The Supreme Court has become the new battleground in the brouhaha at the Electoral Commission (EC) following a suit by an individual against the Chief Justice and the Attorney-General (A-G) in an attempt to stop any investigations against the EC Chairperson, Mrs Charlotte Osei.
The plaintiff, Mr Ayamga Yakubu Akoglo, who initiated the lawsuit in his capacity as a Ghanaian, is praying the court to declare any action initiated or currently ongoing against the EC Chairperson as “unconstitutional, void and of no effect.’’
According to him, the issues raised in the petition calling for the removal of Mrs Osei had nothing to do with her core functions as prescribed in Article 45 of the 1992 Constitution and, therefore, do not warrant her removal per Article 146 (1) of the 1992 Constitution.
He contends that the allegation of financial or procurement impropriety levelled against the EC Chairperson in the petition should not be grounds for an action under Article 146(1) because financial and procurement functions are not part of the chairperson’s core duties.
“Statutory agencies such as the office of the Auditor-General, the Public Procurement Authority , the Controller and Accountant General’s Department and the Internal Audit Agency are best and well placed to deal with these complaints,’’ he averred.
Per his argument, the petition against Mrs Osei should not have been entertained by President Nana Addo Dankwa- Akufo Addo for onward transfer to the Chief Justice per Article 146 (3) of the 1992 Constitution on whether or not there is a prima facie case against the EC Chairperson.
“Not Article 146 petition’’
Article 45 of the Constitution stipulates the functions of the EC which include to compile and revise voters register, demarcate election boundaries for national and local elections, conduct and supervise all public elections and referenda, among other functions related to public elections.
Article 146 (1), on the other hand, talks about what constitutes grounds for the removal of a Justice of a Superior Court , the same condition which applies to the removal of the Chairperson of the EC and her two deputies.
These are “stated misbehaviour or incompetence or on ground of inability to perform the functions of his office arising from infirmity’’.
It is the case of Mr Akoglo that the petition against Mrs Osei does not satisfy the requirement under Article 146 (1) because it does not state that the EC’s Chairperson had failed to competently carry out her functions as stipulated under Article 45 of the 1992 Constitution
“The petition on the face of the record did not meet the constitutional requirements of incompetence to warrant the determination of a prima facie and to remove from office the Chairperson of the EC. On the face of the petition, there is no constitutional function of the EC not competently discharged by the Chairperson of the EC,’’ he argued in his legal action.
In his statement of case which described the petition against Mrs Osei as “defective and incompetent’’, Mr Akoglo argues that the petition does not also fall under the phrase “stated misbehaviour’’ as prescribed in Article 146 (1)
“The contents of the petition did not on the face of the records demonstrate or indicate that the Chairperson of the EC was convicted of a stated misbehaviour under the written laws of Ghana,’’ he argued.
Procedure for removal
The plaintiff is also challenging the removal procedure of the Chairperson of the EC as prescribed in Article 146 of the 1992 Constitution, the same procedure used to remove Justices of the Superior Courts.
It is his case that although Article 44(2) of the 1992 Constitution provides that the Chairperson of the EC shall have the same terms and conditions as a Justice of the Court of Appeal, it does not mean the EC Chairperson shall be removed per Article 146.
“Though linked to a Justice of Superior Court, in terms of conditions of service, the Chairperson of the EC undoubtedly is special and distinguishable on grounds of functions, political risks, and effects on political and democratic stability in the country. It is our prayer that a different procedure be adopted for the removal of the Chairperson of the EC,’’ Mr Akoglo stated in his statement of case.
On July 13, 2017, a lawyer for some concerned staff of the EC, Mr Maxwell Opoku-Agyemang, sent a petition to President Akufo-Addo asking for the initiation of the process for the removal of Mrs Osei under Article 146.
The 27-point petition, which was also served on the Economic and Organised Crime Office (EOCO), alleged acts of fraud, corruption, cronyism, among other malfeasances, against the EC Chairperson.
Mrs Osei, however, responded to each of the petition in a statement released by her legal team and levelled damning allegations against her two deputies in charge of operations and corporate affairs.
She followed it up with a lawsuit against Mr Opoku-Agyemang for defamation at the Accra High Court.
On July 25, 2017, an individual identified as Emmanuel Korsi Senyo, also sent two petitions to the Presidency seeking for the removal of Mr Amadu Sulley and Mrs Georgina Opoku Amankwa, the Deputy Chairpersons of the EC in charge of operations and corporate affairs, respectively.
President Akufo-Addo, on July 26 and 28, 2017, referred the petitions against Mrs Osei and her two deputies, respectively, to the Chief Justice per Article 146 (3) of the 1992 Constitution.