A nine-member Supreme Court review panel presided over by the Chief Justice, Kwasi Anin-Yeboah, has dismissed an application by the National Democratic Congress, seeking a review of the 15 July 2020 judgment by the Supreme Court which refused a request by the NDC asking the court to order the Electoral Commission to accept existing voter identity cards as proof of citizenship in the ongoing voter registration exercise.
The NDC filed its review motion on 24 July 2020. The party subsequently filed an application for abridgment of time to hear the case today.
When the case came up for hearing today, the Supreme Court granted the abridgment of time application and asked the lawyer for the NDC, Tsatsu Tsikata, to move the application for his clients. However, Tsikata said that the Attorney General’s Department, represented by the Deputy Attorney General Godfred Yeboah Dame and the lawyer representing the Electoral Commission, Justin Amenuvor, had only just served him with their statements in opposition. These were filed just yesterday, 29 July 2020, and, as such, he was unable to move his application because he needed time to read through their submissions, he said.
The Deputy Attorney General and lawyer for the EC both argued after Tsikata’s submission that the Supreme Court ought to dismiss the application for review because the applicant (the NDC) was running away from its own application. They added that the rules governing the Supreme Court do not support the applicant’s argument.
After consultation between members of the Supreme Court panel, Chief Justice Anin-Yeboah ruled that the NDC’s review application was without merit and so dismissed it.
Background
In the substantive case which necessitated the NDC’s review application, the plaintiffs were praying the Supreme Court to declare as unconstitutional the EC’s decision not to admit the existing voter identification card as a valid document during the voter registration exercise due to start on 30 June 2020.
The applicant, in suit number J1/12/2020 (Takyi-Banson), was seeking “a declaration that upon a true and proper interpretation of Article 45(a) of the 1992 Constitution of the Republic of Ghana the Electoral Commission’s constitutional and statutory mandate to compile the register of voters for the conduct and supervision of all public elections and referenda is spent saving only the power reserved in the Commission to revise and expand the register of voters at such periods as may be determined by law”.
Second, the parties were seeking “a declaration that the Electoral Commission’s decision to compile a new register of voters is inconsistent with and a violation of Article 45(a) of the 1992 Constitution of the Republic of Ghana”.
The third was “a declaration that Regulation 1(3) of the Public Elections (Registration of Voters) (Amendment) Regulations 2020 (CI 126) is inconsistent with and violates the provisions of Articles 42 and 45(e) of the 1992 Constitution to the extent that it excludes birth certificates issued to Ghanaians as a mode of identification and/or establishing qualification to be registered in the register of voters”.
The fourth relief was “a declaration that Regulation 1(3) of the Public Elections (Registration of Voters) (Amendment) Regulations 2020 (CI 126) is inconsistent with and violates the provisions of Articles 42 and 45(e) of the 1992 Constitution to the extent that it excludes the existing voter identification card as a mode of identification and/or establishing qualification to be registered in the register of voters”.
Fifth, the applicants beseeched the Supreme Court for “an order directed at First Defendant to include under Regulation 1(3) of the Public Elections (Registration of Voters) (Amendment) Regulations 2020 (CI 126) the existing voter identification card as issued by First Defendant as evidence of identification”.
The sixth relief was “an order directed at First Defendant to include under Regulation 1(3) of the Public Elections (Registration of Voters) (Amendment) Regulations 2020 (CI 126) a birth certificate as evidence of identification” and, lastly, “any other order or orders as to this Honourable Court may deem fit”.
NDC’s demands
The National Democratic Congress, on the other hand, was seeking the following reliefs in suit number J1/9/2020:
- A declaration that upon a true and proper interpretation of Article 45(a) of the 1992 Constitution, Second Defendant has the constitutional power to, and can, compile a register of voters only once, and thereafter revise it periodically, as may be determined by law. Accordingly, Second Defendant can only revise the existing register of voters, and lacks the power to prepare a fresh register of voters, for the conduct of the December 2020 presidential and parliamentary elections.
