Legal opinion on voters register controversy
Calls have been made for a new voters register. Reasons outlined to replace the voters register for the 2016 general election include the alleged existence of 76,286 foreigners on the voters register. Pictures of the foreigners were allegedly not captured live but rather were scanned onto the register.
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The calls recount the striking down of the National Health Insurance Scheme (NHIS) card by the Supreme Court as voter registration identifier. They contend that the strike down nullifies the registration of voters who used it to register.
Their simple ‘message’ is that the irregularities bloated and compromised the voters register, and that is curable only by the compilation of a new register. Their message has legal tales as well.
Concerns of principle of res judicata
In Re: Mensah v Intercontinental Bank [2010] S C G L R 118, the complaint concerned a disagreement on bank balance, a writ was issued at the High Court, a default judgement was obtained and later set aside. A fresh writ was issued without the pleading of the previous default judgement that was set aside. ESTOPPEL PER RES JUDICATA was raised and the trial court held that it was ‘fresh issue for determination’.
Reversing the decision, Justice Gbadebe of the Court of Appeal held that: “The settled practice of our courts is that whenever an order made in an action has not been properly carried out, the remedy of a party who claims to be aggrieved, thereby, is to apply by motion in the cause in which the order was made to the court seized with jurisdiction over the subject-matter for the act which has been wrongly done to be set aside and for the proper thing to be done.”
Unanimously dismissing the appeal and affirming the decision of the Court of Appeal, the Supreme Court, per Sophia Adinyira JSC, said: “This well-established rule of estoppel by judgement is based on two policy grounds; namely, that it is in the public interest that there be an end to litigation and that nobody should be vexed twice on the same matter. ‘The rule of estoppel by res judicata… is a rule of evidence and may thus be stated: where a final decision has been pronounced by a… judicial tribunal of competent jurisdiction over the parties to, and the subject matter of, the litigation, any party or privy to such litigation, as against any other party or privy thereto… is estopped in any subsequent litigation from disputing or questioning such decision on the merits whether it be used as the foundation of an action or relied upon as a bar to any claim.”
Our electoral justice and integrity
In Re: Nana Akufo-Addo v Mahama [2013] SCGLR (Special Edition) 73; concerning the integrity of the voters register, Atuguba JSC at page 101 stated: “…the petitioners complained about the transparency of the voters register…”
At page 220, Sophia Adinyira JSC stated: “The evidence adduced in support of the bloated register…was that the Electoral Commission provided the NPP with a voters register of 14,031,680, which was used for the election; but that at the time the election results were declared the number was 14,158,890 a difference of 127,210.”
Sophia Adinyira JSC concluded: “I appreciate the concern raised by the petitioners on the voters register…Despite these few setbacks, I find that the Electoral Commission had conducted its affairs professionally and transparently to produce a clean, credible and reliable voters register…I hold that the petitioners complaint that the compilation of the voters register had an adverse impact on the 2012 December elections cannot be sustained.”
Thus, both the ‘message’ of those calling for a new register and the 2012 election petition (partly) are based on the integrity of the voters register. The 2012 election petition partly concerns discrepancies in the voters register with some 127,210 votes, while those calling for a new register make the demand based on concerns over an alleged 76,286 foreigners on the same register. The two concerns are unique but same legal credibility effect on the register.
The explanations of the voters register discrepancy (127,210) by the EC were accepted by the Supreme Court. It dismissed the discrepancy as not impugning the credibility and integrity of the voters register. If the 76,286 is even proved to be irregular, its effect on the integrity of the register is the decision of the EC or rest ultimately with the privileged judges.
The effect on the integrity of the voters register of the strike down could simply be resolved by an application for review or direction with an out of time permission of the Supreme Court for a declaration, if the effect is not implied or expressly contained in the judgment.
It is refreshing to hear that the EC has asked parties to make submissions for action to be taken on the allegations. This engagement is acceptable to resolve electoral grievances or disputes. It is unacceptable for the Institute of Democratic Governance (IDEG) to advocate for independent inquiry into claims on the register. This could constitute interference by outside interest in the work of the EC. It is not in the interest of democracy and electoral justice for anyone to instill fear or heighten the political tempo with a resolvable res judicata voters register.
To achieve electoral integrity and justice, all will have to respect the EC to resolve the concerns. Any discovery of fresh issues on it, such as the alleged foreigners, will be investigated by the EC. Disagreement with the EC could only be resolved at the Supreme Court; bearing in mind the voters register estoppel; 2012 election petition and the strike down cases.
The writer is a legal practitioner.