Dr. Dominic Ayine, Godfred Yeboah Dame and Justin A. Amenuvor
The opposition National Democratic Congress (NDC) is expected to go into a straight battle with the Attorney General (AG) and the Electoral Commission (EC) over the new voters’ register at the Supreme Court today.
After protesting vehemently including threats to bring civil war if the commission goes ahead to compile a new register for the upcoming December general election, elements within the NDC have filed a writ against the AG and the EC over the exercise.
NDC Action
In late March this year, the NDC 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, whose application was filed by Ayine and Felli Law Offices, is contending 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.”
NDC Voters ID
Among the declaration being sought by the NDC is that the current Voters ID card which was issued to prospective voters can and should be used for the purposes of identification and 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 to 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 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 – 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 is “predicated on a proposed constitutional instrument (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 1st April 2020 comes into force is 5th June, 2020.”
No C.I.
“In point of fact, presently, and at all material times since the commencement of the plaintiffs’ action, there is no C. I. properly so-called enacted which is part of the laws of Ghana. The proposed C. I. is going through the procedures constitutionally mandated in Article 11(7) before it can be called ‘legislation’ or ‘enactment’,” the AG said.
“To strike the proposed constitutional instrument down as unconstitutional will amount to an interference with the powers of Parliament under Article 11(7),” adding “the Constitution reserves unto Parliament exclusive authority of influencing the coming into force of a subsidiary legislation or otherwise through the exercise of its powers of annulment of subsidiary legislation. This court has no jurisdiction to interfere with same,” the Deputy AG added.
Original Jurisdiction
It said the action by the NDC does not properly invoke the original jurisdiction of the Supreme Court as there is 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 identification card as a means of proving one’s identity as a Ghanaian is a matter fully within the discretion of the 2nd 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 stated that “as held in various decisions of this court, the functions of the 2nd 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 2nd 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 constitutional instrument 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 Fires
The EC, as second defendant, also filed its response through its lawyer, Justin A. Amenuvor of Amenuvor & Associates, 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) is 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 2nd 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.
“This view of the plaintiff is rather unfortunate and misconceived. It is an artificial interpretation of this Article of the Constitution in particular and the whole Constitution in general. It is an interpretation impossible to come to upon reading the Constitution as a whole except for some subjective ends of the plaintiff’s parochial interest,” Mr. Amenuvor noted.
Qualified Voters
The EC also insisted that its duty to ensure that every qualified voter gets the opportunity to register and take part in elections is 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 names on 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 is in respect of a law (regulation) which is going through its motions in Parliament and is yet to mature.
Old Cards
“The existing voter 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 it 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.”
“It is the 2nd defendant’s case that, as of the date of this action, there was no existing enactment inconsistent or in contravention of any provision of the Constitution brought before this court for declaration as unconstitutional, null and void. Under the circumstance, we humbly invite this court to dismiss the plaintiff’s action for disclosing no cause of action,” the EC added.