THE SUPREME COURT, THE REGISTER OF VOTERS,
AND NATIONAL HEALTH INSURANCE (NHI) I.D. CARDS
By Dr. Raymond Akongburo ATUGUBA
Senior Lecturer, School of Law, University of Ghana &
Team Leader, Law and Development Associates
It has taken quite some time, and the advise of well meaning persons to convince me to pen this article. The last time I wrote a series of newspaper articles was exactly a decade ago. Incidentally, they were on a similar subject matter as this one. Two of the articles, titled: “The Road to ’96” and “The Road to ’96 II”, published in the March 24-30, 1996 and the April 21-27, 1996 editions of The (Catholic) Standard newspaper, a newspaper with remarkable resilience, are particularly relevant here.
Roll forward 10 years and the ruling of the Supreme Court in the Abu Ramadan and Evans Nimako V. The Electoral Commission and The Attorney General has come, but has refused to go. In my experience, no judgment of our Supreme Court has received more wrongful interpretations of its meaning as this judgment. Among these utterly wrong interpretations are the following:
1. The Plaintiffs won their case.
2. The Supreme Court has declared the Register of Voters unconstitutional, null and void, and therefore of no effect.
3. The Supreme Court has by its judgment deleted the names of all persons on the Voter Register who registered with the NHI I.D. card as a means of identification.
4. The Supreme Court has ordered the Electoral Commission to automatically delete the names of all persons on the Voter Register who registered with the NHI I.D. card as a means of identification.
5. The Supreme Court has ordered the Electoral Commission to validate the Voter Register.
As a teacher of the Law, I consider it my civic duty to provide some clarity to what the Supreme Court said on May the 5th, 2016 in the year of our Lord. Having attended mission schools in northern Ghana, I did not benefit from Nkrumah’s free High School education policy for that area. I nevertheless, consider it a good thing to use what knowledge of the law I have in service of Mother Ghana as often as I can.
Contrary to what I have mostly heard in the media by way of interpretation of the Supreme Court judgment in the recent Abu Ramadan case:
1. The Plaintiffs LOST their substantive case.
2. The Supreme Court DID NOT declare the Register of Voters unconstitutional, null and void, and therefore of no effect.
3. The Supreme Court DID NOT order that the names of all person on the Register of Voters, who registered with the NHI I.D. card as a means of identification stand deleted.
4. The Supreme Court DID NOT order the Electoral Commission to automatically delete the names of all person on the Voter Register who registered with the NHI I.D. card as a means of identification.
5. The Supreme Court DID NOT order the Electoral Commission to validate the Voter Register.
6. The Supreme Court UNDERLINED the Constitutional independence of the Electoral Commission.
The Supreme Court made these 6 key holdings in its 45 paged judgement. In the rest of this article, I underline each of those holdings, and reproduce the portions of the judgment that support those holdings. This will ensure that any Doubting Thomases are fully convinced that what I say the Supreme Court said, is indeed what the Supreme Court said.
1. THE PLAINTIFFS LOST THEIR CASE
The Plaintiffs lost the case since none of their substantive reliefs was granted. Effectively, the Plaintiffs sought from the Supreme Court a declaration that the current voters’ register (the Register) is unconstitutional, null and void, and of no effect because it contains the names of persons not qualified to vote and persons who are deceased. They further requested the Supreme Court to set aside the Register and order the Electoral Commission to EITHER compile a fresh register OR audit the current register of voters through the validation of the registration of each person currently on the register. None of these reliefs sought by the Plaintiffs was granted. What the Supreme Court granted the plaintiffs were declarative reliefs to the effect that the current register is not accurate.
Witness the words of the Supreme Court at pages 32-33 of the judgement:
“The result is that we proceed to grant the following reliefs:
(1) That upon a true and proper interpretation of article 45 (a) of the Constitution, the mandate of the Electoral Commission to compile the register of voters implies a duty to compile a reasonably accurate and credible register.
(2) A declaration that the current register of voters which contains the names of persons who have not established qualification to be registered is not reasonably accurate or credible.
(3) A declaration that the current register of voters which contains the names of persons who are deceased is not reasonably accurate or credible.
(4) Reliefs (4) (a) and (b) [THE SUBSTANTIVE RELIEFS SOUGHT BY THE PLAINTIFFS] are dismissed in their entirety.”
Justice Benin in his concurring judgment was more explicit about the fact that the plaintiffs had lost their case. At pages 44-45, he said:
“…I fully agree with the decision reached in this case that the plaintiffs’ action be dismissed in so far as it seeks an order to compel the 1st defendant to compile a fresh voters’ register or to use the validation process to clean the existing register.”
