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20 July 2016

Abu Ramadan III – Clarification ruling & orders & the EC

Supreme courtIn our first commentary on the Abu Ramadan Cases published here on 30th June, 2016, we put forth the following three propositions in response to certain arguments advanced by others in the wake of the Supreme Court’s 5th May, 2016, judgment and orders. First, that a thing (whether or law or an act) declared unconstitutional by the apex court is, under our Constitution (article 1) and system of laws, void and, thus, ceases to have legal effect or validity.

Therefore, following the declaration by the Supreme Court that use of the NHIS card for purposes of registration as a voter is unconstitutional, all such registrations ceased to have current or future legal effect or validity.

Second, that the independence of the Electoral Commission notwithstanding, the Supreme Court, having found an act or action of the Commission to be unconstitutional, is vested with power under the Constitution (article 2(2)) to compel the Commission to take such steps or actions as the court deems appropriate to undo or remedy the constitutional violation.

Therefore, having found use of the NHIS card for registration as a voter to be unconstitutional, the Supreme Court had power to order the Electoral Commission to remove or delete the affected registrations from the register of voters and provide all affected persons a fresh opportunity to be registered as voters using a constitutionally-compliant form of identification.

Third, an order of the Supreme Court directing a party to do or take a certain action to enforce a declaration of unconstitutionality by the Court is effective on its own accord; accordingly, it requires no existing or new legislation to implement it and, furthermore, trumps or supersedes any existing legislation prescribing a contrary or nonconforming action. The latest ruling of the Supreme Court in the Abu Ramadan Cases, dated 5th July, 2016, and issued to clarify the Court’s judgment and orders of 5th May, 2016, vindicates all three propositions.

The Supreme Court July 5th clarification ruling was expected finally to bring to a closure the controversy and competing interpretations as to the meaning and import of the judgment of 5th May, 2016, and the consequential orders it made. Unfortunately but predictably, this latest clarification, unambiguous as it is, appears to be the source of further forced misinterpretations and needless argumentation by some.

What the Plaintiffs sought in their application for clarification.

It is to be noted that in their application for clarification, the Plaintiffs irregularly sought declaratory reliefs. These were:

a)“A declaration that the order made by this Honourable Court pursuant to the judgment in the instant suit dated 5th May 2016 that 1st defendant/respondent ‘delete or clean’ the current register of voters to conform to the provisions of the 1992 Constitution and applicable law means the immediate removal of the names of persons who registered with the National Health Insurance Card and who had otherwise not established qualification to register or remain on the register of voters.

b)A declaration that the said order is made pursuant to article 2(2) of the Constitution and provides the legal basis and the authority for 1st Defendant/Respondent to comply with same forthwith.

c)A declaration that the earlier dismissal of Plaintiffs/Applicants’ reliefs 4(a) and (b) in the suit does not bar the 1st Defendant/Respondent from adopting the validation process as an auditing tool to clean the current register of voters; and

d) An order further directing the 1st Defendant/Respondent to remove the names of persons who used the National Health Insurance Scheme Card and others who had not lawfully established qualification to register from the current register of voters forthwith and provide those who remain eligible and subsequently establish qualification to register under law an opportunity to do so in time to participate in the general elections of 2016.”

The Supreme Court correctly observed that it was incompetent for a party to seek declaratory reliefs in an application invoking the Court’s inherent jurisdiction to clarify orders it had already made, as that amounted to opening the case all over again.

On that ground alone, the Court dismissed reliefs (b) and (c) above. It noted that relief (c) in particular was an attempt to re-package a relief that the Court had dismissed in its judgment of 5th May 2016. With regard to relief (d), the Court again correctly dismissed same, on the grounds that the relief sought was a repetition of the very order it had given in its judgment of 5th May and was therefore equally incompetent in an application for clarification.

With regard to relief (a) the Court observed that, though it was couched as a declaratory relief and, thus, technically incompetent, “in order to do substantial justice” and “as the issues affecting the right to be registered are at the heart of democratic government a strict adherence to technicalities would undermine the quest for justice”, noting that “the fundamental principle is that the Court looks at the substance of every application and not the form, and this principle applies with greater force in issues arising under the Constitution”. It was on that basis that the Court proceeded to consider the contending arguments and finally gave the ruling and orders we have considered above.

