The Supreme Court yesterday affirmed that old voters’ identity cards as well as birth certificates could not be used as proof of eligibility of an applicant for the compilation of the new voters’ register scheduled to commence next week.
A seven-member panel of the court presided over by the Chief Justice (CJ), in a unanimous decision, also ordered the Electoral Commission (EC) to compile a new register pursuant to the Constitutional Instrument 126 (C.I. 126), which was passed by Parliament recently.
The court decision shattered the hopes of the National Democratic Congress (NDC) that was pushing for the inclusion of the old voters’ ID cards as cardinal document for proof of eligibility.
NDC Mischief
The whole confusion started when the NDC General Secretary, Johnson Asiedu Nketia, who is not even a lawyer, started interpreting the court judgement to some journalists on the premises of the court immediately the verdict came out.
He created the impression that the court had asked the EC to accept the old voters’ identity card as one of the eligibility criterion for the registration exercise.
The NDC supporters, particularly on social media, went haywire and started jubilating that the old voters’ ID cards had been included in the exercise.
Bizarrely, the lawyer who represented the NDC in the case was even shying away from the media because he said he needed further explanation from the judges before commenting on the matter.
Pyric Victory
The NDC, in sum, wanted the court to assert that the right to vote must be respected in the review and compilation of any voters’ register and the Supreme Court agreed with this position and indicated that this ‘respect’ was subject to the voter presenting himself to be registered at the registration centres under the new C.I 126.
They also made a claim that once you have a Voters ID, you have a right to vote and so the right to vote should not be taken away in any manner; for example, in the compilation of a new register. And this formed the basis for the NDC asking the court to include the old voters’ ID card.
The court agreed that once an applicant gets the ID card that right to vote cannot be taken away in a capricious manner but that right to vote would only accrue if an applicant registered under C.I 126.
The overall effect of the court judgement is that the EC will compile a new voters’ register, but the old voters’ ID cards will not be a breeder document when an applicant registers under C.I 126.
Per the court judgement, an applicant’s right to vote will not be taken away in a capricious manner if the old ID card is not accepted as proof of eligibility.
Main Suit
In late March this year, the NDC sued the Attorney General (AG) and the EC over the commission’s decision to compile a new voters’ register for the 2020 presidential and parliamentary elections.
The party wanted the Supreme Court to declare that the EC, per the 1992 Constitution, could only compile a voters’ register once and subsequently review it over time and not compile a new one instead.
The NDC contended 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 declarations, the NDC sought that the decision by the EC to amend the regulations that guided the registration of voters “to exclude existing voters’ identification cards as proof of identification to enable a person to apply for registration as a voter is unconstitutional, null and void and of no effect.”
Abandoned Relief
The party later abandoned its claim that the EC was enjoined to compile the register of voters only once at the inception of the Constitution, and not on multiple occasions, and said it was only relying on the relief pushing for the inclusion of the existing voters’ ID cards as one of the primary documents for proof of citizenship for the upcoming voters’ registration.
AG’s Opposition
The writ was opposed to by the AG through Deputy AG, Godfred Yeboah Dame, who described 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.”
The EC, through its lawyer, Justin A. Amenuvor, also countered the NDC’s claims, 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 understanding of the NDC and its interpretation of Article 45(a) was absurd, strained and far-fetched.
The parties in the case were each given the opportunity to make oral argument before the panel and the court set June 23, 2020 to give its judgement in the matter.
New Case
Just as the court was to take its decision, one Mark Takyi-Banson from the Central Region filed a fresh suit against the EC, claiming that the commission was mandated by the 1992 Constitution to compile a register of voters only once and thereafter revise it periodically, a move similar to the request of the NDC, which it had since abandoned.
He was also seeking the Supreme Court to order the EC to include the old voters’ ID cards as well as birth certificates as basis for identification.
Case Merger
The court then merged both cases after Deputy AG, Mr. Dame, filed an application pointing out that both cases were seeking essentially the same reliefs.
All the parties were subsequently ordered to file their respective statements of case, which they did and the court gave them the opportunity to do further oral arguments.
Oral Argument
Cosmas Apengnuo, counsel for Mr. Banson, urged the court to order the EC to make the birth certificate one of the primary documents for identification.
He said although the EC had the power to compile a new register, that mandate had been exhausted and the only thing they could do now was to correct the ‘errors’ in the register if any.
He added that the compilation of the new voters’ register amounted to setting aside the current register, which he said the EC did not have the power to do.
NDC Point
Godwin Tamakloe, counsel for the NDC, challenged the EC’s claim that over 12 million out of the over 15 million names on the register were registered without any form of verification.
He said that the claim by the EC was grossly misleading as it was not backed by any evidence.