It is clear that the Plaintiffs lost the case.
2. THE SUPREME COURT DID NOT DECLARE THE REGISTER OF VOTERS UNCONSTITUTIONAL, NULL AND VOID, AND THEREFORE OF NO EFFECT.
The second key decision of the Supreme Court was to decline to declare the Register of Voters unconstitutional, null and void, and therefore of no effect. At page 20 of the judgment, the Supreme Court acknowledged that the Register was not perfect and contains the names of persons who should not be on it. The Court, however, declined to declare the Register unconstitutional:
“We do not; (sic) however think that the defect is so extensive in nature to result in an inconsistency with article 45(a) of the constitution as the existing law has made ample provisions for such names to be deleted when the provisional register is exhibited before it is certified under regulation 27 of CI 91 as the existing register. We think that the elaborate scheme provided [in] the law is sufficient to address the presence on the register of voters of names of persons who might have died since the last registration exercise. Although the issues for our determination have not included minors, we think that names of such persons can also be deleted using the processes provided for in the law…”
At pages 22 to 23 the Court continued:
“Accordingly, by way of answer to issues (2) and (3) we are of the opinion that although the presence of the names of ineligible and deceased persons on the register of voters renders same neither reasonably accurate nor credible, the register is not thereby rendered inconsistent with article 45(a) of the constitution.”
3. THE SUPREME COURT DID NOT ORDER AUTOMATIC DEREGISTRATION OF PERSONS WHO REGISTERED WITH NHI CARDS AND
4. THE SUPREME COURT DID NOT ORDERED THE ELECTORAL COMMISSION TO AUTOMATICALLY DELETE THE NAMES OF ALL PERSON ON THE VOTER REGISTER WHO REGISTERED WITH THE NHI I.D. CARD AS A MEANS OF IDENTIFICATION.
The Supreme Court did not order that persons who registered with National Health Insurance (NHI) identification cards ARE or SHOULD BE automatically deregistered by the Electoral Commission. What the Court said is that such an exercise must be done according to law, in this case, the Public Elections (Registration of Voters) Regulations, 2016 (C.I. 91). From the very mouth of the Court and at pages 21-22 is the following:
“In our view, following the previous decision of this court in the Abu Ramadan case (supra) by which the use of the cards for registration was declared unconstitutional, the continued presence of names on the register that derive their identification from the said cards renders the register not reasonably accurate or credible. In coming to this view of the matter, we are not disregarding the report of the panel which is part of the processes before us in these proceedings as exhibit “ABU6” that the register of voters is bloated, a fact which is not controverted by the defendants. We are in a great difficulty, however agreeing with the plaintiffs that by virtue only of the said infraction, the entire register has the attribute of unconstitutionality. The said registrations were conducted under CI 72, which was the applicable legislation under which eligible citizens were registered before the 2012 elections. 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 cards should not automatically render them void. The legitimate way of treating them is to have them deleted by means of processes established under the law (My emphasis). In view of the fact that these registrations were not effected in breach of the law, the persons affected thereby cannot be said to be benefiting from their own wrong such as to be deprived of their registration without being given the opportunity of being heard. As the said registrations were done before the declaration of unconstitutionality in the Abu Ramadan case (supra) to have their names deleted will have the effect of disenfranchising persons affected by it (My emphasis). This approach enables us to do justice in a manner that preserves the rule of law and a stable constitutional order without affecting acts and or things which were previously ordered on the legality of the impugned provision in the Abu Ramadan case. We think that any person whose registration is affected by the decision in the Abu Ramadan case (supra) be given the opportunity to go through the process of registration to establish his eligibility or otherwise in order that the appropriate remedies provided under the law may be applied. There being no credible dispute that the current register of voters was compiled under legal provisions deriving their legitimacy from the primary legal source, the entire register of voters cannot be said to have been compiled unconstitutionally.”
Some have argued that the Supreme Court in this case misinterpreted and misapplied its previous decisions in Abu Ramadan and Another v The Electoral Commission and Another; Suit No. JI/11/2014 and Kwasi Danso Acheampong v The Electoral Commission and Another, Suit No. JI/9/2014. Those cases, they argue, declared the use of NHI cards for the purpose of registration to vote as unconstitutional, and so the Supreme Court was wrong in treating registration with those cards in the present case as essentially voidable, and not void. This is a misreading of this case. What this case sought to do, as is clear from the quotation immediately above, is to avoid a situation where an implementation of the two previous decisions of the Court on the unconstitutionality of using the NHI card to register as a voter, would lead to the perpetration of another unconstitutionality, to wit, the denial of the vote to many who are eligible to vote.
