[ 2016-07-21 ]

Abu Ramadan III – Clarification ruling & orders & the EC
In our first commentary on the Abu Ramadan Cases
published here on 30th June, 2016, we put forth
the following three propositions in response to
certain arguments advanced by others in the wake
of the Supreme Court’s 5th May, 2016, judgment
and orders.

First, that a thing (whether or law or an act)
declared unconstitutional by the apex court is,
under our Constitution (article 1) and system of
laws, void and, thus, ceases to have legal effect
or validity. Therefore, following the declaration
by the Supreme Court that use of the NHIS card for
purposes of registration as a voter is
unconstitutional, all such registrations ceased
to have current or future legal effect or
validity.

Second, that the independence of the Electoral
Commission notwithstanding, the Supreme Court,
having found an act or action of the Commission to
be unconstitutional, is vested with power under
the Constitution (article 2(2)) to compel the
Commission to take such steps or actions as the
court deems appropriate to undo or remedy the
constitutional violation.

Therefore, having found use of the NHIS card for
registration as a voter to be unconstitutional,
the Supreme Court had power to order the Electoral
Commission to remove or delete the affected
registrations from the register of voters and
provide all affected persons a fresh opportunity
to be registered as voters using a
constitutionally-compliant form of identification.


Third, an order of the Supreme Court directing a
party to do or take a certain action to enforce a
declaration of unconstitutionality by the Court is
effective on its own accord; accordingly, it
requires no existing or new legislation to
implement it and, furthermore, trumps or
supersedes any existing legislation prescribing a
contrary or nonconforming action.

The latest ruling of the Supreme Court in the Abu
Ramadan Cases, dated 5th July, 2016, and issued to
clarify the Court’s judgment and orders of 5th
May, 2016, vindicates all three propositions.

The Supreme Court July 5th clarification ruling
was expected finally to bring to a closure the
controversy and competing interpretations as to
the meaning and import of the judgment of 5th May,
2016, and the consequential orders it made.
Unfortunately but predictably, this latest
clarification, unambiguous as it is, appears to be
the source of further forced misinterpretations
and needless argumentation by some.

What the Plaintiffs sought in their application
for clarification.

It is to be noted that in their application for
clarification, the Plaintiffs irregularly sought
declaratory reliefs. These were:
a.“A declaration that the order made by this
Honourable Court pursuant to the judgment in the
instant suit dated 5th May 2016 that 1st
defendant/respondent ‘delete or clean’ the
current register of voters to conform to the
provisions of the 1992 Constitution and applicable
law means the immediate removal of the names of
persons who registered with the National Health
Insurance Card and who had otherwise not
established qualification to register or remain on
the register of voters.
b.A declaration that the said order is made
pursuant to article 2(2) of the Constitution and
provides the legal basis and the authority for 1st
Defendant/Respondent to comply with same
forthwith.
c.A declaration that the earlier dismissal of
Plaintiffs/Applicants’ reliefs 4(a) and (b) in
the suit does not bar the 1st Defendant/Respondent
from adopting the validation process as an
auditing tool to clean the current register of
voters; and
d.An order further directing the 1st
Defendant/Respondent to remove the names of
persons who used the National Health Insurance
Scheme Card and others who had not lawfully
established qualification to register from the
current register of voters forthwith and provide
those who remain eligible and subsequently
establish qualification to register under law an
opportunity to do so in time to participate in the
general elections of 2016.”

The Supreme Court correctly observed that it was
incompetent for a party to seek declaratory
reliefs in an application invoking the Court’s
inherent jurisdiction to clarify orders it had
already made, as that amounted to opening the
case all over again. On that ground alone, the
Court dismissed reliefs (b) and (c) above.

It noted that relief (c) in particular was an
attempt to re-package a relief that the Court had
dismissed in its judgment of 5th May 2016. With
regard to relief (d), the Court again correctly
dismissed same, on the grounds that the relief
sought was a repetition of the very order it had
given in its judgment of 5th May and was therefore
equally incompetent in an application for
clarification.

With regard to relief (a) the Court observed that,
though it was couched as a declaratory relief and,
thus, technically incompetent, “in order to do
substantial justice” and “as the issues
affecting the right to be registered are at the
heart of democratic government a strict adherence
to technicalities would undermine the quest for
justice”, noting that “the fundamental
principle is that the Court looks at the substance
of every application and not the form, and this
principle applies with greater force in issues
arising under the Constitution”. It was on that
basis that the Court proceeded to consider the
contending arguments and finally gave the ruling
and orders we have considered above.