The Court’s power to clarify it judgments and orders under its inherent jurisdiction

The Supreme Court noted that the Court’s powers to clarify its previous judgments and powers derive from its inherent jurisdiction and are grounded in its “equitable authority to protect the integrity of its judgments by clarifying the meaning of its judgment or orders where there is an ambiguity” or where the judgment or order provokes divergent interpretations among the parties.

The Court’s jurisdiction to clarify its past judgments or orders may not, however, be used to effect substantive alteration in its prior judgments or orders, the Court held.

According to the Supreme Court in its most recent ruling in this matter: “[The orders of 5th May 2016, which the application for clarification turns on, are:

(a)’That the Electoral Commission takes steps immediately to delete or as is popularly known “clean” the current register of voters to comply with the provisions of the Constitution and applicable law.

(b)That any person whose name is deleted from the register of voters by the Electoral Commission pursuant to order (a) above be given the opportunity to register under law”

As background to its ruling, the Supreme Court observed that while both parties contend there was no ambiguity in the Court’s orders, the Court itself noted that they all “place different meanings on the scope and meaning of the orders of 5th May 2016” and held “strong divergent views” as to the meaning of those orders.

It said that, while the Applicants, Abu Ramadan and Evans Nimako, argued that the orders required the EC to take steps immediately to delete or clean names of persons who registered with NHIS cards as well as those deceased persons and minors from the register of voters, ostensibly without recourse to the affected persons, the EC, on the other hand, held a contrary view, arguing that the processes of deletion and or cleaning should be done under the Public Elections (Registration of Voters) Regulations, C. I. 91of 2016, as the applicable law.

Court Clarification orders
In its ruling on these competing interpretations of its orders of 5th May, 2016, the Supreme Court was emphatic and left no doubt whatsoever for a contrary meaning of the import of its orders of 5th May, 2016. The Court held in the unanimous judgment delivered by Justice Gbadegbe as follows:

:”By way of clarification of the orders made under the judgment of 5th May 2016, the 1st defendant (that is, the Electoral Commission) was to take immediate steps, that is, forthwith, to take steps to remove from the current register of voters all persons who had used NHIS cards to register. This order having been made under Article 2(2) of the Constitution therefore takes precedence over any existing statutory provision, including C. I 91. Accordingly, the 1st respondent (i.e. the EC) was to take steps forthwith to remove the names of all persons who had registered with the NHIS cards. In order not to violate their fundamental electoral rights and in order not to disenfranchise such persons, the 1st respondent was to give adequate notice to those affected by the order of the processes of deletion and re-registration, subject to eligibility. The removal of the names from the register was to precede the processes of re-registration s clarified”

The Chief Justice, in concluding matters read out the orders of the Court consequent upon the ruling in the following words:

“1. The 1st Defendant/Respondent is hereby ordered to take steps forthwith to implement this court’s decision of 5th May, 2016, in the terms clarified.

2. For the avoidance of doubt, the 1st Defendant / Respondent is hereby ordered forthwith to take all the necessary steps to delete from the current register of voters the list of persons whose names were submitted to this court on 29th June 2016 as persons who registered with the NHIS Card.

3. Further to the above order (2) the 1st Defendant / Respondent is further ordered to delete from the current register of voters the names of persons not included in the list submitted to this court on 29th June 2016 but who are also found to have registered with NHIS Cards”.

Nothing could be clearer. First, the EC is commanded to take steps “forthwith” (immediately) to remove from the register of voters those who registered using NHIS cards, because the NHIS cards did not distinguish between Ghanaians and non-Ghanaians and, thus, those who used it to register did not meet a constitutionally-mandated eligibility criterion, namely, that a registered voter must be a Ghanaian citizen.

Secondly, because some of those who registered using NHIS cards may indeed be Ghanaians and in order not to violate their fundamental right to be registered and to vote, the EC was to give to those affected by the order adequate notice of the processes of deletion and re-registration so that they may re-register (but subject to their satisfying the eligibility criteria as set out in article 42 of the Constitution, namely that their Ghanaian citizens, of 18 years and above, and of sound mind).

Further, and for the avoidance of doubt, the Court directed that the removal of the NHIS registrants should precede the re-registration. Finally, the Court clarified that its orders consequent to its declaratory powers under Article 2(1) of the Constitution takes precedence over or supersedes any statutory provision, including C. I 91, Nothing could be clearer than these orders and directions of clarification.

