It is not my wish to preempt the plaintiffs challenging the validity of the voter register but the signs of what they intend to do at the Supreme Court on June 30, is abundantly clear to even a political novice with little or no insights into the intrigues of how the game of politics is played in Ghana.
To be fair to Messrs. Abu Ramadan and Evans Nimako, the plaintiffs, and their legal team, they have not made any pronouncement on how they will react to the list of NHI registrants the Supreme Court ordered the EC to furnish the court. However, the posturing and public utterances of likely beneficiaries of the relief(s) the plaintiffs are seeking from the court is enough to signal what they have up their sleeves.http://ghanapoliticsonline.com
Following the Supreme Court’s judgment on May 5, 2016, it was evident that the apex court has shut the door on the call for compilation of a new or fresh register for this year’s election. But for very strange reasons, the plaintiffs, through their media allies and legal commentators, succeeded in clouding the actual meaning of the Supreme Court’s judgment. The Supreme Court had ordered the EC to take immediate steps to clean the register of undesirable persons, including NHI registrants.
This needless confusion, which was arguably a well-rehearsed scheme, “forced” the plaintiffs to go back to the Supreme Court ostensibly to seek clarification on what the Supreme Court actually meant by its order in the May 5 judgment.
Like Dr Raymond Atuguba rightly pointed out in his recent thought-provoking article, the plaintiffs at the last adjourned date could not establish which part of the judgment was ambiguous and needed clarity. In the face of this apparent flaw in the plaintiffs’ suit, the Supreme Court, as it is required of it, proceeded to deal with the issue and gave two orders.
The first order was for the EC to furnish the apex court with the full list of persons who registered with NHI card as forms of identification, in six days. The second order was for the SC to provide the court, within the same six days, with a detailed plan on how they were going to carry out the deletion and re-registration of the people, who registered with the NHI cards.
With this ‘new’ order, particularly, the first one, the Supreme Court has, to put it mildly, unlocked the door it earlier closed on the call for new register. On June 30 when the court convenes to consider the list of NHI registrants the EC submitted, the plaintiffs are most likely to reject the list on ground that it is not the true reflection of what is contain in the EC’s records.
The rationale behind this posture is to create room for the plaintiffs to reargue their case for the court to invalidate the present register. From all indications, the court’s latest order, if carried through, will not inure to the benefit of the plaintiffs.
If the court accepts the list the EC submitted, albeit amidst fierce protestation from the plaintiffs, bearing in mind the equitable remedy in its May 5 judgment that NHI registrants be deleted, and affected persons given another opportunity to re-register, the likelihood that affected persons will prove their nationality using different forms of identification other than NHI cards in order to be reregistered is very high.
If this happens, the plaintiff, in all fairness, will go home empty handed. Their intention is to get those who utilized the NHI cards deleted from the register on accounts that they are not Ghanaians and ought not to be on the register. However, if the court should accept the EC’s list, then the affected persons will be deleted and given the opportunity to re-register. In this case, the plaintiffs will be disadvantaged, as they will not achieve their desire of getting names of NHI registrants expunged from the register.
Another thing the plaintiffs may probably want to prevent is a situation where the EC will tell the court that some minors, decedents, foreigners and ‘duplicate registrants’ also utilized NHI cards so their names should be sorted out from the list it has submitted for deletion before the actual list of persons who utilized the NHI cards is computed. It is worthy to note that minors, decedents, foreigners and ‘duplicate registrants’, if found to have utilized NHI cards, will not benefit from the court’s equitable remedy. Again, if this happens, the list of persons who utilized the NHI cards will not be substantial as the plaintiffs would have wished.
To avoid this, the only narrow opportunity opened to the plaintiffs is to reject whatever list the EC submitted to the court on ‘flimsy’ ground(s), which has so far been proffered by CODEO, LMVCA and a spurious publication in June 28 edition of the New Statesman newspaper, Nana Akufo-Addo’s official campaign tabloid.
If the plaintiffs, however, succeed in convincing the court that the list the EC submitted is not accurate, the Court may probably be forced to rely on article 129 (3) of the 1992 constitution and overrule its May 5 judgment and invalidate the register. If this happens, the plaintiffs will succeed in using the “backdoor” to get what they had earlier requested, but was rejected.
Article 129 (3) reads “the Supreme Court may, while treating its own PREVIOUS decisions as normally binding, DEPART from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law” (emphasis is mine).