The Court’s power to clarify it judgments and
orders under its inherent jurisdiction

The Supreme Court noted that the Court’s powers
to clarify its previous judgments and powers
derive from its inherent jurisdiction and are
grounded in its “equitable authority to protect
the integrity of its judgments by clarifying the
meaning of its judgment or orders where there is
an ambiguity” or where the judgment or order
provokes divergent interpretations among the
parties. The Court’s jurisdiction to clarify
its past judgments or orders may not, however, be
used to effect substantive alteration in its prior
judgments or orders, the Court held.

According to the Supreme Court in its most recent
ruling in this matter: “[The orders of 5th May
2016, which the application for clarification
turns on, are:
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 Constitution and
applicable law.
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 law”

As background to its ruling, the Supreme Court
observed that while both parties contend there was
no ambiguity in the Court’s orders, the Court
itself noted that they all “place different
meanings on the scope and meaning of the orders of
5th May 2016” and held “strong divergent
views” as to the meaning of those orders.

It said that, while the Applicants, Abu Ramadan
and Evans Nimako, argued that the orders required
the EC to take steps immediately to delete or
clean names of persons who registered with NHIS
cards as well as those deceased persons and minors
from the register of voters, ostensibly without
recourse to the affected persons, the EC, on the
other hand, held a contrary view, arguing that the
processes of deletion and or cleaning should be
done under the Public Elections (Registration of
Voters) Regulations, C. I. 91of 2016, as the
applicable law.



Court Clarification orders

In its ruling on these competing interpretations
of its orders of 5th May, 2016, the Supreme Court
was emphatic and left no doubt whatsoever for a
contrary meaning of the import of its orders of
5th May, 2016. The Court held in the unanimous
judgment delivered by Justice Gbadegbe as
follows:

:”By way of clarification of the orders made
under the judgment of 5th May 2016, the 1st
defendant (that is, the Electoral Commission) was
to take immediate steps, that is, forthwith, to
take steps to remove from the current register of
voters all persons who had used NHIS cards to
register. This order having been made under
Article 2(2) of the Constitution therefore takes
precedence over any existing statutory provision,
including C. I 91. Accordingly, the 1st
respondent (i.e. the EC) was to take steps
forthwith to remove the names of all persons who
had registered with the NHIS cards. In order not
to violate their fundamental electoral rights and
in order not to disenfranchise such persons, the
1st respondent was to give adequate notice to
those affected by the order of the processes of
deletion and re-registration, subject to
eligibility. The removal of the names from the
register was to precede the processes of
re-registration s clarified”



The Chief Justice, in concluding matters read out
the orders of the Court consequent upon the ruling
in the following words:

“1. The 1st Defendant/Respondent is hereby
ordered to take steps forthwith to implement this
court’s decision of 5th May, 2016, in the terms
clarified.

2. For the avoidance of doubt, the 1st Defendant /
Respondent is hereby ordered forthwith to take all
the necessary steps to delete from the current
register of voters the list of persons whose names
were submitted to this court on 29th June 2016 as
persons who registered with the NHIS Card.

3. Further to the above order (2) the 1st
Defendant / Respondent is further ordered to
delete from the current register of voters the
names of persons not included in the list
submitted to this court on 29th June 2016 but who
are also found to have registered with NHIS
Cards”.

Nothing could be clearer. First, the EC is
commanded to take steps “forthwith”
(immediately) to remove from the register of
voters those who registered using NHIS cards,
because the NHIS cards did not distinguish between
Ghanaians and non-Ghanaians and, thus, those who
used it to register did not meet a
constitutionally-mandated eligibility criterion,
namely, that a registered voter must be a
Ghanaian citizen.

Secondly, because some of those who registered
using NHIS cards may indeed be Ghanaians and in
order not to violate their fundamental right to be
registered and to vote, the EC was to give to
those affected by the order adequate notice of the
processes of deletion and re-registration so that
they may re-register (but subject to their
satisfying the eligibility criteria as set out in
article 42 of the Constitution, namely that their
Ghanaian citizens, of 18 years and above, and of
sound mind).

Further, and for the avoidance of doubt, the Court
directed that the removal of the NHIS registrants
should precede the re-registration.

Finally, the Court clarified that its orders
consequent to its declaratory powers under Article
2(1) of the Constitution takes precedence over or
supersedes any statutory provision, including C. I
91, Nothing could be clearer than these orders
and directions of clarification.



The “due process” argument

One would have expected that with this lucid
clarification by the Court of its order of 5th May
2016, the hitherto, raging controversies over the
meaning and import of these orders would come to a
definitive and conclusive end. Not so, according
to certain commentators.

