By Dr. Samuel Adjei Sarfo
Attorney and Counselor at Law
The recent announcement by the National Executive Council (NEC) of the New Patriotic Party has raised some hackles. The Council has decided that certain parliamentary seats now held by women must not be contested by men. It has also designated certain seats in the Greater Accra Region as reserved for people of Ga extraction. Regarding the proposition intended to make some parliamentary seats exclusively feminine, well-meaning supporters of the NPP thronged to the party headquarters to express their sentiments against the idea. Others openly criticized the proposition and copiously explained the grounds on which they think the whole idea is wrong-headed. However, people are generally quiet about the other equally troubling decision.
What makes the party’s executive members think that they have the right to designate certain constituencies as purely female or purely ethnical? Isn’t it one more testament of our nationhood that we are a cosmopolitan country where people from everywhere and anywhere live in any town or city everywhere and anywhere? And what happens to these constituencies if there sits a non-performing parliamentarian with no valid female or ethnically qualified challenger? Does that mean that the people are condemned to have a bad representative just because they initially chose a certain representative of a certain gender and ethnicity? And what is there in one’s gender or ethnicity that makes him peculiarly better as a parliamentarian than any person of any other gender or ethnicity? Aren’t the people wise and trustworthy enough to choose their representatives by themselves? What does the NEC know about the peoples’ representatives that is so unique from what the voters know already of their representatives? Isn’t this posture, no matter how well-intentioned, sending gendered views and ethnocentric signals within the body politic of the country and affecting this whole notion that we are all one people and one nation irrespective of gender and ethnicity?
The NEC of the NPP must get its act together and watch out for those who would want to subvert the party’s democratic principles. If they don’t, the wrath of the people will swallow them up. The notion that the party’s gurus know better than the masses themselves who they must choose as their representative is essentially what caused us the elections in 2008. The divisions within the party resulting from that previous notion still lurks, and it is dangerous for anybody to open up the wounds by similarly bad posturing. Particularly, the NEC must exercise the greatest care to avoid giving any advantage to a sitting MP. If such an MP has done a good job, the people’s trust which sent the person to parliament in the first place will still be intact to return him or her there, and the mere idea of the person’s present incumbency will position him or her to maintain the people’s trust to resend him or her to the House. He or she would not need any tinkering of the rules to be re-voted into the House, unless such a person has done a rather bad job for which he or she seeks reelection through the back door.
If the parliamentarians have not distinguished themselves by meeting the simple test of adequate performance, nobody has the right to skew the system to their advantage on grounds of their gender or ethnicity. They all have to go through the mill all by themselves because that is how true democracy works. And any advantage given them will constitute a taking of the franchise from the people. This will send us on a slippery slope of eventual dictatorship, or at least some form of oligarchy within the party. Think about it: Today, we are acquiescing on gender and ethnicity as a sine qua non for voting for a certain class of people. This may seem innocuous enough on its face; but tomorrow, what will prevent us from making further restrictions on the people’s choice on some other spurious grounds like experience or wealth or physical appearance or status within the party? We must wisely refrain now from proceeding on a slippery slope. As for those incumbents presently favored by the new policy, they will always pose the greatest danger to the whole democratic dispensation. This is because they are indoors within the corridors of power and would wish to shut the door on the face of their challengers. But the real litmus test is what they would do if they were not MP’s, or not of a particularly favored ethnicity or gender. Would they have hailed such a patently morbid decision? I doubt it.
The present policy can also not be sustained on the mantra of affirmative action. For affirmative action as a policy was traditionally used in the school admission process to favor disadvantaged minorities, but not as a tool to circumvent the popular franchise; so the present use of the term as a mantra to justify the present proposition is both dangerous and disingenuous. Besides, the concept of affirmative action is now discredited because it is deemed as discriminatory and against the grain of the equal protection of the law. This is exemplified in the recent US Supreme Court decision in Fisher v. University of Texas, 570 U.S. ___ (2013) wherein the US Supreme Court ruled that affirmative action programs need to be more strictly reviewed. The Court explained that the program must pass a test of "strict scrutiny," proving an absence of alternatives that do not include race as a means to diversify the student body. If one substitutes gender for race in this particular instance, the wisdom of the US Supreme Court is applicable in this context. And then the question becomes: Has this matter surmounted the legal muster of strict scrutiny to affirm that there is no other alternative that does not necessarily include gender and ethnicity as means to diversify our parliamentary representation? I don’t think so.
Finally, affirmative action cannot be applied to skew the system on behalf of certain members within a certain group, to the disadvantage of others within the same group. Under the present circumstances, the only beneficiaries of this rather strange proposal are those incumbent MP’s who are of a certain gender and ethnicity within the NPP. Unsurprisingly, these will be stridently in support of it. But one cannot see how others of the same ethnicity and gender can equally benefit if they are outside of the prescribed groups or areas. A real affirmative action within the party would be circumscribed by strict scrutiny for absence of alternatives, apply equally across board to a disadvantaged group without discrimination, and would be implemented through persuasion, education and financial support from party members, not through hollow edicts concocted to deprive others of their democratic rights.
No person or persons possess the right to make decisions within the party that will tinker with the democratic rights of the people to choose their representatives by the popular vote. Those rights are firmly ensconced within the bosom of the party’s rules and the national constitution: a person cannot be discriminated against on account of his or her gender or ethnicity. At the same time, all citizens of Ghana are entitled to the equal protection of the law regardless of their gender or ethnic origin.
The party leadership must show in-depth capacity to think deeply before coming out with all their decisions. They must first imagine themselves out of the corridors of power in order to see clearly the true ramifications of their decisions down the generations. They must also stick to the principles of true democratic mechanisms and make all decisions that will properly accord with the universe of proper franchise. Right now, without any deeper-level reflections, they have come out with a strange edict that has the potential to throw the party into confusion. Retracting from their present position will weaken them, and proceeding to implement the newfangled policy will be an act in foolhardiness.
Therefore the better option is to suspend the debate and implementation of the proposition for reconsideration at some remote future time.
Samuel Adjei Sarfo, JD, MA, BA, etc. is an Attorney and Counselor at Law, a Teacher of Lore, Certified High School English Educator, Researcher and Scholar. He can be reached at [email protected]