Dame Angle
The Deputy AG argued that the sole issue for determination was whether the right to vote would be undermined by the exclusion of the old voters’ ID cards.
He said that could not be the case as the National Identification Authority (NIA) had indicated that 10.5 million Ghanaians aged 18 and above had registered for the Ghana Card.
“The final analysis we make of Exhibit AG2 is that, the court will note that the current projected population of Ghanaians (18+) as at June, 2020 is 16,650,476. Quite surprisingly, the plaintiff in the First Suit, the NDC, claimed at paragraph 64 of its Statement of Case that ‘in terms of the number of persons on the voters’ register and with issued voters’ cards, they are over 18,000,000.’ We urge the court to totally disregard this wild and unfounded allegation by the NDC that about 18 million people are supposed to be on the register of voters,” Deputy AG said.
He said “in all of the analyses we have made, we need to point out that it is definitely not all Ghanaians aged 18 and above who turn out to register to vote. In all democracies around the world, about 20% to 255% of those qualified to vote may not register to vote. So, in terms of those actually expected to be on the register of voters, we could safely conclude that for Ghana’s “registerable population” of 16,650,476, about 13,320,381 might be expected to be on the register of voters, a far cry from the outrageous unfounded figure of 18,000,000 stated at paragraph 64 of the Statement of Case of First Plaintiff, the NDC.”
EC Submission
Mr. Amenuvor, counsel for the EC, told the court he wished to rely on his submission contained in the documents filed before the court, which described the NDC’s position as calculated to suit their parochial interest.
IMANI Gang
On Wednesday when the matter was being heard, some four civil society organisations led by IMANI Ghana gatecrashed and claimed that they wanted permission to file a brief as friends of the court (Amicus Curiae) to assist it in the determination of the case.
The court booted them out saying they were not bringing anything significant to the case.
The court also said IMANI and its gang had already taken sides in the matter and could not be considered as neutral.
Main Judgement
Apart from the CJ, Justice Kwasi Anin-Yeboah, other members of the panel that decided the case included Justices Jones Dotse, Paul Baffoe-Bonnie, Sule Gbadegbe, Samuel Marful-Sau, Nene Amegatcher and Prof. Nii Ashie Kotey.
The court, in its unanimous decision, dismissed all the reliefs including the one seeking the inclusion of birth certificate as basis for proof of nationality, as brought by Mr. Takyi-Banson.
The court granted relief-two of the NDC, which was seeking a declaration that upon a true and proper interpretation of Article 51 read conjointly with Article 42 of the Constitution, the power of the EC to compile a new voters’ register must be subject to respect for and protection of the right to vote.
Granting Reliefs
The court also granted relief-three of the NDC, which was seeking a declaration that upon a true and proper interpretation of Article 42, upon the registration and issuance of voters’ ID card to a person, that person has accrued the right to vote, which cannot be divested in an arbitrary and capricious manner.
However, the grant of the two reliefs, the court said, was pursuant to C.I 126.
“The relief (two) is granted subject to the fact that all eligible voters must make themselves available for registration as directed by the EC pursuant to Public Elections (Registration of Voters) (Amendment) Regulations, 2020, C.I 126.”
On relief three, the court held that “the relief is granted subject to the voters’ registration card issued to an eligible voter under the prevailing C.I 126.
The court, however, dismissed a relief by the NDC seeking a declaration that the decision of the EC to exclude the old voters’ ID cards from the documents required as proof of identification without any justification as arbitrary, capricious, unreason and contrary to Article 296 of the Constitution.
The court went on to reaffirm its decision in the Abu Ramadan case and “re-emphasized the fact that the EC in exercising its discretion in the discharge of its constitutional mandate in cleaning the voters’ register should be deemed as authorized to be acting within the law and regulations therein, and could not be faulted even if it was considered that there was a more efficient mode or method available.”
The court also dismissed a relief seeking the court to order the EC to include the existing voters’ ID cards duly issued by the EC as one of the documents serving as proof of identification for registration as a voter for purposes of public elections.
“It is refused and we reiterate our decision in Abu Ramadan (No.2) supra, where this court held that the Electoral Commission in performing their mandate under Article 45 of the 1992 Constitution cannot be compelled to act in a particular manner unless there is clear evidence that they acted unconstitutionally,” the court held.
Consequential Orders
The court subsequently ordered all stakeholders and Ghanaians eligible to vote to comply with Articles 42 and 45 of the Constitution and C.I 126 in the compilation of the new register.
The court further directed the EC to commence the compilation of the new registration exercise as scheduled.
Meanwhile, the Supreme Court has ordered that any court in which there was the same or similar case concerning the compilation of the new register shall apply the decision of the Supreme Court in the consolidated case.
BY Gibril Abdul Razak