Now that it is no longer possible to advance the
“exhibition and challenge” argument or to
argue that the EC can only delete by using
“applicable laws”, some commentators are,
surprisingly, still arguing that, somehow, the
orders of the Court require due process, as a
basis for deletion of the names from the register
and that in a constitutional democracy, ‘due
process’ requires that the rights of persons
should not be taken away without due process of
law.

This is a bizarre argument. As whatever
“rights” and related claims are at stake here
have been fully litigated and adjudicated in a
judicial proceeding, the notion that the resulting
order of the apex court, issued to enforce the
final judgment in the case, is itself not in
accord with or lacking in “due process” is
simply mind-boggling.

The due process argument indeed misunderstands and
misreads the import of the judgment and orders of
5th May 2016 and the ruling clarifying that
judgment.

The judgment of 5th May, 2016, and the earlier
judgment of 30th July, 2014, had the combined
effect of declaring that the registration of
persons who used NHIHS cards to register was
unconstitutional and unlawful, not because those
persons, provided they were Ghanaians, did not
have a right to be registered, but because the use
of the NHIS card could not, and did not, satisfy a
constitutionally necessary condition for
registration, namely that the registrant must, in
accordance with article 42 of the Constitution, be
a citizen of Ghana.

Thus, with due respect, deleting the names of such
persons did not take away any rights that they may
have. (And under due process doctrine, no
“process” is “due” unless there is, first
and foremost, a cognizable legal right or interest
at stake). On the contrary, deletion of the names
upheld constitutional due process by requiring
that any such persons enforce their right to be
registered as a voter and to vote by using due
process, namely satisfying the eligibility
criteria under article 42 of the Constitution.

The Court’s orders appropriately grant all
affected persons the opportunity to avail
themselves of precisely this process. Taken
together, these constitute what due process means
and requires in the instant context.

The Court’s decision springs from Articles 1(2),
2(1) & (2) of the Constitution, which provide as
follows:

“1(2) This Constitution shall be the supreme
law of Ghana and any other law found to be
inconsistent with any provisions of the
Constitution shall, to the extent of
inconsistency, be void”.

“2(1) A person who alleges that
–
a.an enactment or anything contained in or done
under the authority of that or any other
enactment; or
b.any act or omission of any person

is inconsistent with, or is in contravention of a
provision of this Constitution, may bring an
action in the Supreme Court for a declaration to
that effect”

“2(2) The Supreme Court shall, for the purposes
of a declaration under clause (1) of this article,
make shall orders and give such directions, as it
may consider appropriate for giving effect to or
enabling effect to be given to the declaration so
made”

Until the Abu Ramdan cases, the meaning of these
plainly written, well-trodden provisions of the
Constitution had never been in contention and were
clear enough even to law students studying
constitutional law and Ghanaian lay persons.

Urban bias

It is now however being contended that, where the
Supreme Court makes consequential orders under
article 2(2) to enable effect to be given to its
declaratory powers under article 2(1), such an
order would be contrary to due process if the
effect is to take away forthwith a non-existent
“right” of a citizen.

With a touch of populism, it is further being
argued that it is constitutionally impermissible
for just two persons, Abu Ramadan and Evans
Nimako, the Plaintiffs/Applicants, to
“disenfranchise” or take away from thousands
who registered by NHIS, many of whom may be the
rural poor, their right to vote. To give further
populist twist to the argument, it is suggested
that it is only the urban elite, who have an urban
bias, who fail to see the injustice that the rural
poor stand to suffer from such a position.

These are very astonishing arguments indeed. Such
argumentation, in our view, seeks to jettison and
re-write the very clear language and injunction of
the Constitution in article 1(2) and article 2(1)
& (2), and to do so not on substantive legal and
constitutional grounds, but on populist grounds
that run contrary to what the Constitution says
and demands.

True enough, in any society, with social and class
cleavages, it is to be expected that people from
different social and class backgrounds will tend
to see things from their class bias, this is
especially so for the privileged classes and
social groups.

But it is one thing to make that general
observation and quite another to suggest that
insisting on compliance with clear provisions of
the Constitution, in respect of an issue as
fundamental as who are qualified to be registered
and vote in public elections, is to look at issues
from an urban bias to the detriment of people
living in rural communities.

Further, it bears reminding that not only does
article 2(1) empower “a person” (that is, even
a single person, not two, as in the Abu Ramadan
case) who alleges that an enactment or a
provision of an enactment is inconsistent with,
and in contravention of, the Constitution to bring
an action for a declaration to that effect, but
the Constitution again in article 3(4)(a) provides
that “all citizens shall have the right and duty
at all times to defend this Constitution
…….”.

