By
Her Honour Judge Sedinam Awo Kwadam (Mrs.),
Circuit Court 7 Accra, Ghana.
LLM. Candidate, International Criminal Law and Justice,
Ghana Institute of Management and Public Administration (GIMPA),
Accra, Ghana.
25th January, 2025.
ABSTRACT
Article 42 of the 1992 Constitution of the Republic of Ghana guarantees universal adult suffrage, ensuring that all citizens aged 18 and above and of sound mind have the right to vote in all elections and referenda. This right underpins representation, equality, and inclusivity, and ensures fairness in the democratic process. Article 45 mandates the Electoral Commission to organize and oversee public elections, while Articles 64 and 99, along with Part 4 of the Representation of the People Law of 1992 (PNDCL 284, as amended), assign the resolution of electoral disputes to the High Court and the Supreme Court for parliamentary and presidential elections, respectively.
Electoral Commissioners and Returning Officers, and Superior Court Justices possess a constitutional right to vote while simultaneously serving as administrators and adjudicators of electoral processes respectively. This dual role raises significant ethical concerns about their participation as both electoral participants and referees. This paper explores the ethical challenges associated with this duality, emphasizing the expectation of neutrality in their roles as members of the electoral management body and adjudicators in electoral disputes. Exercising their right to vote in the same elections they oversee or adjudicate risks actual or perceived conflicts of interest, potentially eroding public confidence in the impartiality and integrity of electoral processes and decisions.
This paper thus examines arguments that voting by these officials compromises the perception of neutrality. It also scrutinizes arguments for constitutional reforms to prohibit voting by Electoral Commissioners, Returning Officers, and Superior Court Justices in all elections and referenda. As an interim measure, the paper recommends the voluntary abstention of these officials from voting during their tenure.
Finally, the paper concludes with a call for further debate on the proposal for restricting voting rights for Electoral Commissioners, Returning Officers, and Superior Court Justices and recommends stronger safeguards, such as enhanced transparency and the adoption of comprehensive and legislatively mandated codes of conduct and ethics to uphold electoral integrity and fairness.
CONTENT
ANALYSIS OF GHANA’S ELECTORAL DISPENSATION.. 4
CONFLICT OF INTEREST: THEORETICAL AND PRACTICAL CONCERNS. 5
WAY FORWARD: SAFEGUARDING INTEGRITY AND PUBLIC TRUST IN ELECTORAL PROCESSES. 6
INTRODUCTION
Article 42 of Ghana’s 1992 Constitution guarantees universal adult suffrage, providing every citizen aged 18 years and above and of sound mind with the right to participate in national and local elections through registration as voters and voting in public elections and referenda. This constitutional provision underscores the principles of inclusivity, equality, and fairness in the democratic process, empowering citizens to choose their representatives and shape governance.
Articles 46–52 of the Constitution delineate the establishment and functions of the Electoral Commission, including its responsibility to organise and supervise all public elections and referenda. The Constitution mandates that aggrieved parties seek redress in the High Court for parliamentary elections when contesting electoral outcomes and in the Supreme Court for presidential elections.
A significant ethical issue regarding the dual role of Electoral Commissioners, Returning Officers, and Superior Court Justices as participants and referees in elections thus emerges. As citizens, they have the constitutional right to vote, yet their duty as stewards of electoral integrity requires them to administer and adjudicate electoral processes impartially. This dual capacity raises some pertinent questions: Can individuals tasked with serving as neutral arbiters in the electoral process exercise their constitutional right to vote without undermining public perceptions of impartiality? And, Can individuals tasked with overseeing elections and resolving disputes not have a vested interest that might compromise their neutrality?
In a society where allegations of partisanship have the potential to undermine trust in the Electoral Commission and the Judiciary, the participation of Electoral Commissioners and Returning Officers, and Superior Court Justices as administrators and adjudicators respectively, in voting can exacerbate these concerns, further deepening perceptions of bias and eroding public confidence in the electoral administration and adjudication processes.
