Elections and democracy, by Kwadwo Afari-Gyan

I consider it to be a great honour to speak at this conference, and I thank the President and Members of the Ghana Bar Council very much for inviting me to do so. The theme of the conference is “Peaceful, fair, and transparent elections: the key to sustainable democracy.”

Against the backdrop of the theme, basically what I am going to do is to share with you some thoughts on deeming elections to be the key to democracy and, by implication, invite you to probe the kind of key it is.

Unavoidably, I will also talk about some matters that I consider to be relevant to sustaining democracy. During my speech, I will, as it were, pass through territory that is familiar to you.

I will try to give reasons for my opinions, and it will not worry me at all if you disagree with me, provided you also give reasons for doing so. That makes it possible for people to learn from each other in a genuine exchange of ideas.

I think we should start off by acknowledging that there are different types of democracy. We can illustrate with the American and the British types, two of the strongest democracies in the world.

The American type is said to exemplify a complete separation of powers, because a person can operate in only one branch of government at a time. As head of the executive branch of government, the president does not symbolize the state. Instead, the president is the chief servant of the people.

In the British type, the separation of powers is somewhat blurred. The king or queen symbolizes the state and is positioned at the apex of the governance structure. The prime minister is the chief servant of the people, and the governing party represents a fusion of legislative and executive authority in parliament.

The differences between the two types of democracy stem, in no small part, from the historical circumstances of the two countries. This would indicate that a people can fashion a type of democracy suited to their history and circumstances.

Anyway, our democracy is closer to the American than the British type, except that, instead of being the chief servant, we tend to think that our president symbolizes the state. Irrespective of the type, democracies recruit their political leaders through elections branded as democratic elections. Nowadays a democratic election has four discernible features:

1. It is a contest among candidates or political parties.

2. The contest is overseen by a professional body, such as an electoral commission.

3. The winner of the contest is chosen by the persons who vote.

4. The rules of the election are codified as the election law.

In the election period, political parties and candidates usually articulate policies and programmes they intend to carry out, thereby giving the electorate an opportunity to assess aspiring leaders.

But the relevance of periodic elections for the health of democracy is not solely the selection of leaders. The fear of defeat at elections promotes responsiveness to the needs of the people, particularly in election years.

A lot of the freedoms we cherish in a democracy are on test throughout the election period, including the freedoms of expression, assembly, and movement.

Overall, the election period is a display of the extent of social cohesion; and being able to cast a ballot freely to select a candidate on Election Day is a supreme expression of the freedom of choice. A good election also shores up a country’s democratic credentials and enhances its international recognition.

I think the theme of the conference just about captures all the essential characteristics of a democratic election.

I will only add the term free. An election that is not peaceful is a total failure. Ideally, candidates, voters, and other stakeholders must be free to play their roles in an election and the election itself must be free from certain things, such as violence and cheating.

Stakeholders must be fair in dealing with one another. And not only must an election be managed in a transparent manner, but all participants must also act in a transparent manner, so that nobody feels aggrieved. It is in such a setting that a credible election, one the results of which can be regarded as a firm basis for forming a legitimate government, can be achieved.

How do we come to a common standpoint that an election is credible? We do so if we are satisfied with the outputs of certain critical phases in the election process. The phases are voter registration, political campaigning, voting operations, vote counting, vote tabulation/collation, and the transmission and declaration of results.

Each of these phases is deemed to be critical because practices that are unacceptable in a democratic election can take place there, such that if the outcome of the phase is not satisfactory, it can cast doubt on the genuineness of the entire election.

This central cord makes an election a process and not a series of discrete events. We know that several other things happen during the election time, but if in the end we are generally satisfied with what occurred at these critical stages, we can declare that a credible election has been achieved.

An electoral commission always has a variety of habitual things to do in preparing for an election. Rightfully, we expect the commission to do its preparations thoroughly and properly, in accordance with the election law and not in any way that it likes. So, we are always scrutinizing what it is doing, and we are usually quick to point out if we think something is amiss in the preparations.

