The Supreme Court has spoken again on the Abu Ramadan and Evans Nimako case, and once more, there are several interpretations being given to it. Politics really does something to us, you know.
The two gentlemen returned to the Supreme Court last week seeking clarifications on the meaning of the Court’s earlier judgment of the 5th of May 2016 and for some further directions. In response to that request, the Supreme Court issued some initial orders. In this article, I seek to answer two simple questions:
What did the Supreme Court say? in other words, what Orders did the Supreme Court make on the 23rd of June, 2016? And what is the meaning (or interpretation) of what they said?
As there are many representations of what the Orders are that the Supreme Court made, and since the Orders are not particularly long, they should be quoted in full here:
“In view of the submissions so far made by the main parties to this application, namely, the Plaintiffs/Applicants and the first Defendant/Respondent (EC), it is hereby ordered as follows:
1. That the EC should submit in writing to this Court, the full list of persons who the Commission admitted before this Court, had utilised NHIS cards to register, as per their registration forms which are in the exclusive custody of the Commission.
2. That the EC should clearly set out in writing, the steps or modalities that the Commission intends to take in order to ensure full compliance with the Courts order made in the action herein on 5th May, 2016, contained in the judgment of the Court whereby it was ordered that the Commission “takes 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 to afford such affected persons the opportunity to re-register.
3. The two orders above ie. (i) and (2) are to be complied with by the Commission on or before 29th June, 2016.
Consequently, this matter stands adjourned to the 30th of June, 2016 at 1 pm.”
This is an exact reproduction from a certified true copy of the Orders given that day and should suffice to meet the first objective of this article.
My second and last objective is to briefly illustrate the eleven (11) meanings of these Orders of the Supreme Court, and these are summarised as follows:
The Supreme Court ignored the incompetence of the application before it and proceeded to take on the case, as it is entitled to do.
The Supreme Court made fresh orders, which were not based on the application before it, as it is entitled to do.
The Supreme Court has, as of today, not granted the request of the Plaintiffs for a clarification of the judgment of the 5th of May, although it may do so later.
The Supreme Court is more focused on NHIS card registrants than on dead persons, minors, and other “undesirable” names on the Register, though the latter categories are far greater in number.
The Supreme Court misunderstood the response of the Electoral Commission (EC) to the effect that it can identify NHIS registrants on the Register to mean that it has, or can easily produce a list of NHIS registrants.
There are four possible reliefs the Plaintiffs may receive from the Supreme Court this time round.
The Supreme Court DID NOT, AND CANNOT ORDER THE AUTOMATIC DELETION of the names of NHIS registrants from the Voters Register.
The Supreme Court is poised to grant a two-stepped relief, out of the four possible reliefs they may give. The Supreme Court again underlined the constitutional independence of the Electoral Commission.
On issues of pure politics, and going by which party appointed them; the way they have historically voted on political issues; and their posture and voting pattern during the Election Petition Case of 2012; and in the case of a non-unanimous decision, the majority of the current panel of the Supreme Court will likely rule in favour of the stance preferred by the New Patriotic Party (NPP) in this case and the minority for the stance of the National Democratic Congress (NDC).
Finally, the Supreme Court disapproves of judges making Public Comments on cases.
I intend to briefly expatiate on each of the 11 points listed above in the order in which I have listed them.
First, the Supreme Court ignored the incompetence of the application brought by the Plaintiffs and proceeded to take on the case, as it is entitled to do. Nowhere in the application brought by the plaintiffs did they identify any portion of the judgment of the 5th of May that was unclear. All they did was to reargue their original case, urging the Supreme Court to grant them the reliefs previously dismissed by that Court and to grant them further reliefs.
This conclusion is derived from the mouth of the Plaintiffs themselves. Plaintiffs’ own affidavit in support of their motion says as follows: “27. That Applicants will contend, having been so advised by counsel, that the fact that this court dismissed Applicant’s reliefs 4(a) and (b) on their terms does not prevent or disable this court from making orders which may have the effect of the dismissed reliefs though upon different reasoning or upon different grounds.”
It is clear that the Plaintiffs wanted a variation of the order of the Supreme Court dismissing their reliefs in the original case. This means that the application before the Supreme Court was an application for Review of the earlier judgment, camouflaged as an application for Clarification. Similarly, as illustriously argued before the Supreme Court on Thursday by one of the best advocates in this Country, Thaddeus Sory, the aspects of the application seeking directions was similarly gravely faulty.
Despite these errors, the Supreme Court, as it is entitled to do, took up the case and proceeded to deal with it. By doing so the Supreme Court has sent a clear message to the public and the Electoral Commission that electoral matters are so important that they will ignore even grave technical slips and do substantial justice in such cases. This is a positive message to send, and as citizens of this country, we should congratulate the Supreme Court for that.
Secondly, and flowing from the above, the Supreme Court overlooked the essential character of the reliefs now sought by the plaintiffs and proceeded to issue fresh Orders not borne out by the application before it, as they are entitled to do. The plaintiffs went to the Supreme Court to seek clarification on the earlier judgment and for further directions, but the Supreme Court seems to have overlooked the central purpose of the application before it and appears to be more interested in enforcing their previous judgment.