This paper critically examines the inherent conundrum created by the dual role of Electoral Commissioners, Returning Officers, and Superior Court Justices, focusing on their participation as voters and their responsibilities as referees in electoral processes. This paper argues that this dual capacity risks undermining public confidence, hence weakening and challenging the perception of impartiality and fairness of electoral outcomes.
The paper also examines recommendations for constitutional reforms to restrain Electoral Commissioners, Returning Officers, and Superior Court Justices from exercising their right to vote in public elections. In the interim, the paper recommends the adoption of a convention for these officials to voluntarily abstain from voting.
The paper further recommends the implementation of robust safeguards to uphold electoral integrity and fairness. These safeguards should include enhanced transparency measures, such as publicly disclosing any potential conflicts of interest, and the adoption of comprehensive, legislatively mandated codes of conduct and ethics. Finally, this paper concludes by advocating for an expanded and inclusive debate on the potential restriction of voting rights for Electoral Commissioners, Returning Officers, and Superior Court Justices. Such restrictions could serve to reinforce public confidence in the impartiality of electoral administration and adjudication.
ANALYSIS OF GHANA’S ELECTORAL DISPENSATION
The role and independence of the Electoral Commission
Articles 46 to 52 of the Constitution define the powers and responsibilities of the Electoral Commission (EC), which serves as the independent body tasked with overseeing Ghana’s electoral processes. Article 46 explicitly guarantees the EC’s independence, safeguarding it from external influence, control, or direction in the performance of its duties. Article 47 addresses the demarcation of electoral areas and the registration of voters. Furthermore, Articles 49 to 50 mandate the EC to run elections. Electoral Commissioners, specifically Returning Officers, play a critical role in overseeing the administration of elections. Their key functions include managing voter registration, coordinating polling operations, and ensuring the accurate and timely declaration of election results. Given the nature of these responsibilities, their positions demand the highest standards of impartiality, integrity, and transparency to maintain public confidence in the electoral process.
Judicial Oversight in Electoral Disputes by Superior Court Justices
Superior Court Justices play a critical role in safeguarding electoral integrity by resolving election-related disputes fairly, legally, and expeditiously. Article 64 of the 1992 Constitution grants the Supreme Court exclusive jurisdiction to adjudicate disputes concerning the validity of presidential elections. Other electoral disputes, such as those arising from parliamentary elections, fall under the jurisdiction of the High Court, as stipulated in Article 99 of the Constitution and Part 4 of the Representation of the People Law, 1992 (PNDCL 284, as amended). Appeals from High Court decisions on parliamentary elections are heard by the Court of Appeal, with the Supreme Court serving as the final arbiter through its review panels.
This tiered judicial framework ensures that electoral disputes are resolved efficiently and comprehensively, maintaining stability in governance. It guarantees that constituents are not left without parliamentary representation and that the nation is not left without a President due to protracted or unresolved disputes, thereby upholding democratic principles and ensuring the continuity of government. Thus, Justices of the Superior Courts are tasked with adjudicating issues that arise before, during, and after elections, including:
- Pre-Election Disputes: Resolving disputes over candidate nominations, eligibility, and the interpretation of electoral laws.
- Election-Day Complaints: Addressing complaints related to irregularities, misconduct, or violations of electoral procedures.
- Post-Election Petitions: Hearing cases regarding the validity of election results, alleged malpractices, or challenges to the declaration of winners.
Through their judicial decisions, Justices reinforce democratic principles such as ensuring free and fair elections, as well as protecting the rights of voters and candidates. They act as a check on the powers of the Electoral Commission, Political Parties and Candidates, ensuring that electoral practices align with constitutional and statutory mandates. Moreover, they facilitate the peaceful resolution of grievances by providing aggrieved parties with a legal forum to seek redress.
