Reading the Abu Ramadan trilogy alongside the constitution - Reading the Abu Ramadan Trilogy alongside The Constitution (cont'd)

I.(B) Is the Electoral Commission subject to Judicial Oversight and Orders in the Performance of Its Functions?

The second general issue of broader constitutional import that arises from the Abu Ramadan II judgement concerns the meaning of the independence of the Electoral Commission vis-à-vis the power of the Supreme Court (and of the superior courts generally) to enforce compliance with the Constitution and applicable laws. In this portion of the judgment, too, the Abu Ramadan II Court speaks with equivocation.  In one breath the Supreme Court flatly and rightfully rejects the contention of the Electoral Commission that the Constitution “forbids any control or direction of the 1st Defendant as to how to accomplish its work.”  

The Court rightfully points out that “as a creature of Article 43, the Electoral Commission is subject to the Constitution; to deny that it is so subject is to misconstrue the nature of the independence bestowed on it in relation to our exclusive jurisdiction, which is critical to effectuating the supremacy of the law.”  The Court continues: “The correct position is that the courts as constituted under the 1992 Constitution may intervene in acts of the First Defendant to ensure that it keeps it within the boundaries of the law and also give effect to the provision of the Constitution.” 

This indeed is a correct statement of the constitutional position as it pertains to the meaning of the independence of the Electoral Commission.  Yet, the Court appears, in another breath, to undercut the authority of this position. Specifically, in relation to the function of the Electoral Commission under article 45(a) “to compile the register of voters and revise it at such periods as may be determined by law,” the Court states that the Commission’s “function under article 45(a) is not subject to any other provision, therefore in performing that said function, we cannot make an order compelling the Commission to act in a particular manner.”  

This last pronouncement is puzzling, because immediately following the listing of the Electoral Commission’s functions in article 45 is article 46, titled the “Independence of the Commission,” which states: “Except as provided in this Constitution or in any other law not inconsistent with this Constitution, in the performance of its functions, the Electoral Commission shall not be subject to the direction or control of any other person or authority.”  

How does this provision of article 46 square with assertion by the Abu Ramadan II Court that the Commission’s “function under article 45(a) is not subject to any other provision, therefore in performing that said function, we cannot make an order compelling the Commission to act in a particular manner”?  It is clear, pursuant to the provision of article 46 reproduced above, that while the Commission shall not be subject to the direction or control of any other person or authority in the performance of its function, that independence does not limit or disable the Supreme Court from exercising in relation to the Commission its foundational enforcement powers under article 2 of the Constitution.  

Article 2 of the Constitution, titled “Enforcement of the Constitution,” opens the doors of the Supreme Court to any person who alleges that, “an enactment or anything contained in or done under the authority of any enactment or any act or omission of any person is inconsistent with or in contravention of a provision of this Constitution.”  If the Supreme Court, upon determining the matter, upholds the allegation of unconstitutionality, it is empowered under article 2 (2) to make a declaration to that effect and, further, to “make such orders and give such directions as it may consider appropriate for giving effect, or enabling effect to be given, to the declaration so made.”  

It is clear from this provision of article 2(2) that the Constitution gives the Supreme Court a wide remit and scope to determine what kind of orders and directions may be appropriate to enforce a declaration of unconstitutionality.  No part of the provisions pertaining to the Electoral Commission in the performance of its functions can be read to mean or suggest that the Commission is exempt from this broad enforcement mandate of the Supreme Court.  

Once the Supreme Court has properly asserted jurisdiction over a matter involving alleged unconstitutionality on the part of the Electoral Commission and proceeded to declare the offending act or enactment of the Electoral Commission unconstitutional, it is for the Court, pursuant to article 2(2), to determine, in its own judgment, what orders or directions it considers “appropriate” to give effect to the declaration of unconstitutionality.  Indeed, the broad reach of the Supreme Court’s remedial powers under article 2(2) is reaffirmed and extended to all the Superior Courts by article 126(4).

Read in light of articles 2(2) and 126(4), then, it is clear that the independence bestowed on the Electoral Commission under article 46 is subject to the power of the Supreme Court—and of the Superior Courts generally—to enforce compliance with the Constitution and with the courts’ orders.  This indeed is as it should be.  To hold to the contrary would, again, upset the Supremacy of the Constitution and defeat the courts’ unique role in ensuring that all authorities established by law exercise their powers and perform their functions in obedience to and in compliance with the Constitution. 

Where the Court in Abu Ramadan II appears to have misled itself is to have turned to article 45(a), expecting to find there a specific statement to the effect that, in the compilation of the voters register, the Electoral Commission would be “subject to” the authority of the courts.  No such function-specific “subject to” language could be found in article 45(a) because such language is simply unnecessary.  

What the Court was looking to find but could not find in article 45(a) is right there in article 46.  Article 46, which covers all of the functions of the Electoral Commission at once, makes it clear that the Commission, in performing any one of those functions, is not subject to the control or direction of any other person or authority “except as provided for in this Constitution and in any other law not inconsistent with the Constitution.” 