Thus, it is dangerous and subversive of the very
clear language and intendment of the Constitution
to suggest that it is an affront to constitutional
democracy for just two persons to go to Court to
defend and enforce the Constitution on the
tendentious and populist ground that to do so
would permit just two persons to disenfranchise
thousands of the rural poor.

Taken to its logical conclusion, this bizarre
theory means that any time a citizen invokes
Article 2 of the Constitution to seek to overturn
a law or act of a public body or agent that is
otherwise binding on the entire population, that
Plaintiff may be accused of trying to impose his
or her solitary will or wishes on the entire
country. Perhaps what the proponent of this
outlandish theory wishes to see is the complete
abolition of Article 2.

In any event, it is not the two Plaintiffs, but
the Supreme Court that determined the matter and
made the consequential orders.

Automatic deletion

But, since the recent ruling of the Court on the
motion for clarification makes it clear, beyond a
shadow of a doubt, that the Court’s orders were
not for the EC to delete in accordance with or by
using “applicable laws” but to take steps to
delete forthwith, “TO COMPLY WITH THE
CONSTITUTION AND APPLICABLE LAW”, there is a new
shift to “the due process” argument.

This new shift is procured by the magic and new
words “automatic deletion”, which have been
smuggled into the debate. The ‘due process’
argument is no longer that that ‘due process’
requires that the names be deleted by so-called
‘applicable laws’. That argument having been
dealt a deathblow by the Supreme Court’s
clarification, the new argument goes thus:

The Supreme Court clarification did not order the
EC “automatically” to delete the names of NHIS
registrants from the voters’ register, as the
Plaintiffs had asked for. Rather, as the argument
goes, the Court ordered that the EC should takes
steps by giving adequate notice to such persons of
the processes of deletion and re-registration
before deleting the names; and that “automatic
deletion” would be contrary to due process.

In the first place nowhere in the application of
the Plaintiffs did they make any reference to
“automatic deletion”. What they argued was
that the Court’s orders meant the EC was to
delete forthwith, or immediately delete, the names
of those who registered with NHIS cards as well as
deceased persons and minors from the register of
voters and not by the exhibition and challenge
mechanism under C. I. 91. In that sense, the
“automatic deletion” phrase was simply being
foisted on the Plaintiffs as a straw man
argument.

Secondly, to juxtapose “automatic deletion”
(as the position of the Plaintiffs/Applicants) to
the Supreme Court’s orders is to do so out of
the context of the contending views on the import
of the Court’s orders. The EC’s view was
that the EC could only delete by using applicable
laws, (i.e. by the exhibition and challenge
process under C. I. 91).

The Plaintiffs’ view, on the other hand, was
that the Court’s orders under article 2(2)
superseded the exhibition and challenge process
and meant the EC should delete “forthwith” or
“immediately” those names from the register of
voters, without recourse to that process. This
was the context of the Court’s order. For the
avoidance of doubt, we reproduce the order in
Justice Gbadegbe’s ruling and the Chief
Justice’s orders of the Court.

Gbadegbe JSC said in the ruling of the Court
thus:

“This order having been made under Article 2(2)
of the Constitution therefore takes precedence
over any existing statutory provision, including
C. I. 91. Accordingly, the 1st respondent (i.e.
the EC) was to take steps forthwith to remove the
names of all persons who had registered with the
NHIS cards”.

The Chief Justice on her part said in order (2)
thus:

“2. For the avoidance of doubt, the 1st
Defendant / Respondent is hereby ordered forthwith
to take all the necessary steps to delete from the
current register of voters the list of persons
whose names were submitted to this court on 29th
June 2016 as persons who registered with the NHIS
Card”.



It will be seen, from an analysis of the syntax of
the two orders, that both orders call upon the EC
immediately or forthwith to take the necessary
steps to delete the NHIS registrants from the
voters’ register. In order words, the orders
were that whatever steps you need to take in order
to delete immediately or forthwith the names of
the NHIS registrants from the voters’ register,
without recourse to the challenge and exhibition
process, take them.

Such an order in contrast to those who have been
arguing that the EC could only do so by using
applicable laws (namely the exhibition and
challenge process) was, if you wish, an order of
automatic deletion, even though that was not the
language of the Plaintiffs or of the Court.

Of course the Court also correctly and in fairness
to those whose names were to be deleted ordered
that the EC was “to give adequate notice to
those affected by the order of the processes of
deletion and re-registration, subject to
eligibility”, in order not to violate their
fundamental electoral rights and in order not to
disenfranchise such persons. No one ought to
have any difficulty with that aspect of the
Court’s orders.