CONFLICT OF INTEREST: THEORETICAL AND PRACTICAL CONCERNS
A conflict of interest, in ethical contexts, refers to a circumstance where an individual’s private interests, such as financial, political, professional or employment, social ties, or personal relationships, interfere with their professional responsibilities. This interference creates a tangible risk of compromised integrity, biased decision-making, or impaired judgment. Ethically, conflicts of interest extend to circumstances that either undermine or appear to undermine impartiality, fairness, or objectivity. Such situations can impair trust and confidence in an individual’s willingness and ability to fulfil professional obligations responsibly, transparently and expeditiously.
A practical conflict-of-interest scenario may be characterized by converging interests; the presence of personal, financial, social, or political interests that directly or indirectly intersect with professional obligations, and jeopardize objectivity; where there is a risk that the individual’s judgement or actions could be influenced by private interests rather than the best interests of stakeholders or the public.
Key attributes of a conflict of interest situation include:
- Actual Conflict: A clear interference between personal, financial, social or political, and professional roles.
- Perceived Conflict: Situations that may appear compromising to impartial observers, even if no bias actually exists.
- Potential Conflict: Circumstances that could develop into actual conflicts in the future.
Ethical Contemplations regarding Voting by Superior Court Justices
Voting, when applied to Superior Court Justices, presents significant ethical considerations, particularly concerning perceptions of impartiality in their adjudicatory duties. Voting inherently involves exercising one’s civic right to express a personal choice, often influenced by personal values, beliefs, and preferences. Judicial independence requires not only actual impartiality but also the preservation of public confidence in the judiciary’s neutrality. When Justices participate as voters in an election, they risk being perceived as aligning with the political interests of a specific party or candidate in that election. The concern thus, becomes pronounced when a Justice, after casting their vote in a given election, is later called upon to preside over election-related disputes involving the same context. This perception, whether accurate or not, threatens to undermine public trust in their ability to administer justice fairly and impartially in election disputes incidental to that election which are brought before them.
For instance, a High Court Justice who votes in a parliamentary election and sits in the same jurisdiction may be tasked with adjudicating disputes arising from that election. Similarly, Court of Appeal Justices who vote for a particular parliamentary candidate may later hear appeals involving that candidate, or Supreme Court Justices who vote for one presidential candidate over others may be empanelled to resolve disputes regarding that election. In these scenarios, perceptions of partisanship can undermine public trust, even if the Justices’ voting decisions do not influence their professional judgment. The legitimacy of the judiciary relies not only on impartial decision-making but also on public perception of objectivity. Litigants and the public may question whether a Justice, having participated in the democratic process as a voter by choosing one candidate over another, can truly isolate personal political inclinations from the rigorous impartiality required by their role as adjudicators. The question may arise: Would a Justice who casts their vote not want that vote to count? Would they not subconsciously, or even consciously, steer proceedings to ensure their decision has an impact on they cast?
Without prejudice to the professionalism of Justices, another argument may be that; Justices who have cast votes for a specific political candidate or party may, intentionally or subconsciously, feel inclined to render rulings that align with their political preferences to validate their votes. Biases may manifest in decisions related to procedural technicalities, the evaluation of evidence, or the interpretation of constitutional provisions in a way that favours the candidate or party they have cast their vote for.
For instance, a Justice who supported a particular candidate might hesitate to overturn that candidate’s election, even when faced with compelling evidence. Conversely, a Justice might overcompensate by ruling against their preferred party to project an image of impartiality. Both scenarios, however, undermine judicial independence and the integrity of the process. These tendencies stem from natural human inclinations associated with the responsibility of making decisions between competing ideologies and options. Even in the absence of actual bias, the mere perception of favouritism can be enough to erode confidence in judicial rulings. Perceptions of bias can delegitimise the judicial process, prompting election losers and their supporters to reject court decisions.