The above proviso or “exception clause” in article 46 means that, notwithstanding the independence bestowed on the Electoral Commission, the Commission may be subject to the direction of an authority as long as that authority derives its powers to do so from the Constitution or a constitutionally-compliant law.  Article 2(2) of the Constitution, which empowers the Supreme Court to “make such orders and give such directions as it may consider appropriate” to enforce a constitutional ruling, is the clearest example of the kind of provision that represents an exception to the independence bestowed on the Electoral Commission under article 46.  As noted already, article 126(4) of the Constitution is to the same effect—and extends similar power to all of the Superior Courts.

Thus, for example, if the Supreme Court makes a declaration that the exclusion of prisoners from the voters roll is unconstitutional, the Court can, without offense to the independence of the Electoral Commission, make an order directing the Commission to make appropriate arrangements to register prisoners.  Similarly, where the Court has declared that the use of NHI cards for voter registration is unconstitutional, nothing in article 46 stops the Court from making an order or giving a direction compelling the Electoral Commission to take such steps as the Court deems appropriate in order to bring the voters register into compliance with the Constitution, such as by deleting or removing the names of NHI card registrants from the register.  

Indeed, the Court itself, in rejecting as “plainly erroneous” the First Defendant’s contention that the Constitution “forbids any control or direction of the defendant as to how to accomplish its work,” notes that “article 46 itself recognizes that its [the Commission’s] independence may be derogated from either in the constitution or by any other law including but not limited to the instances referred to in regard to articles 48(1) and 49(1).”  The Court, however, seemed to have forgotten that, pursuant to article 46, it is its general, all-encompassing power under articles 2(2) and 126(4) that enables it to enforce fidelity to the Constitution on the part of all authorities and persons, including the independent bodies set up under the Constitution. 

It is important to add that, exercising its powers in this manner, does not turn the Supreme Court or any other competent court into a supra or super Electoral Commission.  The functions and powers bestowed on the Electoral Commission are solely for the Commission to perform and exercise; the courts may not take over those functions, as the Constitution has not appointed the courts to perform those functions. Thus, for example, it is not for the Supreme Court or any court to arrogate to itself the task of compiling the voters register or demarcating constituencies.  

Those functions are exclusively for the Electoral Commission to undertake or perform. However, where a competent court finds, in a given case, that the Electoral Commission, in performing any one of its functions or in exercising any of its powers, has acted inconsistently with or in contravention of the Constitution, that Court may order or direct the Commission to undo the unconstitutionality and bring its conduct in compliance with the Constitution. That does not amount to judicial usurpation of the functions or powers of the Electoral Commission.

If a court, and in the final analysis the Supreme Court, did not have the power to order or compel the Electoral Commission to take such action as the court deemed appropriate to correct a violation of law, the Electoral Commission would become a law unto itself.  Nothing in the notion of the independence of the Electoral Commission contemplates such an outcome.  Indeed, it would be inconsistent with the notion of the Supremacy of the Constitution and offensive to the principles of rule of law and legality to have an Electoral Commission that could not be ordered by a competent court to do what was necessary to correct a constitutional (or statutory) violation.

II.The Reliefs and Orders in Abu Ramadan II   

In contrast to the portions of the judgment in Abu Ramadan II where the Court discusses the issues of voidness and the independence of the Electoral Commission, the portion of the Abu Ramadan II judgment dealing with the reliefs and orders of the Court is reasonably clear and unproblematic. The Court concludes that, “upon a true and proper interpretation of the article 45(a) of the Constitution, the mandate of the Electoral Commission to compile a register of voters implies a duty to compile a reasonably accurate and credible register.”  

Immediately prior to making this ruling, the Court had stated, that “The continued presence [on the register of voters] of such names being derived from a constitutionally declared wrong offers sufficient proof of the extent of the inaccuracy of the current register of voters and can therefore be said to be unreasonable.”  Simply put, the voters register cannot be said to be constitutionally compliant, as it is not reasonably accurate and credible, insofar as it continues to contain or include the names of persons who were registered using NHI cards. The Court affirms this conclusion in its reliefs (2) and (3) for the Plaintiff.  

Following on these findings and conclusions of law, the Court proceeds to make two very specific orders: “(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”; and “(b) That any person whose name is deleted from the register of voters by the Electoral Commission pursuant to this order (a) above be given the opportunity to register under the law.” 

Wherein lies the confusion?  

Rather than accept the specific reliefs granted and orders issued by the Court in Abu Ramadan II as finally settling the matter, some commentators have sought to read the specific reliefs and orders against the backdrop of the controversial general propositions that the Court had made in the “discussion” portions of its judgment and, in so doing, have arrived at a conclusion that essentially renders the granted reliefs and orders nugatory.  

In effect, the argument goes, since the Court suggested generally, first, that an unconstitutional law may not be necessarily void and, second, that it cannot make an order compelling the Electoral Commission to act in a certain manner in compiling the register of voters, its final orders specifically instructing the Commission to take “steps immediately to delete” the offending names from the voters register “to comply with the Constitution and applicable laws of Ghana” and to give affected persons “the opportunity to register under the law” amount to nothing.   