In general, an election is such a sensitive matter that any person who has anything whatsoever to do with it must do it properly, so that a credible election can be achieved.

But I think that, as we do with the electoral commission, we must also continually scrutinize the election-related doings of the political parties and the police, because a credible election cannot be achieved if these two organizations do not behave appropriately.

In election dialogue, there is a body of technical language that seeks to prescribe standards to be achieved in carrying out electoral activities. I am referring to terms like peaceful, free, fair, transparent, inclusive, accountable, verifiable, and so on.

The terms have substantive content; but the trouble is that what they mean is not immediately evident, and they can even be ambiguous or confusing at times.

On the other hand, all the terms that I can think of seem to point to the need for fairness or justice for election stakeholders.

If I am correct, perhaps we can navigate the technicalities by declaring that in democratic elections fairness and justice are so interwoven that if something is not fair, it cannot be just; and if it is not just, it cannot be fair.

Essentially, all electoral activities and procedures are delineated in law. So, at any time, the extant election law, consisting of provisions in the constitution, a statute, or an instrument, defines what is fair, because, good or bad, that is what a people have prescribed for themselves in doing their elections.

So, it is important in a democracy for people to take keen interest in the making of the election law.

The fact that the election law defines what is fair means that what is fair in one country may not be fair in another country, but also that what is fair may change with a change of the law.

For example, in some countries a person can register as a voter by mail. In Ghana we appear in person to be registered and, unless it is so indicated in law, any other form of voter registration will be unfair or unjust and unlawful. Incidentally, the basic issue that election observers seek to probe is whether an election was held in accordance with a country’s election law. So, in essence, election observation is a fact-finding and not a fault-finding undertaking.

The verdict that election observers give is based on their interpretation and assessment of the significance of the facts they gather. Credible elections are essential to a democracy, but there are worrisome obstacles to achieving peaceful, free, fair, and transparent elections.

Indeed, there are sinister factors afoot that threaten to destroy the basic assumption that underpins our democracy. That assumption can be summarized simply in this way: Through democratic elections, the people freely express their will and freely choose their president and members of parliament: so, the will of the people is the basis of the authority of government.

I think that this crucial assumption is under serious threat. I say so because:

1. There is often the likelihood of violence in our elections.

2. There are corrupt politicians who will do anything under the sun to win elections.

3. There are corrupt election officials ready to collude with corrupt politicians.

4. There are electronic experts who can adulterate election results locally or from abroad.

5. Social media is being used irresponsibly in the hope of gaining political advantage.

Additionally, there is something even more menacing. To contest an election these days, a person normally needs so much money that a good candidate with lean resources can easily be knocked out of an election. As if this is not bad enough, there has also clearly developed in our country a market where candidates can buy votes in the open and voters can sell their votes in the open.

In fact, in general we seem to be behaving as if the presidency and parliamentary seats are for sale.

For me, what this vote market portends is that eventually extremely rich persons, alias “money bags”, irrespective of the sources of their affluence, will control our politics. So, it may well be our sovereign will that is on sale.

Be that as it may, if we put the onerous duties of an electoral commission alongside the obstacles to peaceful, free, fair, and transparent elections, we can see that it is quite a feat these days to achieve a credible election.

Yet, a credible election is, so to speak, a very important ritual that we must perform at specified periods, because it is the only legitimate key that opens the only legitimate gateway to democracy.

To enter by any other means is tantamount to stealing an election or gate-crashing. But, figuratively speaking, that key only gets us to the corridor of democracy, and the contribution of elections to democracy ends right there.

By-elections aside, the key is used at periodic intervals set in law, in our case, every four years, so to speak, to recruit new personnel for democracy.

Where the sovereign will of the people has not been hijacked, periodic elections offer the people an opportunity to change their political leaders for not performing well.

