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AG files legal basis to support EC’s exclusion of existing voter ID cards

Deputy Attorney General Godfred Yeboah Dame sets out his department’s position in defence of the Electoral Commission on voter identity cards

The Attorney General’s Department has filed its legal submissions in support of the Electoral Commission’s decision not to include the existing voters’ identification (ID) card in the list of admissible IDs for the voter registration exercise scheduled to begin at the end of this month.

The AG’s submission, which is signed by the Deputy Attorney General, Godfred Yeboah Dame, urges the Supreme Court to “resolve to consign the sins and ills of previous voter registration exercises undertaken up to 2016 to history, by upholding the 2nd Defendant’s non-inclusion of the old voter identification card as means of establishing entitlement to register to vote”.

The Deputy Attorney General raises five main points in his argument in support of his prayer to the Supreme Court of Ghana to back the Electoral Commission’s decision on ID cards. First, the Attorney General, notes that “the 2nd Defendant (EC) has a duty to deliver credible elections in Ghana”.

“The starting point is that, the exercise of the constitutional power to control all aspects of the process of voter registration, solely vested in the 2nd Defendant by Article 45(a), must be examined in conjunction with the duty to deliver a credible election in Ghana. By the combined effect of Articles 42, 45(a) and (c), 46 and 51 of the constitution, the 2nd Defendant owes a very important duty to the people of Ghana to set up and supervise a process for the conduct of elections, every stage of which is credible and reliable.

“In so doing, the court is respectfully entreated to be mindful of the fact that press of time or convenience does not have to diminish the constitutional obligations of the 2nd Defendant. Convenience or expediency is not a general excuse for the dereliction of duties or ignoring standards expected under the constitution for the delivery of a free and fair election.

Credible process

“The combined effect of Articles 42, 45(a) and (c), 46 and 51 the 2nd Defendant owes an enormous duty to deliver credible elections to the people of Ghana, and is thus clothed with sufficient legal basis to exclude the old voter ID card as a means of identification, if the interests of a credible electoral process so require,” the AG’s statement says.

The second point of the AG is that the second defendant’s discretion under Article 45(a) is not subject to external direction or control. He argued that allied to the constitutional burden placed on the second defendant to conduct credible and sound elections in Ghana, is the extent of autonomy granted it by the constitution in the performance of some of its functions”.

“It is pertinent to note that in exercise of its discretion to determine the kind of instruments it considers necessary to establish one’s identity for the purposes of registration, the 2nd Defendant has in the various constitutional instruments published since 1995, prescribed various means of identification,” the Deputy AG argues.

The third area of concern to the Attorney General is that the plaintiff (NDC) owes a duty to establish unconstitutionality in the process proposed to be embarked upon by second defendant (the EC).

“It is thus the duty of Plaintiff to allege and prove the necessary facts with sufficient clarity,” says the statement, “that is:

i. The alleged inadequacy of ID cards produced by the National Identification Authority (NIA) as instruments of identification in the upcoming voter registration exercise;

ii. the exact number of Ghanaians of voting age who have been registered by the NIA;

iii. the exact number of Ghanaians who are not of voting age but who have been registered out of the total number registered by the NIA;

iv. the number of persons who have passports in Ghana;

v. very materially, how many persons (with proper evidence, not bare assertions), will allegedly be disenfranchised, if all the three (3) means of identification recognised by the proposed constitutional instrument (CI 126) are enforced” the Attorney General’s argument says.

Which card?

The fourth major issue raised by the AG is whether or not there is a valid “existing” voter identification card that can be used for the upcoming voter registration exercise, and if so, which one is this?

“In respect of the submissions urging the Court to uphold the use of the old voter ID card as a means of establishing the identity and eligibility of a Ghanaian to register to vote, the Court will observe that all the plaintiff does is to suggest that the ‘existing’ voter ID cards ought to be allowed in the identification process for registration for a new voter ID card.

“To deny same, the plaintiff contends, will ‘unnecessarily burden cardholders’, is ‘unreasonable, arbitrary and capricious’ and will be a ‘fetter on the right to be registered and to vote’. The plaintiff conspicuously fails to indicate which ‘existing voter ID card’ it alludes to. In our submission, the plaintiff owed a duty to indicate precisely which ‘existing voter ID card’ it seeks to preserve for use in the upcoming voter registration exercise. This is very material, and failure to indicate, fatal.”

The Attorney General’s final argument is that the current voters’ register is flawed and undermines the right to vote. The AG’s Department suggests that the inaccuracy and lack of credibility of the current register of voters, with which the plaintiff herein seems to be very comfortable, were actually admitted by the second defendant in the current case during the 2013 Election Petition hearing.

“It is constitutionally imperative that steps be taken to correct the wrongs associated with the current register of voters through a compilation of a new register in a way that does not provide room for a recurrence of the same wrongs. In our submission, in a constitutional system such as ours, the citizenry should be able to directly elect their President and Members of Parliament in a sound and secure manner.

“If the President and representatives of the people are not voted for in a manner that is credible, the country will head into an abyss for, the election would not have represented the will of the people.

“The will of the people would have been supplanted, and the right to vote under Article 42, imperilled. The will of the people can only be exercised by the eligible voter. It is necessary that the highest court of the land expresses a firm resolve to consign the sins and ills of previous voter registration exercises undertaken up to 2016 to history, by upholding the 2nd Defendant’s non-inclusion of the old voter identification card as means of establishing entitlement to register to vote. This will be the most logical and soundest way of ensuring a register of voters with a greatly reduced risk of importation of the fundamental flaws, defects and irregularities which impede the constitutional functions of the 2nd Defendant under Articles 42 and 45(a) of the constitution,” the Attorney General’s argument concludes.

Download Legal Arguments – NDC v. A-G & EC (1)

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