This strategy by the plaintiffs was summed up in an article by NPP lawyer, Mr Akoto Ampaw and Prof H Kwesi Prempeh, titled “Reading the Abu Ramadan Triology alongside the Constitution.” The paragraphs which signal what the plaintiffs intend to do on June 30, reads:
“It has also been suggested that, the Electoral Commission may not be able to delete or remove the names of those persons who were registered using NHI cards because, it is alleged, the Commission has no mechanism, in the current register, for tracking and identifying the affected persons or names. If true, this would represent a curious and serious administrative lapse or omission on the part of the Electoral Commission. What, then, would the remedy be for such an administrative problem? Is an administrative lapse that renders compliance with a constitutional ruling administratively “impracticable” under the current internal processes of a body grounds for that body to evade its constitutional obligation, when doing so would mean the retention of an unconstitutional status quo?
To countenance such a proposition, and thus answer the above question in the affirmative, would be to countenance a subversion of the Supremacy of the Constitution in the name of administrative convenience. If the Electoral Commission asserts that it is unable under its internal processes to carry out the order of the Supreme Court directing it to remove from the register of voters the offending names that render the register currently non-compliant with the Constitution, then the only constitutionally valid recourse left is for the Commission to compile a new register of voters that satisfies and comports with the Constitution. Anything short of that would place the Electoral Commission above the Constitution and the Supreme Court.”
Strangely, the two erudite lawyers conveniently referred to gossips that, the EC cannot provide the list of NHI registrants without quoting what the EC wrote on its official facebook page which was widely reported in the media to controvert such specious claim. “It is a complete deception for anyone to claim that the EC cannot compile a credible list of voters who registered using the NHIS card as a form of identification, the Commission stated. The EC said it would be false for anyone to assert that the Commission cannot comply with the orders of the Supreme Court. “Wherein lies the difficulty when the EC has the primary document? The Commission will fully satisfy the request of the apex court,” the Commission said in the post,” the EC stated.
Whether deliberate or genuine oversight, the two respected lawyers declined to quote the EC’s response, probably to consolidate rumors that the EC cannot produce the list of NHI registrants and that whatever list it submitted to the court should be considered as fake and accordingly rejected by the plaintiffs and the court.
A portion of a story in the New Statesman’s June 28 edition titled “Identifying NHIS Registrants EC To Lie To Supreme Court With Small List?” says it all. It reads “Amadu Sulley, Deputy Chair of the EC in charge of operations, explained at the meeting that the Form 1A only made provision for the recording of details of those who used the National Identification Cards to register, a confirmation that majority of the forms did not indicate the type of ID used by registrants.
When Nana Asante Bediatuo suggested that the numbers on other identification cards, including NHIS cards, could help trace the kind of identification that was used by people to register, Mr Sully maintained that was not possible because those numbers, apart from what was found on the National Identification cards, were not recorded at all.
“To react to, Lawyer, what you said, in fact the Form 1A that you were talking about was very specific on that ID and it was a national Identification Card; that was it. Yeah. Apart from that, all other cards, there wasn’t a field indicating the number that you want,” Amadu Sulley is captured on tape to have explained at the meeting”
David Asante of the LMVCA is also quoted in the media to have said “So, you may ask, what was the motivation for the EC lying to the Court? Was the EC afraid that if it had said the truth and admitted it could not track those who registered using NHIS, the Court would have probably ordered the Commission to compile a new register or do validation? If so, then we should ask ourselves, what is it about a register that everybody admits is bloated that the EC commissioners would even risk the criminal sanction of perjury to protect?.”
David Asante insisted: “The EC has no database of the actual number of people who used NHIS cards and even if the EC hires 200,000 hands to go through the over 14 million Form 1As and assuming the EC District Officers can be trusted for good record-keeping, that exercise will be futile.”
The National Coordinator of CODEO, Albert Arhin is also on record to have cast doubt about the EC’s ability to submit the list. In effect, all these pointless and hasty conclusions on the EC’s inability to extract names of NHI registrants from its records were deliberately churned out to poison the atmosphere and prepare grounds for the plaintiffs and the court to reject the list.
This is where the Supreme Court must be extremely cautious not to be hoodwinked by these devious schemes. The five member panel of the apex court must give the law as it is and not to be seen pandering to the whims and caprices of anybody or authority. Anything short of this will portend danger for the country.
Nii Addo Quaynor