This recurring opportunity is crucial for the health of democracy because democratic consolidation, the process whereby the principles of democracy become firmly rooted in a society, is not one of self propelling, undeviating progression. It is a process that is subject to setbacks, lapses, and even retrogression.

So, democratic consolidation needs to be seen as an endless work in progress which always requires attention and refurbishment.

So, yes, an election is the only legitimate key that opens the only legitimate door to the corridor of democracy; but having done so does not mean that democracy has been achieved.

If you like, getting to the corridor means that you have only done part of the journey. So, what next?

Still speaking figuratively, from the corridor we then enter the precinct that has traditionally been called the three branches of government – the legislature, the executive, and the judiciary – to continue the journey to democracy. From there on, whether there is democracy or not depends entirely on how well the branches of government and their related organizations behave, perform, and interrelate; and that has nothing whatsoever to do with the previous elections.

That clearly shows that there is much more to democracy than accomplishing a democratic election. So, it is important to distinguish between the election phase and the post-election phase of democracy. In the post-election phase, the key to democracy is the law. Of course, the law also operates during the election phase.

Conflicts do arise among stakeholders during the preparation and conduct of elections and sometimes thereafter and must be resolved.

Even where conflict resolution mechanisms are incorporated into the electoral system, usually an aggrieved stakeholder can still go to court for a final decision.

At all times in a democracy, the role of the court in an election case should be to achieve electoral justice. There are two strands of electoral justice – procedural fairness and stakeholder fairness – which are really two sides of the same coin.

On the one hand, an election is characterized by prescribed ways of doing things: so, procedural fairness is ascertained by finding out the extent to which each of the parties to a dispute followed the prescribed procedures related to the disputed action.

On the other hand, relations between election stakeholders are governed by certain standards: so, stakeholder fairness relates to the extent to which the disputing parties fulfilled the required standards in their dealings with one another in respect of the matter in 4 dispute.

Clearly, judges and lawyers in election cases require more than cursory familiarity with the election law, events, and processes to be able to determine whether procedural or stakeholder fairness has been achieved.

While on the matter of election cases, let me summarily point out two important factors. The first factor is that because the persons who vote decide the winner, in a democratic election the voter is pre-eminent, and a valid vote is inviolable for purposes of determining the choices of the people. One implication of this is that persons who commit serious election offences, particularly if they are professional election officials or electronic experts, must be severely punished for attempting to undermine the will of the people, possibly a treasonable act.

Another implication is that it is not acceptable to cancel out some validly cast ballots, sometimes erroneously referred to as wasted votes, and then declare a winner, if the number of cancelled ballots could make a difference as to the winner. The reason is that the cancellation may amount to punishing some voters for committing no offence whatsoever.

The right thing would be a rerun of the election for the people to decide. The second factor arises from the first: it is that authentic, duly executed, polling station result forms, popularly known in Ghana as pink sheets, are crucial in a disputed election results case.

They are the most important documents for reconstructing election results. That is what it means to say that elections are won or lost at the polling stations.

So, my friendly advice is that if you don’t have authentic pink sheets, as we say in Ghana, please think twice before you go to court.

Anyway, I sincerely think that courts and electoral commissions must be spared improbable election petitions. Not only do they needlessly waste time, but they can also cause undeserved injury to the reputation of a judge or an electoral commission in the minds of the supporters of some party or candidate, irrespective of the verdict.

For this reason, I think that, instead of regarding every election petition as a public interest litigation, improbable petitions should attract punitive sanctions. I think our judges can determine which petitions are in bad faith and clearly have no chance of succeeding.

I suppose you know that there have been well over one thousand election petitions from the last Nigerian elections. It is likely that some of them will not be disposed of before the next elections, when they automatically become void.

Of course, if a candidate has a genuine cause, the proper thing to do is to go to court, rather than engage in media warfare or street protests that cannot produce binding solutions.