The “due process” argument
One would have expected that with this lucid clarification by the Court of its order of 5th May 2016, the hitherto, raging controversies over the meaning and import of these orders would come to a definitive and conclusive end. Not so, according to certain commentators.

Now that it is no longer possible to advance the “exhibition and challenge” argument or to argue that the EC can only delete by using “applicable laws”, some commentators are, surprisingly, still arguing that, somehow, the orders of the Court require due process, as a basis for deletion of the names from the register and that in a constitutional democracy, ‘due process’ requires that the rights of persons should not be taken away without due process of law. This is a bizarre argument. As whatever “rights” and related claims are at stake here have been fully litigated and adjudicated in a judicial proceeding, the notion that the resulting order of the apex court, issued to enforce the final judgment in the case, is itself not in accord with or lacking in “due process” is simply mind-boggling.

The due process argument indeed misunderstands and misreads the import of the judgment and orders of 5th May 2016 and the ruling clarifying that judgment.

The judgment of 5th May, 2016, and the earlier judgment of 30th July, 2014, had the combined effect of declaring that the registration of persons who used NHIHS cards to register was unconstitutional and unlawful, not because those persons, provided they were Ghanaians, did not have a right to be registered, but because the use of the NHIS card could not, and did not, satisfy a constitutionally necessary condition for registration, namely that the registrant must, in accordance with article 42 of the Constitution, be a citizen of Ghana.

Thus, with due respect, deleting the names of such persons did not take away any rights that they may have. (And under due process doctrine, no “process” is “due” unless there is, first and foremost, a cognizable legal right or interest at stake).

On the contrary, deletion of the names upheld constitutional due process by requiring that any such persons enforce their right to be registered as a voter and to vote by using due process, namely satisfying the eligibility criteria under article 42 of the Constitution.

The Court’s orders appropriately grant all affected persons the opportunity to avail themselves of precisely this process. Taken together, these constitute what due process means and requires in the instant context.

The Court’s decision springs from Articles 1(2), 2(1) & (2) of the Constitution, which provide as follows:

“1(2) This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provisions of the Constitution shall, to the extent of inconsistency, be void”.

“2(1) A person who alleges that –
(a) an enactment or anything contained in or done under the authority of that or any other enactment; or

(b) any act or omission of any person
is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect”

“2(2) The Supreme Court shall, for the purposes of a declaration under clause (1) of this article, make shall orders and give such directions, as it may consider appropriate for giving effect to or enabling effect to be given to the declaration so made”

Until the Abu Ramdan cases, the meaning of these plainly written, well-trodden provisions of the Constitution had never been in contention and were clear enough even to law students studying constitutional law and Ghanaian lay persons.

Urban bias
It is now however being contended that, where the Supreme Court makes consequential orders under article 2(2) to enable effect to be given to its declaratory powers under article 2(1), such an order would be contrary to due process if the effect is to take away forthwith a non-existent “right” of a citizen.

With a touch of populism, it is further being argued that it is constitutionally impermissible for just two persons, Abu Ramadan and Evans Nimako, the Plaintiffs/Applicants, to “disenfranchise” or take away from thousands who registered by NHIS, many of whom may be the rural poor, their right to vote. To give further populist twist to the argument, it is suggested that it is only the urban elite, who have an urban bias, who fail to see the injustice that the rural poor stand to suffer from such a position.

These are very astonishing arguments indeed. Such argumentation, in our view, seeks to jettison and re-write the very clear language and injunction of the Constitution in article 1(2) and article 2(1) & (2), and to do so not on substantive legal and constitutional grounds, but on populist grounds that run contrary to what the Constitution says and demands.

True enough, in any society, with social and class cleavages, it is to be expected that people from different social and class backgrounds will tend to see things from their class bias, this is especially so for the privileged classes and social groups.

But it is one thing to make that general observation and quite another to suggest that insisting on compliance with clear provisions of the Constitution, in respect of an issue as fundamental as who are qualified to be registered and vote in public elections, is to look at issues from an urban bias to the detriment of people living in rural communities.

