Prior to the Government of Ghana’s decision to close all of the country’s borders and impose restrictions on public gatherings and movement in response to the Corona virus outbreak, there was already concern about the ability of the Electoral Commission (EC) of Ghana to complete compilation of a new voter register in time for the December 2020 presidential and parliamentary elections. Two weeks after President Akufo-Addo imposed a ban on all public gatherings and announced various other “social distancing” directives in an effort to stem the spread of the novel Corona virus, the EC announced that it was postponing the registration exercise indefinitely. The earlier restrictions on movement imposed by government have since been escalated, with a two-week partial lockdown imposed on residents in Accra, Tema, Kasoa, Kumasi and communities in their immediate vicinity, effective Monday March 30, 2020. This has now been extended by one more week until April 19, 2020, one day after the EC’s originally scheduled date for the commencement of the compilation of the new register.
The Ghana COVID-19 count stood at 566 confirmed cases and eight deaths as of Sunday, April 12, 2020, with the Greater Accra Region recording the highest number of cases (452), followed by Ashanti Region (49) and Eastern Region (32). In total, there are confirmed cases in 10 out of the 16 regions of Ghana. Government is hopeful that the additional week of intensive enhanced surveillance and testing will yield more useful data to help it decide on the next course of action.
There is considerable uncertainty at the present time as to how or when the COVID-19 crisis and associated public health restrictions will come to an end. Some experts estimate that it might take about a year for life to return to normal in most countries. In Ghana, one immediate concern is how the current situation will affect the conduct of the 2020 general elections. Even assuming there is no slippage and the January 7, 2021 date for the commencement of the term of the next President holds, questions remain as to what the current uncertainties mean for the EC’s election calendar. What options are available to the EC and the country as the situation evolves? What does a worst-case scenario look like and how should it be addressed? This blog dissects these issues and examines the options available to the EC and the country.
When is the latest date for holding elections?
Articles 63 and 112 of the 1992 Constitution of the Republic of Ghana sets the timelines for holding presidential and parliamentary elections. Article 63(2)(a) requires the presidential election to take place “…not earlier than four months nor later than a month before the term of office expires,” while, per article 112 (4), parliamentary elections must be held ‘within thirty days before the expiration of a Session of Parliament.’ In essence, parliamentary elections must happen at least one month before Parliament is dissolved, which currently falls on January 6 of a new year. Furthermore, as Ghana’s presidential and parliamentary elections have been held together since 1996, the combined effect of the applicable constitutional provisions puts the time for organizing both elections (whether separately or concurrently) sometime during the month of December 2020. If the presidential and parliamentary election were separated, a presidential election could theoretically be held as early as September 2020, as this would fall within the four months to the expiration of the presidential term stipulated under Article 63. In practice, however, given the EC’s usual calendar of election-year activities and where things currently stand, it would be nearly impossible to hold this year’s elections any time earlier than the usual December 7. The challenge for the EC is how to undertake and complete all the activities necessary to deliver free, fair and credible elections while sticking to the December 7 schedule.
What is the latest period a voter register can be compiled to allow for the other electoral activities to proceed? C
Take the compilation of a voter register. All things being equal, it should take about 86 days or roughly three months from the commencement of the registration process to the final process of certifying the voter register. The process of collecting the biographical and biometric data of prospected voters takes about 44 days. Unlike Election Day where the EC uses all 30,000-plus polling stations to serve voters, for voter registration, the EC clusters registration centers (normally about five in each cluster), with registration officials assigned to a cluster moving from one registration center to the other during the registration period, spending about eight days at each center (during the 2012 compilation of the voter register, EC staff spent 10 days at each center). The EC adopts this method because it is working with a limited quantity of registration kits (8,000) for an estimated 17 to 18 million voters.
During the registration process, a registrant whose eligibility to be registered is challenged at the registration center has to go before the District Registration Review Committee (DDRC) for the complaint to be adjudicated. The DDRC normally sits for 14 days. After collecting the data and doing an initial cleaning, the provisional voter register would be exhibited for 14 days for the public to verify their details, make corrections or object to any unqualified applicant. Any objections made during the exhibition has to be taken to a Magistrate for final adjudication. The EC then effects all corrections and does a final cleaning of the provisional voter register before the register is certified (ready) for elections. This last process takes another 14 days to complete.
