The Abu Ramadan Case went before the Supreme Court for the third time last Thursday, 23rdJune, 2016. In its latest pronouncement on the matter (“Abu Ramadan III”), the Court has ordered the Electoral Commission to “clearly set out in writing, the steps and modalities that the Commission intends to take in order to ensure full compliance with the Court’s order” made on 5thMay, 2016. That order, as the Court recalled, commanded the Commission to “take steps immediately to delete or ‘clean’ the current register of voters to comply with the provisions of the 1992 Constitution and applicable laws of Ghana” and “also afford such affected persons the opportunity to re-register.” The Commission is also ordered to submit in writing to the Court the full list of all the persons on the register of voters who were registered as voters by the Commission on the basis of their possession of a National Health Insurance identification card. The Commission is to comply with these latest orders by 29th June, 2016.
Abu Ramadan III apparently became necessary as a result of the public confusion and misunderstanding, divided largely along party lines, caused by the vastly contradictory readings and interpretations proffered by various legal and opinion commentators to the judgment and orders of the Supreme Court delivered on 5th May, 2015 (“Abu Ramadan II”). The ensuing confusion caused one of the Justices who had sat on the case to take the unusual step of offering, in an extrajudicial context, a clarification of the judgment in response to a question from the press, a move that generated collateral controversy of its own. Even the Electoral Commission, the primary defendant in the case and the party to which the Court’s orders were directed, was reportedly unable to determine what, if anything, the judgment and orders of the Court in Abu Ramadan II required of it.
The Abu Ramadan trilogy began with the decision of the Supreme Court delivered on 30th July 2014 in two consolidated suits, J/11/2014 and J/9/2014, brought by Plaintiffs Abu Ramadan and Evans Nimako and by Plaintiff Kwasi Danso Acheampong, respectively (“Abu Ramadan I”). The plaintiffs in Abu Ramadan I had sought, among others, “a declaration that upon a true and proper interpretation of Article 42 of the Constitution of the Republic of Ghana, 1992 (hereinafter, the ‘Constitution’) the use of the National Health Insurance Card (hereinafter, the Health ID card) as proof of qualification to register as a voter pursuant to the Public Elections (Registration of Voters) Regulation 2012 (Constitutional Instrument 72) is unconstitutional, void and of no effect.” The Plaintiffs’ case was based on the fact that while article 42 of the Constitution restricts the right to vote and to be registered as a voter to a “citizen of Ghana”, the National Health Insurance (“NHI”) card is available and may be issued to any resident of Ghana, without regard to nationality.
In a unanimous decision, the Supreme Court granted the relief sought by the plaintiffs in Abu Ramadan I, declaring that “the use of the NHI card to register a voter pursuant to Regulation 1(3)(d) of the Public Election (Registration of Voters) Regulations, 2012 (C.I. 72) is inconsistent with the said article 42.” The Court further granted an order of perpetual injunction restraining the Electoral Commission from using the National Health Insurance Card for the purpose of registering a voter under article 42 of the Constitution.
It appears that the Electoral Commission, while ceasing to accept NHI cards for future voter registration following the decision in Abu Ramadan I, did not read Abu Ramadan I as requiring it to remove or exclude from the current register of voters those persons who had previously been registered on the basis of a NHI card. The Plaintiffs, therefore, returned to the Supreme Court two years after Abu Ramadan I had been delivered, contending, among other things, that “following the declaration of the unconstitutionality of the use of said cards, names of persons who used it in the registration process conducted under CI 72 cannot continue to remain on the register of voters.” It is in response to this claim that the Supreme Court in Abu Ramadan II ordered the Electoral Commission to delete from the current register of voters the names of those persons who were registered as voters on the basis of a NHI card and offer the affected persons a fresh opportunity to register using a constitutionally-compliant form of identification.
Rather than end matters, Abu Ramadan II generated a new storm of controversy as to the meaning and implications of the Court’s judgement and accompanying orders. Indeed, despiteAbu Ramadan III, it appears that the debate sparked by Abu Ramadan II is far from over. The issues at stake in the Abu Ramadan trilogy, but especially in Abu Ramadan II, are far from academic; they are weighty and urgent. The Court’s judgment in Abu Ramadan II touches on very important and fundamental constitutional questions, notably the Supremacy of the Constitution, the role of the Supreme Court in enforcing fidelity to the Constitution, and what the independence of the Electoral Commission means within our constitutional system. Moreover, the specific questions presented to and answered by the Court in the Abu Ramadan trilogy bear directly on the content and integrity of the voters register that is to be used in this year’s presidential and parliamentary elections–which elections are only a few short months away. In light of this, and because certain propositions contained in the Abu Ramadan II judgement written for a unanimous court by Justice Gbadegbe, remain deeply troubling and were not taken up again in Abu Ramadan III, we have decided to enter this debate, primarily to return to Abu Ramadan II and subject to close scrutiny, the controversial propositions in that case as well as the meaning placed on those words and the orders of the Court by certain legal commentators.