Further, it bears reminding that not only does article 2(1) empower “a person” (that is, even a single person, not two, as in the Abu Ramadan case) who alleges that an enactment or a provision of an enactment is inconsistent with, and in contravention of, the Constitution to bring an action for a declaration to that effect, but the Constitution again in article 3(4)(a) provides that “all citizens shall have the right and duty at all times to defend this Constitution …….”. Thus, it is dangerous and subversive of the very clear language and intendment of the Constitution to suggest that it is an affront to constitutional democracy for just two persons to go to Court to defend and enforce the Constitution on the tendentious and populist ground that to do so would permit just two persons to disenfranchise thousands of the rural poor.

Taken to its logical conclusion, this bizarre theory means that any time a citizen invokes Article 2 of the Constitution to seek to overturn a law or act of a public body or agent that is otherwise binding on the entire population, that Plaintiff may be accused of trying to impose his or her solitary will or wishes on the entire country. Perhaps what the proponent of this outlandish theory wishes to see is the complete abolition of Article 2.

In any event, it is not the two Plaintiffs, but the Supreme Court that determined the matter and made the consequential orders.

Automatic deletion
But, since the recent ruling of the Court on the motion for clarification makes it clear, beyond a shadow of a doubt, that the Court’s orders were not for the EC to delete in accordance with or by using “applicable laws” but to take steps to delete forthwith, “TO COMPLY WITH THE CONSTITUTION AND APPLICABLE LAW”, there is a new shift to “the due process” argument. This new shift is procured by the magic and new words “automatic deletion”, which have been smuggled into the debate.

The ‘due process’ argument is no longer that that ‘due process’ requires that the names be deleted by so-called ‘applicable laws’. That argument having been dealt a deathblow by the Supreme Court’s clarification, the new argument goes thus: The Supreme Court clarification did not order the EC “automatically” to delete the names of NHIS registrants from the voters’ register, as the Plaintiffs had asked for.

Rather, as the argument goes, the Court ordered that the EC should takes steps by giving adequate notice to such persons of the processes of deletion and re-registration before deleting the names; and that “automatic deletion” would be contrary to due process.

In the first place nowhere in the application of the Plaintiffs did they make any reference to “automatic deletion”. What they argued was that the Court’s orders meant the EC was to delete forthwith, or immediately delete, the names of those who registered with NHIS cards as well as deceased persons and minors from the register of voters and not by the exhibition and challenge mechanism under C. I. 91. In that sense, the “automatic deletion” phrase was simply being foisted on the Plaintiffs as a straw man argument.

Secondly, to juxtapose “automatic deletion” (as the position of the Plaintiffs/Applicants) to the Supreme Court’s orders is to do so out of the context of the contending views on the import of the Court’s orders. The EC’s view was that the EC could only delete by using applicable laws, (i.e. by the exhibition and challenge process under C. I. 91).

The Plaintiffs’ view, on the other hand, was that the Court’s orders under article 2(2) superseded the exhibition and challenge process and meant the EC should delete “forthwith” or “immediately” those names from the register of voters, without recourse to that process. This was the context of the Court’s order. For the avoidance of doubt, we reproduce the order in Justice Gbadegbe’s ruling and the Chief Justice’s orders of the Court.

Gbadegbe JSC said in the ruling of the Court thus:

“This order having been made under Article 2(2) of the Constitution therefore takes precedence over any existing statutory provision, including C. I. 91. Accordingly, the 1st respondent (i.e. the EC) was to take steps forthwith to remove the names of all persons who had registered with the NHIS cards”.

The Chief Justice on her part said in order (2) thus:

“2. For the avoidance of doubt, the 1st Defendant / Respondent is hereby ordered forthwith to take all the necessary steps to delete from the current register of voters the list of persons whose names were submitted to this court on 29th June 2016 as persons who registered with the NHIS Card”.

It will be seen, from an analysis of the syntax of the two orders, that both orders call upon the EC immediately or forthwith to take the necessary steps to delete the NHIS registrants from the voters’ register. In order words, the orders were that whatever steps you need to take in order to delete immediately or forthwith the names of the NHIS registrants from the voters’ register, without recourse to the challenge and exhibition process, take them. Such an order in contrast to those who have been arguing that the EC could only do so by using applicable laws (namely the exhibition and challenge process) was, if you wish, an order of automatic deletion, even though that was not the language of the Plaintiffs or of the Court.