Certainly, the Plaintiffs, have never argued that
those affected should not have notice of the
processes of deletion and an opportunity to
re-register. Their argument has always been that
the orders of the Court required no other
“applicable laws” for them to be carried out
by the EC!!

THE INDEPENDENCE OF THE ELECTORAL COMMISSION

Throughout the Abu Ramadan trilogy, the meaning
and import of the independence of the Electoral
Commission has dominated discussions, both in the
public space and the judgments of the Court, with
some suggesting that the Supreme Court cannot take
over the functions of the constitutionally
independent commission and so cannot give orders
directed at the Commission.

While it is not in dispute that the Supreme Court
cannot take over the functions of the Electoral
Commission, it is playing to the gallery to
suggest that when a party obtains a declaration
that a particular provision of a law under which
the EC operates or an action of the EC is
unconstitutional and the Supreme Court makes
consequential orders to enable effect to be given
to that declaration, the Court, thereby, is
encroaching on the independence of the EC or may
be seeking to do what the EC was set up to do.

It is most unfortunate to frame any such
consequential orders, (directed to ensure that the
acts of EC or any other independent constitutional
body are in compliance with the Constitution) as
undermining the independence of such
constitutional bodies or taking over their
functions. The EC and the other independent
constitutional bodies, it need be emphasized, are
creatures of the Constitution.

They owe their independence to the provisions of
the Constitution, and that same Constitution makes
clear that their independence is subject to the
provisions of the Constitution and to the
supervisory jurisdiction of the superior courts to
ensure that their actions are in accord with the
Constitution and within the law. That is why
article 295 (8) of the Constitution provides the
following, in no uncertain terms:

“No provision of this Constitution or any other
law to the effect that a person or authority shall
not be subject to the direction or control of any
other person or authority in the performance of
any functions under this Constitution or that law,
shall preclude a court from exercising
jurisdiction in relation to any question whether
that person or authority has performed those
functions in accordance with this Constitution or
the law”

It is salutary for the EC and its members to bear
in mind this important provision of the
Constitution whenever they assert their
constitutional independence. Quite apart from
article 295(8), which applies equally to all
independent constitutional and statutory bodies,
there is article 46, which guarantees the
independence of the EC, but also expressly makes
the independence subject to the provisions of the
Constitution and any other constitutionally valid
law thus:

“46. Except as provide in this Constitution or
in any other law not inconsistent with the
Constitution, in the performance of its functions,
the Electoral Commission shall not be subject to
the direction or control of any person or
authority”.

In short, the Electoral Commission,
notwithstanding its constitutional independence,
is not above the Constitution and the law but is
subject to law and the supervisory jurisdiction of
the superior courts. It is irresponsible and
dangerous for any commentator to suggest otherwise
and thereby lead sections of the public to the
mistaken view that the Supreme Court, in ordering
the deletion of NHIS registrations from the
register of voters in order to enforce a
declaration of unconstitutionality, is acting
beyond its powers and seeking to usurp the powers
of the EC.

THE LIST OF NHIS REGISTRANTS AND THE CREDIBILITY
AND INTEGRITY OF THE EC AS AN INDEPENDENT
CONSTITUIONAL BODY.

Though the application for clarification of the
Court’s orders of 5th May, 2016, did not
directly raise this issue, in the course of
dealing with the clarification of its orders, the
issue of EC’s credibility as a body that
Ghanaians can trust and rely upon to act
impartially and honestly and conduct free, fair
and credible national elections came up from the
most unexpected quarters.

On correct procedural grounds and in order not to
tarnish completely the integrity of the
Commission, the Supreme Court, however, declined
the invitation to wade into what appeared to be a
scandal of monumental proportions for the
integrity of the Commission.

It would be recalled that, in the course of
proceedings on the application for clarification
of the orders of 5th May, 2016, the Supreme Court
ordered the EC to file in the court registry by
29th June, 2016, the full list of persons who
registered with NHIS cards and the modalities or
procedures it intended to use to delete the names
from the register of voters and adjourned the case
to 30th June 2016..

The Commission, in compliance with the Court’s
order, produced a list of 56,772 persons as the
full list of those who registered with the NHIS
cards. When on 30th June 2016, Counsel for the
Plaintiffs was asked his reaction to the list, he
observed that he had only been served with the
list an hour and half ago and so could not speak
intelligently to it. The Court went into recess,
giving the Plaintiffs’ lawyers one hour to study
the list and the come up with their reaction
thereto.