The 86 days does not include all the other preparatory work that the EC must do to get ready for the commencement of registration. In this case, it will depend on when the new registration kits are expected to arrive in the country and how long it will take for it to be processed for deployment, tested and configured with the new software. At a demonstration at the Coconut Grove Regency Hotel in Accra in December 2019, prospective vendors were expected to manufacture, deliver, set up and test the kits within a five-month period. The EC only awarded the contract for the supply of the hardware at the end of February 2020, putting an estimated operational date sometime in June or July 2020 at the latest. Of course, these processes can be fast tracked but it means there is little room for error. In addition, it will depend on whether or not all these processes would have to be done while COVID-19-induced restrictions are in place or even if they have been lifted, whether the fear of infection remains a national threat.
Following the EC’s announcement to postpone the registration date and the extension of the lockdown, it is more likely that the earliest the EC can hope to go to the field would be early or mid-May 2020. This is based on the expectation that the first batch of kits (4,000) would arrive around this time for the registration to start. This would mean that the main part of compiling the register is likely to be completed at the end of July or early August. Again, this does not factor in the real threat of a constitutional challenge to the EC’s decision to limit the forms of identification to be accepted for registration to the Ghana Card and a Passport and rejecting its own Voter Identity Card used in the 2016 elections and the just ended December 2019 District Assembly Elections. An amendment to the Public Elections (Registration of Voters), 2016 (Constitutional Instrument (CI 91) currently in Parliament is expected to mature once the 21 days’ sittings of Parliament requirement is met, unless two-thirds majority of Members of Parliament (MPs) annul the CI before it matures.
In essence, May is the cutoff point. Any scenario that considers June as a start date increases significantly the risk of jeopardizing the rest of the election calendar. A May start for registration means that by September, all things being equal, nomination of aspirants can be taken. Taking nominations in September will be consistent with Regulation 4 of Public Elections Regulation, 2016 (CI 94), which stipulates that the Commission of the EC shall issue a Writ of Elections to the returning officer (the EC Chair) specifying when nominations will be taken and elections should be held. The poll day should be “…not less than thirty days or more than ninety days after the last day appointed for the nomination of candidates.” Therefore, if elections are to be held on December 7, the earliest time to take nominations will be on September 8, 2020 and latest by November 7, 2020.
Technically, unless the EC has certified an aspirant as a candidate for the election (presidential and parliamentary) they cannot formally campaign. Most aspirants will not have a problem but it is a risk that is avoided by aspirants before they go and invest in campaigns. The problem is that the EC cannot take nominations if the register is not certified. CI 94, which regulates Public Elections, requires a nomination form for parliamentary elections to be witnessed by two registered voters and supported by 18 others. Presidential election nominations additional stipulations but also require, at the minimum, two registered voters in each district to witness.
Going by the calendar, if nominations are taken in September or even October, barring any legal challenges to the EC decisions relating to nominations, the EC can then focus on using the last six to eight weeks to work on the balloting for positions, transfer of votes, recruitment of temporary officers, training, printing of ballot papers and registers, procuring other logistics, special voting and prepping for Election Day. A June start pushes nominations close to October and then compresses the time for everything else. This leaves no room for making mistakes and correcting them and at the same time puts enormous pressure on delivering a credible election, a situation that is likely to produce more disputation and possible litigation.
Implications of late voter registration exercise within a COVID-19 context on campaigning and turnout
The current scenarios already compress the time for campaigning. If nominations are taken in October, we are looking at between five to six weeks of official campaigning. Apart from the logistical nightmare of crisscrossing 16 regions, the campaigns must also find time for critical public engagement and interrogation of manifestoes and policy proposals of their candidates. The strong likelihood of the campaigns taking place in an environment where there is a continuing threat or fear of getting infected with COVID-19 further complicates the picture. This last risk could also produce an unusually low turnout for the registration exercise. Commencement of registration in May means that registration would be taking place at a time the COVID-19 outbreak is not likely to have been fully contained or suppressed, creating a risk or fear of infection for citizens who might want to get registered. If, under those circumstances, the EC decides to proceed with registration, causing citizens to choose between their health and their right to vote, this might give rise to a legal challenge and further set back the clock.
