When a presidential or parliamentary candidate dies after the close of nominations but before the election, Ghana’s electoral laws impose a duty on the Electoral Commission to allow a further period of 10 days to file new nominations where a political party nominated the deceased.

The 1992 Constitution of Ghana, complemented by other electoral laws, has elaborate provisions on what to do when a presidential or parliamentary candidate dies after the close of nominations but before the election. The country’s parent law also tells us what to do when the presidential or parliamentary candidate dies within 25 days of the election.

The Electoral Laws of Ghana

The Electoral laws of Ghana comprise the 1992 Constitution, the Electoral Commission Act, 1993 (Act 451) as amended, the Presidential Elections Law, 1992 (P.N.D.C.L 285) as amended, the Representation of the People Law, 1992 (P.N.D.C.L 284), Public Elections Regulations, 2020 (C.I 127), and Public Elections (Registration of Voters) Regulations, 2016 (C.I 91) as amended by (C.I 126).

The Public Elections Regulations, 2020 (C.I 127) regulates presidential and parliamentary elections in the country and, with the necessary modifications, other public elections that the Electoral Commission may conduct. See Regulation 1 of the Public Elections Regulations, 2020 (C.I 127).

Body responsible for public elections in Ghana

The Electoral Commission, established in clause 1 of Article 43 of the Constitution, 1992, is responsible for organising public elections in Ghana. The Commission comprises a chairman, two deputy chairmen, and four other members appointed by the country’s President under Article 70 of the Constitution.

Article 45 of the Constitution, 1992 provides the functions of the Commission, which include (a) conducting and supervising all public elections and referenda, (b) compiling the register of voters and revising it at such periods as may be determined by law, (c) educating the people on the electoral process and its purpose, (d) to undertaking programmes for the expansion of the registration of voters, (e) demarcating the electoral boundaries for both national and local government elections, (f) storing properly election material, and (g) performing such other functions as may be prescribed by law.

Also, see Sections 1 and 2 of the Electoral Commission Act, 1993 (Act 451) as amended on the creation of the Commission and its functions.

Given the above provisions, it is submitted that where something needs to be done for public elections, the Electoral Commission and no other body shall be responsible for performing those tasks.

Death of a presidential or parliamentary candidate before election

Clause 4 of Article 50 of the 1992 Constitution of Ghana provides that:

“Where at the close of nominations, but before the election, one of the candidates dies, a further period of ten days shall be allowed for nominations; and where the death occurs at any time within twenty-five days before the election, the election in that constituency or unit shall be postponed for twenty-one days.”

This provision deals with two possible scenarios: (1) where the presidential or parliamentary candidate's death occurs after the close of nominations but before the election and (2) where the presidential or parliamentary candidate’s death occurs at any time within twenty-five days of the election.

Giving notice to the Returning officer about a candidate’s death

When a presidential or parliamentary candidate dies after nomination, the deceased’s political party (where a political party-nominated candidate is deceased) or personal representative (where the deceased is an independent candidate) must provide proof of the candidate’s death to the Returning Officer for the necessary action.

This is provided for in sub-regulation 1 of Regulation 9 of the Public Elections Regulations, 2020 (C.I 127) when it says:

“Whenever the nomination paper and the statutory declaration of a candidate are delivered and the deposit is paid in accordance with these Regulations, the candidate shall be considered to stand nominated, unless proof is given to the satisfaction of the returning officer of the death, withdrawal or disqualification of the candidate.”

A news report about a candidate’s death may suffice as adequate notice to the Electoral Commission; however, because of the spike in disinformation in the media, it would be important for a formal notice to be served on the Commission.

Legal implications of the two scenarios on a candidate’s death

Scenario 1: Candidate dies after the close of nominations but before the election

In the first scenario where the presidential or parliamentary candidate's death occurs after the close of nominations but before the election, the Constitution 1992 imposes a mandatory duty on the Electoral Commission, using the word “SHALL,” to give ten days for a new presidential or parliamentary candidate to be nominated.

Also, sub-regulation 4 of Regulation 13 of the Public Elections Regulations, 2020 (C.I 127) amplifies this scenario provided for in the first part of Clause 4 of Article 50 of the Constitution 1992.

Sub-regulation 4 of Regulation 13 of the Public Elections Regulations, 2020 (C.I 127) provides that:

“Where at the close of nominations, but before the election, one of the candidates dies, a further period of ten days shall be allowed for nominations.”

Scenario 2: Candidate dies within twenty-five days of the election

The second part of Clause 4 of Article 50 of the Constitution 1992 provides that where the presidential or parliamentary candidate dies at any time within twenty-five days of the election, the Electoral Commission SHALL postpone the election in that CONSTITUENCY or unit for not less than twenty-one days.