When the Court resumed sitting on the same day,
Plaintiffs’ lawyer pointed out a number of
mind-boggling defects and inconsistencies in the
list and observed that the list was a fictitious
one, manufactured by the EC and conjured out of
nothing simply to meet the court’s orders.

Midway through Counsel’s oral submission on the
EC list, the Court, seeing that these were weighty
matters, which could take some time, directed
Plaintiffs to file in the registry of the Court
written submissions on whatever objections they
had to the list by Monday, July 4th, 2016, and
adjourned the case to Tuesday, 5th July, 2016.

On Tuesday, 5th July, 2016, the Court gave its
ruling on the application for clarification in the
terms set out above. With respect to the
challenge to the authenticity and credibility of
the list of NHIS registrants that the EC had
provided, the Court dismissed same for lack of
jurisdiction. The Court noted as follows:

“We have given due consideration to the
objections tendered to the list of persons
submitted to the Court by 1st defendant/respondent
(i.e. the EC). We are of the opinion that we are
precluded in the instant post-judgment application
for clarification from veering into issues not
immediately covered by the application. The
determination of these questions does not properly
belong to an application for clarification. Our
jurisdiction is limited to clearly indicating what
we meant by the portions of the judgment on which
this application is base.

“We are of the opinion that an enquiry into the
authenticity and credibility of the list submitted
might result in the modification or alteration of
the substance of the judgment. The issues raised
by the objections to the list submitted by 1st
respondent (the EC) are outside the orders on
which the post-judgment clarification application
is based”.

Though, the Court declined the invitation to
“veer” into the authenticity and credibility
of the list submitted by the EC, in its orders,
the Court, in our view, impliedly recognized that
there may very well have been merit to the
objections, when the Court made the following
third order:

“3. Further to the above order (2) the 1st
Defendant / Respondent is further ordered to
delete from the current register of voters the
names of persons not included in the list
submitted to this court on 29th June 2016 but who
are also found to have registered with NHIS
Cards”.

Clearly, if indeed, the list submitted by the EC
was the full list of NHIS registrants on the
register of voters, order (3) would have been
completely unnecessary.

Plaintiffs’ objection to EC’s list

The Plaintiffs raised objections to the
authenticity and credibility of the list, stating
that it was “neither accurate nor credible, of
doubtful integrity, riddled with manifest
inconsistencies and contradictions” and, in
fact, had been “conjured out of nothing” by
the EC. These are, indeed, very serious
allegations made against the EC, and if true,
impugn the very integrity of the EC and questions
whether it is ready or fit to act impartially and
conduct the 2016 general elections in a credible
and fair manner.

Even though the Court may seem technically
correct, on jurisdictional grounds, not to have
veered into the matter of the accuracy and
credibility of the EC list, the issues are not
that straightforward. It will be recalled that
the Plaintiffs in Abu Ramadan II did not ask
directly for the relief that the EC should be
ordered to delete from the register of voters
those who registered using the NHIS cards. The
reliefs Plaintiffs sought in Abu Ramadan II were
the following:

"1. A declaration that upon a true and proper
interpretation of article 45(a) of the
constitution of the Republic of Ghana, 1992,
(hereinafter, the “constitution"}, the mandate
of the Electoral Commission of Ghana 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 nor reasonably accurate or credible
and therefore inconsistent with article 45 (a) of
the Constitution and thereby making same null and
void, of no effect.

3. A declaration that the current register of
voters which contains the names of persons who are
deceased is not reasonably accurate or credible
and is therefore inconsistent with article 45 (a)
of the Constitution thereby making same
unconstitutional, null and void, of not effect.

4 (a). An order setting aside the current register
of voters and compelling the Electoral Commission
to compile a fresh register of voters before the
conduct of any new public elections or referenda
in Ghana.



Or, in the alternative:


(b) An order compelling the Electoral Commission
to audit the current register of voters through
the validation of the registrations of such
persons currently on the register:


i.To delete the names of unqualified persons and
deceased persons, and
ii.To provide each validated registration with
biometric evidence thereof, and
iii.To strike out the names of those persons who
fail to validate their voter validation within the
stipulated period before the conduct of any new
registration exercise or public election or
referendum in Ghana”.