For the purposes of this article, we have divided into two parts our analysis of Justice Gbadegbe’s judgment for the Court in Abu Ramadan II. The first part deals with certain general propositions and questions of constitutional law that are contained in the “discussion” portions of the judgement and whose meaning and implications are far-reaching and extend beyond the specific issues presented in the case. There are two main issues here: (a) the effect of a declaration by the Court that a certain law or provision of a law is unconstitutional; and (b) the meaning of the Independence of the Electoral Commission as it relates to the power of the Supreme Court to enforce the Constitution. The second part deals with the specific orders of the Court; specifically, what action, if any, is required of the Electoral Commission under Abu Ramadan II in order to bring the voters register in compliance with the applicable provisions of the Constitution, as interpreted by the Court. We shall deal with these issues one after the other.
- (A) Is an Unconstitutional Law Void or Not?
The first broad or general question of constitutional law that arises from the judgement in Abu Ramadan II may be framed as follows: What is the effect of a Supreme Court declaration that a law or provision of a law is unconstitutional? More specifically, can a law or an act continue to have validity as law despite a determination and declaration by the Supreme Court that the law or act in question is inconsistent with the Constitution?
Language in the judgment of the Court in Abu Ramadan I appears to suggest that this last question can be answered in the affirmative. That language is the genesis of some of the confusion that this case has generated. The relevant portion of the judgment written by Justice Gbadegbe reads as follows: “As the registrations were made under a law that was then in force, they were made in good faith and the subsequent declaration of the unconstitutionality of the use of the [NHI] cards should not automatically render them void.”
In essence, the Abu Ramadan II Court wishes to say that, an act that has been found and declared by the Court to be unconstitutional may nonetheless retain current and prospective legal validity. The theory or reason the Court gives for this proposition is that, at the time the act was done, the law under which it was done was a valid law as it had not yet been declared to be unconstitutional.
This is a profoundly extraordinary and deeply troubling proposition as a matter of constitutional jurisprudence. Since every act, until it is found and declared to be unconstitutional, can be said to have been done in good faith compliance with existing law, the upshot and implication of the Court’s statement, even if unintended, is to allow an unconstitutional law or act to continue to be applied despite having been found and authoritatively declared to be unconstitutional.
Unfortunately but understandably, no authority or citation either to a provision of the Constitution or an established constitutional precedent is provided by the Court in support of this novel proposition. The absence of supporting authority or citation is not surprising, because one will have to search but in vain in our constitutional jurisprudence, and in the jurisprudence of every other constitutional system analogous to ours, for an authoritative support for the proposition that a law declared by the apex court to be unconstitutional is not void and thus can continue to be enforced or applied.
It would be easy to disregard the above proposition as mere dictum were it not for the fact that these words come from a unanimous seven-member panel of the Supreme Court and touch on arguably the most important and fundamental question in our constitutional system, namely the meaning of the Supremacy of the Constitution. So fundamental is the doctrine of the Supremacy of the Constitution, and of the related question of the effect of a judicial declaration of unconstitutionality, that the Framers of the Constitution gave it pride of place as the very first article of the 1992 Constitution. And it is to that provision that one must have recourse in seeking an authoritative and clear resolution of this matter.
Article 1, clause 2, of the Constitution states: “This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.” Article 2 of the Constitution then proceeds to lodge exclusively in the Supreme Court the power to determine and declare authoritatively whether a challenged law is unconstitutional.
The combined effect of these two preeminent provisions of the Constitution is clear and straightforward: If the Constitution is the supreme law of Ghana; and if it lies within the exclusive province of the Supreme Court to declare that a law is unconstitutional; then, a law declared to be unconstitutional by the Supreme Court, is definitively void and, therefore, of no legal effect. To say otherwise, that is to say, to suggest that a law found and declared by the Supreme Court to be unconstitutional is nonetheless not void and, thus, retains continuing validity for any reason whatsoever is to negate the notion of the Constitution being the supreme law of Ghana.
It is, of course, possible to find jurisdictions or constitutional systems in which a law declared as unconstitutional by a final court is still not automatically void. But what distinguishes those jurisdictions, such as the Netherlands and Switzerland, from ours is that, in those constitutional systems, the Court does not have the final authority to decide the fate of a law it has found to be unconstitutional. In those systems, it is usually the Legislature or Parliament that retains the final say as to what to do about a law declared by a court to be unconstitutional. The Legislature may choose, in those jurisdictions, to retain the law despite the judicial declaration of unconstitutionality. In other words, those jurisdictions follow the doctrine of parliamentary supremacy. That, however, is not the kind of constitutional system in force in Ghana. Under Ghana’s constitutional system, dating, at least, as far back as the 1969 Constitution, it is for the Supreme Court to declare a law unconstitutional and, the 1992 Constitution, like its predecessor constitutions, is emphatic that, once such a declaration has been made by the Court, the affected law is automatically void.
By Akoto Ampaw and H. Kwasi Prempeh