A seven-member Supreme Court panel, presided over by Chief Justice Anin-Yeboah, has unanimously dismissed the legal action by the National Democratic Congress in the consolidated cases of the National Democratic Congress (NDC) vrs Attorney General and Electoral Commission of Ghana, and Mark Takyi-Banson vrs Electoral Commission of Ghana and Attorney General.
The panel which decided the case included Justices Jones Dotse, Baffoe-Bonnie, Sule Gbadegbe, Samuel Marful-Sau, Nene Amegatcher and Nii Ashie Kotey.
Reliefs sought
The plaintiffs were praying the Supreme Court to declare 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 1st 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 1st Defendant as evidence of identification”.
The sixth relief is “an order directed at 1st 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”.
The NDC reliefs
The National Democratic Congress (NDC), on the other hand, in suit number J1/9/2020, was seeking the following reliefs:
- A declaration that upon a true and proper interpretation of Article 45(a) of the 1992 Constitution, 2nd 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, 2nd 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, specificaly Article 51 read conjointly with Article 42 of the Constitution, the power of the 2nd 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 2d 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 2d Defendant’s purported amendment of Regulation 1 subregulation 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 2nd 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 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 2nd Defendant 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;
- 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, 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.”
The Supreme Court
The Supreme Court, in a summary of its judgment read by the 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 2nd Defendant to compile and review the voters’ register must be exerised 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 voters’ registration exercise are banned.
The court announced that the full complement for the law lords’ judgment will be ready at the registry of the Supreme Court on or before 15 July 2020.
Click here to read the full ruling.
Wilberforce Asare
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