IN RE: APPOINTMENT OF EMELIA AFFI AGBENYO AS DEPUTY COMMISSIONER OF THE ELECTORAL COMMISSION – A CRITIQUE ON ADMINISTRATIVE DISCRETION, INSTITUTIONAL NEUTRALITY, AND PUBLIC TRUST
I. INTRODUCTION AND CONTEXT
Article 70(2) of the 1992 Constitution provides:
> “The President shall, acting on the advice of the Council of State, appoint the Chairman, Deputy Chairmen and other members of the Electoral Commission.”
The President’s power to appoint under Article 70(2) is qualified by Article 70(2) itself – “acting on the advice of the Council of State” – and more importantly, by Article 296, which governs all discretionary powers in Ghana. The appointment of a known NDC partisan to the EC is liable to be struck down on three grounds.
There is no explicit constitutional provision that says “EC member shall not be a card-bearing member of a political party” but the Supreme Court in Tehn-Addy v. Electoral Commission [1996-97] SCGLR 589 and J.H. Mensah v. Attorney-General [1996-97] SCGLR 320 held that the spirit of Articles 44 and 46 requires neutrality and public confidence.
For Article 70(2) appointments [EC][NCCE][CHRAJ] the President appoints “acting on the advice of” – decisive power is with the Council of State. The President is bound to follow the advice.
So threshold 1: There must be a written advice/recommendation from the Council of State. No advice, no valid appointment. The President cannot self-nominate and rubber-stamp. One cannot become Commissioner unless first recommended by Council of State.[Debatable]
II. GROUNDS FOR IMPUGNING THE APPOINTMENT
1. ARTICLE 296 HAS BEEN BREACHED – THE DISCRETION IS NOT REASONABLE, FAIR OR CANDID
Article 296 reads:
> (a) that discretionary power shall not be arbitrary, capricious or biased
> (b) shall not be exercised with resentment, prejudice or personal dislike
> (c) shall be fair and candid
> (d) shall not be exercised between arbitrariness and utter unreasonableness
This was given teeth in Awuni v. WAEC [2003-2004] SCGLR 471 where the Supreme Court held that Article 296 is justiciable and any discretion that is not fair and reasonable is unconstitutional.
In Kudze v. Dzebu 1 GLR 392, the court held that discretion must be exercised judicially, not whimsically.
The classic test adopted in Ghana from Associated Provincial Picture Houses v. Wednesbury Corporation 1 KB 223 is:
> Would a reasonable President, properly directing his mind to the constitutional duty of ensuring a neutral Electoral Commission under Articles 44, 45 and 46, appoint a known active member of his own party to superintend elections against opponents? No.
This is Wednesbury unreasonableness – a decision so absurd that no reasonable authority could make it.
– Potestas stricte interpretatur – Discretionary power must be strictly interpreted.
– Discretio est discernere per legem quid sit justum – Discretion is to discern through law what is just. – Coke.
In Ato Dadzie v. Electoral Commission [2003-2004] SCGLR 481 the Supreme Court stated that the courts have consistently underscored that public confidence in the electoral process is inextricably linked to the perceived and actual independence of the officers running it. Where an appointee bears recent, verifiable identification with a ruling political party, the foundational requirement of neutrality is severely compromised.
2. THE PRESIDENT IS BOUND BY HIS OWN PAST COMMENTS AND HIS PARTY’S POSITION – DOCTRINE OF LEGITIMATE EXPECTATION AND ESTOPPEL
While in opposition, the President and the NDC as a party took a clear, public and unequivocal position that:
a) Appointment of persons with known NPP leanings to the EC by President Akufo-Addo was unconstitutional,
b) It eroded public trust, and
c) It was a deliberate attempt to rig future elections.
The President himself publicly stated that the EC must not only be independent but must be seen to be independent and that partisan appointments must stop.
This creates a constitutional bar:
A. Legitimate Expectation: In Nii Tetteh Opremreh v. Electoral Commission & Attorney-General 2 SCGLR 748 and R v. North and East Devon Health Authority ex parte Coughlan 2 WLR 622, adopted in Ghana, a clear promise creates an enforceable expectation. Citizens had a legitimate expectation that the President would apply the same, if not higher, standard he demanded of his predecessor.
B. Self-Contradiction and Approbation/Reprobation:
Allegans contraria non est audiendus – He who makes contradictory statements is not to be heard.
Qui approbat non reprobat – He who approbates cannot reprobate. Meaning a person cannot simultaneously accept (approbate) and reject (reprobate) the same contract, instrument, transaction, or judicial order. In everyday terms, it means you cannot “blow hot and cold” or “have your cake and eat it too”. If you choose to take the benefits of an agreement or ruling, you are bound to accept its burdens and cannot later turn around and challenge its validity when it suits you.
Venire contra factum proprium non valet – No one may go against his own act.
These maxims were applied in Attorney-General v. Faroe Atlantic [2005-2006] SCGLR 271 to estop a party from benefiting from inconsistent conduct.
In NPP v. Attorney-General (31st December Case) [1993-94] 2 GLR 35, Amua-Sekyi JSC stated that the Constitution forbids selective application of principles based on who is in power. The President cannot weaponize a principle in opposition and abandon it in government. That is capricious under Article 296(b).
3. VIOLATION OF NATURAL JUSTICE AND IMPARTIALITY – THE EC MUST NOT ONLY BE NEUTRAL BUT BE SEEN TO BE NEUTRAL
Articles 44(1) and 46 require Commissioners to be of high moral character and independent from partisan direction. The EC is therefore a referee. The law is settled:
Nemo Judex in Causa Sua – No one should be a judge in his own cause.
Nemo potest esse simul actor et judex – No one can be at once suitor and judge.
The legal principle is that justice must not only be done but must manifestly be seen to be done – R v. Sussex Justices, ex parte McCarthy 1 KB 256.
In J.H. Mensah v. Attorney-General [1996-97] SCGLR 320, the Supreme Court held that appointments to independent bodies must inspire public confidence, not undermine it. In Abu Ramadan v. Electoral Commission (No.2) GHASC 51, the Court reaffirmed that any act of the EC that offends reasonableness is void. In Pinochet No.2 1 AC 119, the House of Lords held that even the appearance of bias disqualifies a judge.
If Emelia Affi Agbenyo is publicly known as NDC, every decision she takes in a parliamentary re-run in a swing constituency, every decision on voter transfer or collation, registration of new voters, etc. will be viewed through partisan lens. That destroys Article 45’s mandate for transparent elections. It therefore makes her appointment:
1. Unreasonable, arbitrary, capricious and biased contrary to Article 296(a)(b)(c) of the Constitution;
2. Inconsistent with the independence of the Electoral Commission under Articles 44, 45 and 46;
3. Void and of no effect by reason of breach of legitimate expectation and contradictory conduct.
III. CONCLUSION
From a strict legal and administrative standpoint, while Article 70(2) grants the President formal authority to make appointments to the Electoral Commission, this power is a fiduciary trust held for the people of Ghana. Exercising this discretion to appoint a known, high-profile partisan actor like Emelia Affi Agbenyo contradicts the spirit of institutional independence, tarnishes the public credibility of the EC, and flouts the foundational tenets of administrative reasonableness and objective neutrality.
The appointment sets a precarious precedent that undermines long-term democratic consolidation, inviting a tit-for-tat cycle of partisan appointments that ultimately destroys public faith in Ghana’s electoral democracy.
Just imagining seeing Swedru All Blacks PRO appointed as the referee for a match between All Blacks v Asante Kotoko. Is it reasonable?
Author: Chris Arthur, ESQ
