Ordinarily, the 2020 general elections to elect a president of the republic and to elect legislators for the various constituencies is slated for 7th December, 2020.
However, current happenings and situations suggest it may not happen. The deadly coronavirus disease has claimed over a million lives worldwide and threatens to wipe out everyone.
Among other measures to prevent the spread of the virus, health experts and governments have advised their people to practice physical distancing. With this new directive in place, how does Ghana, a country whose citizens queue to cast votes, and which has little or no knowledge and less resources to conduct an electronic voting conduct elections?
How will the over a million Ghanaians who are due to register for a voter’s identification card do so? These questions give rise to projections that the Electoral Commission may be incapable of conducting this year’s general election.
Assuming that becomes the reality, the most popular questions that are asked by many are; who becomes the president of Ghana? Will it still be President Nana Addo Dankwa Akuffo-Addo or another statesman would assume office?
In regards to these questions, here are some suggestions presented in articles by some students and teachers of law on the topic and my thoughts on them.
The 1992 Republican Constitution provides in article 63 that presidential elections shall be held not earlier than 4 months and not later than 1 month before the term of office of a president expires.
Contextually, in the case of President Nana Akufo-Addo, presidential elections must be held between September 7, 2020 and December 7, 2020.
However, in situations where elections cannot be held within that frame, article 63 (2b) provides that in cases where the office of the president becomes vacant, election shall be held within 3 months after the vacancy. This means that, in a situation where the office of the president becomes vacant upon the expiry of the term of office on January 7, 2021, elections must be held before April 2021.
Having refreshed our minds on what the law says about presidential elections, let us attend to the suggestions of who is likely to rule if elections 2020 is cancelled and under what circumstances.
The first suggestion is that the speaker of parliament becomes president. This thought is informed by article 60 clauses 10 and 11 of the 1992 constitution which state that, the speaker has the power to act as the president where the president is unable to function.
It appears prima facie as a reasonable suggestion, but, what really is the lifeline of a parliament? Better put, what is the duration of office of a Speaker in Ghana’s parliament?
A simple comprehension of the English Language in Article 60 clauses 10 and 11 implies that, this article only works when there is an incumbent president but cannot perform due to illness or on official duty outside Ghana.
However, under this situation, the president’s tenure of service is expired. Article 113 stipulates that a Speaker; the head of Parliament, has a parallel duty lifeline as parliament and pursuant to Article 113, a president’s and a parliament’s duration of duty are expired at same time. This means, on January 7, 2021, Parliament would be dissolved and there would not be a Speaker, hence this suggestion is not tenable.
There is also the school of thought that the Chief Justice (CJ) should be made to rule. Many consider the office of the CJ for these reasons: that one, the tenure of office of the Chief Justice will not elapse at same period with the president and parliament, and second, a loose interpretation of article 60 (10) (11) which suggests that a Chief Justice can take on the leadership of the country when the President and Speaker are unavailable.
But we have already established that article 60 (10, 11) can only be effected when there’s a sitting president. Evaluating this suggestion through the eyes of the democratic principle of separation of powers, I cannot explain further than you understand the havoc that can be caused if we have a person act as both the Commander-In-Chief of the Ghana Armed Forces and the Chief Justice. Principles like accountability and a proper trial of corrupt officials would be lost.
The third suggestion is that the President activates article 31 and declare a State of Emergency. Most who align with this school of thought are of the belief that, by the declaration of a state of emergency, the President can extend his tenure of office.
But is that so? Article 31 (1) stipulates that “the president may, acting in accordance with the advice of the council of state, by proclamations published in the Gazette, declare a state of emergency in Ghana or in any part of Ghana.”
Now, provided that the President secures the approval of all stakeholders in declaring a State of Emergency, does that suspend the entire 1992 constitution or does it suspend article 63 to make the tenure of office of the president indefinite?
It must be noted that, during state of emergency, a government would operate gaining its power and authority from parliament and parliament is not empowered to suspend the 1992 constitution.
This means that, a state of emergency may allow the president a privilege to suspend only certain parts of the constitution and this is clear in Article 31 (10), that “nothing done under the powers given by parliament to the government under a state of emergency shall be in contravention of Article 12- 30 of the 1992 constitution.”
Articles 12-30 focus on Human Rights. As such, if article 31 (10) is anything to go by, then it suggests that, Article 31 when activated may suspend just Human Rights provisions but not political provisions like article 63.
This translates that, even under a state of emergency, upon the expiration of the tenure of office of President Nana Addo Dankwa Akuffo- Addo, the Office of the President would be vacant because the provision regulating a State of Emergency does not invalidate constitutional provisions on presidential elections and term of office.
To conclude, should it be our reality that the 2020 general elections would be cancelled? The Speaker of Parliament and the Chief Justice of the Republic cannot be president and with the incumbent President, it may take the introduction of new constitutional provisions to maintain him in office under a state of emergency.
Written by: Elliot Nuertey | universnewsroom.com