It is the submission of the writer that the word constituency used in this provision of the Constitution and the Public Elections Regulations, 2020 (C.I 127) has two meanings: (a) the geographical location, including the people each Member of Parliament represents, and (b) the entire country in the case of the presidential election.

It is worth noting that while there are Returning Officers responsible for parliamentary elections in each constituency, the Electoral Commission (EC)’s Chairman is the Returning Officer for presidential elections, with the entire country considered as one constituency as provided for in sub-regulation 1 of Regulation 2 of the Public Elections Regulations, 2020 (C.I 127). The said provision says that:

“The Chairman of the Commission shall be the returning officer for the purpose of the election of the President.”

The implication of the second part of Clause 4 of Article 50 of the Constitution 1992, as echoed by sub-regulation 5 of Regulation 13 of the Public Elections Regulations, 2020 (C.I 127), is that where a parliamentary candidate dies at any time within twenty-five days of the election, the Electoral Commission SHALL postpone the election in that CONSTITUENCY ONLY for not less than twenty-one days. 

Sub-regulation 5 of Regulation 13 of the Public Elections Regulations, 2020 (C.I 127), provides that:

“Where the death of a candidate occurs at any time within twenty-five days before the election, the election in that constituency shall be postponed for twenty-one days.”

However, when the death was that of a presidential candidate, the Commission SHALL postpone the presidential election in the ENTIRE COUNTRY for not less than twenty-one days. Further, sub-regulation 1 of Regulation 17 of the Public Elections Regulations, 2020 (C.I 127) provides that:

“Where an election is to be held and a candidate dies on the eve of the election and proof of the death of the candidate is given to the RETURNING OFFICER before the commencement of the poll the returning officer shall put on hold, proceedings in relation to the election and inform the Commission.” (Emphasis added)

Also, sub-regulations 3 and 4 of Regulation 17 of the Public Elections Regulations, 2020 (C.I 127) say:

(3) Where the deceased candidate was an independent candidate the Commission shall not permit the nomination of another person and proceedings in relation to the election shall continue.

(4) Where a new candidate is nominated by a political party, the Commission shall adjourn elections in the constituency of the deceased candidate for a period of not more than twenty-one days from the day of the nomination of the new candidate.

Close scrutiny of sub-regulations 3 and 4 of Regulation 17 of the Public Elections Regulations, 2020 (C.I 127) would disclose that while the Electoral Commission would postpone and permit a new nomination when a political party-nominated candidate dies, this would not be the case if the deceased candidate was an independent candidate.

Sub-regulations 3 and 4 of Regulation 17 of the Public Elections Regulations, 2020 (C.I 127) mean that when an independent presidential or parliamentary candidate dies, the Electoral Commission will proceed with the election and shall not permit the nomination of another person to replace the deceased.

It is respectfully submitted that the provisions of sub-regulations 3 and 4 of Regulation 17 of the Public Elections Regulations, 2020 (C.I 127) contradict Clause 4 of Article 50 of the Constitution, 1992, by making special provisions for political parties to the disadvantage of independent candidates.

The 1992 Constitution did not segregate between independent candidates and political party-nominated candidates. Therefore, no law—substantive or subsidiary legislation—ought to exalt itself above any situation created by the 1992 Constitution.

What happens to monies paid to the Electoral Commission?

As earlier noted, the Electoral Commission will allow a new nomination when a political party-nominated presidential or parliamentary candidate dies after the close of nominations but before the election.

However, the Commission would not permit a new nomination in the case of an independent candidate.

Therefore, when the political party decides not to file a new nomination after the death of their candidate, the Electoral Commission has to return the DEPOSIT to the party AS SOON AS PRACTICABLE.

Similarly, when an independent presidential or parliamentary candidate dies, the Commission must return the DEPOSIT to the deceased's personal representative.

Sub-regulation 2 of Regulation 46 of the Public Elections Regulations, 2020 (C.I 127) makes this position abundantly clear when it says:

“Where a candidate is not shown as standing nominated in the notice of a poll specified under regulation 13 or if the poll is made inapplicable by reason of the death of the candidate, the Commission shall as soon as practicable after the publication of the notice or after the death of the candidate return the deposit to the person making it or to the personal representative of the candidate.”

It is worth emphasising that the Electoral Commission will return the DEPOSIT made ONLY when the deceased’s political party decides not to file a new nomination.

Where the deceased is an independent candidate, the Commission SHALL, AS SOON AS PRACTICABLE, return the DEPOSIT the deceased candidate made when she filed her nomination to the deceased personal representative.

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The author, A. Kwabena Brakopowers, is a private legal practitioner, journalist, development communication practitioner, and fact-checking consultant who has written extensively on information disorder, law, quality journalism, development communication, and international politics. You can reach him at Brakomen@outlook.com