Supreme Court finally speaks...
We can then prepare a new voters register with adequate control built in. The control is a first logical step before a reasonably credible and clean voters register can be achieved.
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Before I conclude, let me say that it is important we do two seemingly contradictory things: lift the debate in the Abu Ramadan cases, and also lower it. We need to lift the debate because we are talking about the very integrity of our ntion in this critical election year; and what our Courts do in such cases will determine whether or not we have a fair or unfair electoral contest in November or December 2016. So far, all the discussions on the case have generally lifted the debate.
But we also need to lower the debate. We need to lower the debate because it is very easy for us, spoilt urban folks, with our big English, smart phones, car radios, multiple television sets and channels, laptops, ipads, driving licences, air tickets and passports, to sit in the diaspora, in Accra, and a few other cities, propound lofty theories, insult our opponents, while ignoring the needs of the majority of Ghanaians who currently live outside the big cities and who have a greater stake in our democracy.
We, the elite, especially the urban elite, must constantly be aware that we are not representative of the nation, even though we are very privileged and can be extremely garrulous. If we were, we would not be struggling so hard to disregard and suppress the non-urban compatriots in many ways, in this particular case, to risk disenfranchising many of them.
Two Ghanaians
No Ghanaian, who, before 2014, and acting legally, registered with an NHIS card to vote, should be disenfranchised by two citizens of Ghana. That is not how to run a constitutional democracy. At the heart of the central argument in the 2014 Abu Ramadan case is this: since we suspect that a few foreigners may have registered to vote using an NHIS I.D. card, we must automatically remove from the register the names of all the many, many thousands of names of innocent law-abiding citizens who registered with an NHIS card. This is an extremely dangerous legal proposition. To allow such a proposition to stand could lead to disaster.
For example, it will mean that at anytime anyone is able to prove that a few members of a particular ethnic group, say the Kassena-Nankani, to which I geographically belong, are from Burkina Faso, and yet registered to vote, one could call for the automatic deletion from the Register of all the names of Kassena-Nankanis from the Register. This is what some Ghanaians are clamouring for.
On the May 5, the Supreme Court suddenly realised that it had made a grievous mistake in its earlier judgment delivered in 2014. Fortunately, the Constitution in Article 129(3) permits the Supreme Court to depart from their earlier judgments, and that is what the Supreme Court did. They held that registration with an NHIS card, which registration was legal before the Supreme Court decision, was not void ab initio.
In simple language what the Supreme Court did was to refuse to go further down the road of disenfranchising a whole category of voters, simply because a few of them are found to have registered with an I.D. that was declared invalid after they had legally and validly registered. They, therefore, ordered on May 5 that anyone who belongs to that category of persons, and whose name is removed, be given an opportunity to re-register. I cannot imagine why any Ghanaian would want to quarrel with this.
Other cases
If the Supreme Court had gone further down the original route, two other gentlemen could commence cases in that court to disenfranchise persons who registered with Travel Passports or Drivers Licences because, in fact, the case could be successfully argued that there are non Ghanaians who hold those I.D.s in Ghana. Ghana is too civilised for this.
While agreeing entirely with the Supreme Court for truncating a precipitous journey down a path that is disastrous to the rights of Ghanaians, my argument has been that a quicker, cheaper and more accurate way of doing this would have been to order the NHIA to produce the list of all FOREIGN NHIS registrants and to require the EC to delete any of those names which may be on the Register.
In my extended family household in Mirigu-Nabango today in the Upper East Region, only one of my cousins has a single radio. This radio depends, not on electricity, but on batteries, dry cells, to function. Due to the fact that he is a man of meagre resources, from what he earns as a watchman at the village clinic, he has to moderate the times he switches the radio on, to save cash.
Consider him as a typical example in many non-urban communities across our nation, and what we, the urban elite, are saying is that word about the deletion of the names of all the AsaaTuguba Clan who registered with NHIS I.D. cards, would somehow reach all of them on that one radio in good time, and that news of the possibility of re-registering will also reach them in good time for the scheduled election date.
We further assume that the 100 or so members of the great AsaaTuguba Clan, for example, will have the means to leave their farms and trade and travel to a registration centre to re-register. We again assume that there is enough time between now and the elections for all those de-registered, to re-get registered.
In short, if we just for a moment, take off what Robert Bates of Harvard University calls "Urban Bias" from our spoilt urban eyes, we will see that the Abu Ramadan cases have one purpose: to disenfranchise a section of Ghanaians, mainly the poor and marginalised or non-urban. I am, therefore, deeply concerned that civil society groups and faith-based organisations have largely remained silent or in some cases sided with the plaintiffs in those cases.
My very final point is that our Constitution abhors automaticity when it comes to the rights of the citizen. Every proper Constitution does. Due process, the opposite of automaticity, leads to transparency, accountability, fairness, and is one of the greatest guardians of the rights of the people. What some lawyers and social commentators are seeking when they ask for automatic deletion of the names of NHIA registrants is a replacement of Due Process with Automaticity. The Supreme Court CANNOT and WILL NOT do that. They are too smart to do that.
Modalities
In the Orders the Supreme Court gave on the June 23, reiterating their earlier Orders of May 5, they provided THREE NON-AUTOMATIC, DUE PROCESS SAFEGUARDS. First, the Supreme Court asked that the deletion be done according to "modalities" set forth by the EC. These "modalities" are Due Process modalities. Secondly, the Court asked that the deletion be done "to comply with the provisions of the 1992 Constitution and applicable laws of Ghana". Again this is a due process mechanism. Thirdly, the Supreme Court ordered that anyone whose name is deleted, but who qualifies be afforded the opportunity to re-register. This is also a Due Process mechanism.
In the orders the Supreme Court gave yesterday, it added that those affected should not only be allowed to re-register, they should be informed about the deletion and the opportunity to re-register. They also added that the information and opportunity should reach them and be afforded them in time for them to take advantage of it and participate in the 2016 elections. These are further due process safeguards that underline the right to information and the right to vote of the NHIS registrants.
The Supreme Court is acutely aware that requiring automaticity will be dangerous for our constitutional democracy, as such automaticity may be applied to everything else. As I have noted before, in an election year, this could mean automatic shutdown of social media without due process; automatic throwing of people in jail by the Bureau of National Investigations (BNI) without due process for alleged election infractions, etc.
It is really amazing that some lawyers and social commentators, self-acclaimed adherents of constitutional democracy and human rights, are calling for the rough truncation of our constitutional rights in order to achieve specific political ends. We must rise above them.
Read my lips: the Supreme Court has not and cannot order automatic deletion of names from the register. Names on the voters register can only be deleted with and through the safeguard of due process.
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