointed to replace him.

But various political interests and civil society groups have raised concerns mainly due to what they consider a prerogative of the President to do such an appointment.