Supreme Court finally speaks on the Abu Ramadan case
Last Tuesday, the Supreme Court spoke, hopefully for the last time on the Abu Ramadan case. What exactly did they say?
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You will recall that the plaintiffs returned to court ostensibly for a clarification of the judgment the Supreme Court delivered on the May 5, 2016 and seeking a number of reliefs. The first was for a declaration that the order of the Supreme Court to delete certain names from the voters register “means the immediate removal of names of persons who registered with the National Health Insurance Scheme (NHIS) cards and who had otherwise not established qualification to register or remain on the register of voters”. As explained in greater detail below, the Supreme Court amended this relief and proceeded to grant part of it.
The reliefs
The second relief sought for was another declaration to the effect that article 2(2) of the 1992 Constitution which allows the Supreme Court to make consequential orders in cases such as this one, constitutes enough authority for the deletion of names from the register. The Supreme Court was of the opinion that the plaintiffs were here seeking a fresh relief, and this could not be done in an application to the court for directions. The Supreme Court, therefore, dismissed this relief.
The third relief was for yet another declaration that the dismissal of plaintiffs reliefs 4(a) and (b) in the original case on May 5, 2016 “does not bar the Electoral Commission [EC] from adopting the validation process as an auditing tool to clean the current register of voters.” Here, the Supreme Court was emphatic that the plaintiffs had unsuccessfully sought this relief in the original action and was merely repackaging the relief for a double-dip. The Supreme Court, therefore, dismissed this third relief.
The fourth relief was for an “order further directing the EC to remove the names of persons who used the NHIS cards 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 election of 2016.” The long-winding language in the expression of the reliefs is theirs, not mine. Here again, the Supreme Court thought that the plaintiffs were simply asking them to repeat what they had already said on May 5, 2016 and so declined to do so, thus dismissing this relief also.
Again, when the EC submitted the list of names of NHIS registrants, the plaintiffs objected to the list and invited the court to reject it. The Supreme Court declined to accede to this request. This can be said to be the fifth relief sought by the plaintiffs in this leg of the case, and this was also dismissed.
Thus, of the five reliefs sought by the plaintiffs, four of them, including the substantive reliefs, were dismissed by the Supreme Court. This is what the Supreme Court said in respect of the four reliefs it dismissed on pages 3-6 and 10 of the judgment:
“In our view, as these proceedings are based on a judgment by which the substantive dispute between the parties had been determined, the applicants cannot seek from the court orders that are new and have the effect of altering the judgment in the main action dated May, 5 2016...
As already noted, the Supreme court’s power to clarify judgments arises from its inherent jurisdiction. Applying the settled practice in such applications, the respondent’s contention that reliefs (b) and (c) are not properly cognisable by this court is justified. We emphasise in regard to the relief (c) by which the applicants invite the court to adopt the process of validation, that it was specifically sought in the action that was determined on May 5, 2016 and refused.
It is,therefore surprising, if not baffling that the applicants thought it fit to re-package the same relief and present it to this court by way of a post judgment motion when the real purpose is to seek an alteration or modification of the judgment or orders of May 5, 2016. This is a jurisdiction which we cannot assume in an application for clarification…
In regard to relief (d) by which an order is sought directing the removal of certain names from the current register of voters, our view is that it is a subsisting order of this court dated May 5, 2016 on which this application for clarification is based. It being so, we cannot be invited in an application that derives its source from that judgment to make the same order again…It is plain that we are precluded from determining the same reliefs…
We are of the opinion that an inquiry 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 the EC seek to introduce new elements which are outside the judgment on which this post judgment application is based…”
First declarative relief
Only the first declarative relief of the plaintiffs was adopted, modified by the Court and granted. Whilst admitting that the relief was technically wrongly phrased, the Court decided to look beyond technicalities and do substantive justice. The Court “thought that as issues affecting the right to be registered are at the heart of democratic governance, a strict adherence to technicalities would undermine the quest for justice. The fundamental principle is that the Court looks at the substance of every application and not the form and this principle must apply with greater force in issues arising under the Constitution…” As I noted in my previous article, we need to congratulate the Supreme Court on this move.
How did the Supreme Court reach its decision last Tuesday on the one issue: the issue of what their judgment of the May 5, 2016 actually means. The plaintiffs argued that the order of the Court required the EC to immediately delete the names of persons who registered with NHIS cards, as well as those of deceased persons and minors, as the Court put it, “ostensibly without recourse to those affected”. The EC argued that the process of deletion should be done under the Public Elections (Registration of Voters) Regulations, C.I. 91 of 2016.
Given the many and varied interpretations of last Tuesday’s judgment, it is important to quote the precise words the Supreme Court used to resolve the issue before it:
“After reading the processes filed by the parties before us and listening to their arguments in open court, our view is that the consequential orders on which this application turns should not be read in isolation but as part of the entire judgment to which it properly belongs. In construing judgments, which are a species of documents, the rules which guide the construction of documents should be applied in order to ascertain its true meaning. And a disjunctive reading of the orders made in the judgment as though they stand alone does not reflect its true meaning.
Clarification of the orders
By way of clarification of the orders made under the judgment of May 5, 2016, the EC 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 CI 91. Accordingly, the EC was to take steps forthwith to remove the names of all persons who had registered with NHIS cards. In order not to violate their fundamental electoral rights and in order not to disenfranchise such persons, the EC was to give adequate notice to those affected by the order of the processes of deletion and re-registration subject to proof of eligibility. The removal of the names from the register was to precede the processes of re-registration as clarified.