Of course the Court also correctly and in fairness to those whose names were to be deleted ordered that the EC was “to give adequate notice to those affected by the order of the processes of deletion and re-registration, subject to eligibility”, in order not to violate their fundamental electoral rights and in order not to disenfranchise such persons. No one ought to have any difficulty with that aspect of the Court’s orders. Certainly, the Plaintiffs, have never argued that those affected should not have notice of the processes of deletion and an opportunity to re-register. Their argument has always been that the orders of the Court required no other “applicable laws” for them to be carried out by the EC!!

THE INDEPENDENCE OF THE ELECTORAL COMMISSION

Throughout the Abu Ramadan trilogy, the meaning and import of the independence of the Electoral Commission has dominated discussions, both in the public space and the judgments of the Court, with some suggesting that the Supreme Court cannot take over the functions of the constitutionally independent commission and so cannot give orders directed at the Commission.

While it is not in dispute that the Supreme Court cannot take over the functions of the Electoral Commission, it is playing to the gallery to suggest that when a party obtains a declaration that a particular provision of a law under which the EC operates or an action of the EC is unconstitutional and the Supreme Court makes consequential orders to enable effect to be given to that declaration, the Court, thereby, is encroaching on the independence of the EC or may be seeking to do what the EC was set up to do.

It is most unfortunate to frame any such consequential orders, (directed to ensure that the acts of EC or any other independent constitutional body are in compliance with the Constitution) as undermining the independence of such constitutional bodies or taking over their functions. The EC and the other independent constitutional bodies, it need be emphasized, are creatures of the Constitution.

They owe their independence to the provisions of the Constitution, and that same Constitution makes clear that their independence is subject to the provisions of the Constitution and to the supervisory jurisdiction of the superior courts to ensure that their actions are in accord with the Constitution and within the law. That is why article 295 (8) of the Constitution provides the following, in no uncertain terms:

“No provision of this Constitution or any other law to the effect that a person or authority shall not be subject to the direction or control of any other person or authority in the performance of any functions under this Constitution or that law, shall preclude a court from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this Constitution or the law”

It is salutary for the EC and its members to bear in mind this important provision of the Constitution whenever they assert their constitutional independence. Quite apart from article 295(8), which applies equally to all independent constitutional and statutory bodies, there is article 46, which guarantees the independence of the EC, but also expressly makes the independence subject to the provisions of the Constitution and any other constitutionally valid law thus:

“46. Except as provide in this Constitution or in any other law not inconsistent with the Constitution, in the performance of its functions, the Electoral Commission shall not be subject to the direction or control of any person or authority”.

In short, the Electoral Commission, notwithstanding its constitutional independence, is not above the Constitution and the law but is subject to law and the supervisory jurisdiction of the superior courts. It is irresponsible and dangerous for any commentator to suggest otherwise and thereby lead sections of the public to the mistaken view that the Supreme Court, in ordering the deletion of NHIS registrations from the register of voters in order to enforce a declaration of unconstitutionality, is acting beyond its powers and seeking to usurp the powers of the EC.

THE LIST OF NHIS REGISTRANTS AND THE CREDIBILITY AND INTEGRITY OF THE EC AS AN INDEPENDENT CONSTITUIONAL BODY.

Though the application for clarification of the Court’s orders of 5th May, 2016, did not directly raise this issue, in the course of dealing with the clarification of its orders, the issue of EC’s credibility as a body that Ghanaians can trust and rely upon to act impartially and honestly and conduct free, fair and credible national elections came up from the most unexpected quarters. On correct procedural grounds and in order not to tarnish completely the integrity of the Commission, the Supreme Court, however, declined the invitation to wade into what appeared to be a scandal of monumental proportions for the integrity of the Commission.

It would be recalled that, in the course of proceedings on the application for clarification of the orders of 5th May, 2016, the Supreme Court ordered the EC to file in the court registry by 29th June, 2016, the full list of persons who registered with NHIS cards and the modalities or procedures it intended to use to delete the names from the register of voters and adjourned the case to 30th June 2016..

The Commission, in compliance with the Court’s order, produced a list of 56,772 persons as the full list of those who registered with the NHIS cards. When on 30th June 2016, Counsel for the Plaintiffs was asked his reaction to the list, he observed that he had only been served with the list an hour and half ago and so could not speak intelligently to it.

