Rule of Law as Bulwark of Independents Electoral Commissions

Following the recent inaugural of Barack Obama, Paul Biya sent him a message in which he stated among other things that "our two countries share the same attachment to democracy and the rule of law"! Such statements strengthen the saying that some politicians survive by creating illusions! Judged by the recent appointments into ELECAM, one can easily conclude that such illusions in Cameroon are usually created by laws which at first sight look good until their spirit and letter are betrayed when it comes to their application.

By Tazoacha Asonganyi
Democracy can only thrive under the rule of law. It is the role of the judicial power in each country to uphold the rule of law. In this wise, the 1996 constitution of Cameroon states that "...the judicial power shall be independent of the executive and legislative powers...The President of the Republic shall guarantee the independence of the judicial power..."! Indeed, it is the President of the Republic who is the president of the Higher Judicial Council!
Since electoral commissions are the pillar of democratic elections, such commissions can only be independent and strong if the judicial power is independent enough to uphold the rule of law and protect the independence of the commission. This is important because people aggrieved by the electoral commission usually turn to the courts. Therefore the results of elections to parliament or to the presidency as declared by the electoral commission could be reversed by the courts. This means that if the court system is not independent, it could use such cases to weaken the commission and render its independence useless.

What obtains in a country like Ghana that stands out tall in a sea of confusion about democratic transitions in Africa shall be highlighted here to stress the importance of the rule of law in protecting the integrity of the electoral commission. It can be said that the Ghanaian Electoral Commission has "The 1992 Constitution of The Republic of Ghana" solidly behind it. The Constitution is a detailed governance programme arranged in 26 Chapters and 266 articles. Since the Constitution was a real product of the entire Ghanaian society, it enjoys general consensus because the change of Rawling’s NDC regime in 2001 to Kufuor’s NPP regime did not affect the constitution; and the present change back to Atta Mill’s NDC regime will not affect it either.

For purposes of understanding the solidity of the foundation of the rule of law in Ghana, the headings of the 26 chapters of the constitution will be cited here: Chapter 1: The Constitution; Chapter 2: Territories of Ghana; Chapter 3: Citizenship; Chapter 4: The Laws of Ghana; Chapter 5: Fundamental Human Rights and Freedoms; Chapter 6: The Directive Principles of State Policy; Chapter 7: Representation of the People; Chapter 8: The Executive; Chapter 9: The Council of State; Chapter 10: The Legislature.

Chapter 11: The Judiciary; Chapter 12: Freedom and Independence of the Media; Chapter 13: Finance; Chapter 14: The Public Services; Chapter 15: The Police Service; Chapter 16: The Prisons Service; Chapter 17: The Armed Forces of Ghana; Chapter 18: Commission of Human Rights and Administrative Justice; Chapter 19: National Commission for Civic Education; Chapter 20: Decentralisation and Local Government; Chapter 21: Lands and Natural Resources; Chapter 22: Chieftaincy; Chapter 23: Commissions of Enquiry; Chapter 24: Code of Conduct for Public Officers; Chapter 25: Amendment of the Constitution; Chapter 26: Miscellaneous.
Under Chapter 7 (Representation of the people) is defined "the right to vote" and "political parties". Under the right to vote is created an "Electoral Commission" with the clear definition of its functions and independence, its qualifications, terms and conditions of service of members.

The Constitution states clearly that "the judicial power of Ghana shall be vested in the Judiciary, accordingly, neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power...The Chief Justice shall, subject to this Constitution, be the head of the Judiciary and shall be responsible for the administration and supervision of the Judiciary... The Judiciary shall have jurisdiction in all matters civil and criminal, including matters relating to this Constitution. .."

The Chief Justice is appointed by the President acting in consultation with the Council of State with the approval of Parliament. Other justices of the Supreme Court are appointed on the advice of the Judicial Council in consultation with the Council of State and with the approval of Parliament. Justices of the Court of Appeal and the High Court are appointed by the President on the advice of the Judicial Council. These justices serve until they retire at 65 years for High Court judges and 70 years for justices of the Court of Appeal and the Supreme Court...
Further, the Constitution states that "in exercise of the judicial power of Ghana, the Judiciary in both its judicial and administrative functions, including financial administration, is subject only to this Constitution, and shall not be subject to the control or directives of any person or authority... Neither the President nor Parliament nor any person acting under the authority of the President or Parliament nor any other person whatsoever shall interfere with Judges or judicial officers exercising judicial power in the exercise of their judicial functions... " Of course, this is not the case in Cameroon!

The Judicial Council, the guardian of the independence of the judiciary is made up of: the Chief Justice (chairman), the Attorney General, a Justice of the Supreme Court chosen by his peers, a Justice of the Court of Appeal chosen by Justices of the Court of Appeal, a Justice of the High Court chosen by Justices of the High Courts, 2 representatives of the Bar Council of Ghana, one of whom has at least 12 years standing as a lawyer, a representative of Chairmen of Regional Tribunals nominated by them, a representative of lower courts or tribunals, The Judge-Advocate General of Ghana Armed Forces, the Head of Legal Directorate of Ghana Police , the Editor of Ghana Law Reports, a representative of the Judicial Services Staff Association appointed by the Association, a Chief nominated by the House of Chiefs, 4 other persons who are not lawyers, appointed by the Head of State.

Indeed, the entire Constitution reads like a manifesto of the people of Ghana that they hand to every elected representative of the people to ensure that they do not deviate from the principles laid down in the Constitution and only make qualifications, rules and laws "...as are necessary in a free and democratic society and are consistent with this Constitution. ..".
The Ghanaian electoral commission does its work well because it is protected by the rule of law, which is upheld by a Judiciary that is independent. Does ELECAM enjoy the same protection? Looking at the recent ruling of the Administrative Bench of the Supreme Court on the petition of the SDF related to the legality of the President’s appointments into ELECAM, the answer is a big NO!