What the Supreme Court said about C.I. 126 and new mass voter registration

The Supreme Court has declared as lawful the Electoral Commission’s (EC) decision to use the Ghana Card and the Ghanaian passport as the only identification documents that would allow a Ghanaian to register in the upcoming mass voters registration exercise.

The court has, therefore, dismissed two legal actions that were seeking the inclusion of an existing voter identification (ID) card and a birth certificate as part of the identification documents.

The first suit seeking the inclusion of an existing voter ID card was filed by the biggest opposition party, the National Democratic Congress (NDC), while the second one seeking the inclusion of the birth certificate was filed by one Mr Mark Takyi-Banson, in his capacity as a Ghanaian.

In a unanimous decision yesterday, a seven-member panel of the apex court, presided over by the Chief Justice, Justice Kwasi Anin Yeboah, also held that no law barred the EC from compiling a new voters register rather the compilation of a new register by the EC was in accordance with the powers granted it under Article 45 of the 1992 Constitution.

Other members

The other members of the panel were Justices Jones Dotse, Paul Baffoe-Bonnie, Nasiru Sule Gbadegbe, Samuel K. Marful-Sau, Nene Amegatcher and Professor Nii Ashie Kotey.
Article 45 spells out the functions of the EC, which includes “(a) to compile the register of voters and revise it at such periods as may be determined by law”.

The court did not present reasons for its decision but ruled on each of the reliefs sought by the two plaintiffs.

The reasons for the dismissal of the suits, the court said, would be filed at the court’s registry by July 15, 2020.

Import of the decision

As a result of the decision, the highest court of the land has directed the EC to commence the voters registration exercise as scheduled. The EC has fixed Tuesday, June 30 to Monday, August 6, 2020, to register citizens for the voters roll.

The court also ordered the EC to conduct the registration exercise in compliance with the Public Elections (Registration of Voters) (Amendment), 2020 (C.I.126), the law regulating the upcoming registration exercise, and Article 42 and Article 45 of the 1992 Constitution.

Per C.I. 126, an existing voter ID card and birth certificate are not part of the identifying documents one needs to present in order to register and be issued with a Voter ID Card during the registration exercise.

Article 42 grants a Ghanaian the right to vote and also the right to register to vote, while Article 45 grants the EC the power to compile a voters register and also review it periodically.

Also, the Supreme Court ordered that any court in the country which is hearing a case challenging the upcoming voters registration exercise must rule on that case based on the decision by the apex court.

This means a suit challenging the upcoming registration exercise filed at the Accra High Court by Mr Ernest Norgbey, the NDC Member of Parliament for Ashaiman, is expected to be dismissed in compliance with the order by the Supreme Court.

Reliefs granted

The Supreme Court in its decision yesterday granted two reliefs (relief two and relief three) out of the eight reliefs sought by the NDC and dismissed the remaining six.

The two reliefs granted by the court were:

Relief two: A declaration that upon a true and proper interpretation of the provisions of the Constitution, specifically article 51 read conjointly with Article 42 of the Constitution, the power of the 2nd Defendant (EC) to compile and review the voters register must be exercised subject to respect for and the protection of the right to vote; Relief three: A declaration that upon a true and proper interpretation of the provisions of the Constitution, particularly Article 42, upon the registration of and issuance of a voter identification card to a person, that person has an accrued right to vote which cannot be divested in an arbitrary and capricious manner.

The apex court held that relief two was granted “subject to the fact that all eligible voters must make themselves available for registration as directed by the EC pursuant to C.I.126.

With regard to relief three, the court held that it was granted “subject to a voter registration card issued to an eligible voter under the prevailing Constitutional Instrument, C.I 126.”

Per C.I. 126, the only means one can register and be issued with a voter ID card during the registration exercise is by presenting a Ghana Card or the Ghanaian passport.

A person without these two documents can, however, still register if two people who have already registered guarantee for him or her.

Reliefs dismissed

The six other reliefs of the NDC dismissed by the Supreme Court included the declaration that an existing voter ID card is valid for “purposes of identifying such persons in the exercise of their right to vote” (relief 4).

Another relief of the NDC dismissed by the court was relief eight, which was “an order directed at the 2nd Defendant (EC) to include all existing voter identification cards duly issued by the 2nd Defendant as one of the documents serving as proof of identification for registration as a voter for the purposes of public elections”.

In dismissing relief eight, the court held that it could not order the EC to do something unless the EC had acted unconstitutionally.

“It is refused and we also reiterate our decision in Abu Ramadan (No.2) where this court held that the Electoral Commission in performing their mandate under Article 45 of the 1992 Constitution cannot be compelled to act in a particular manner unless there is clear evidence that they have acted unconstitutionally,” the court held.

All the six reliefs being sought by Mr Takyi-Banson in his suit were dismissed by the apex court.

Plaintiffs’ case

In their respective suits, the NDC and Mr Takyi-Banson had argued that the EC’s decision which resulted in C.I.126 was unconstitutional because it prevented the use of an existing voter ID card and a birth certificate as source documents to prove one’s eligibility in order to register.

The NDC, in particular, contended that excluding an existing voter ID as a form of identification for the registration would disenfranchise many potential registrants and, therefore, it was unconstitutional, as it violated Article 42 of the 1992 Constitution, which gave a citizen of Ghana the right to vote as well as the right to register to vote.

Court agrees with EC, A-G

In response, the EC and the Attorney-General (A-G) had argued before the court that the existing electoral register was flawed with many defects and the only way to cure those defects was by compiling a new register.

It was the contention of the EC and the A-G that using an existing voter ID card as a form of identification in the upcoming registration exercise would be counterproductive as it would amount to “importing the sins and ills of the old voter registration process”.

The EC and the A-G, therefore, argued that C.I.126 was a means by the EC to have a credible electoral roll and was, therefore, constitutional.

The Supreme Court upheld the position of the EC and A-G when it dismissed relief six of the NDC.

In that relief, the NDC wanted the apex court to declare the EC’s decision to exclude an existing voter ID card as a form of identification for the registration as “arbitrary, capricious” and therefore a violation of Article 296 of 1992 Constitution which barred a body vested with discretionary power from acting arbitrarily and capriciously

However, the court in dismissing that relief, reiterated its position in the Abu Ramadan case and held that it could not force the EC to use a particular means to clean an electoral roll or compile a credible voters register.

“The court continued by re-emphasising the fact that the Electoral Commission, in exercising their discretion in the discharge of their constitutional mandate in cleaning the voters register, should be deemed as authorised to be acting within the law and the regulations therein, and cannot be faulted even if it is considered that there is a more efficient mode or method available,” the court held.

Victory for democracy

In an interview with the Daily Graphic, a Deputy A-G, Mr Godfred Yeboah Dame, who defended the State in the suits, said the decision by the Supreme Court was a victory for democracy.

“I am grateful that the Supreme Court has upheld the position of the Attorney-General,” Mr Dame said.

Writer’s email: emma.hawkson@graphic.com.gh