The Court went into recess, giving the Plaintiffs’ lawyers one hour to study the list and the come up with their reaction thereto. When the Court resumed sitting on the same day, Plaintiffs’ lawyer pointed out a number of mind-boggling defects and inconsistencies in the list and observed that the list was a fictitious one, manufactured by the EC and conjured out of nothing simply to meet the court’s orders. Midway through Counsel’s oral submission on the EC list, the Court, seeing that these were weighty matters, which could take some time, directed Plaintiffs to file in the registry of the Court written submissions on whatever objections they had to the list by Monday, July 4th, 2016, and adjourned the case to Tuesday, 5th July, 2016.

On Tuesday, 5th July, 2016, the Court gave its ruling on the application for clarification in the terms set out above. With respect to the challenge to the authenticity and credibility of the list of NHIS registrants that the EC had provided, the Court dismissed same for lack of jurisdiction.

The Court noted as follows:
“We have given due consideration to the objections tendered to the list of persons submitted to the Court by 1st defendant/respondent (i.e. the EC). We are of the opinion that we are precluded in the instant post-judgment application for clarification from veering into issues not immediately covered by the application. The determination of these questions does not properly belong to an application for clarification. Our jurisdiction is limited to clearly indicating what we meant by the portions of the judgment on which this application is base.

“We are of the opinion that an enquiry into the authenticity and credibility of the list submitted might result in the modification or alteration of the substance of the judgment. The issues raised by the objections to the list submitted by 1st respondent (the EC) are outside the orders on which the post-judgment clarification application is based”.

Though, the Court declined the invitation to “veer” into the authenticity and credibility of the list submitted by the EC, in its orders, the Court, in our view, impliedly recognized that there may very well have been merit to the objections, when the Court made the following third order:

“3. Further to the above order (2) the 1st Defendant / Respondent is further ordered to delete from the current register of voters the names of persons not included in the list submitted to this court on 29th June 2016 but who are also found to have registered with NHIS Cards”.

Clearly, if indeed, the list submitted by the EC was the full list of NHIS registrants on the register of voters, order (3) would have been completely unnecessary.

Plaintiffs’ objection to EC’s list
The Plaintiffs raised objections to the authenticity and credibility of the list, stating that it was “neither accurate nor credible, of doubtful integrity, riddled with manifest inconsistencies and contradictions” and, in fact, had been “conjured out of nothing” by the EC. These are, indeed, very serious allegations made against the EC, and if true, impugn the very integrity of the EC and questions whether it is ready or fit to act impartially and conduct the 2016 general elections in a credible and fair manner.

Even though the Court may seem technically correct, on jurisdictional grounds, not to have veered into the matter of the accuracy and credibility of the EC list, the issues are not that straightforward. It will be recalled that the Plaintiffs in Abu Ramadan II did not ask directly for the relief that the EC should be ordered to delete from the register of voters those who registered using the NHIS cards. The reliefs Plaintiffs sought in Abu Ramadan II were the following:

“1. A declaration that upon a true and proper interpretation of article 45(a) of the constitution of the Republic of Ghana, 1992, (hereinafter, the “constitution”}, the mandate of the Electoral Commission of Ghana to compile the register of voters implies a duty to compile a reasonably accurate and credible register.

2. A declaration that the current register of voters which contains the names of persons who have not established qualification to be registered is nor reasonably accurate or credible and therefore inconsistent with article 45 (a) of the Constitution and thereby making same null and void, of no effect.

3. A declaration that the current register of voters which contains the names of persons who are deceased is not reasonably accurate or credible and is therefore inconsistent with article 45 (a) of the Constitution thereby making same unconstitutional, null and void, of not effect.

4 (a). An order setting aside the current register of voters and compelling the Electoral Commission to compile a fresh register of voters before the conduct of any new public elections or referenda in Ghana.

Or, in the alternative:
(b) An order compelling the Electoral Commission to audit the current register of voters through the validation of the registrations of such persons currently on the register:

i.To delete the names of unqualified persons and deceased persons, and

ii.To provide each validated registration with biometric evidence thereof, and

iii.To strike out the names of those persons who fail to validate their voter validation within the stipulated period

before the conduct of any new registration exercise or public election or referendum in Ghana”.

It can thus be seen that, when the Court in its judgment of 5th May, 2016, ordered the EC to ‘take steps immediately to delete or as is popularly known “clean” the current register of voters to comply with the provisions of the Constitution and applicable law’, it was in fact not granting the specific reliefs sought by Plaintiffs, but rather reliefs formulated in the Court’s own terms.