This is clear from their Order addressed to the EC to produce names of NHIS card registrants to the court by 29th June and their further Order that the EC should indicate how it intends to comply with the courts Orders as contained in its previous judgment. These fresh Orders are clearly not based on the application which was before the court.
Again, the Supreme Court has taken a position that no matter what you request from them in an election suit, they will issue Orders that will aid the electoral process and progress our democracy. So one may go to them seeking clarification, but in the abundance of their wisdom, they may decide to issue Orders, the better to protect the integrity of our electoral processes and our democracy. Again, the Supreme Court should be congratulated for exercising its discretion in this manner.
Thirdly, and again flowing from the above, the Supreme Court has, as of today, not granted the request of the Plaintiffs for a clarification of the judgment of the 5th of May. Though the Supreme Court may decide to do this at a later date as the case progresses, as of today, the Supreme Court has not clarified their previous judgment. Anyone claiming that the Supreme Court clarified their previous judgment by the Orders made last Thursday is gravely mistaken and pretty lost and should not be listened to.
Fourth, and for an undisclosed reason, the Supreme Court is more focused on NHIS card registrants than on dead persons, minors, and other “undesirable” names on the Register. In the Orders issued last Thursday, the Supreme Court requested the EC to produce the list of NHIS registrants in the Register. It is not clear why they did not request the EC to produce the names of persons who are dead or of minors, which categories are easily verifiable to some extent by the Births and Deaths Registry.
If we consider that 100% of dead persons and 100% of minors who are on the Register are subject to deletion, it is surprising that the Supreme Court is not very interested in these categories. The Supreme Court, consistent with the posture of judicial activism and broad discretion they have assumed, could have requested the EC and/or the Births and Deaths Registry, to produce the names of dead persons and persons below 18 years of age to be removed from the Register.
It seems the number of foreigners who registered with NHIS cards is less than 1% of all NHIS cardholders, yet the Supreme Court is more interested in this smaller figure, compared to the greater numbers in the other indicative categories. Related to this is the fact that the Supreme Court did not order the National Health Insurance Authority (NHIA) to produce the list of foreigners who have NHIS cards. This is a faster and more economical way of cleaning the Register than deleting all NHIS registrants and re-registering over 99% of them.
For some reason, after showing judicial activism and extreme judicial liberalism by taking on an incompetent application, and by making orders not requested by the applicant, the Supreme Court failed to follow through by further requesting non parties to the suit, such as the Births and Death’s Registry and the NHIA, which both have electronic databases, to produce extracts from those databases for the purpose of cleaning the Register. We must strongly urge the Supreme Court to take its activism to its logical conclusion.
Fifth, the Supreme Court misunderstood the response of the Electoral Commission to the effect that they can identify NHIS registrants on the Register to mean the EC has, or can easily produce, a list of NHIS registrants. “I can identify them”, is very, very, different from “I have the list”. The two are miles apart. For example, if Ghana’s Missions abroad say they can identify all Ghanaians in the diaspora, this is very different from their capacity to produce a list of all Ghanaians in the Diaspora in 6 days.
Sixth, it appears that there are four possible reliefs the plaintiffs may receive from the Supreme Court this time:
An order of the Supreme Court automatically deleting all “undesirable” names from the Register.
An order of the Supreme Court directed at the EC to automatically delete all “undesirable” names from the Register.
An order of the Supreme Court directed at the EC to delete all “undesirable” names from the Register through a due process mechanism established by the EC.
An order of the Supreme Court deleting all “undesirable” names from the Register through a due process mechanism established by the Supreme Court itself.
Read closely, all four options are very different reliefs. In two of the reliefs, the Supreme Court takes action and in the other two, the EC takes action. Again, two of the reliefs are automatic and the other two are through Due Process mechanisms.
The Seventh indication in last week’s Orders is that the Supreme Court DID NOT, AND CANNOT ORDER THE AUTOMATIC deletion of the names of NHIS registrants from the Voters Register. All lawyers in Ghana are agreed that the Supreme Court has ordered the deletion of undesirable names from the Register.
The bone of contention has always been whether those names should be deleted automatically or through Due Process of Law. My position has consistently been this: in a constitutional democracy such as ours, it is not possible for the Supreme Court to order something to be done outside of Due Process of Law. Thus, implicit in any order of the Supreme Court is that the Order must be carried out in accordance with Due Process of Law. If the Supreme Court intended to automatically delete the names of NHIS registrants, it would have done so by now. On the contrary, the Supreme Court insists that the deletion of names from the Registrar must be done according to Due Process of Law.
Listen to what the Supreme Court said last Thursday: “the EC should clearly set out in writing, the steps or modalities that the Commission intends to take in order to ensure full compliance with the Courts order …[to] ‘“clean” the current register of voters to comply with the provisions of the 1992 Constitution and applicable laws of Ghana’ and also to afford such affected persons the opportunity to re-register.” It is therefore clear that the Supreme has refused the temptation to act unconstitutionally, and would not act or cause the EC to act unconstitutionally, unlawfully, and against Due Process of Law. This is also very commendable.