Alternatively, the party wanted:
- 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 Second Defendant to compile and review the voters’ register must be exercised subject to respect for and the protection of the right to vote;
- 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;
- A declaration that, upon a true and proper interpretation of the provisions of the Constitution, particularly Article 42 of the Constitution, all existing voter identification cards duly issued by the Second Defendant to registered voters are valid for purposes of identifying such persons in the exercise of their right to vote;
- A declaration that upon a true and proper interpretation of the Constitution, specifically Article 42, the Second Defendant’s purported amendment of Regulation 1 sub-regulation 3 of the Public Elections (Registration of Voters) Regulations 2016 (CI 91) through the Public Elections (Registration of Voters) (Amendment) Regulations 2020 to exclude existing voter identification cards as proof of identification to enable a person apply for registration as a voter is unconstitutional, null and void and of no effect whatsoever;
- A declaration that the Second Defendant, in purporting to exercise its powers pursuant to Article 51 of the 1992 Constitution to exclude the existing voter identification cards from the documents required as proof of identification to enable a person to register as a voter without any justification is arbitrary, capricious, unreasonable and contrary to Article 296 of the 1992 Constitution;
- A declaration that upon a true and proper interpretation of the Constitution specifically Article 42 of the 1992 Constitution, proof of identification for registration as a voter should not be limited by the provisions of Public Elections (Registration of Voters (Amendment) 2 Regulations 2020;
- An order directed at the Second Defendant to include all existing voter identification cards duly issued by the Second Defendant as one of the documents serving as proof of identification for registration as a voter for the purposes of public elections;
- Any other order or orders as this Honourable Court would deem fit in the circumstances.
The AG’s and EC’s defence
The defendants in the case – the Electoral Commission and Attorney General – opposed the application by the plaintiffs – the NDC and Mark Takyi-Banson.
The Attorney General argued that the Electoral Commission has the power to compile a new register of voters at such periods as may be prescribed by law.
“The claim that the power to compile a new register of voters is exercisable only once is outrageous, unreasonable and absurd,” said the AG in the department’s statement of case to the Supreme Court dated 23 June 2020.
The EC and AG argued that the “current register of voters is overbloated and not fit for purpose”.
“Statistics relating to the population of Ghana in 2012 and 2016,” the AG said, “overwhelmingly support the proposition that the total numbers of registered voters recorded for those elections are most incredulous and inconceivable.
“The official population projections across all districts in Ghana as at June 2020 rather render dubious and doubtful a contention that the current register of voters in Ghana is supposed to validly contain about 18 million names.
“Consequently, the right to vote is seriously impaired by the existence of an overbloated register of voters,” the defendants said.
Furthermore, they said, “The three means of identification of an applicant for registration as a voter prescribed by CI 126 are most viable and potent to be deployed as means of registering the number of potential voters projected to be registered by the EC in the voter registration exercise billed to take place from 30th June, 2020.
“The use of voter ID cards issued in registration exercises subject to irregularities occasioned by regulations which either did not comply with the constitutional safeguards of proof of eligibility, or regulations whose application was gravely compromised by the EC, will neither reasonably improve the credibility of the current register of voters nor protect the right to vote,” the defendants also said.
Birth certificates
The final point of disagreement between the AG/EC and the applicants had to do with the plaintiffs’ demand for the EC to admit birth certificates as a valid document for the new voter registration exercise, which was due to commence on 30 June 2020.
“The use of birth certificates under the current circumstances, where the authenticity of birth certificates and accuracy of information contained therein cannot reasonably be vouched for, will gravely endanger a due protection of the right to vote,” said the defendants in their statement, in opposition to the application by the plaintiffs.
“The exclusion of the birth certificate and existing voter ID card does not imperil the right to vote. Regulation 1(3) of CI 126 is consistent with Articles 42 and 45(e) of the Constitution as it assures that only Ghanaians of full age and sound mind register to vote.”
Supreme Court
The Supreme Court, in a summary of its judgment read by Chief Justice Kwasi Anin-Yeboah, dismissed all the reliefs sought by the applicants except reliefs two and three of suit number J1/9/2020 (the NDC versus AG & EC).
The reliefs are “2. 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 Second Defendant to compile and review the voters’ register must be exercised subject to respect for and the protection of the right to vote” and “3. 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 Supreme Court further ordered that the Electoral Commission should proceed with the registration exercise as planned, subject to the provisions of Constitutional Instrument (CI) 126.
The court also determined that all other cases pending at any other court regarding the Electoral Commission and the new voter registration exercise are banned.
The court announced that the full complement for the law lords’ judgment will be ready for consultation at the registry of the Supreme Court on or before 15 July 2020.
Wilberforce Asare / Asaase Radio
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