The second point to be noted is that the Court itself recognized that there was a difficulty of determining the exact number of those who registered using the NHIS cards, when it observed at page 21 of its judgment as follows:

“..it appears from the proceedings herein that that the exact numbers are not known. This creates some difficulty in determining the actual percentage in order to answer the question posed whether the register may on such ground only be said not to be reasonably accurate or credible. .

It nonetheless proceeded to state that “that should not present us with an insurmountable problem”. It can, therefore, be seen that the current predicament that the nation finds itself in is directly the result of the failure to determine at the stage of Abu Ramdan II the number of persons who registered using NHIS cards by requiring the EC, which has exclusive custody of the data, to produce, at that stage of proceedings, the full list of such persons.

Had the Supreme Court done so, and the Plaintiffs then proceeded to challenge the authenticity of the list, the Court would clearly have been seized with jurisdiction to delve into this all important matter and determine whether or not the list was credible or concocted. As it is, the Supreme Court and the whole nation appear to have been deliberately short-changed by the EC with a list, which is neither accurate nor credible, but which the Court refuses on “jurisdictional” grounds to “veer” into.

Reasons for Plaintiffs’ objection to the EC list.

The reasons for the Plaintiffs’ objections to the EC list as fictitious and conjured out of nothing were several and weighty. But the most fundamental reason advanced by the Plaintiffs was that the EC was incapable of determining those who registered with NHIS cards for the 2012 general elections because the registration forms did not have any column or portion for recording those who used the NHIS card to register.

According to Plaintiffs, the only column on the primary registration form, Form 1A, for identification of the card used to register was the column for those who registered using the national identification cards issued by the National Identification Authority. There was no column for filling in the NHIS card number, passport number or driver’s license number on that form. Thus, so the argument of the Plaintiffs goes, whether by Form 1A or its electronic reproduction, Form 1C, which is lodged in the EC’s database, it is impossible for either the EC or any other person to determine those who registered using NHIS cards.

The Plaintiffs, in addition, stated that they had recordings of a meeting held at the EC’s conference room, between themselves and their lawyers, on the one hand, and the two Deputy Commissioners of the EC, namely Mrs. Georgina Opoku-Amankwaa and Mr. Sulley Amadu, and the EC’s lawyer, at which the two admitted that the EC did not have the record of those who registered with NHIS cards. Indeed, it was in recognition of this error in the Form 1A, which was used for the 2012 registration exercise under C. I. 72, that when the EC drafted the current C. I. 91, it made provision for filling in not only the national ID number of a registrant, but a registrant’s passport number and driver’s license number. None of these can be found in the Form 1 A and Form 1C used for registration in 2012.

To further buttress their points the Plaintiffs drew attention to names on the list that had no NHIS card numbers whatsoever. Again, the Plaintiffs argued that all the NHIS cards issued in 2012 had eight (8) digits. However, from the list filed by the EC some of the numbers were 2 digits, others 3, others 5, and yet others 7 and 12! Furthermore, the Plaintiffs pointed to the incredulous fact that from the list submitted, there were a total of 82 districts, out of the 216 districts, where not a single person, according to the EC’s list, registered using NHIS card. The point was further made that some of the purported NHIS numbers were in fact passport numbers.

As indicated, these are not trifling matters and if gone into and established as facts by an adjudicatory body would ground the citing of all the members of the EC for contempt of the Supreme Court. It is thus to be very much regretted that the Supreme Court deemed itself unable to delve into this all important issue.

Lessons of the Abu Ramadan/Evans Nimako Trilogy

What then does the Abu Ramadan/Evans Nimako saga teach us? In our view, there are a number of lessons to be learnt by all of us, as a people. First, we must commend the Plaintiffs, Abu Ramadan and Evans Nimako, for stepping forward to defend the Constitution with the tenacity they displayed. It is indeed the right and duty of all citizens to defend and guard jealously the Constitution of the Republic. Second, it should be understood without disputation that the Supreme Court has the power and authority under article 2 (2) to give orders to any person or authority to give effect or enable effect to be given to any declaration of unconstitutionality.

Third, any such orders take precedence over any statutory provision, including constitutional instruments. Fourth, the Supreme Court’s clarification ruling and orders apply with equal force to the deletion of deceased persons from the register of voters. The EC should not wait to be dragged to Court again, this time on contempt citation, before it implements this aspect of the Court’s orders of 5th May, 2016.

