Court Orders EC To Justify Old Cards Removal

Jean Mensa – Chairperson of EC

The Supreme Court has ordered the Electoral Commission (EC) to justify why the existing voter ID cards cannot be used as basis for registration on to the new roll the commission is getting ready to compile.

A seven-member panel of the court, presided over by the Chief Justice, Justice Anin-Yeboah, said the EC had up to Monday, June 8, 2020 to file a supplementary statement of case, providing legal basis why the old voter ID cards should be excluded from the legal documents for proof.

Lawyers for the National Democratic Congress (NDC), who are challenging the decision of the EC to compile a new voters’ register can, on a point of law, respond to the EC’s supplementary statement of case, according to the court.

The matter was adjourned to June 11, 2020. Meanwhile, parties in the case have all filed their memorandum of issues set down for determination.

The Attorney General’s (AG) Department has also raised a preliminary objection challenging whether the writ is properly set before the court.

Other members of the panel are Justices Jones Victor Dotse, Paul Baffoe-Bonnie, Sule Nasiru Gbadegbe, Samuel Marful-Sau, Nene Amegatcher, and Prof. Nii Ashie Kotei.

NDC Action

The NDC, in late March this year, sued the AG and attached the EC over the commission’s decision to compile a new voters’ register for the 2020 Presidential and Parliamentary Elections.

The party wants the Supreme Court to declare that the EC, per the 1992 Constitution, can only compile a voters’ register once and subsequently review it over time and not compile a new one instead.

The NDC contends that the EC “can only revise the existing register of voters, and lacks the power to prepare a fresh register of voters for the conduct of the December 2020 Presidential and Parliamentary Elections.”

Among the declaration being sought by the NDC was that the current voter ID card, which was issued to prospective voters, could and should be used for the purposes of identification to enable them to register for the new cards.

The NDC is also seeking a declaration that the decision by the EC to amend the regulations that guide the registration of voters “to exclude existing voter identification cards as proof of identification to enable a person apply for registration as a voter is unconstitutional, null and void and of no effect.”

AG Response

The AG was the first to file its response through the Deputy AG, Godfred Yeboah Dame, describing the NDC’s claims that the EC is enjoined to compile the register of voters only once at the inception of the Constitution, and not on multiple occasions, as “patently absurd, far-fetched, outrageous and grossly erroneous.”

Mr. Dame insisted that a number of reliefs claimed by the NDC “are not cognizable,” adding that “the NDC has no cause of action as there is no enactment properly so-called in respect of which the action has been instituted. The proposed constitutional instrument (C. I.), the subject matter of dispute, has not come into force in accordance with Article 11(7) of the Constitution.”

He said the NDC’s action was “predicated on a proposed C. I. laid before Parliament and yet to go through the full processes prescribed by Article 11(7) of the Constitution for its entry into force as part of the laws of Ghana,” adding “in terms of the procedure enshrined in Article 11(7), the earliest date that the proposed C. I. laid before Parliament on April 1, 2020 comes into force is June 5, 2020.”

Original Jurisdiction

It said the action by the NDC did not properly invoke the original jurisdiction of the Supreme Court as there was neither a genuine case of constitutional interpretation nor violation of a specific provision of the Constitution.

“The plaintiff bore the burden of proof in relation to the material contentions of the intended exclusion of the old voter ID card as a means of proving one’s identity as a Ghanaian is a matter fully within the discretion of the second defendant (EC),” the AG insisted.

Voter ID

On whether the EC is justified in excluding the old voter ID card as a  means of identification for registration, the Deputy AG has stated that “as held in various decisions of this court, the functions of the second defendant (EC) under Article 45(a) of the Constitution to compile and revise the register of voters are not subject to any other constitutional provision or law,” adding “the power of the second defendant (EC) to compile and revise the register of voters at such periods of time may not be controlled by any person or authority, save in plain cases of unconstitutionality.”

The AG added that “the means of proving identity as a Ghanaian under the proposed C. I. seeks to protect the right of the Ghanaian to vote under Article 42 as it assures that only Ghanaians of full age and sound mind register to vote.”

EC Response

The EC, as second defendant, also filed its response through its lawyer, Justin A. Amenuvor, describing the position as an interpretation by the party to serve its ‘parochial interest’ and not a proper appreciation of the 1992 Constitution as a whole.

He said the NDC’s understanding and interpretation of Article 45(a) was an absurd, strained and far-fetched one.

“If successful with this absurd, strained and far-fetched interpretation of Article 45(a), the plaintiff (EC) wants this honourable court to declare that the second defendant no longer has the mandate to compile a register of voters because that constitutional mandate has already been exhausted/used and it is left with only the mandate to revise the already existing register,” he added.

Qualified Voters

The EC also insisted that its duty to ensure that every qualified voter got the opportunity to register and take part in elections was not lost on it but “that duty is as important as ensuring that only qualified voters get the opportunity to register and vote and where unqualified voters find their name in the register, steps are taken to clean the register to improve its credibility even if it requires that a new one be compiled.”

It said the NDC’s case was in respect of a law (regulation), which was going through its motions in Parliament and was yet to mature.

Old Cards

“The existing voters’ register is not and cannot be the only mode of identification without which qualified voters will lose their opportunity to register. Actually, there is no law in stating that it must be included therefore not including is not in breach of any law, not to talk of a constitutional provision. The modes of identification in the proposed amendment offer all qualified voters equal opportunity to register.”

BY Gibril Abdul Razak