The risk of a low turnout was already a concern before COVID-19. In the recent Round 8 Afrobarometer survey in Ghana released in October 2019, 11% of respondents did not intend to vote in the coming elections. This the highest percentage recorded since 2008. Similar sentiments were widely expressed in the lead-up to the failed December 2019 constitutional amendment referendum, including in middle class social media circles, as growing frustration with the extreme partisanship and binary nature of contemporary Ghanaian party politics appeared to cause many voters to withdraw from the electoral process entirely. Any additional obstacles in the way of registration, such as the risk or fear of contracting COVID-19, is likely to further depress voter interest in the exercise. An unusually low turnout can produce a voter register that is legal but not deemed credible, creating other legitimacy problems for the elections.
Options for the EC in a second-best to worse case scenario
An optimal scenario was for the EC to start registration in April. That option is obviously off the table now, leaving only a second-best and a worst-case scenario to consider. A second-best scenario envisages the EC starting in May 2020. The EC would be time-pressed but it can still pull it off, albeit with very little room to make mistakes and correct them in time or to deal with legal challenges. The EC could utilize the Inter Party Advisory Committee (IPAC) to build consensus and understanding and thus minimize the risk of litigation. Recourse to IPAC is, however, unlikely to resolve certain fundamental disagreements, notably over the decision of the EC to make a Ghana passport and the card from the uncompleted Ghana Card process the only acceptable ID for establishing citizenship. This decision, which, essentially, rejects the EC’s own officially issued voter card used in the most recent elections, including the December 2019 District Assembly Elections, is almost certain to be challenged. The EC would be well advised to reverse that decision, as it is hard to sustain.
The other problem with the second-best scenario arises from the COVID-19 context. To commence registration in May means that EC registration staff, both temporary and permanent staff, would have to wear appropriate protective gear, enforce strict physical (social) distancing rules, and post Veronica Buckets and sanitizers at each registration center. This means additional cost, most certainly unbudgeted. Encouraging and mobilizing people to come out to register is going to be doubly difficult, requiring a good deal more civic education than usual. Dealing with these unanticipated Corona virus-related challenges will further slowdown the registration exercise, possibly stretching the exercise beyond the expected 44 days by an additional week at the minimum, depending on the turnout.
These election cycle challenges arising out of COVID-19 are, of course, not limited to Ghana. Many other countries are grappling with the same issues. The International Foundation for Electoral Systems (IFES) reports that as at April 3, 2020, a number of African countries, including Nigeria, Ethiopia, Kenya, South Africa, and Cameroon, have cancelled or postponed various elections on account of COVID-19. A few other Election Management Bodies have braved the COVID-19 outbreak to organize election. In one such country, Mali, hand-washing basins were provided and one-meter barriers were set up between voters with election officials wearing masks and gloves. Not surprisingly, domestic election observers able to observe the Malian elections reported that these measures were followed in less than 50% of the cases.
In the “worst-case” scenario, registration will begin in June 2020. In that event, the EC will have to consider seriously an alternative to its plan to compile a new register. This could mean a much more limited voter registration exercise, one that is likely restricted to first-time eligible voters and other first timers. With that, the EC can estimate to add about one to one and half million voters to the current register. This limited registration could take 10 to 14 days. The only stumbling block to this Plan B is that the EC would have to negotiate with STL, the former hardware and software supplier, to obtain access to the biometric template that allows the EC to access fingerprint data. As explained by the EC in its many briefings, it already has the biographical data of all the 15 million-plus voters from the 2016 to 2019 register so it will be easy to migrate that data into the new system. A limited voter registration would cut the registration process down by at least four weeks and that would position the EC in a position similar to the “second best” scenario. This has to be a real option, one that the EC must plan for. All other issues raised in the second-best scenario also apply.
The EC and all election stakeholders are in uncharted waters at the moment. Every Election Management Body and country must take those actions that fit their context and peculiar circumstances. Considering what is at stake, it is a task that should be done with as much consultation and consensus building to save unnecessary and time-consuming disputation down the line and ultimately ensure that citizens can participate in the democratic process safely and with a high degree of confidence that the ensuing elections will be peaceful, free, fair and credible.
By: Kojo Pumpuni Asante (PhD) is the Director for Advocacy and Policy Engagement at the Ghana Center for Democratic Development (CDD-Ghana)