Conflict of Interest applicable to Electoral Commissioners and Returning Officers
The act of casting a vote signifies the Electoral Commissioner’s or Returning Officer’s expression of a political preference, which can be viewed as inherently conflicting with their role as a neutral overseer. Even if conducted in good faith, this dual involvement creates the perception that the “referee” has taken sides. While the statistical impact of an Electoral Commissioner’s or Returning Officer’s single vote on the overall electoral outcome may be minimal, the symbolic significance of their participation is considerable. Concerns become exacerbated when Returning Officers, who have voted for a specific candidate or political party, are entrusted with critical responsibilities in managing the electoral processes, especially in the collation and declaration of results. Such individuals may, consciously or subconsciously, be inclined to take actions that align with their political preferences. This potential for bias could manifest in procedural decisions, such as multiple collations and declarations to create manipulation opportunities that favour their preferred candidate or party.
WAY FORWARD: SAFEGUARDING INTEGRITY AND PUBLIC TRUST IN ELECTORAL PROCESSES.
To address concerns about impartiality and potential conflicts of interest while permitting Electoral Commissioners, Returning Officers, and Superior Court Justices to participate in elections, Ghana could consider implementing the following reforms:
- Encouraging Abstention from Voting
Electoral Commissioners, Returning Officers, and Superior Court Justices should be encouraged to voluntarily abstain from voting during their tenure to mitigate perceptions of partisanship. In the case of Justices, perceived bias could lead to frequent recusals in election petition cases, causing delays and limiting the judiciary’s ability to resolve disputes efficiently. Similarly, suspicions of favouritism regarding Electoral Commissioners and Returning Officers could escalate to accusations of election rigging, undermining the overall integrity of the election results. A lack of trust in the impartiality of electoral institutions discourages citizen participation in the democratic process and may embolden political actors to challenge electoral outcomes, even illegitimately. This challenge not only wastes valuable time and resources but also detracts from the judiciary’s capacity to focus on other pressing obligations and litigants’ needs. By voluntarily abstaining from voting during their tenure, Electoral Commissioners, Returning Officers, and Superior Court Justices would preserve public trust in their neutrality, ensuring that their decisions are viewed as impartial and free from any influence.
- Transparency in Procedures
Electoral Commissioners, Returning Officers, and Superior Court Justices should publicly disclose their adherence to established ethical standards, as this reinforces public confidence in their impartiality and the integrity of the processes they oversee. This transparency can be achieved through the publication of codes of conduct, regular public reporting on compliance with ethical obligations, and clear declarations of any potential conflicts of interest. For example, Electoral Commissioners, Returning Officers, and Superior Court Justices could disclose recusal decisions or the absence thereof in cases where their impartiality might reasonably be questioned. Trust in their fairness can also be strengthened by mechanisms like independent audits of how well procedures are followed, televised hearings on controversial electoral issues, and timely publication of rulings and accompanying reasonings.
- Public Education and Awareness
Educating citizens about the institutional safeguards designed to protect against bias is a critical step in reducing public distrust in electoral processes. Public education and awareness involve consciously disseminating clear and accessible information about the mechanisms that ensure fairness, impartiality, and accountability in electoral and judicial processes. For example, public awareness campaigns can highlight the existence of ethical codes of conduct, conflict-of-interest policies, and recusal procedures that Electoral Commissioners, Returning Officers, and Superior Court Justices are obligated to follow. Also, workshops, town hall meetings, and educational programs can serve as platforms to engage citizens directly, allowing them to ask questions and gain a deeper understanding of the checks and balances embedded in electoral administration and adjudication processes. In addition, leveraging technology such as interactive websites, social media, and public service announcements can help reach a broader audience. Simplified guides or explainer videos can break down complex legal and procedural concepts into digestible information, fostering greater confidence in the integrity of electoral administration and adjudication.
COUNTERARGUMENTS
- The Right to Vote
Proponents for the protection of voting rights may argue that Electoral Commissioners, Returning Officers, and Superior Court Justices as citizens, possess a Constitutional and Human Right to participate in democratic governance by voting. They may further contend that the right to vote is a core principle of citizenship, guaranteed under Article 42 of Ghana’s 1992 Constitution, and its denial is discriminatory and unjust. Therefore, restraining Electoral Commissioners, Returning Officers, and Superior Court Justices from voting may amount to a disenfranchisement of these persons and a curtailment of their Civil and Political Rights.
