The Chairman of Legal and Constitutional Committee of the New Patriotic Party, Prof Mike Oquaye, has expressed disquiet on the intended plan by the Chairperson of the Electoral Commission, Charlotte Osei, to recount the presidential ballot in the upcoming elections, should the result become ‘too close’, warning that he plan could plunge the nation into crisis.

According to the former deputy Speaker of Parliament, the C.I.94, which governs the 2016 general elections, does not sanction such a decision, and is therefore urging the EC boss to drop the idea forthright.

In a letter to the Electoral Commissioner, Prof Oquaye expressed shock at the decision, insisting that the EC chairperson has no authority to call for a recount as she plans doing.

Read the full letter below:

THE CHAIRMAN

ELECTORAL COMMISSION

ACCRA

Dear Madam,

RE: TOTAL RECOUNT OF BALLOT

I respectfully refer to the above and your statement which has been reported concerning recount as follows: “our elections in Ghana tend to be very close. If it is so close, it might be very prudent to stop, inform everyone, do a total recount and be sure of what we are announcing finally”.

I am a citizen completely at a loss as to the legal basis of this statement if indeed same emanated from your high office. I deem it necessary to crosscheck the aforementioned statement with you so as to satisfy myself on which further step to take if necessary.

In the first place, CI 94 which regulates Election 2012 provides that recount is done solely at the instance of the contesting parties or candidates and their agents under the following circumstances: “A candidate or a representative of a candidate or a counting agent may, if present when the counting of the ballots is completed, request the presiding officer to (a) recount the ballots; and (b) again recount the ballots for a second time. The presiding officer may refuse to comply with the request to recount the ballots for a second time if, in the opinion of the presiding officer the request is unreasonable and shall report the matter to the returning officer; who shall recount the ballots for that polling station only at the constituency collation centre”.(Regulation 38 subregulation 4&5)

It is my humble view that a number of difficulties could arise if anything else is introduced into the law including uncertainties that could bring confusion after the election.

• What is “too close” may be too subjective for general acceptance.

• What is not predetermined by law may be seen as an attempt to favour one candidate or political party. The number of times is also regulated by law.

• The law provides for recounting ONLY at the polling station and constituency collation centre.

• After boxes have been sealed would they all be brought to a national centre for recounting? If so under whose custody and under what clear circumstances?

When our law provided specifically for ballot papers to be counted at the full glare of the public and results declared, the intention was to avoid the clear blunder from the UNIGOV Referendum of General Acheampong. This experience led to the following provision in the 1992 Constitution copied from the 1979 Constitution: “(1) At any public election or referendum, voting shall be by secret ballot. (2)Immediately after the close of the poll, the presiding officer shall, in the presence of such of the candidates or their representatives and their polling agents as are present, proceed to count, at that polling station, the ballot papers of that station and record the votes cast in favour of each candidate or question. (3)The presiding officer, the candidates or their representatives and, in the case of a referendum, the parties contesting or their agents and polling agents if any, shall sign a declaration stating – (a) the polling station; and (b) the number of votes cast in favour of each candidate or question; and the presiding officer shall, there and then, announce the results of the voting at the polling station before communicating them to the returning officer”. (Article 49 of 1992 Constitution and Article 40 of 1979 Constitution)

The provision in the 1979 Constitution which was repeated in the 1992 Constitution was meant to correct a mischief – the possibility of tampering with ballot papers after the elections and we do not want anything that has even the resemblance of reintroducing this problem. The nation must move forward in the process of deepening democracy.

It will therefore be unconstitutional for anyone to conduct a public election in such a manner that after voting ballot boxes will be kept and then after EC will do another counting and announce results. It will be unconstitutional, illegal and unacceptable. Therefore finality must be given to the number of votes for each candidate at the collation centre of the constituency.

This is what the law says: vote, count, declare and record in the full glare of the public and let candidates or their agents sign and the records kept by them at the local level.

We advise that you strengthen the performance of EC officials at the polling stations and constituency levels. If this is well done under your good supervision at the constituency level, we shall only have 275 constituency collated results duly signed by all political parties. These shall be added together to get a final result. At that stage there can only be recalculation or doing the totaling again and see if you have same results.

Furthermore, Regulation 46 of CI 94 makes it clear that when ballot boxes have been sealed at the constituency collation centre level, no person, body or authority can open that box for any reason whatsoever. Only the High Court can make an order for a ballot box to be opened and any recounting done. Anybody who does otherwise will be acting contrary to law as provided by Regulation 46 hereunder quoted: “(3) The Commission shall, subject to the provisions of these Regulations (a) retain for a year, documents forwarded to the Commission; and (b) destroy the documents after a year unless otherwise directed by a court. (4) The Commission shall not destroy documents relating to an election in respect of which legal proceedings have been instituted until the end of the proceedings. (5) A court trying an offence relating to an election or the High Court hearing an election petition may make an order for a document retained by the Commission to be inspected, copied or produced at a time and place and subject to the conditions that the Court considers necessary. (6) The Court shall not make an order under subregulation (5) unless the court is satisfied that the inspection, copying or production of the document is required to institute, maintain, defend, or prosecute a matter in respect of an election petition and the election to which the document relates. (7) A person shall not inspect or copy a document retained by the Commission except as provided under subregulation (5)”.

Even the EC Chairman cannot open or cause to be opened, any ballot box after it having been sealed at the constituency level nor attempt to inspect or handle any ballot paper whether by counting or otherwise, save by Court Order, lest that person commits an offence.

We strongly believe that a further statement regarding this issue from your high office will clear the minds of Ghanaians, as we look forward to a free, fair, transparent and credible election, regulated strictly and entirely by law.

Thank you.

Yours faithfully,

Signed

Hon. Prof. Mike Oquaye