On the other hand, it is simply not in anybody’s interest for election petitions to become a fashion for candidates who lose elections.

Regarding the law in general, the theory of democracy can be summarized in simple terms as follows: power belongs to the people and is anchored in the constitution and other laws.

As citizens, the people have certain inalienable rights, including the right to elect a government of their choice by voting in elections and the right to participate in government through their elected representatives.

Additionally, power is apportioned to different institutions for purposes of governing the country.

Nowadays, the institutions have increased beyond the three traditional branches of government to include independent institutions of state and, on occasion, foreign appendages like the World Bank and the International Monetary Fund (IMF). But for purposes of our dialogue, it will suffice to stick to the three branches of government.

It is obvious that the branches of government are intended to do different things. To a layman’s comprehension: Within the context of the constitution, the legislature is to make other laws for the country.

The executive is to use the constitution and other laws to provide amenities for the people.

The judiciary is to use the constitution and other laws to resolve conflicts that arise in society.

The distribution of functions and powers among the branches of government amounts to drawing up lanes and boundaries for the exercise of their responsibilities. This is very important for the viability of democracy. Just as athletes must strictly run in their lanes, it is unacceptable in a democracy for one branch of government to stray into the domain of another outside the law.

To put it in popular Ghanaian parlance, democracy requires that the branches of government always stay in their lanes. In any case, the three branches of government must concurrently function well for democracy to thrive.

There are two factors that affect the ability of an institution to function well. One is the way the institution is structured. In this regard, based solely on their current structural arrangements, I think that in Ghana the legislature is well placed to do its work through the committee system.

So is the case with the judiciary, with its hierarchy of courts and the system of appeal. I think the problem is the executive branch of government, where power is too centralized.

When our current constitution came into force some thirty years ago, the expectation was that power would gradually be decentralised to the districts for them to develop their areas.

 But this has not happened: no meaningful devolution of power from the central government to the District Assemblies has taken place to date. That is unfortunate because, irrespective of the type, democracy is of no value, indeed, cannot survive, if it does not bring development, conceived as improvements in the living conditions of the people, such as reasonable access to food, good drinking water, decent housing, electricity, usable roads, education, health facilities, and jobs

Without a doubt, the failure to decentralize executive power has had serious ramifications for our development. In gist, it has bred the notion that every development comes from the central government, in fact, the president. Consequently, the people feel powerless and are aloof: they don’t do much for themselves locally because they expect the government to provide all sorts of amenities, including drains and toilets, for them. The upshot is the worship of political leaders, an undesirable posture in a democracy. In fact, that has been a trait of our history as an independent country.

One leader after another has literally sought to take credit for any development anywhere in the country.

Naturally, whoever does so, must also take blame for anything that ought to happen but does not happen anywhere in the country. No wonder we have become accustomed to blaming the central government, nay the president, for lack of basic amenities in the rural communities. This is not good for any government: but it will continue to be so until we reform our local government system and make it a real functional development tool, a critical factor in sustaining our 6 democracy. In my view, this will involve two things.

The first will be to change the composition of the District Assemblies as well as how the members are elected from the current first-past-the post formula to a mixed member proportional formula.

The second will be to give the assemblies tangible powers and resources to deliver some of the things associated with development. The second thing that influences whether an institution functions well or not is the human factor, the men and women who operate the institution.

It is the human factor that makes corruption the bane of development. And we should not limit corruption to taking money or some material inducement to perform one’s duty. To mimic a biblical saying, it is a form of corruption if you know the right thing to do by your profession or line of duty, but you willingly refuse to do it.

In fact, that is what makes corruption so pervasive in the public sector: far too many so-called public servants lack the ethical competence, the integrity or predisposition, to say no to wilful wrongdoing.

If we take the two factors into consideration, a strong institution is no less than a well-structured institution manned by capable, dedicated, and honest persons. Of course, corruption in the public sector has parallels in the private sector, but we need not go there.