From this point of view, it is clear what the Supreme Court was seeking to do. This interpretation may not sit well with lawyers who are taught in law school that anything that is void is void, and nothing can be done about it, and nothing can be based on it. To the lawyers reading this article I say the following: if this interpretation does not sit well with your legal conscience, then consider that the Supreme Court has departed from its previous ruling in the previous Abu Ramadan case, as it is entitled so to do. This means that whatever might have been held in the previous Abu Ramadan case, the current Abu Ramadan case does not seek to automatically delete the names of persons who registered to vote using the NHI card as a means of identification.
5. THE SUPREME COURT DID NOT ORDER THE ELECTORAL COMMISSION TO VALIDATE THE VOTER REGISTER.
On the particular issue of validation, the court disagreed with the plaintiffs thus and said at p. 23:
“While there appears to be some reason in the proposal for validation, it is without statutory authority and seeks to introduce a mechanism that the lawmaker did not make provision for to be utilized in deleting the names of ineligible and deceased persons from the register of voters. In carrying out its function under the law, the Electoral Commission cannot employ non-statutory remedies, as the law does not give it that mandate. It is observed that it is unreasonable to demand from a public officer whose authority is derived from the law, performance that is not authorized by law and its effect is that non-compliance with the proposal of validation does not constitute any inconsistency with articles 23 and 296 of the constitution.”
At the bottom of page 43 of the judgement, Justice Benin was even more explicit:
“I must emphasize here that even if there is provision in the law and/or regulations for validation, the court cannot compel the 1st defendant to follow that method unless it is the only mode that is sanctioned by the law or regulations. If the law provides for alternative ways of performing the task, the discretion is vested in the actor in deciding within the limits imposed by Article 296 of the Constitution as to which one of them will best suit the task on hand.”
6. THE SUPREME COURT UNDERLINED THE CONSTITUTIONAL INDEPENDENCE OF THE ELECTORAL COMMISSION.
The sixth and final thing the Supreme Court did in the current Abu Ramadan case was to reaffirm the Constitutional Independence of the Electoral Commission (EC). The court emphasised that the EC has the capacity to independently perform its constitutional duties, including the cleaning of the Register in a reasonably acceptable manner, and save for very limited instances, without interference from anyone, even from the courts of law.
At pages 15 and 16 the court observes:
“It is observed that in the exercise of the court’s original jurisdiction, it is not permissible for the court to substitute its own decision for that of the body or persons exercising a discretion conferred on it by the constitution. This is necessary to keep the court itself within its proper limits in order to give effect to the supremacy of the law, which appears to be the foundation of the original jurisdiction.”
And at pages 23-24 the court continued:
“In our view, our jurisdiction in so far as the action herein goes is only to determine the limits within which the first defendant as a repository of constitutional authority can lawfully exercise its functions. By article 46, the first defendant is endowed with independence in the performance of its functions including the initiation, regulation and conduct of elections in the country…In our opinion and as part of our function to declare what the law is, the above words which are unambiguous insulate the Electoral Commission from any external direction and or control in the performance of the functions conferred on it under article 45…A fair consideration of the functions of the first defendant reveals that the demand which was made on it by the plaintiffs regarding the presence of ineligible and deceased persons and the latter’s refusal to acquiesce in the said demands which provoked the action herein relates to its mandate under article 45 (a) “to compile the register of voters and revise it at such periods as may be determined by law”. In order to determine if the performance of the function conferred on it under article 45(a) is subject to any other constitutional provision, we have to read the constitution in its entirety paying particular attention to the various provisions in order to find out if there are any exceptions to its independence. Then we have to turn to our electoral laws and embark on the same journey to discern if there are any limitations imposed on its independence that to be good must not be inconsistent with the constitution. A careful scrutiny of the constitution reveals that its function under article 45(a) is not subject to any other provision, therefore in performing the said function, we cannot make an order compelling the Commission to act in a particular manner…”
Their judges of the Supreme Court also related the independence of the EC to the very fundamentals of our constitutional electoral democracy:
“We think that the independence of the Commission is crucial for the success of any election. If the Commission is perceived otherwise, there is little prospect of the electoral administration on Election Day being perceived as transparent and fair. If we are to consolidate our democracy, it is incumbent on us all to defend and protect its independence as provided for in the constitution. We think that in the circumstances when a specific complaint is made regarding the performance of any of the functions of the Commission, it is our duty to inquire into it and ask if there is by any provision of the constitution or any other law which detracts from the presumption of independence that article 46 bestows on it. If there is no such constitutional or statutory provision then what it means is that the matter is entirely within its discretion and not subject to the control of any other authority including the court. As the plaintiffs have not disclosed any vitiating circumstances such as illegality, irregularity, unfairness or failure to satisfy an essential pre-requisite to the making of a decision that may justify our intervention to set any such discretion aside, the decision as to what to do is properly in the domain of the first defendant.”