It can thus be seen that, when the Court in its
judgment of 5th May, 2016, ordered the EC to
‘take steps immediately to delete or as is
popularly known “clean” the current register
of voters to comply with the provisions of the
Constitution and applicable law’, it was in fact
not granting the specific reliefs sought by
Plaintiffs, but rather reliefs formulated in the
Court’s own terms. The second point to be
noted is that the Court itself recognized that
there was a difficulty of determining the exact
number of those who registered using the NHIS
cards, when it observed at page 21 of its judgment
as follows:

“..it appears from the proceedings herein that
that the exact numbers are not known. This creates
some difficulty in determining the actual
percentage in order to answer the question posed
whether the register may on such ground only be
said not to be reasonably accurate or credible. .

It nonetheless proceeded to state that “that
should not present us with an insurmountable
problem”. It can, therefore, be seen that the
current predicament that the nation finds itself
in is directly the result of the failure to
determine at the stage of Abu Ramdan II the number
of persons who registered using NHIS cards by
requiring the EC, which has exclusive custody of
the data, to produce, at that stage of
proceedings, the full list of such persons.

Had the Supreme Court done so, and the Plaintiffs
then proceeded to challenge the authenticity of
the list, the Court would clearly have been seized
with jurisdiction to delve into this all important
matter and determine whether or not the list was
credible or concocted.

As it is, the Supreme Court and the whole nation
appear to have been deliberately short-changed by
the EC with a list, which is neither accurate nor
credible, but which the Court refuses on
“jurisdictional” grounds to “veer” into.



Reasons for Plaintiffs’ objection to the EC
list.

The reasons for the Plaintiffs’ objections to
the EC list as fictitious and conjured out of
nothing were several and weighty. But the most
fundamental reason advanced by the Plaintiffs was
that the EC was incapable of determining those who
registered with NHIS cards for the 2012 general
elections because the registration forms did not
have any column or portion for recording those who
used the NHIS card to register.

According to Plaintiffs, the only column on the
primary registration form, Form 1A, for
identification of the card used to register was
the column for those who registered using the
national identification cards issued by the
National Identification Authority.

There was no column for filling in the NHIS card
number, passport number or driver’s license
number on that form. Thus, so the argument of the
Plaintiffs goes, whether by Form 1A or its
electronic reproduction, Form 1C, which is lodged
in the EC’s database, it is impossible for
either the EC or any other person to determine
those who registered using NHIS cards.

The Plaintiffs, in addition, stated that they had
recordings of a meeting held at the EC’s
conference room, between themselves and their
lawyers, on the one hand, and the two Deputy
Commissioners of the EC, namely Mrs. Georgina
Opoku-Amankwaa and Mr. Sulley Amadu, and the
EC’s lawyer, at which the two admitted that the
EC did not have the record of those who registered
with NHIS cards.

Indeed, it was in recognition of this error in the
Form 1A, which was used for the 2012 registration
exercise under C. I. 72, that when the EC drafted
the current C. I. 91, it made provision for
filling in not only the national ID number of a
registrant, but a registrant’s passport number
and driver’s license number. None of these can
be found in the Form 1 A and Form 1C used for
registration in 2012.

To further buttress their points the Plaintiffs
drew attention to names on the list that had no
NHIS card numbers whatsoever. Again, the
Plaintiffs argued that all the NHIS cards issued
in 2012 had eight (8) digits. However, from the
list filed by the EC some of the numbers were 2
digits, others 3, others 5, and yet others 7 and
12!

Furthermore, the Plaintiffs pointed to the
incredulous fact that from the list submitted,
there were a total of 82 districts, out of the 216
districts, where not a single person, according to
the EC’s list, registered using NHIS card. The
point was further made that some of the purported
NHIS numbers were in fact passport numbers.

As indicated, these are not trifling matters and
if gone into and established as facts by an
adjudicatory body would ground the citing of all
the members of the EC for contempt of the Supreme
Court. It is thus to be very much regretted that
the Supreme Court deemed itself unable to delve
into this all important issue.

Lessons of the Abu Ramadan/Evans Nimako Trilogy

What then does the Abu Ramadan/Evans Nimako saga
teach us? In our view, there are a number of
lessons to be learnt by all of us, as a people.
First, we must commend the Plaintiffs, Abu Ramadan
and Evans Nimako, for stepping forward to defend
the Constitution with the tenacity they displayed.
It is indeed the right and duty of all citizens
to defend and guard jealously the Constitution of
the Republic.

Second, it should be understood without
disputation that the Supreme Court has the power
and authority under article 2 (2) to give orders
to any person or authority to give effect or
enable effect to be given to any declaration of
unconstitutionality. Third, any such orders take
precedence over any statutory provision, including
constitutional instruments. Fourth, the Supreme
Court’s clarification ruling and orders apply
with equal force to the deletion of deceased
persons from the register of voters.