Eighth, the Supreme Court is poised to provide a two-stepped relief, out of the four possible reliefs they may give, and which are listed above. If we take out the automatic reliefs, which the Supreme Court cannot lawfully give, there are two possible reliefs remaining. The Supreme Court requesting the EC to delete names by Due Process or the Supreme Court itself deleting names by Due Process.
A close reading of the Orders of the Supreme Court reveals that the Court anticipates a two-stepped relief. First, they will order the EC to delete the “undesirable” names according to a mechanism and timetable furnished by the EC. If the EC fails to abide by this Order, in addition to whatever punishment may be handed down to the EC, the Supreme Court would then move to the second step, that is, delete the “undesirable” names by itself and by a mechanism established by the Supreme Court itself. Once again, we should congratulate the Supreme Court for this approach.
Ninth, once again the Supreme Court underlined the constitutional independence of the Electoral Commission. We all know that the independence of the EC is subject to the power of the Courts to order it to act in accordance with law. In other words, the EC is subject to the judicial supervision of the Courts, in very limited instances, clearly stated in our Constitution. By appearing to choose a two-stepped process in this case, the Supreme Court is offering the EC the opportunity to continue to act independently. It is only if the EC fails to do so that the Supreme Court will intervene.
Such a supervisory role by the Supreme Court is not uncommon. The work of the Indian Supreme Court in this area is by far one of the best examples. In appropriate cases, close judicial supervision of institutions of governance is warranted. Yet, this must be closely watched and hugely circumscribed, as the courts do not have the time, resources, and capabilities to closely supervise all such institutions. Also, as a former Chief Justice of India once said, care must be taken by the Supreme Court not to descend from “judicial activism”, to “judicial populism” and even to “judicial adventurism”, as has happened in India.
The tenth thing that can be gleaned from this case is that on issues of pure politics, and going by which party appointed them; the way they have historically voted on political issues; and their posture and voting pattern during the Election Petition Case of 2012, in the case of a non-unanimous judgment, the majority of the current panel of the Supreme Court will likely rule in favour of the stance preferred by the NPP, whilst the Minority will Rule in favour of the stance preferred by the NDC.
It is, however, possible that the Supreme Court will deliver a unanimous decision if the case remains at the fist step relief, where the Supreme Court orders the EC to delete undesirable names according to a mechanism and timetable determined and operationalised by the EC. Where the Supreme Court has to move to step two of the two-stepped relief, the decision is likely to be non-unanimous at that point. And at that point, three of the judges on this case will likely vote for the position preferred by the NPP and two for the position preferred by the NDC. The only thing that could prevent this is public watchfulness to ensure that the Supreme Court judges put their personal politics aside and rule for Ghana.
In the so-called advanced democracies, it is common to predict how a judge would rule, given (a) their political persuasion, (b) the President who appointed them, and (c) the way they have ruled in the past. Anyone interested in this subject matter should examine how academics make these predictions in the case of the United States Supreme Court. Whilst our Supreme Court was sitting on Thursday, the US Supreme Court was about to deliver later that morning (US time) a long-predicted split decision in the immigration case based on the three factors listed immediately above.
Eleventh and finally, the Supreme Court disapproves of judges making Public Comments on cases.
The judges who sat last Thursday, and who signed the Orders issued by the Supreme Court, excluded Justices Akamba and Dotse. I do not believe, as has been claimed, that the reason why Justice Dotse did not sit was because Justice Akamba has retired and so Justice Dotse had to be taken out also, in order to achieve an odd number on the panel. This is because a retiring judge may continue to sit as a judge to finish all cases (s)he has started for up to about 6 months.
The more plausible explanation for Justice Dotse’s absence from the Bench on Thursday is that he either recused himself or was asked to recuse himself given his earlier Public Comment on the case. We need to congratulate Justice Dotse and/or the Chief Justice for ensuring this. If we are to depend on the Supreme Court to hold our Nation together post election, then our judges must always act above reproach.
Some have argued that all this would not be happening if the EC had simply compiled a new Voters Register. The assumption here is that a new Register will automatically be more credible and cleaner.
This is absolutely not the case. A “new” register is totally different from a clean and credible Register. A clean and credible Register is simply not easy to achieve anywhere in the world. If we start the compilation of a new Register today, it is still possible that the NDC will bring in people, including minors, from Togo and the NPP from Cote D’Ivoire to register. If this is done in their respective strongholds, where everyone, including EC officials, Presiding Officers, and polling station agents, is a member of their party, we may achieve an even dirtier and non-credible Register. So simply doing a new Register in the old way is a complete waste of national resources.
In conclusion and for the long-term, I would suggest that we start linking our different personal and personnel databases, and there are over 100 databases in Ghana to work with, to create a national database, and use that as a control for all registrations for the purpose of voting. Then prepare a new Register with the control on. The control is a first logical step before a reasonably credible and clean Voters Register can be achieved.