Many people believe that the president has too much power under our current constitution. By that, some are saying that the president has so many functions that he cannot perform all of them well: others think that some of his functions are inappropriate or misplaced and are better performed by some other body or bodies for the health of our democracy.

I think that both viewpoints are significant. The distribution of powers among the branches of government is linked to the variety of functions that each branch is required to perform. In terms of numbers, the executive has more functions to perform than the other branches of government. If the president really has too many things to do or some of his functions are, indeed, misplaced, it will be prudent at the next opportunity of amending the constitution to take some of them off him. Where the functions taken away from the executive should be located is another issue altogether.

Be that as it may, saying that the president has too many things to do or that some of his functions are misplaced is not the same as saying that the executive is the most powerful of the three branches of government. I think the issue of power must be seen from two angles – quantity and weight.

Quantity relates to numbers; weight relates to pre-eminence or order of precedence. If we take the election law as an example, it consists of provisions in the constitution, statutes, and subsidiary legislation. We know that, irrespective of the number of provisions in each category of law, the constitutional provisions take precedence over the others.

Similarly, the number and related powers of the functions that the president is required to perform do not make the executive the most powerful of the three branches of government under the constitution.

The judiciary is the most powerful.

In the first place, the law is what defines the substantive content of our type of democracy. This means that our law enforcement agencies must be robust and must work efficiently in support of our democracy.

But, above all, it is the judiciary that interprets the law,including the constitution. Also, the judiciary can use the law to protect the rights and interests of the people; to prevent one organisation from encroaching on the domain of another; and to elicit appropriate behaviour from all individuals, groups, and institutions in our country.

In fact, practically nothing done by a public institution or officer, including the president, is eventually exempt from judicial review under our current constitution. I hope I have been able to indicate that in general there are several things to do towards sustaining and improving our democracy. But, in the context of the theme of the conference, I wish to end my speech by making four broad comments.

First, the tie-in between elections and democracy is two-fold. One is that elections are the prescribed route to political leadership. The second is that periodic elections make it possible for the people to hold their leaders accountable by selecting them and changing them from time to time by lawful means. But peaceful, free, fair, and transparent elections are difficult to achieve.

So, we must always try to improve upon all aspects of our elections. Nonetheless, even though it sounds paradoxical, a country can repeatedly have good elections and not have democracy. The crucial factor is that while development is essential to democracy, by itself, a good election does not bring any of the things that we associate with development.

So, secondly, to achieve democracy, elections must translate into good governance, which is essentially a post-election phenomenon. Good governance is a complex concept to define but, like the proverbial ordinary man, we can easily recognise good governance if we see one. The reason is that it is closely associated with accountable government. Among several other things, an accountable government rules justly, controls corruption, and delivers development.

Thirdly, since good elections are not enough to achieve democracy, we must look beyond elections for the factors that are critical to achieving sustainable democracy. In this regard, I think that for democracy to thrive we need in addition to a knowledgeable electorate, strong and vibrant institutions and individuals and groups that are prepared to hold political leaders accountable, sometimes by testing the law whenever the occasion demands.

For this reason, we must view the law to be the master key to democracy. Not only does the law operate throughout both the election and post-election phases of democracy but, under our constitution, it can also always be used to protect the rights and interests of the people and to elicit behaviour consistent with democracy. Lastly, for me, this places the onus on the judiciary for the sustainability of our democracy.

In more straightforward terms, I think that our democracy cannot be sustained if the judiciary does not function properly. I suppose that generally that is what it means to say that a democratic country is characterized by the rule of law. I believe that our political leaders have always known that the judiciary is the most powerful institution in the land; and that if you want to capture the state, that is, dominate the people, you must first capture the judiciary.

But certainly, state capture is harmful to democracy: as a minimum, it disrupts the constitutional allocation of powers to the branches of government and makes democracy virtually defenceless.