The EC should not wait to be dragged to Court
again, this time on contempt citation, before it
implements this aspect of the Court’s orders of
5th May, 2016. Again, the EC and all other
independent constitutional bodies are subject to
the Constitution and the supervisory jurisdiction
of the superior courts. Next, it is about time
that our governments, especially, and all of us
took seriously the establishment of a national
identification system that will assure reasonable
proof of who is a Ghanaian citizen.

The Supreme Court stated this need in the most
eloquent of terms when it observed in its judgment
as far back as 30th July 2014 thus: “The need
for a credible and reliable multipurpose national
identification system comprising the relevant data
and communication infrastructure that would answer
to most of our national needs, whether for
electoral, planning or developmental, or other
purposes, is greater than ever before. We think
the time has come for the appropriate authorities
to respond to this need”. We are in July 2016
and nothing has yet been done about this by the
authorities!

.Any such national identification system should be
effectively linked to the records at the births
and death registry. Our births and death
registry, on the other hand, should be properly
equipped and resourced with qualified and
competent personnel to ensure that we have
accurate records of every Ghanaian citizen who is
given birth to and who dies. All Ghanaians need to
be vigilant to ensure that the will of the people
prevails in the 2016 general elections.

Finally, the Electoral Commission needs to
recognize that its integrity and reputation have
been seriously called into question by the Abu
Ramadan & Evans Animako trilogy, especially with
respect to the list it produced claiming only
56,772 NHIS registrants on the register of voters,
as against the total 14,031,000 voters on the
register.

It therefore behoves the Commission to take
genuine steps, by deed and not pious assurances,
to win back the confidence of the populace,
including demonstrating a readiness to listen to
reasonable proposals made by all stakeholders to
ensure that the 2016 elections are credible, free
and fair, and affirm the sovereign will of the
people of Ghana.



Akoto Ampaw is a private legal practitioner based
in Accra.

H. Kwasi Prempeh is a legal policy and rule of law
and governance consultant based in Tema.



Postscript

On 13th July 2016, the Electoral Commission
announced to the general public, through its
Director of Electoral Services, one Samuel Tettey,
its time table in respect of the deletion of the
names of NHIS card registrants from the register
of voters and their re-registration where they
satisfy the eligibility conditions. The EC, at
the same time announced, its time-table for the
exhibition of provisional voters’ register to
enable registrants verify their names on the
register. There are obviously worrying aspect of
the programme announced that need to be addressed.


According to the announced time-table, the EC had
deleted the names of 56,772 persons who registered
using NHHIS cards from the register of voters and
would publicize the names of these persons in one
of the dailies, at the district registration
centres and at municipal and district assembly
offices on 15th July 2016. From 18th July 2016,
it would commence the re-registration of those who
have names had been deleted subject to their
meeting the eligibility criteria. The
re-registration exercise would end on 12th August
2016. At the same time from 18th July 2016, the
EC would commence the process of exhibition of the
register of voters for a period of three weeks to
end on 7th August, 2016.

The first difficulty with this programme as
announced is that it does not make provision for
the display at their registration centres of the
names of those whose names have been deleted from
the voters’ register. Thus, unless, the
affected persons read their names in the dailies,
the EC’s website or go to the metropolitan,
municipal or district offices of the EC, they
would have no means of knowing that their names
have been deleted from the register so they can
re-register, subject to satisfying the eligibility
criteria.

To complicate matters, notice of the deletion of
names will be given only three (3) days before
re-registration commences on the 18th of July
2016. To further confound issues, the exhibition
of the voters’ register will be taking place,
more or less, concurrently (at the same time) with
the re-registration of those who names have been
deleted from the register. Finally, there is to
be the exhibition of the register of those who
re-register between 5th and 7th August 2016.

The question is when will the final voters’
register, inclusive of those whose names were
deleted and who re-registered, be exhibited for
verification by all registered voters? It would
seem that the jumble that the two exercises are
enmeshed in is because the EC is in danger of
being caught by Regulation 9 (4) of C.I. 91 which
provides that the EC “shall not include in the
register of voters the name of a person who
qualifies to register as a voter for an election
but who registers less than sixty days to that
election”.

Thus, in order not to be caught by the 60 days
deadline, the EC now has to rush to do the
notification of deletion of names from the
register, the re-registration and the exhibition
of the voters’ register, all, more or less, at
the same time.

It is clear that the EC has allowed itself to be
caught in this predicament because of its
intransigence in not complying with the decision
of the Supreme Court as far back as 30th July,
2014, on the unconstitutionality of registration
of persons who used the NHIS card to register as
voters.

Source - Myjoyonline.com

... go Back