Decision to declare Akua Donkor’s votes as spoilt ballots raises serious legal & constitutional concerns – Prof Asare

A United States-based Ghanaian Professor, Kwaku Asare has raised concerns about the decision of the Electoral commission (EC) to declare votes for the late Ghana Freedom Party (GFP) presidential candidate, Madam Akua Donkor, as rejected ballots.

He says the decision of the election management body, without first amending Regulation 40 of the C.I. 127 which specifies the conditions under which a ballot may be rejected, will raise serious constitutional and legal concerns.

Madam Akua Donkor passed away on October 28 at Ridge Hospital in Accra after a brief illness. Her replacement for the 2024 election was disqualified by the EC due to irregularities and errors on his nomination forms.

Despite her image and the GFP logo appearing on the 2024 presidential ballot, the EC clarified that any votes cast in her favour would be invalid.

In a statement issued on Friday, November 22, the Commission confirmed that such votes will not be included in the valid votes cast.

The EC further stated that all election staff and representatives of presidential candidates have been informed of this decision.

“In view of the fact that the image and Party logo of the late Madam Akua Donkor remain on the 2024 Presidential Ballot Paper, the Commission has decided that all votes cast in favour of Madam Akua Donkor will be counted as Rejected Ballots.

“Votes cast in favour of Madam Akua Donkor will NOT be added to the Valid Votes Cast. The Commission wishes to inform the General Public accordingly. The Commission’s permanent and temporary staff as well as Agents of the Presidential Candidates have been informed.”

In a statement on Facebook, Professor Asare, also a private legal practitioner said said “I commend the Electoral Commission (EC) for its efforts in navigating the unprecedented challenges arising from the unfortunate passing of Akua Donkor. However, GOGO urges the EC to approach this matter with caution. Issuing a fiat to declare votes cast for a deceased candidate as “rejected ballots” under Regulation 40 of C.I. 127, without amending the law, raises serious legal and constitutional concerns. This issue transcends academic interest and strikes at the heart of Ghana’s democratic and electoral framework.

Why This Matters

Prof Asare explained that the Constitution mandates that a presidential candidate must secure a majority of valid votes cast to be elected. The treatment of votes for a deceased candidate can significantly impact this requirement:

If Counted as Valid Votes: These votes increase the total number of valid votes cast, raising the threshold for achieving a majority. This could disadvantage other candidates, as the votes for the deceased candidate become “wasted,” contributing to no living candidate’s tally.

If Declared Rejected Ballots: These votes are excluded from the total valid votes, lowering the majority threshold. This could alter the dynamics of the election, particularly in a closely contested race, and determine whether a runoff is required.

Legal Framework

Regulation 40 of C.I. 127 specifies the conditions under which a ballot may be rejected:

• Lack of an official mark.
• Failure to clearly indicate a choice.
• Marks that could identify the voter.
• Voting for more than one candidate.

He said the regulation does not include votes cast for a deceased candidate as grounds for rejection. Declaring such votes as rejected would go beyond the regulation’s scope, necessitating either a statutory amendment to include this scenario, or a judicial interpretation to expand the regulation’s application.

Authority and Boundaries

Prof Asare further explained that the EC’s mandate is to implement existing laws and regulations, not to create new ones by fiat. Issuing a fiat to reject votes for a deceased candidate could be considered ultra vires (beyond its legal authority). It could also invite legal challenges, especially if the decision influences the election’s outcome.

“Furthermore, the EC is bound by the Constitution, which protects the right to vote and the sanctity of the electoral process. Declaring these votes rejected could be viewed as disenfranchising voters who may not have had alternative candidates to support. It could also be viewed as undermining the principle of fairness if the decision disproportionately benefits or harms specific candidates.

“Article 63(4) of the Constitution outlines the procedure when no candidate secures a majority. Attempting to circumvent this process by reinterpreting the validity of ballots risks eroding public trust and provoking legal disputes,” he said.

A Way Forward

Given these constraints, Prof Asare strongly believes the EC cannot unilaterally issue a fiat to declare votes for a deceased candidate as rejected ballots.

“Moving forward: The law should be amended to explicitly address scenarios where a candidate dies after ballots are printed but before the election is conducted. Alternatively, the EC could seek judicial clarification to determine how such votes should be treated under the current legal framework.

“In Ghana’s legal framework, the EC lacks the authority to unilaterally classify votes for a deceased candidate as rejected under Regulation 40 of C.I. 127. The lesson from the SALL incident, where a similar fiat led to a cardinal sin, must guide future decisions.

“Any action that undermines constitutional principles or exceeds the EC’s mandate jeopardizes the integrity of the electoral process. Resolving such issues requires legislative or judicial action to ensure electoral outcomes are fair, transparent, and legally sound. As the saying goes, “Those who fail to learn from history are doomed to repeat it,’.”

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