Again, the EC and all other independent constitutional bodies are subject to the Constitution and the supervisory jurisdiction of the superior courts. Next, it is about time that our governments, especially, and all of us took seriously the establishment of a national identification system that will assure reasonable proof of who is a Ghanaian citizen.

The Supreme Court stated this need in the most eloquent of terms when it observed in its judgment as far back as 30th July 2014 thus: “The need for a credible and reliable multipurpose national identification system comprising the relevant data and communication infrastructure that would answer to most of our national needs, whether for electoral, planning or developmental, or other purposes, is greater than ever before. We think the time has come for the appropriate authorities to respond to this need”. We are in July 2016 and nothing has yet been done about this by the authorities!

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Any such national identification system should be effectively linked to the records at the births and death registry. Our births and death registry, on the other hand, should be properly equipped and resourced with qualified and competent personnel to ensure that we have accurate records of every Ghanaian citizen who is given birth to and who dies.

All Ghanaians need to be vigilant to ensure that the will of the people prevails in the 2016 general elections. Finally, the Electoral Commission needs to recognize that its integrity and reputation have been seriously called into question by the Abu Ramadan & Evans Animako trilogy, especially with respect to the list it produced claiming only 56,772 NHIS registrants on the register of voters, as against the total 14,031,000 voters on the register.

It therefore behoves the Commission to take genuine steps, by deed and not pious assurances, to win back the confidence of the populace, including demonstrating a readiness to listen to reasonable proposals made by all stakeholders to ensure that the 2016 elections are credible, free and fair, and affirm the sovereign will of the people of Ghana.

Akoto Ampaw is a private legal practitioner based in Accra.H. Kwasi Prempeh is a legal policy and rule of law and governance consultant based in Tema.

Postscript
On 13th July 2016, the Electoral Commission announced to the general public, through its Director of Electoral Services, one Samuel Tettey, its time table in respect of the deletion of the names of NHIS card registrants from the register of voters and their re-registration where they satisfy the eligibility conditions. The EC, at the same time announced, its time-table for the exhibition of provisional voters’ register to enable registrants verify their names on the register. There are obviously worrying aspect of the programme announced that need to be addressed.

According to the announced time-table, the EC had deleted the names of 56,772 persons who registered using NHHIS cards from the register of voters and would publicize the names of these persons in one of the dailies, at the district registration centres and at municipal and district assembly offices on 15th July 2016. From 18th July 2016, it would commence the re-registration of those who have names had been deleted subject to their meeting the eligibility criteria. The re-registration exercise would end on 12th August 2016. At the same time from 18th July 2016, the EC would commence the process of exhibition of the register of voters for a period of three weeks to end on 7th August, 2016.

The first difficulty with this programme as announced is that it does not make provision for the display at their registration centres of the names of those whose names have been deleted from the voters’ register. Thus, unless, the affected persons read their names in the dailies, the EC’s website or go to the metropolitan, municipal or district offices of the EC, they would have no means of knowing that their names have been deleted from the register so they can re-register, subject to satisfying the eligibility criteria.

To complicate matters, notice of the deletion of names will be given only three (3) days before re-registration commences on the 18th of July 2016.

To further confound issues, the exhibition of the voters’ register will be taking place, more or less, concurrently (at the same time) with the re-registration of those who names have been deleted from the register. Finally, there is to be the exhibition of the register of those who re-register between 5th and 7th August 2016.

The question is when will the final voters’ register, inclusive of those whose names were deleted and who re-registered, be exhibited for verification by all registered voters? It would seem that the jumble that the two exercises are enmeshed in is because the EC is in danger of being caught by Regulation 9 (4) of C.I. 91 which provides that the EC “shall not include in the register of voters the name of a person who qualifies to register as a voter for an election but who registers less than sixty days to that election”.

Thus, in order not to be caught by the 60 days deadline, the EC now has to rush to do the notification of deletion of names from the register, the re-registration and the exhibition of the voters’ register, all, more or less, at the same time.

It is clear that the EC has allowed itself to be caught in this predicament because of its intransigence in not complying with the decision of the Supreme Court as far back as 30th July, 2014, on the unconstitutionality of registration of persons who used the NHIS card to register as voters.

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