As Ghanaians mourn the death of the Flagbearer of the Ghana Freedom Party (GFP), Akua Donkor, her death appears to have brought about a legal puzzle regarding the pending December 7, 2024, general elections, that needs to be resolved.

A faction of the public is wondering whether the death of Akua Donkor, who drew the number 3 position on the ballot paper for the 2024 presidential election, will affect the ballot paper positions of the other candidates in the election.

Even before the death of Akua Donkor, some political actors threatened to change the ballot paper positions of some of the presidential candidates in the pending presidential election by influencing some of the contenders to step out of the race.

But can the ballot paper position be changed, and does the death of the Flagbearer of the Ghana Freedom Party mean it is set to happen?

Here is what the laws of the country says:

Nomination of candidate for a presidential election:

First of all, who is a nominated candidate for a public election in Ghana?

Regulation 9(1) of the current electoral law of Ghana, the Public Elections Regulation, 2020 (C.I. 127), states that “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.”

This means that if a person successfully submits his/her nomination forms to contest in a public election and the returning officer, which for the presidential election, is the Chairperson of the Electoral Commission of Ghana (EC), Jean Mensa, the person is considered a contender for the election unless s/he withdraws, dies or is disqualified.

The chairperson of the commission per Regulation 10 of C.I. 127 is mandated to “compile and sign a list of the nominated candidates as at close of nomination day.”

Regulation 10 (4) states that “Subject to sub-regulation (2) of regulation 13, a duly nominated candidate (a) may withdraw as candidate at any time before election day; and (b) shall write to the Commission to inform the Commission of the decision to withdraw.”

What are the implications of a candidate withdrawing from a public election:

Regulation 10 (5) and Regulation 10 (6) of the C.I. touches on what happens when contenders withdraw from an election.

The two sub-regulations indicate that if candidates withdraw from an election but their details have already been captured in “related election notices”, their names and details would continue to remain in the notices.

The votes of such persons would be considered invalid in the event they are voted for in the elections.

“(5) Where a duly nominated candidate whose name appears on the nominated list displayed at the constituency centre withdraws as candidate after ballot papers and related election notices have been printed, the ballot papers and related notices may continue to include the name and other particulars of the candidate.

“(6) The Commission shall not refund the deposit paid by the candidate in respect of the nomination and votes cast in favour of that candidate shall be declared invalid.”

What happens if a presidential candidate dies?

The electoral laws indicate that after the demise of a candidate in a public election, the election should go on if there are two or more candidates remaining, which is the case now.

Regulation 13 (1) of C.I. states that “Where the time allowed for the delivery of nomination papers has ended and on the day before the election two or more candidates stand nominated, a poll shall be taken in the manner provided by these Regulations and in accordance with any existing applicable law.”

Sub-sections 2 and 3 of Regulation 13 also indicate that where the death of presidential candidate(s) leaves only one contender, nominations would be opened for more candidates.

Here are the exact words of Regulation 13:

(1) Where the time allowed for the delivery of nomination papers has ended and on the day before the election two or more candidates stand nominated, a poll shall be taken in the manner provided by these Regulations and in accordance with any existing applicable law.

(2) Where for the purpose of a public election two or more candidates are duly nominated at the close of the nominations but before the day of the election only one candidate stands nominated,

(a) a further period of ten days shall be allowed for the nomination of other candidates,

(b) a candidate who withdraws the nomination of that candidate shall not obtain a refund of the fee deposited; and

(c) where the period allowed for nomination of other candidates occurs within twenty-five days to an election the election in that constituency shall be postponed for a period of not more than twenty-one days.

(3) Where at the close of nominations and after the end of the further period of ten days under sub-regulation (2) only one candidate stands nominated, an election shall not be conducted and that candidate shall be declared elected.

(4) 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.

(5) 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.

More on the death of contenders in a public election:

Regulation 17 of C.I. 127 perhaps gives more clarity on what is expected to be done after the demise of a presidential candidate – the current predicament.

It highlights three important points, including:

• The postponement of the election.

• The political party of the deceased being given the chance to field another candidate.

• For an independent candidate, no chance is given for the replacement of the deceased candidate.

Here are the exact words of the Regulation:

“(1) Where the time allowed for the delivery of nomination papers has ended and on the day before the election two or more candidates stand nominated, a poll shall be taken in the manner provided by these Regulations and in accordance with any existing applicable law.

(2) The Commission shall on receipt of information under sub-regulation (1) adjourn the poll and allow a period of ten days for the political party to which the candidate belonged to nominate a new candidate.

(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 twenty-one days from the day of the nomination of the new candidate.”

What the 1992 Constitution says:

Article 50(4) of the 1992 Constitution states 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.”

Lawyer Martin Kpedu, speaking with GhanaWeb, explained that the article indicates that if a candidate dies after the close of nominations but before the election date, the following happens:

1. A new nomination period of 10 days is opened for candidates.

2. If the death occurs within 25 days of the election, the election is postponed for 21 days to allow for the necessary adjustments.

He added that Regulations 13(4) of the C.I. 127 aligns with the Constitution and emphasises: “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.”

He added, “This confirms that when a candidate passes away after nominations but before the election: A 10-day window is provided for new nominations to replace the deceased candidate.”

What the EC has said:

GhanaWeb’s source at the Electoral Commission (EC) has indicated the commission is looking into the implications of Akua Donkor’s death on the upcoming polls.

He could not confirm whether the details of the late presidential candidate would be taken out of the ballot paper which would affect the positioning of the other candidates in the race.

The source also did not confirm whether her party would be given the chance to field another candidate.

He added that the technical team of the commission is looking into the matter and would issue a statement on it.