This is a bizarre argument.  When Plaintiffs go to court with a case, they ask for or seek certain particular reliefs and orders from the court, the denial of which dooms their case and the grant of which upholds their claim.  On the way to making the final orders, the Court may say a whole host of things, not all of which are necessary to decide the case or can be said to constitute the law or holding of the case.  

Where certain general propositions or statements made by the Court in the “discussion” portion of the judgment seem inconsistent or at variance with the specific reliefs it grants and the orders it makes in the concluding “reliefs and orders” portion of the judgment, it is bizarre to read the opinions expressed in the “discussion” as trumping or negating the reliefs and orders the Court specifically grants and makes.  After all, it is through the reliefs it grants (or dismisses) and the orders it makes that the Court finally decides and settles the case before it.  Furthermore, it is through the Orders that the Court addresses and directs the parties as to what their obligations are under the judgment. And it is a subsequent failure or refusal of a party to carry out or comply with an order addressed to it that could give rise to a citation for contempt.  

In short, notwithstanding some of the statements made by the Supreme Court in its discussion in Abu Ramadan II, statements to which we have taken serious exception here as to their cogency and correctness as a matter of constitutional law, it is, ultimately, the reliefs granted and the orders made by the Court that conclusively resolved the matters presented before the Court in Abu Ramadan II.  

And it is clear from those reliefs and orders that (i) the current voters register, insofar as it continues to include the names of persons who were registered using NHIS cards, is not reasonably credible or accurate and, thus, not constitutionally compliant; (ii) the Electoral Commission is duty bound to remove those names from the voters register in order to bring the register into compliance with the Constitution, and (iii) affected registered voters are entitled to, and must be allowed, a fresh opportunity to register using a constitutionally compliant form of ID. 

One argument that has been proffered by those who suggest that the Court’s orders in Abu Ramadan II do not change the status quo is that, since the Court required the Electoral Commission to clean the register of voters to “comply with the provisions of the 1992 Constitution and applicable laws of Ghana,” the Commission cannot clean the register as ordered by the Court because there is no mechanism for it to do so under any existing law.  

It is difficult to understand the import of this argument.  The order of the Court commands the Commission to delete the offending names so that the resulting register would “comply with” the Constitution and applicable laws of Ghana.  The order does not dictate a process or mechanism by which the Commission must proceed to do so. But there is no reason or need for the order to do so.  The order says, simply, that the Commission must “take steps immediately” to carry out the order. 

The notion that no current or existing law gives the Commission the authority to delete names and, therefore, the Commission is disabled from carrying out the order, simply disregards the fact that the order of the Court, issued pursuant to the Court’s article 2 powers, needs no new or additional implementing legislation or legal instrument in order to be effective.  As an order made to enforce a constitutional ruling, it carries with it the authority of the Constitution.  

Thus if any existing law presumably prevents the Commission from giving effect to the order, then, that law, insofar as it frustrates obedience to the Constitution and the orders of the Court under its article 2 powers, simply cannot stand in the way. Deletion of the constitutionally offending names by the Commission, insofar as it is done pursuant to an order of the Supreme Court (or any other competent superior court) to cure an established violation of law, is deletion in accordance with “due process of law”.

Another variation of the “applicable laws” argument says that, under the existing law, the only legally competent way for the Commission to “clean” the register--and, for that matter, the only lawful avenue opened to it to remove NHI registrants from the register of voters, notwithstanding the Court order--is through the process specified in Regulation 16 of CI 72, pursuant to which a member of the public may challenge or object to the inclusion of unqualified individuals—the so-called “exhibition” or “challenge” mechanism.  Interestingly, this argument was first made by the Commission in Abu Ramadan I when it sought to defeat judicial intervention on behalf the Plaintiffs by contending that “there is an avenue open to the public for challenging registration.”  

In Abu Ramadan I, the Court flatly rejected this argument, describing it as “dangerous”.  The Court explained that, “the challenge mechanism is the final window of opportunity for removing the names of those unscrupulous individuals who, in spite of the necessary due diligence, all possible human care and attention, have nonetheless managed to slip through the net, beat the system, so to speak, and fraudulently managed to have their names included as qualified individuals”.   In short, the challenge or exhibition mechanism laid out in CI 72 is not the only legally competent way to delete the offending names from the register of voters.  

This likely explains why the Court in Abu Ramadan III has asked the Commission to “clearly set out in writing, the steps and modalities that the Commission intends to take in order to ensure full compliance with the Court’s order” issued in Abu Ramadan II.  In effect, whatever “steps and modalities” the Commission adopts that effectuate the order of the Supreme Court and do not meet with disapproval from the Court are legally competent.  

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.

Akoto Ampaw is a legal practitioner based in Accra.  

H. Kwasi Prempeh is a legal policy and rule of law and governance consultant based in Tema. He was, until recently, a Professor of Law at Seton Hall University School of Law, New Jersey, USA, where he taught constitutional law and comparative constitutional law, among other courses.