And if this was not clear enough, Justice Benin in his concurring opinion states clearly at page 35 of the judgment:
“I should say, by way of introductory remark, that having fashioned a Constitution unto ourselves to govern our actions and direct our path to liberty and progress, it is the duty of every person, human as well as corporate, to keep in mind that the rule of law is indispensable in all our actions and behaviour. And when a person is acting within the confines and limits of the law, none can compel him to act in a particular way to suit that person’s desire. That explains the oath of office that notable state actors take on assumption of office to perform the functions attributed to them without fear or favour, affection or ill-will. Article 46 of the Constitution has reinforced these principles by granting the 1st defendant independence in the performance of its functions, subject only to the Constitution and to any other law for the time being in force. And once they are acting within the law, no authority or power can compel them to act in a different way.”
At page 43 Justice Benin continues:
“The plaintiffs have not told this court that the 1st defendant has taken any step contrary to law, nor have they been accused of breaching its discretionary power. In the absence of such breaches, the court has no power to compel or even to direct the 1st defendant as to how to exercise its constitutional mandate to produce a credible register; it is the end that will justify the means. I must emphasize here that even if there is provision in the law and/or regulations for validation, the court cannot compel the 1st defendant to follow that method unless it is the only mode that is sanctioned by the law or regulations. If the law provides for alternative ways of performing the task, the discretion is vested in the actor in deciding within the limits imposed by Article 296 of the Constitution as to which one of them will best suit the task on hand.”
Their Lordships at page 28 of the judgment finally rejected the prompting of the plaintiffs to act unconstitutionally when they said:
“This court being the ultimate judicial authority in the country must endeavor to respect the boundaries of the jurisdiction conferred on it in order to give effect to the supremacy of the constitution. To accede to the demand made on it in the action herein would amount to subverting the plain constitutional provisions.”
In the final analyses, the Supreme Court reaffirmed the right to vote of the citizen (in the second order it made) and reaffirmed the constitutional independence of the EC (in the first order it made). This is clear from the final orders of the court:
(a) “That the Electoral Commission takes steps immediately to delete or as is popularly known “clean” the current register of voters to comply with the provisions of the 1992 Constitution, and applicable laws of Ghana;
(b) That any person whose name is deleted from the register of voters by the Electoral Commission pursuant to order (a) above be given the opportunity to register under the law.”
The key thing to note about these orders is that the Supreme Court has stated that they be executed according to the available legal procedures, in this case, the Public Elections (Registration of Voters) Regulations, 2016 (C.I. 91), and not by any other method. Any one wishing to have the names of ineligible persons deleted form the Register of Voters must use the procedures in this law. I hope to provide a simplified version of details of this procudure in another article.
I conclude this article with testimony and a prayer. First, the testimony. If I have burdened you with reading this article, I may as well provide you with some practically useful information. I recently applied Nanofixit Liquid Screen Protector on my phones, Ipad, laptops, and all the other eletronics that crowd our lives of late-even my wrist watch. All these have now become break resistance when they fall-and they fall often, and scratch resistant. I also understand that the highest quality anti-bacterial Titanium in the liquid, penetrates and seals any electronic glass surface, making it not only ultra-scratch resistant, but capable of reducing cellphone radiation, enhancing camera resolution, water resistant and provides up to 2 years protection. If you need more information on this cheap but extremely useful product, please contact firstname.lastname@example.org or 0302 522553.
Now to the prayer. Allah the most Gracious, the Most Merciful, you know that we are a rabidly partisan and sublimely ethnic nation, but you still love us. Allah, we pray binding all forces of darkness and constitutional and democratic derailment this election year and in this nation that you call your own. May all adventurers with escathological and cataclysmic plans fall before they are able to execute same in your own land.
And can I hear the people of Ghana say Amen and give the Lord a shout?!