- Adoption of mechanisms to ensure neutrality regardless of voting preferences
Some may also argue that robust institutional and ethical safeguards are sufficient to ensure that Electoral Commissioners, Returning Officers, and Superior Court Justices remain impartial in their duties, regardless of their personal voting preferences. They may assert that the Judicial Code of Ethics mandates that Justices recuse themselves from cases where personal interests or affiliations could be perceived as conflicts of interest. Additionally, proponents might point to transparent election oversight processes designed to minimise opportunities that favour specific candidates or parties during elections, and public accountability mechanisms also provide avenues for challenging decisions made by Electoral Commissioners, Returning Officers, and Justices of the Superior Courts, ensuring checks and balances. Furthermore, collective decision-making structures, such as panels or boards, are designed to dilute the potential influence of an individual’s personal biases on electoral and adjudicatory decisions or rulings.
Voting Rights and Institutional Integrity
Ideally, Justices facing conflicts of interest should recuse themselves from adjudicating cases to uphold their impartiality. However, electoral disputes present a unique challenge when a Justice, having cast a vote for one of the competing candidates, is required to adjudicate related cases. In these circumstances, it is hoped that the Justice’s decision will remain uninfluenced by their personal voting choices. While mechanisms like recusal and transparency create a functional framework to mitigate personal biases and preserve democratic rights, it is important to recognise that voting does not necessarily imply favouritism. Neutrality can coexist with the responsible exercise of individual preferences. However, public perception often values the appearance of impartiality as much as the reality itself. Safeguards alone may not entirely eliminate scepticism about the impartiality of Electoral Commissioners, Returning Officers, and Superior Court Justices. Moreover, mechanisms like recusal, while well-intentioned, can present practical challenges, including delays in decisions or over-reliance on a limited pool of personnel, which may hinder the efficiency of electoral dispute adjudication.
The right of Electoral Commissioners, Returning Officers, and Superior Court Justices to participate as citizens in the democratic process, including voting, is significant but must be weighed against the imperative of maintaining institutional integrity. The perception of neutrality is essential to sustaining public trust. Therefore, in politically polarised or high-stakes elections, abstention, whether voluntary or mandatory, may serve as the most effective means of upholding public confidence.
Limiting Rights for Public Policy Interests
It is well established that certain constitutionally guaranteed rights may be limited in specific circumstances to safeguard competing rights or public policy interests. For instance, while freedom of expression is universally guaranteed, specific categories of public servants face restrictions in exercising this right due to the obligations of their professional codes of conduct. Likewise, some groups are precluded from engaging in certain political activities, such as campaigning for political candidates, because of their professional duties and ethical constraints, despite the constitutional guarantee of political rights.
Furthermore, individuals working in roles critical to national security often face restrictions that prevent them from participating in civil protests, including strikes or service withdrawals, as per their professional ethical codes. These examples demonstrate that while constitutional rights are broadly guaranteed, there are circumstances in which certain rights may be justifiably restricted to uphold public policy, security, and safety.
Balancing Voting Rights and Public Policy Interests
In this context, the proposal to limit the voting rights of Electoral Commissioners, Returning Officers, and Justices of the Superior Courts is consistent with these established principles and does not represent an unusual deviation from existing practices. It reflects a careful balance between safeguarding individual rights and ensuring the credibility of democratic institutions. While in less polarised societies, allowing Electoral Commissioners, Returning Officers, and Justices of the Superior Courts to vote with robust safeguards may suffice, in highly polarised environments, abstention or enhanced transparency measures may be the more prudent course of action to protect institutional credibility and public confidence.
CONCLUSION
Neutrality and the perception of neutrality are fundamental to maintaining public trust in the electoral system. When Electoral Commissioners, Returning Officers, and Superior Court Justices cast votes, it inevitably raises concerns about their impartiality. By voting, they expressly signal an alignment with a specific candidate or party in that election. While exercising voting rights is a legitimate democratic right, the perception it creates can significantly undermine the credibility of their supposed impartiality. Public trust in these institutions is fragile, and once eroded, it is difficult to restore.
