Issues the Supreme Court considered in the voters register case
The Supreme Court last Thursday directed the Electoral Commission (EC) to delete the names of ineligible persons from the national voters register.
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It also directed the commission to ensure that persons who are disenfranchised through its order are given the opportunity to register again to enable them to exercise the rights conferred on them under the 1992 Constitution.
The court, prior to arriving at its decision, had set out a number of issues for trial as agreed on by the parties in the case.
The parties in the case were a former National Youth Organiser of the People’s National Convention (PNC), Mr Abu Ramadan, and Mr Evans Nimako, as applicants, and the EC, as well as the Attorney-General, as respondents.
Messrs Ramadan and Nimako invoked the original jurisdiction of the Supreme Court to nullify the 2012 voters register and compel the EC to compile a new one.
Memorandum of agreed issues
Nine issues were set out for trial and each of them was tackled by the court in its judgement.
Issue One: Whether or not the applicants properly invoked the original jurisdiction of the court.
Court’s answer: Yes
Issue Two: Whether or not the presence of the names of ineligible persons on the current voters register renders same not reasonably accurate or credible and, therefore, inconsistent with Article 45 (a) of the 1992 Constitution.
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Court’s answer: Accordingly, by way of answer to issues two and three, we are of the opinion that although the presence of the names of ineligible and deceased persons on the register of voters renders same neither reasonably accurate nor credible, the register is not thereby rendered inconsistent with Article 45 (a) of the Constitution.
Issue Three: Whether or not the presence of names of thousands of deceased persons on the current voters register renders same not reasonably accurate nor credible and, therefore, inconsistent with Article 45 (a) of the Constitution.
Court’s answer: Accordingly, by way of answer to issues two and three, we are of the opinion that although the presence of the names of ineligible and deceased persons on the register of voters renders same neither reasonably accurate nor credible, the register is not thereby rendered inconsistent with Article 45 (a) of the Constitution.
Issue Four: Whether or not the decision by the EC not to use the record of validation process to revise the current voters register is unreasonable and inconsistent with articles 23 and 296 of the Constitution.
Court’s answer: While there appears to be some reason in the proposal for validation, it is without statutory authority and seeks to introduce a mechanism that the lawmaker did not make provision for to be utilised in deleting the names of ineligible and deceased persons from the register of voters.
In carrying out this function under the law, the EC cannot employ non-statutory remedies, as the law does not give it that mandate.
It is observed that it is unreasonable to demand from a public officer whose authority is derived from the law performance that is not authorised by law and its effect is that non-compliance with the proposal of validation does not constitute any inconsistency with articles 23 and 296 of the 1992 Constitution.
Issue Five: Whether this court has the jurisdiction and authority to make orders compelling the EC to discharge its functions in a particular manner.
Court’s answer: A careful scrutiny of the Constitution reveals that its function under Article 45 (a) is not subject to any other provision; therefore, in performing the said function, we cannot make an order compelling the commission to act in a particular manner.
To accede to the demand made on it in the action herein would amount to subverting the plain constitutional provisions. The result is that issue five receives an answer in the negative.
Issue Six: Whether the plaintiff’s suit falls for determination within the exclusive original jurisdiction of the court.
Court’s Answer: Regarding Issue Six, we think that the answer to Issue One adequately takes care of the considerations that are raised by it and, accordingly, no useful purpose will be served by considering it again.
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Issue Seven: Whether the plaintiffs have proved the extent to which the voters register is inaccurate for it to be unreasonable within the meaning of Article 45 (a) of the 1992 Constitution.
Court’s answer: The presumption is that the law is intended to be reasonable; any act that is derived from unconstitutionality must be deemed unreasonable. Accordingly, Issue Seven is answered in the affirmative.
Issue Eight: Whether or not a party is entitled to an order from this court to compel the EC to carry out its constitutional function of compiling and revising the voters register in a particular way, form or manner.
Court’s answer: Turning to Issue Eight, we note that it concerns substantially the same question that has been previously discussed and resolved in this delivery as Issue Five and so there is no need for the court to consider the same question again.
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Issue Nine: Whether or not the EC is bound by suggestions from citizens and other stakeholders as to how the EC must carry out its constitutional function of compiling and or revising the voters register.
Court’s answer: The court answered in the negative but nonetheless noted that the EC lost nothing in listening to suggestions from others, since that had the tendency to engender public confidence in the electoral process and trust in the outcome.
Reliefs granted
That upon a true and proper interpretation of Article 45 (a) of the Constitution, the mandate of the EC to compile the register of voters implies a duty to compile a reasonably accurate and credible register.
A declaration that the current register of voters which contains the names of persons who have not established qualification to be registered is not reasonably accurate or credible.
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A declaration that the current register of voters which contains the names of persons who are deceased is not reasonably accurate or credible.
The court, however, refused to grant an order setting aside the current voters register and compel the EC to compile a fresh voters register before the conduct of any new public election or referendum in Ghana.
It also declined to order the EC to audit the current voters register through the validation of the registration of each person currently on the register.
Orders
In the exercise of the powers conferred on the Supreme Court under Article 2 (2) of the 1992 Constitution, the court ordered that: “The EC 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
“That any person whose name is deleted from the register of voters by the EC pursuant to the order above be given the opportunity to register under the law.”