By Daasebre Prof. (Emeritus) Oti Boateng
The number of votes needed to win a Presidential Election in Ghana is stipulated in article 63 (3) of the constitution as follows: “A person shall not be elected as President of Ghana unless at the presidential election the number of votes cast in his favour is more than fifty percent of the total number of valid votes cast at the election.”
In spite of this clear and unambiguous constitutional provision, the Electoral Commission introduced an invalid construct, the so-called “50 percent plus one vote” rule, as a proxy for the true constitutional provision stated above. This paper provides further illumination to illustrate why the construct is invalid with no legal basis to support it. It is also written to enrich public debate on this critical electoral issue of electing the President of Ghana with a view to ensuring credible and peaceful election outcomes. Above all and in the parlance of Edmund Burke, it is written “to promote the good purposes for which elections have been instituted and to prevent their inconveniences”.
The Invalid Construct
Among the reasons why “50 percent plus one vote” is an invalid construct are:
a). that the two components of the construct are non-additive since percentages and natural numbers cannot be added unless prior conversion is made from one state to the other,
b) that once the 50 percent of the total valid votes cast in an election is obtained, there is no valid vote or votes left anywhere behind to be added to the 50 percent thereafter, and
c). that in all cases where the total number of valid votes cast in an election is an odd number, it is impossible for any contesting candidate to obtain exactly 50 percent of the votes thus rendering the 50 percent component part of the construct inoperative and invalid.
Misuse of a Fixed-Point to Define an Interval
The constitutional provision requiring “more than 50 percent of the total number of valid votes cast” to win a presidential election effectively defines an interval of percentages rather than a fixed-point within the valid percentages. It specifies a winning range from just above 50 percent up to and including 100 percent with countless number of winning possibilities within the interval. It effectively puts any consideration of the winning range in the realm of mathematical inequalities within an interval rather than in the familiar comfort zone of fixed-point equations. This range of winning possibilities cannot be represented or defined by any fixed-point since such point will ignore all the other winning possibilities within the range immediately before and after the said fixed-point. Such a process will, in effect, fail to fulfil the sufficiency criterion of a true representation. In general, a fixed-point cannot be used to define a whole range of interval since that process ignores all other winning and valid possibilities outside the particular fixed-point but effectively within the valid range.
The invalid construct, “50 percent plus one vote “, remains a fixed entity even after the appropriate conversion. Hence, the use of any such fixed-point as a proxy representation for a constitutionally defined interval, is palpably invalid.
Lack of Constitutionality
It is settled law that administrative directions or fiats cannot override statutory provisions. In its Supplementary Statement to the Supreme Court pursuant to the Order of Court dated 4th June 2020, the Electoral Commission admitted, inter alia, that the Training Manual used for the compilation of the register of voters in 2012 pursuant to CI 72 removed the legal requirement of “proof of eligibility” mandatorily required under regulation 1(3) of the constitutional instrument.
The Electoral Commission further admitted that, apart from removing the identification requirement, “the manual on its own, at page 16 thereof, introduced alternative proof of eligibility, birth and baptismal certificates, which are not in the list set out in Regulation 1(3) of CI 72.”
The Electoral Commission concluded in paragraph 46 of its statement as follows: “The reality therefore is that the manual introduced changes to CI 72 without the amendment required by article 11, and by so doing, tainted the entire register with just not lack of credibility, but unconstitutionality.”
Thus, the Electoral Commission fully acknowledges the settled law that administrative directions or fiats cannot override statutory provisions.
Nonetheless, the Electoral Commission introduced a fundamental change to the meaning of article 63 (3) of the constitution by a proxy and invalid construct of “50 percent plus one vote” without seeking the required constitutional amendment of that article. This significant change to override article 63 (3) was made merely through administrative directions with no legal basis whatsoever to support it. The change, therefore, lacked credibility, rationality, tenability and constitutionality.
From the foregoing, it is patently clear that the Electoral Commission has no legal mandate to use the invalid construct of “50 percent plus one vote.” To seek for such legal mandate will be doomed to failure given the invalidity of the construct. The best pathway would be for the Electoral Commission to join in the patriotic crusade of sounding the desirable death knell of the invalid construct.
Daasebre Professor (Emeritus) Oti Boateng is the Omanhene of New Juaben Traditional Area and Chancellor, All Nations University, Koforidua, Ghana.