The involvement of Electoral Commissioners, Returning Officers, and Superior Court Justices in the voting process introduces potential conflicts of interest, both real and perceived. An electoral commissioner who has voted may, consciously or unconsciously, harbour biases that could influence their impartiality. Similarly, a Justice ruling on election-related cases after casting a vote may be perceived as biased toward their preferred candidate or party. This perception, even when unfounded, can erode public confidence in the electoral commission and judiciary, creating doubts about the legitimacy of election outcomes and inviting protests, challenges, or instability. History has shown that perceived electoral unfairness is a common trigger for widespread instability, destabilising both peace and progress within societies. Ghana, as a leading example of democratic governance in Africa, must be especially vigilant in ensuring that its electoral processes are not only fair but also perceived as fair.
Electoral Commissioners, Returning Officers, and Superior Court Justices occupy critical and sensitive roles. Their positions demand absolute neutrality, as they are entrusted with making decisions free from undue influence, including personal or political biases. The integrity of their decision-making processes should be grounded in law and ethics, without any form of partisan alignment, real or perceived. Upholding this standard of impartiality is essential for maintaining the credibility of democratic institutions. Ghana’s electoral framework is grounded on the principle of neutrality representing the axis around which values such as fairness, accountability, and transparency revolve. Neutrality is not just a lofty ideal; it is a fundamental necessity for the proper functioning of democracy. When the public has confidence that electoral outcomes are determined without influence from personal biases, they are more likely to accept results as legitimate, even when they disagree with them. This acceptance strengthens social cohesion and political stability, reinforcing Ghana’s democratic legacy.
Compromising neutrality carries significant consequences. The legitimacy of the entire democratic system is at risk if perceived or actual biases affect the electoral process. A loss of public trust in electoral institutions can lead to broader disillusionment, voter apathy, and even the rise of anti-democratic sentiment. To preserve the integrity of the electoral system, it is crucial to ensure that the public perceives the process as neutral and impartial. To protect neutrality, Ghana must establish and enforce a stronger framework of checks and balances. This framework should include recusal guidelines, mandating that Electoral Commissioners, Returning Officers, and Superior Court Justices step aside from cases where their impartiality might reasonably be questioned. For example, a High Court Justice who has voted in a particular constituency should recuse themselves from any disputes arising from that same constituency to maintain the appearance of neutrality and public trust.
Furthermore, Supreme Court Justices could voluntarily abstain from voting during their tenure to prevent any potential conflicts of interest, particularly when handling presidential election disputes. Likewise, Electoral Commissioners and Returning Officers should consider refraining from voting during their tenure to avoid any perceptions of partiality. Although such restrictions may seem severe, they represent a necessary sacrifice for the broader goal of preserving public trust and democratic stability. These measures would strengthen Ghana’s commitment to fair and transparent governance, setting an example for other democracies. Through these measures, Ghana can bolster the credibility of its electoral systems, fostering greater confidence among its citizens.
Call for Further Debate
Admittedly, while the issue of conflicts of interest presents a complex and often contentious challenge in achieving balance, this paper aims to foster a thorough, impartial, and well-informed debate on the potential restriction of voting rights for Electoral Commissioners, Returning Officers, and Superior Court Justices. Such a debate should extend to the consideration of enhanced safeguards, including greater transparency and legislated codes of conduct, to fortify the integrity of electoral administration and the adjudication of electoral disputes.
Legislative action should be explored to formalize robust electoral and judicial codes of ethics, ensuring Ghana’s election processes uphold the highest standards of impartiality and fairness. This critical yet delicate discourse must proceed with earnestness and care, striking a thoughtful balance between protecting individual rights and preserving the credibility and trustworthiness of key institutions. By taking these measures, Ghana can reinforce public confidence in its electoral system, ensuring elections remain fair, just, and widely trusted by all citizens.