By the order requiring the EC to ‘delete” we meant that the EC was to take the necessary steps to remove the names of such affected persons from the register and give them the opportunity to re-register early enough to take part in the 2016 general elections.”
The first thing to note about last Tuesday’s ruling of the Supreme Court was that of the five things the plaintiffs asked the Supreme Court for, the Court gave them less than one. Four reliefs were dismissed outright and one relief was granted only partially. Also note that the four things that were dismissed included the two substantive reliefs. The one relief that was granted was a declarative relief and even that was only partially granted. The details of this have been painstakingly analysed above and below. It may be argued that the Supreme Court, by implication, granted part of relief two by hinging part of its decision on article 2(2) of the Constitution. Such an interpretation will bring the tally to one for the plaintiffs and four for the EC.
The second thing to note is that the Court rejected the interpretation placed by the plaintiffs on their May 5 judgment. That interpretation was to the effect that “delete” means “automatically delete” and “delete without due process”. This is because the Supreme Court clearly indicated that automatic deletion of the names of NHIS registrants would “violate their fundamental electoral rights” and “disenfranchise such persons”. And so the EC should “give adequate notice to those affected by the order of the processes of deletion and re-registration…”
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The third thing to note about last Tuesday’s ruling was that the EC is required to give two types of notices when deleting the names of NHIS registrants, although both may be contained in one release. The first is notice “of the processes of deletion”, which must be given before deletion. The second is notice “of the processes of ...re-registration”, which may be given before or after deletion, but with enough notice so as to “give them the opportunity to re-register early enough to take part in the 2016 general election.” Anything less than this will compromise the right to vote, the right to information and several other rights of NHIS registrants.
Also note that in the very last paragraph, the Supreme Court again ordered the EC to “take steps” to delete. These steps are due process steps such as informing those affected about the deletion and the opportunity for re-registration. A Supreme Court, interpreting a Constitution such as ours, could not have come to any other conclusion.
The fourth thing that the ruling did was to order the EC to delete the names of NHIS Registrants based FIRST OF ALL on the judgment of the Supreme Court given under Article 2(2) of the 1992 Constitution, as this takes precedence over a process of deletion under C.I. 91. In other words, whilst a process of deletion under C.I. 91 is valid and may be used as a subsidiary mechanism for deletion, as far as this case was concerned, the primary mechanism for deletion must be the judgment of the Supreme Court given under Article 2(2) of the 1992 Constitution.
Substantive justice
The fifth thing to note is that the Supreme Court ignored the incompetence of the application before it and proceeded to take on the case in order to do substantive justice. This has already been explained in this and in my previous article. In other words, the Supreme Court has sent us all a message that in important cases involving our democracy, our Constitution and our human rights, the Court is prepared to ignore technicalities and do substantive justice.
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The sixth thing to note is that of the four possible reliefs the Supreme Court could have given, the Court chose the relief that is protective of the constitutional independence of the EC. As predicted in my previous article, the four options are:
a. An order of the Supreme Court automatically deleting all “undesirable” names from the register.
b. An order of the Supreme Court directed at the EC to automatically delete all “undesirable” names from the register.
c. An order of the Supreme Court directed at the EC to delete all “undesirable” names from the register through a due process mechanism established by the EC.
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d. An order of the Supreme Court deleting all “undesirable” names from the register through a due process mechanism established by the Supreme Court itself.
Read closely, all four options are very different reliefs. In two of the reliefs, the Supreme Court takes action and in the other two, the EC takes action. Again, two of the reliefs are automatic and the other two are through due process mechanisms. I have already noted that by choosing option three above, the Supreme Court had rejected automatic deletion and deletion contrary to the due process of law. Another point, I wish to underline here is that by choosing option three, the Supreme Court was seeking to emphasise the constitutional independence of the EC. In other words, the Supreme Court decided that they will not do what the EC was set up to do.
The seventh thing to note is that the plaintiffs and the Supreme Court were more focused on NHIS registrants than on dead persons, minors and other “undesirable” names on the register, though the latter categories are far greater in number. As less than one per cent of NHIS registrants are foreigners, the effect of the order of the Supreme Court will lead ultimately to the deletion of 56,772 and the immediate re-registration of more than 99 per cent of them. Effectively, only between 0 and 568 names will be deleted from the register.
If the plaintiffs and/or the Supreme Court had concentrated on say dead persons on the register, and working from a 14.5 million register and a 2015 median year death rate in Ghana of 8.82 per 1000, the number of people on the register who died between 2014 and 2016 is potentially 383,670, more than the winning margin in the 2012 elections. I still do not understand why the focus has been on NHIS registrants.
Please note that “dead persons” are known to vote in Ghana, and in several other countries, otherwise we would not have the phenomenon of 100 per cent turnout in some polling stations. So any argument that they are dead and do not pose a problem is not good enough.
Databases
Finally, and for the long-term, I suggest as I did in my previous article, that we must start linking our various personal and personnel databases, (and there are over 100 databases in Ghana to work with), to create a more robust or reliable national database, and use that as a control for all registrations for the purpose of voting in the future.